Statistical data: 1 January 1997 - 30 April 1997

Number of decisions:
4 final decisions including:
• 3 rulings concerning the compliance of laws with the Constitution;
• 2 rulings concerning the compliance of governmental resolutions with the laws;
All cases - ex post facto review and abstract review. The content of the cases was the following;
• damage compensation: 1
• advertising: 1
• pensions: 1
• confiscation: 1
All final decisions of the Constitutional Court were published in the \/a/srybes zinios (Official Gazette).

Important decisions

Identification: LTU-1997-1 -001
a) Lithuania / b) Constitutional Court / c) / d) 20.01.1997 / e) 14/96 / f) On Damage Compensation / g) Valstybes zinios (Official Gazette), 7-130 of 24.01.1997 / h).

Keywords of the systematic thesaurus:
Constitutional Justice - The subject of review - Rules issued by the executive.
General Principles - Separation of powers.
Institutions - Economic duties of the State.
Fundamental Rights - Economic, social and cultural rights - Right to social security.

Keywords of the alphabetical index: Damage compensation / Salary, minimal monthly.

Headnotes:
The necessity to compensate material and moral damage inflicted on a person is a constitutional principle. When implementing this constitutional principle, one must attempt to ensure that the persons who suffered material or moral damage are compensated for it. This must also be considered at the legislative stage.
Article 30.2 of the Constitution clearly indicates the form of legal act whereby compensation for material and moral damage must be regulated. By establishing the form the legal regulation must take, an attempt is made to create fixed legal preconditions to secure the rights and legitimate interests of persons who have been crippled or whose health has otherwise been harmed.
The following conclusions are to be drawn from an analysis of the law:
1. the amount of compensation depends on the wage received prior to injury at work;
2. the amount of the damage in monetary terms is that portion of income which corresponds to the percentage of working capacity lost;
3. the damage is compensated to the person who suffered injuries so that the damage incurred does not exceed the sum of the benefit received or the pension designated and actually received;
4. if the income of an employee who incurs damage was less than the minimum remuneration established by the State prior to the injury, the compensation is calculated according to the minimum wage established by the State. The said provisions concerning damage compensation may only be consolidated or changed by law.

Summary:
The case was initiated by a local court which investigated a civil case concerning damage compensation on the grounds of harm to health. By an interlocutory ruling, the said court suspended the investigation of the case and appealed to the Constitutional Court with the request to investigate Item 3.1 of Government Resolution no. 1004 "On increase of minimal remuneration for work", 23 August 1996, is in compliance with the Constitution and the laws of Lithuania.
The disputed Government Resolution provides that the compensation awarded to persons who suffered injury when at work may not be less than the proportion of the sum of 420 Lt which corresponds to the percentage of loss of professional working capacity.
The petitioner alleges that the Constitution and the laws establish that compensation for material damage due to injury to health when at work may be regulated only by law. In the opinion of the petitioner, the Government is entitled to index constant payments (grants, wages, pensions, social benefits) but it has no right to change the amount of the damage which is to be compensated.
The Constitutional Court ruled that the Government, by establishing the minimum compensation to be awarded to persons for injury to health at work by Item 3.1 of its 23 August 1996 Resolution "On increase of minimal remuneration for work", changed the provisions of material damage compensation which are established by law and thereby encroached into the sphere regulated by the legislator. Therefore Item 3.1 of the said Government Resolution contravenes the Constitution and laws of Lithuania.

Languages: Lithuanian, English (translation by the Court).

Identification: LTU-1997-1 -002
a) Lithuania / b) Constitutional Court / c) / d) 13.02.1997 / e) 6/96,10/96 / f) On advertising for alcohol and tobacco / g) Valstybes zinios (Official Gazette), 15-314 of 19.02.1997/h).

Keywords of the systematic thesaurus:
Sources of Constitutional Law - Categories – Written rules - European Convention on Human Rights.
General Principles - Legality.
Institutions - Executive bodies - Application of laws - Delegated rule-making powers.
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - General questions – Basic principles - Equality and non-discrimination.
Fundamental Rights - Civil and political rights – Right to information.

Keywords of the alphabetical index: Advertising / Alcohol / Information / Tobacco products.

