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On the reimbursement of lawyer’s fees for a person who has not committed a violation of law

Anonymised

Case no 10-A/2020

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
IN THE NAME OF THE REPUBLIC OF LITHUANIA

RULING
ON THE COMPLIANCE OF ARTICLE 3021 OF THE CODE OF ADMINISTRATIVE VIOLATIONS OF LAW OF THE REPUBLIC OF LITHUANIA AND ARTICLE 106 OF THE CODE OF CRIMINAL PROCEDURE OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

19 March 2021, no KT45-A-N3/2021
Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Gintaras Goda, Vytautas Greičius, Danutė Jočienė, Giedrė Lastauskienė, Algis Norkūnas, Daiva Petrylaitė, and Dainius Žalimas

The court reporter – Vaiva Matuizaitė

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1 and 531 of the Law on the Constitutional Court of the Republic of Lithuania, at the hearing before the Constitutional Court on 12 March 2021, considered, under written procedure, constitutional justice case no 10-A/2020 following petition no 1A-54/2020 of the petitioner [data not made public] requesting an investigation into whether Article 3021 (wording of 18 November 2010) of the Code of Administrative Violations of Law of the Republic of Lithuania, insofar as it did not provide that a person with regard to whom a court decision to discontinue a case on an administrative violation of law had been adopted in the absence of the event or body of a violation had the right to compensation for litigation costs, was in conflict with Article 30 and paragraph 6 of Article 31 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

The Constitutional Court

has established:

I

The circumstances of the petition and the arguments of the petitioner

1. By its ruling of 7 November 2016, the District Court of Vilnius City, discontinued a case against the petitioner regarding an administrative violation of law in the absence of the event and body of a violation. By that ruling, the District Court of Vilnius City also left the application of the petitioner unexamined regarding compensation for costs incurred for the assistance of a lawyer and an expert examination, having held that the Code of Administrative Violations of Law of the Republic of Lithuania (Lietuvos Respublikos administracinių teisės pažeidimų kodeksas, hereinafter also referred to as the ATPK) did not provide for the possibility that a person held administratively liable be compensated for (be awarded by a court) costs incurred as a result of the consideration of a case on an administrative violation of law.

By its decision of 24 October 2017, the Vilnius Regional Administrative Court rejected the complaint of the petitioner regarding compensation for the pecuniary losses (costs of a lawyer and expert examination) and non-pecuniary losses incurred as a result of the consideration of a case on an administrative violation of law, as the court did not find unlawful actions by the police officials of the Vilnius County Police Headquarters in drawing up a report on an administrative violation of law. The Supreme Administrative Court of Lithuania, by its order of 29 October 2019, which is final and not subject to appeal, upheld the decision of the Vilnius Regional Administrative Court of 24 October 2017.

2. The petitioner applied to the Constitutional Court requesting it to investigate the constitutionality of the legal regulation, laid down in the ATPK, according to which a person with regard to whom a case on an administrative violation of law had been discontinued in the absence of the event or body of an administrative violation of law was unable to obtain compensation for litigation costs.

3. The petition is based on the following arguments.

3.1. According to the petitioner, even where the fault of a person held administratively liable is not established and the case on an administrative violation of law is discontinued in the absence of the event or body of an administrative violation of law, that person incurs losses, which may exceed the imposed administrative penalty, disputed by that person before the court, and which are not compensated if the unlawful actions of public officials are not proved. According to the petitioner, given that the incurred litigation costs will not be compensated even where the fault of a person held administratively liable is not established, the right to effective judicial protection, consolidated in paragraph 1 of Article 30 of the Constitution, as well as the right of access to a lawyer, consolidated in paragraph 6 of Article 31 of the Constitution, is limited where the person concerned does not have sufficient means to hire a lawyer or has calculated that the consideration of a case on an administrative violation of law will cost more than the penalty imposed; in addition, the constitutional principle of a state under the rule of law is also violated.

3.2. As maintained by the petitioner, under the Constitution, inter alia, paragraph 2 of Article 30 thereof, the necessity of compensating for the material and moral damage caused to a person is a constitutional principle, which is inseparable from the constitutional principle of justice, according to which laws must provide all the necessary legal preconditions for fair compensation for the damage caused. According to the petitioner, the Constitution does not contain exceptions under which the material and/or moral damage caused to a person would not be compensated. However, under the impugned legal regulation, a person having proved his/her innocence in proceedings on an administrative violation of law was not compensated for the incurred losses if the unlawful actions of state officials were not established.

II

The arguments of the representatives of the party concerned

4. In the course of the preparation of the case for the hearing of the Constitutional Court, written explanations were received from the representatives of the Seimas of the Republic of Lithuania, the party concerned: Stasys Šedbaras, a member of the Seimas, Simonas Mikšys, a chief specialist at the Public Law Unit of the Legal Department of the Office of the Seimas, and Dainius Zebleckis, a senior adviser at the Private Law Unit of the same department; it is maintained in the explanations that Article 3021 (wording of 18 November 2010) of the ATPK was not in conflict with the Constitution.

The position of the representatives of the party concerned is based on the following arguments.

4.1. The representatives of the party concerned indicate that, in the practice of administrative courts, litigation costs that arise as a result of the unlawful actions of state officials and are incurred in proceedings on an administrative violation of law are compensated in accordance with Article 6.271 of the Civil Code of the Republic of Lithuania (Lietuvos Respublikos civilinis kodeksas, hereinafter referred to as the CC). In this way, the implementation of the constitutional imperative that compensation for damage inflicted as a result of unlawful actions is one of the main remedies for the protection of violated rights and freedoms is ensured. Therefore, the mere fact that compensation for litigation costs as a result of the unlawful actions of state officials was not explicitly regulated in Article 3021 (wording of 18 November 2010) of the ATPK does not in itself mean that such a legal regulation was in conflict with the Constitution.

If unlawful actions by state officials are not established, in cases on administrative violations of law, persons with regard to whom a court decision has been adopted to discontinue a case on an administrative violation of law would be compensated for litigation costs, under Article 6.246 of the CC as damage caused by the lawful actions of officials, only if this were provided for in a law. Such compensation for damage caused by the lawful actions of officials was not provided for in the impugned Article 3021 (wording of 18 November 2010) of the ATPK.

4.2. According to the representatives of the party concerned, the legal regulation whereby a person would be compensated for litigation costs in proceedings on administrative violations of law even where no unlawful actions by state officials were established would have imposed a considerable financial burden on the state and would, therefore, have disproportionately limited the possibility of implementing the constitutional duty to effectively deal with administrative violations of law, identify guilty persons, and bring them to administrative liability. In the opinion of the representatives of the party concerned, the aim of ensuring the security of the whole society is much more important than the interest of individual persons to obtain compensation for litigation costs in proceedings on administrative violations of law. Since, according to the representatives of the party concerned, the Constitution gives rise to the imperative to compensate for damage caused by the unlawful actions of state officials, the legislature has the discretion to choose how to deal with the issue concerning compensation for the litigation costs of a person held administratively liable where unlawful actions by state officials are not established, i.e. whether such costs should be compensated for at all and, if they should, then how much.

The Constitutional Court

holds that:

I

The impugned and related legal regulation

5. The petitioner requests an investigation into whether Article 3021 (wording of 18 November 2010) of the ATPK was in conflict with the Constitution, insofar as it did not provide that a person with regard to whom a court decision to discontinue a case on an administrative violation of law had been adopted in the absence of the event or body of a violation had the right to compensation for litigation costs.

6. Article 3021 “The consequences of the annulment of a decision where a case on an administrative violation of law is discontinued” (wording of 18 November 2010) of the ATPK prescribed:

“If a court has annulled a decision of a body (official) in a case on an administrative violation of law and has discontinued the case, the sums of money recovered shall be repaid, the items taken for a consideration and those confiscated shall be returned, as well as other limitations related to the previously adopted decision shall be lifted. Where the item cannot be returned, the value of the item shall be reimbursed.