Headnotes:
Although advertisement is information, not all information is advertisement. Thus the ban on the advertisement of alcohol and tobacco products only prohibits a certain type of information (the supposed commercial, or marketing, information) which, when seen against the whole spectrum of information, may be assessed as a mere restriction of and does not constitute a breach of the freedom of information.
The ban on advertisement for tobacco products and alcohol alone may not be treated as discrimination, because such a ban concerns the whole of society and not particular groups of people. On the other hand, such a ban strives, in the public interest, to protect young people from psychological pressure to smoke or consume alcoholic beverage, to stop the spread of smoking and drinking among women, to protect consumers from generally biased and incomplete information, to affirm the view that the consumption of tobacco products and alcoholic beverages is harmful to public health. These purposes go hand in hand with the tasks stressed by the World Health Organisation in the sphere of public and human health.

Summary:
The petitioner - a group of the Seimas members and the Seimas as a whole - applied to the Constitutional Court requesting it to investigate whether Articles 1 and 30 of the Law on Alcohol Control of the Republic of Lithuania, Articles 1, 3 and 11 of the Law on Tobacco Control of the Republic of Lithuania as well as the Government Resolution no. 179 "On the Control of Advertising for Alcohol", 2 February 1996, are in compliance with the Constitution.
The petitioners allege that the disputed norms prohibit advertisement for alcohol beverages and tobacco products in Lithuania. This raises the question whether the legal acts listed above are in compliance with Article 25 of the Constitution which provides that individuals shall have the right to hold their own convictions and express them freely; individuals must not be hindered from seeking, obtaining, or disseminating information or ideas; freedom to express convictions, as well as to obtain and disseminate information, may not be restricted in any way other than established by law, when it is necessary for the safeguard of the health, honour and dignity, private life or morals of a person, or for the protection of constitutional order.
The Constitutional Court holds that the question of legitimacy of the ban on advertising of alcoholic beverages and tobacco may only be resolved in the wider context, by examining the concept of freedom of information as well as the possibility of restricting this freedom. At the same time, it is necessary to elucidate the reciprocity between information and advertising and the possible consequences of the consumption of alcohol and tobacco for human and public health.
According to the European Convention for the Protection of Human Rights and Fundamental Freedoms and the established practice of the European Court of Human Rights, rights and freedoms of individuals may be restricted if the restriction meets two conditions: 1) it is legitimate, and 2) it is indispensable in a democratic society. The requirement of legitimacy means that restrictions may only be effected by publicly proclaimed law; the norms of the law shall be formulated with sufficient clarity. When defining the limits of the implementation of laws, it is necessary to consider the purpose and meaning of a corresponding right (or freedom) and the possibilities for and conditions of its restriction set out in the Constitution. When considering the question whether a concrete restriction is indis-pensable in a democratic society, the first step is to ascertain the aims and purpose of the restriction, and the second is to find out whether the means of the restriction are proportionate to the legitimate aim.
Since alcoholic beverages and tobacco products belong to the group of materials the consumption of which is undoubtedly harmful to human health, under Article 25.3 of the Constitution, the legislator was entitled to restrict information regarding alcoholic beverages and tobacco products. The laws in question, in essence, constitute a restriction of commercial information concerning alcoholic beverages and tobacco products in the form of the prohibition of advertising of alcoholic beverages and tobacco products, and promoting their sale and consumption. Thus the petitioner's allegation that the laws prohibit any information concerning alcoholic beverages and tobacco products is not supported by fact.
The Constitutional Court ruled that the restrictions on advertising of alcoholic beverages and tobacco products in the laws in question are in compliance with the Constitution. However, the definitions of indirect advertisement for alcohol and tobacco products, as well as the delegation of the right to restrict advertising for alcohol and tobacco products to the Government and the relevant part of the Government Resolution contravenes the Constitution.

Languages: Lithuanian, English (translation by the Court).

Identification: LTU-1997-1 -003
a) Lithuania / b) Constitutional Court / c) / d) 12.03.1997 / e) 5/96 / f) On social insurance pensions / g) Valstybes zinios (Official Gazette), 23-546 of 15.03.1997 / h).

Keywords of the systematic thesaurus:
Constitutional Justice - The subject of review – Rules issued by the executive.
Institutions - Economic duties of the State.
Fundamental Rights - Economic, social and cultural rights - Right to social security.
Fundamental Rights - Economic, social and cultural rights - Right to a sufficient standard of living.

Keywords of the alphabetical index: Pensions / State Social Insurance.