The losses caused to a citizen by an unlawfully imposed administrative arrest shall be compensated in accordance with the procedure laid down in laws.”

6.1. It should be noted from the aspect relevant to this constitutional justice case that, under Article 250 “The circumstances making proceedings on an administrative violation of law impossible” (as amended on 26 May 1992) of the ATPK, proceedings on an administrative violation of law could not be instituted and the instituted proceedings had to be discontinued where, inter alia, the event and body of an administrative violation of law had not been established (point 1).

6.2. Thus, the impugned Article 3021 (wording of 18 November 2010) of the ATPK established an exhaustive list of issues that had to be resolved upon the decision of a court to discontinue a case on an administrative violation of law, inter alia, where, under point 1 of Article 250 (as amended on 26 May 1992) of the ATPK, the event and body of an administrative violation of law had not been established: under paragraph 1 of Article 3021 (wording of 18 November 2010) of the ATPK, the sums of money recovered were to be repaid, the items taken for a consideration and those confiscated were to be returned or the value of the confiscated item were to be reimbursed where the item could not be returned, as well as other limitations related to the decision annulled by the court were to be lifted, if a case on an administrative violation of law had been discontinued with regard to the person concerned; paragraph 2 of the said article regulates compensation for losses incurred as a result of an unlawfully imposed administrative arrest.

From the aspect impugned by the petitioner, it should be noted that Article 3021 (wording of 18 November 2010) of the ATPK did not provide that, upon the decision of a court to discontinue a case on an administrative violation of law, inter alia, where the event or body of an administrative violation of law had not been established, the costs incurred by the person as a result of the consideration of the case in the court, inter alia, the fees of a lawyer, were to be compensated.

6.3. It should also be mentioned from the aspect relevant to this constitutional justice case that proceedings on administrative violations of law were regulated by Chapter 4 of the ATPK, which comprised, inter alia, the consideration of cases on administrative violations of law (Section 21), the types of decisions in cases on administrative violations of law and their content (Section 22), the lodging of complaints against decisions adopted by officials with the court of first instance (Section 23) and the court of appeal instance (Section 231), as well as the reopening of cases on administrative violations of law (Section 232), but neither this nor other chapters of the ATPK (provisions thereof) provided that, upon the decision of a court to discontinue a case on an administrative violation of law, inter alia, where the event or body of an administrative violation of law had not been established, a person with regard to whom a case on an administrative violation of law had been discontinued was to be compensated for the costs, inter alia, the fees of a lawyer, incurred as a result of the consideration of the case in the court.

6.4. It should also be mentioned from the aspect relevant to this constitutional justice case that, in the decisions and orders of the Supreme Administrative Court of Lithuania, which forms the uniform case law of administrative courts in the interpretation and application of laws and other legal acts, it is noted that the ATPK did not contain any provisions based on which litigation costs incurred by the parties to a case on an administrative violation of law could be compensated (inter alia, the decision of 27 May 2020 in administrative case no eA-3145-575/2020). In the case law of the Supreme Administrative Court of Lithuania, it is also held that compensation for representation costs in cases on an administrative violation of law is not provided for with regard to a person held administratively liable, although that person has the right to make use of the legal assistance of a lawyer (order of 9 January 2018 in administrative case no A-5215-261/2017).

7. On 25 June 2015, the Seimas adopted the Law on the Approval, Entry into Force, and Procedure for the Implementation of the Code of Administrative Offences of the Republic of Lithuania, whereby the Seimas approved the Code of Administrative Offences of the Republic of Lithuania (Lietuvos Respublikos administracinių nusižengimų kodeksas, hereinafter referred to as the ANK), which entered into force on 1 January 2017. Under Article 7 of the said law, upon the entry into force of the ANK, the ATPK, with all its amendments and supplements, became no longer valid.