Headnotes:
The constitutional provisions which guarantee citizens the right to social maintenance oblige the state to establish sufficient measures to implement and protect that right. By their work, insured employees create material preconditions for social insurance. The main portion of the budget of the Social Insurance Fund is comprised of deductions from calculated remuneration for work. On the other hand, the purpose of social insurance is to provide these persons with finance and services necessary for living if, for reasons set out under the law, they are unable to subsist on their income or they have additional expenditures. Therefore the social insurance system established by legal norms only has meaning if it affords effective enjoyment of the constitutional right to social maintenance under the aforesaid conditions.
In order to implement the right of a person who is insured on a compulsory basis, one may not interpret the period of state social insurance and the person's period of state social pensions insurance on the basis of whether the employer or institutions of social insurance fulfilled their duties properly or not. If the insured person's period of state social pension insurance were interpreted in such a way, the essence of the right to social maintenance provided for in the Constitution would be denied.

Summary:
A city district court applied to the Constitutional Court with the request to investigate whether Article 5 of the Law on State Social Insurance, Article 8.2.1 of the Law on State Social Insurance Pensions, and some norms of Government Resolution no. 142 of 26 January 1996, are in compliance with the Constitution. The petitioner alleges that the norms in question establish whether or not the period for which the employer has not paid insurance contributions may be calculated into the period under which pension payments are received by persons who are insured by the compulsory social insurance of the State. Therefore, Article 5 of the Law on State Social Insurance and Article 8.2.1 of the Law on State Social Insurance Pensions violate these persons' rights when they associate the period of state social pension insurance with the payment of insurance contributions. The petitioner doubts whether these norms are in compliance with Article 52 of the Constitution, which provides that the State shall guarantee the right of citizens to old age and disability pension, as well as to social assistance in the event of unemployment, loss of spouse, loss of income earner, and other cases provided by law.
The Constitutional Court noted that the legal norms in question are of mandatory character. The institutions that monitor the provision of insurance must take all measures available under the law to ensure that the employer, who is an insurance payer, fulfils his or her duty to assess and pay contributions payable for employees into the State Social Insurance Fund. Non payment of state social insurance contributions constitutes a violation of the law. The insured persons should not suffer from performance or non-performance by the employer or other institutions responsible for insurance. The existing legal mechanisms established for the realisation of constitutional rights would otherwise fail to serve its purpose.
Furthermore, the Constitutional Court emphasised that in the granting of pensions to a person insured on a compulsory basis, that person's insurance period is understood as a certain time period during which the person either pays contributions themselves or they are paid for them, i.e. the time period during which a person generates wealth, as well as the means of social insurance through his or her work. Therefore the length of a person's period of state social pension insurance may not be associated with or dependent upon the fact whether the employer actually paid the finances prescribed by the law. This interpretation of the period of social insurance and a person's period of state social insurance is in conformity with the essence of the system of social insurance relations guaranteed by the Constitu-tion, and ensures the implementation of rights for persons who are insured on a compulsory basis in the sphere of social insurance. By this interpretation of the period of social insurance and the period of state social pension insurance of persons who are insured on a compulsory basis, the conclusion must be drawn that Article 5 of the Law on State Social Insurance and Article 8.2.1 of the Law on State Social Insurance Pensions are in compliance with the Constitution.
The Government Resolution in question was recognised as contrary to the Constitution and law of Lithuania.

Languages: Lithuanian, English (translation by the Court).

Identification: LTU-1997-1 -004
a) Lithuania / b) Constitutional Court / c) / d) 08.04.1997/ e) 12/96, 5/97 / f) Confiscation of smuggled items / g) Valstybes zinios (Official Gazette), 31 -770 of 11.04.1997 /h).

Keywords of the systematic thesaurus:
Sources of Constitutional Law - Categories - Written rules - European Convention on Human Rights.
Fundamental Rights - Civil and political rights - Right to property.

Keywords of the alphabetical index: Administrative penalty / Confiscation / Property / Smuggling.