7.1. The legal regulation laid down in Article 643 “The consequences of the annulment of a decision where a case on an administrative offence is discontinued” of the ANK is analogous to the legal regulation impugned by the petitioner; Article 643 of the ANK provides that: “If the court or the institution itself ... has annulled the decision of the institution in the case on an administrative offence and has discontinued the case, the sums of money recovered shall be repaid, the items taken for a consideration and those confiscated shall be returned, as well as other limitations related to the previously adopted decision shall be lifted. Where the items cannot be returned, their value shall be reimbursed.”

7.2. In this context, it should be mentioned that, under Article 591 “The circumstances due to which proceedings on administrative offences are impossible” of the ANK, proceedings on administrative offences may not be instituted and the instituted proceedings must be discontinued where, inter alia, the act carried out has no indications of an administrative offence (point 1).

7.3. After comparing the legal regulation laid down in Article 643 of the ANK with that laid down in paragraph 1 of Article 3021 (wording of 18 November 2010) of the ATPK, it should be held that the legal regulation in question has not essentially changed from the aspect impugned by the petitioner: under Article 643 of the ANK, upon the decision of a court to discontinue a case on an administrative offence, inter alia, where, under point 1 of Article 591 of the ANK, no indications of an administrative offence have been established, the sums of money recovered are repaid, the items taken for a consideration and those confiscated are returned or the value of the confiscated item is reimbursed where the item cannot be returned, as well as other limitations related to the decision annulled by the court are lifted, if a case on an administrative offence has been discontinued with regard to the person concerned; thus, Article 643 of the ANK does not provide that, upon the decision of a court to discontinue a case on an administrative offence, inter alia, where no indications of an administrative offence have been established, the costs, inter alia, the fees of a lawyer, incurred by the person as a result of the consideration of the case in the court are compensated.

7.4. In the context of this constitutional justice case, Article 666 “Compensation for the costs of the consideration of cases on administrative offences in a court” of the ANK is relevant; the said article provides that: “The provisions of the Code of Criminal Procedure shall mutatis mutandis apply to compensation for the costs of the consideration of cases on administrative offences in a court.”

It should be noted from the aspect relevant to this constitutional justice case that, under Article 666 of the ANK, a person with regard to whom a case on an administrative offence has been discontinued, inter alia, where no indications of an administrative offence have been established, is compensated for the costs of the consideration of the case on an administrative offence in the court, inter alia, the fees of a lawyer, by mutatis mutandis applying the respective provisions of the Code of Criminal Procedure of the Republic of Lithuania (Lietuvos Respublikos baudžiamojo proceso kodeksas, hereinafter referred to as the BPK).

7.5. It should also be noted that, in its case law, the Supreme Administrative Court of Lithuania has noted that, following the adoption of the ANK by the legislature, the procedure for the implementation of the right to receive compensation for costs is explicitly regulated; the legislature has expressed its will as to whom, on what grounds, and according to what procedure the court costs incurred in proceedings on administrative offences must be compensated; where a person incurs costs for legal services in order to defend his/her violated rights or freedoms in accordance with the procedure laid down in laws, their compensation must be sought in accordance with the special norms governing court proceedings, which lay down the rules on compensation for court costs (decision of 27 May 2020 in administrative case no eA-3145-575/2020).

8. It should be noted that the provisions of the BPK concerning compensation for costs incurred in the course of the consideration of a case in a court, which are referred to in Article 666 of the ANK, regulating compensation for the costs of the consideration of cases on administrative offences in a court, are laid down in Chapter VIII “The costs of proceedings and their compensation” of the BPK (Articles 103–106).

8.1. It should be mentioned from the aspect relevant to this constitutional justice case that, under paragraph 1 of Article 3 “The circumstances due to which criminal proceedings are impossible” (wording of 28 November 2017) of the BPK, criminal proceedings may not be instituted and the instituted criminal proceedings must be discontinued if, inter alia, no act with indications of a crime or criminal offence has been committed (point 1) and, under paragraph 2 of that article, if such a circumstance becomes apparent in the course of the consideration of a case in a court, the court closes the consideration of the case and adopts an acquitting judgment. It should be noted that, under paragraph 5 (wording of 28 June 2007) of Article 303 of the BPK, a court adopts an acquitting judgment if no act with indications of a crime or criminal offence has been committed (point 1).