Headnotes:
The principle of the inviolability of property entrenched in Article 23.1 of the Constitution provides for the right of the owner, as the possessor of subjective rights to property, to demand that other persons, including the State, do not violate his/her ownership rights. Furthermore, this norm imposes a duty on the State to safeguard and protect property from unlawful encroach-ment upon it. This reading of Article 23.1 of the Constitution indicates that this norm should ensure that the property belonging to the owner will be afforded extensive protection, i.e. by legal means. At the same time, this norm does not give grounds to a claim that the Constitution affords absolute protection of property. Absolute ownership rights are liable to cause conflicts, such as with competing property interests of other persons. One way to solve these conflicts is to place appropriate restrictions or restraints on ownership rights.
The protection of ownership rights by law, provided for in Article 23.2 of the Constitution establishes that property relations are the matter of legal regulation. In order to protect property, a system of laws must also be created to ensure the protection of the range of property relations and the possibility for the efficient use of property the owner's interests as well as those of society. This essentially entails the coordination of legal norms aimed at the protection of property and the elimination of existing or prospective contradictions in the protection of ownership rights.
Various sanctions, including proprietary ones, may be imposed for the transgressions, eg. a fine or a confisca-tion of property. A fine, as well as a confiscation of property, is the seizure of property from the transgressor and its conversion into state property as a result of his/her transgression of law. Therefore, the protection of property of the transgressor is limited by sanction. Such a limiting provision may be derived from the Constitution, as well as from international legal acts which have been ratified by Lithuania and which are a constituent part of its legal system, such as Article 1 Protocol 1 ECHR, which establishes that States shall have the right to enforce such law as they deem necessary to control the use of property in accordance with public interests or to secure the payment of taxes or other contributions or penalties.
One of the elements restricting property rights is the prohibition against the use of property in a way inflicting harm on other persons or on society in general. This prohibition applies irrespective of the fact whether the owner himself/herself manages, uses and disposes of his/her property, or whether it has been transferred to other persons for its management or use.

Summary:
The case was initiated by two local courts requesting the Constitutional Court to investigate whether Article 26.1 of the Code of Administrative Transgressions of Law (CATL) was in compliance with the Constitution. The second sentence of Article 26.1 stipulates that "Only an item which is the property of a transgressor shall be subject to confiscation unless the item was either an immediate instrument or an immediate object of the administrative transgression of the law as provided for by Article 210 of this Code". In the opinion of the petitioners, this violates Article 23.1 of the Constitution, which provides for the inviolability of Article 23.2, which provides for the legal protection of ownership rights, as well as Article 23.3, which provides that "property may only be seized for the needs of society according to established legal procedure and must be adequately compensated". This amendment of the law violates the ownership rights of other persons who have not committed administrative transgressions of law. The provision in question also contradicts the objectives of administrative penalty defined in Article 20 of the CATL.
The petitioners are of the opinion that the CATL sets out the requirement that a person may only be penalised where he or she is guilty of having (deliberately or negligently) performed an act resulting in the violation of interests protected by law. However, Article 26.1 of the CATL provides grounds for penalise person who is innocent but not the one who committed a transgression of law.
The Constitutional Court has noted that the smuggling of goods, currencies and other items into or out of the country inflict great damage on Lithuania's economy and system of finance as smugglers thereby evade duty taxes by illegally importing and exporting goods. Thus they illegally compete with goods manufactured in Lithuania or legally imported from abroad. If one considers illegally imported weapons, gas pistols, psychotropic substances, goods of poor quality, etc., danger may arise for public health in Lithuania. The illegal exportation of national currency may also lead to irreparable harm to national culture or economy. Thus smuggling is one of the most dangerous transgressions of administrative law. This transgression causes damage not only to the economic interests of the country into which the goods are imported, but often also to those of the country from which they are exported. Thus virtually all states have an interest stopping to smuggling in the most efficient way. For this reason, States generally impose stringent property sanctions for smuggling offences and also employ other financial and economic measures in order to prevent such offences.
A person who transports smuggled goods belonging either to himself/herself or to another person, deliberately transgresses Lithuanian duty law and thereby causes danger to the system of economy and finance of Lithuania, or to the health or even life of its people, i.e. he or she uses them as an object of transgression of law as provided for by Article 210 of the CATL. Illegally imported goods are serious danger to public and state interests irrespective of the fact whether they belonged to the person who was transporting them or to other persons. Therefore, one may conclude that the legislator has established an essentially adequate complementary penalty - i.e. the confiscation of the object of smuggling - for the said transgression of administrative law.
The Constitutional Court notes that laws have also been passed in foreign countries, allowing third party property to be confiscated where it has been used during the commission of a crime or transgression of law. In some countries the law also provides for an opportunity to confiscate not the item itself but a sum of money equivalent in value from the immediate offender. At the same time, the attempt is made for laws providing for confiscation of property in connection with an offence not in value to violate the property rights of the offender or third party without good reason. Where the question arises whether such a sanction shall apply to an offender, the law allows consideration of the danger posed by the transgression, as well as the indirect culpability of the third party in complicity of the offence. In exceptional cases, it provides for an opportunity to confiscate only part of the property, or not to confiscate it at all.
The Constitutional Court finds that the disputed provision of the CATL is in compliance with the Constitution.

Languages: Lithuanian, English (translation by the Court).