Consequently, under Article 666 of the ANK, for the purposes of dealing with the issue concerning compensation for the costs of the consideration of cases on administrative offences in a court, upon the decision of a court to discontinue a case on an administrative offence, inter alia, where, under point 1 of Article 591 of the ANK, no indications of an administrative offence have been established, the provisions of the BPK governing compensation for the costs of proceedings apply mutatis mutandis if the court adopts an acquitting judgment where no act with indications of a crime or criminal offence has been committed.

8.2. In the context of the constitutional justice case under consideration, it should be noted that Article 105 “The recovery of the costs of proceedings” of the BPK, inter alia, regulates compensation for the costs of court proceedings where the court makes the respective procedural decisions in criminal proceedings.

Paragraph 5 of the said article, inter alia, prescribes: “Where proceedings are discontinued or the accused is acquitted … the costs of the proceedings shall be paid from the funds of the state in accordance with the procedure laid down by legal acts.”

Thus, under paragraph 5 of Article 105 of the BPK, where a court takes the decision, inter alia, to acquit a person held criminally liable, the costs of the proceedings incurred in the course of the consideration of the case in the court are paid from the funds of the state in accordance with the procedure laid down by legal acts.

8.3. It should be mentioned that, under Article 103 “The costs of proceedings” (as amended on 20 January 2005) of the BPK, the costs of proceedings comprise the following: money paid to witnesses, victims, experts, specialists, and interpreters to compensate for their expenses of travel to the place of call and their living expenses there (point 1); money paid to witnesses and victims to compensate for their withdrawal from regular work (point 2); money paid to experts, specialists, and interpreters to compensate for their work, except those cases where they carry out such duties as an official task (point 3); the costs of the storage or sending of items (point 5); other costs recognised by the pretrial investigation official, prosecutor, judge, or court to be the costs of proceedings (point 6).

Thus, Article 103 (as amended on 20 January 2005) of the BPK does not expressis verbis provide that the fees of a lawyer incurred by a person in the course of the consideration of a case in a court are regarded as the costs of proceedings. In the context of the interpretation of the legal regulation laid down in Article 103 (as amended on 20 January 2005) of the BPK, it should be noted that the list of the costs of proceedings contained therein is not exhaustive, as it is established in point 6 of that article that costs other than those indicated in points 1–5 of that article may be regarded as the costs of proceedings, provided that they are recognised to be the costs of proceedings by the pretrial investigation official, prosecutor, judge, or court.

8.4. In the context of this constitutional justice case, it should be noted that Article 106 “Remuneration for the work of a lawyer” (as amended on 26 June 2020) prescribes the following:

“1. Where a suspected, accused, or convicted person has been granted legal aid guaranteed by the state, a lawyer shall be paid in accordance with the procedure established by the law governing the provision of legal aid guaranteed by the state. In other cases, a lawyer shall be paid by a suspected, accused, or convicted person or, on his/her behalf or with his/her consent, by other persons.

2. Having found an accused person guilty, the court shall, when giving a judgment, take the decision to recover from the accused person the costs of legal aid guaranteed by the state, resulting from the necessary participation of the defendant, taking into account the property situation of the accused person, except in the cases referred to in points 1 and 2 of paragraph 1 of Article 51 of this Code. In addition, the court shall have the right to decide to recover from the accused person the costs incurred by the victim and the civil claimant for the services of a lawyer who has participated in the proceedings as a representative of the victim or the civil claimant.”

Thus, Article 106 of the BPK provides for the special legal regulation governing compensation for the costs incurred by a person for the services of a lawyer:

– where legal aid guaranteed by the state is granted, its costs are compensated in accordance with the procedure laid down in the legal acts governing the provision of such legal aid (paragraph 1 (wording of 20 December 2016)) and, where a court finds an accused person guilty, the said costs are recovered from that person (paragraph 2 (wording of 26 June 2020));

– where no legal aid guaranteed by the state is granted, a lawyer is paid by a suspected, accused, or convicted person (paragraph 1 (wording of 20 December 2016));

– where a person is found guilty, the costs incurred by the victim and the civil claimant for the services of a lawyer may also be recovered from that person by a court decision (paragraph 2 (wording of 26 June 2020)).

8.4.1. It should be noted from the aspect relevant to this constitutional justice case that Article 106 (as amended on 26 June 2020) of the BPK does not provide that a person is compensated for the costs incurred for the services of a lawyer in cases where the court gives an acquitting judgment, among others, including in cases where no act with indications of a crime or criminal offence has been committed.

8.4.2. In the context of this constitutional justice case, it should be noted that, in the jurisprudence of the Supreme Court of Lithuania, which forms the uniform case law of courts of general competence in the interpretation and application of laws and other legal acts, it is pointed out that remuneration for the work of a lawyer is regulated by special norms (Article 106 of the BPK); therefore, in criminal cases and cases on administrative offences, remuneration for the work of a lawyer should not be regarded as the costs of proceedings under Article 103 of the BPK (order of 30 June 2020 in case no 2AT-35-788/2020 on an administrative offence); the systematic interpretation of the provisions of the BPK also leads to the conclusion that the norm of paragraph 1 of Article 106 of the BPK is special with respect to the norm of paragraph 5 of Article 105 of the BPK; therefore, compensation (payment) for the costs incurred by an acquitted person for the services of a lawyer invited (chosen) in a discretionary manner should not be awarded from state funds (inter alia, the order of 17 December 2019 in criminal case no 2K-308-648/2019 and the order of 30 June 2020 in case no 2AT-35-788/2020 on an administrative offence).

9. To sum up the legal regulation laid down in Article 666 of the ANK from the aspect relevant to this constitutional justice case, it should be noted that, under that article, a person with regard to whom a case on an administrative offence has been discontinued where no indications of an administrative offence have been established is compensated for the costs of the consideration of the case on an administrative offence in the court, inter alia, the fees of a lawyer, by mutatis mutandis applying the respective provisions of the BPK. It should also be noted that Article 106 (as amended on 26 June 2020) of the BPK, which provides for the special legal regulation governing compensation for the costs incurred by a person for the services of a lawyer, does not provide that, in cases where a court gives an acquitting judgment, among others, including where no act with indications of a crime or criminal offence has been committed, the person concerned is compensated for the costs incurred for the services of a lawyer.

10. From the aspect relevant to this constitutional justice case, mention should also be made of the jurisprudence of the European Court of Human Rights (hereinafter referred to as the ECtHR) interpreting the right of access to a court, enshrined in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention), as regards compensation for litigation costs.

10.1. In its judgment of 18 February 2020 in the case of Černius and Rinkevičius v Lithuania (petitions nos 73579/17 and 14620/18) concerning compensation for the fees of a lawyer in administrative proceedings, the ECtHR recalled that the Convention is intended to guarantee not rights that are theoretical or illusory, but rights that are practical and effective; it is noted in the judgment that the Court was not ready to hold that the existence of the possibility of bringing legal proceedings and challenging the fines imposed in itself satisfies all the requirements of paragraph 1 of Article 6 of the Convention; the purpose of going to a court is not just to participate in court proceedings, but rather to obtain a result; going to a court to defend one’s rights is pointless if, in the end, the person is in a worse situation than he/she was before litigating; the ex post facto refusal to reimburse litigation costs constitutes a hindrance to the right of access to a court (paragraph 68). It is held in that judgment of the ECtHR that the refusal to reimburse the litigation costs incurred during the administrative proceedings, which resulted in the quashing of the imposed fines as unfounded, regardless of the amount of those litigation costs, constitutes a breach of the right of access to a court and, thus, a violation of paragraph 1 of Article 6 of the Convention (paragraph 74).

10.2. In the above-mentioned judgment, the ECtHR also noted that public interest-related financial considerations could sometimes play a part in the policy of the state to decrease state expenses; thus, the reimbursement of litigation costs in administrative cases may be limited to attain a legitimate public interest (paragraph 69) (judgment of 18 February 2020 in the case of Černius and Rinkevičius v Lithuania, petitions nos 73579/17 and 14620/18).

II

The provisions of the Constitution and the official constitutional doctrine

11. In this constitutional justice case, the Constitutional Court is investigating the compliance of the legal regulation laid down in Article 3021 (wording of 18 November 2010) of the ATPK, which is related to compensation for the costs of proceedings, with Article 30 and paragraph 6 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law.

12. Paragraph 1 of Article 30 of the Constitution prescribes: “A person whose constitutional rights or freedoms are violated shall have the right to apply to a court.”

The Constitutional Court has held more than once that paragraph 1 of Article 30 of the Constitution consolidates the constitutional principle of judicial protection; in a democratic state, courts are the main institutional guarantee of human rights and freedoms; the constitutional principle of judicial protection is universal (inter alia, the rulings of 18 April 1996 and 2 July 2002).

In its jurisprudence, the Constitutional Court has developed an extensive official constitutional doctrine of the right of access to a court and has revealed the constitutional imperatives that must be complied with in the regulation of the respective relationships by means of legal acts (ruling of 28 June 2016).

12.1. The Constitutional Court has noted that, under the Constitution, a person who believes that his/her rights or freedoms have been violated has the right to defend his/her rights and freedoms before a court (inter alia, the rulings of 2 July 2002 and 7 February 2005); the rights of a person must be defended not formally, but in reality and effectively (inter alia, the rulings of 27 November 2006 and 15 May 2007); the defence of violated rights in a court is guaranteed to persons regardless of their legal status (inter alia, the rulings of 10 December 2012 and 5 July 2013); the violated rights and legitimate interests of persons must be defended before a court regardless of whether or not they are directly consolidated in the Constitution (inter alia, the rulings of 8 May 2000, 13 May 2010, and 14 December 2018).

12.2. The Constitutional Court has also noted that the constitutional right of a person to apply to a court may not be artificially restricted, nor may the implementation of this right be unreasonably burdened, since a threat would arise to one of the most important values of a state under the rule of law (inter alia, the rulings of 9 June 2011 and 1 March 2019); it is not permitted to establish such a legal regulation that would deny the right of a person who believes that his/her rights or freedoms have been violated to defend his/her rights or freedoms in a court; otherwise, it would have to be stated that this constitutional right is declarative (inter alia, the ruling of 16 January 2006 and the decision of 16 April 2014); under the Constitution, a legal situation where it is impossible to defend (including before a court) a certain right or freedom of a person, even though that person believes that such a right or freedom has been violated, is impermissible; such a legal situation is not tolerated by the Constitution (inter alia, the rulings of 21 January 2008, 13 May 2010, and 14 December 2018).

12.3. In its ruling of 14 December 2018, interpreting, inter alia, the right of a person to apply to a court, as consolidated in paragraph 1 of Article 30 of the Constitution, in the context of compensation for litigation costs, the Constitutional Court held, inter alia, that:

– the right of a person to apply to a court for the defence of violated rights or freedoms, as consolidated in paragraph 1 of Article 30 of the Constitution, implies the legitimate expectation that the court will examine his/her case fairly and objectively and will adopt a reasoned and well-founded decision, inter alia, on the distribution of litigation costs; such a legal regulation under which the preconditions are created for a court to make a fair, reasoned, and well-founded decision in a case also ensures the effective implementation of the constitutional right of a person to the judicial protection of his/her violated constitutional rights and freedoms;

– the fair distribution of costs between the parties to a case depends, inter alia, on the reasonableness and necessity of the costs incurred by them, the extent to which their claims have been satisfied after the court has settled the case, and other significant circumstances.

12.4. In the jurisprudence of the Constitutional Court, it is noted that the guarantee of the judicial protection of the rights and freedoms of a person is a guarantee of a procedural character, an essential element of the constitutional institution of the rights and freedoms of a person, a necessary condition for the implementation of justice, and an inseparable element of the content of the constitutional principle of a state under the rule of law (inter alia, the rulings of 5 July 2013, 9 July 2015, and 1 March 2019); the right of a person to apply to a court also implies his/her right to the due process of law and is a necessary condition for the implementation of justice (inter alia, the rulings of 13 December 2004 and 25 January 2013).

13. The Constitutional Court has also noted that one of the conditions for the effective implementation of the right of a person to judicial protection is the right of access to a lawyer (inter alia, the rulings of 9 July 2015 and 1 March 2019).

Paragraph 6 of Article 31 of the Constitution prescribes: “A person suspected of committing a crime, as well as the accused, shall be guaranteed, from the moment of his apprehension or first interrogation, the right to defence, as well as the right to an advocate.”

13.1. In the jurisprudence of the Constitutional Court, it is held that the right of a person to defence, as well as the right of access to a lawyer, may not be denied or restricted on any grounds and under any conditions (inter alia, the rulings of 8 June 2009, 15 November 2013, and 15 March 2017); the right of a person to apply to a court and the requirement, arising from the Constitution, inter alia, the provisions of paragraph 1 of Article 30 and paragraph 6 of Article 31 thereof, to defend the rights of a person not formally, but in reality and effectively, inter alia, means that the legislature must establish such a legal regulation that would create the preconditions for the effectiveness of legal assistance provided by a lawyer where a person has the right to make use of such legal assistance in defending his/her violated rights and legitimate interests, inter alia, while applying to a court (ruling of 9 June 2011); a lawyer, while being engaged in an independent professional activity and providing legal assistance to a person whose rights and legitimate interests have been violated, helps to implement the constitutional right of such a person to judicial protection (ruling of 9 June 2011); the right of access to a lawyer is one of the fundamental human rights that contribute to ensuring the protection of constitutional rights and freedoms (rulings of 10 July 1996 and 9 June 2011).

13.2. The Constitutional Court has also held that the constitutionally consolidated right to defence, as well as the right of access to a lawyer, gives rise to the duty of the legislature to particularise, in laws, the implementation of the constitutional right of a person to judicial protection; when establishing such a legal regulation, the legislature is bound by the Constitution; the constitutional right to defence, as well as the right of access to a lawyer, also gives rise to the duty of state institutions to ensure that the possibility of implementing these rights would be real (rulings of 12 February 2001, 9 June 2011, and 1 March 2019).

14. The petitioner also has doubts regarding the compliance of the impugned legal regulation with paragraph 2 of Article 30 of the Constitution.

Paragraph 2 of Article 30 of the Constitution prescribes: “Compensation for material and moral damage inflicted upon a person shall be established by law.”

14.1. The Constitutional Court has held that, under paragraph 1 of Article 30 of the Constitution, interpreted in conjunction with paragraph 2 of the same article, the awarding of compensation for damage is one of the means of the defence of violated rights or freedoms in a court (ruling of 5 July 2013); the Constitution guarantees the right of a person to compensation for damage suffered as a result of unlawful actions, including the recovery of damages through a court (inter alia, the rulings of 30 June 2000 and 19 May 2017); it does not follow from the Constitution that laws may provide for any exceptions under which moral and/or material damage inflicted on a person is not compensated (rulings of 19 August 2006 and 13 May 2010).

14.2. The general constitutional grounds for compensation for damage sustained by a victim stem, inter alia, from the constitutional principles of justice and a state under the rule of law (inter alia, the rulings of 3 February 2010, 29 November 2010, and 6 December 2013); laws must create all necessary legal preconditions for fair compensation for inflicted damage (ruling of 3 February 2010).

III

The assessment of the compliance of Article 3021 (wording of 18 November 2010) of the Code of Administrative Violations of Law and Article 106 (as amended on 26 June 2020) of the Code of Criminal Procedure with the Constitution

15. As mentioned before, in this constitutional justice case, the Constitutional Court is investigating whether Article 3021 (wording of 18 November 2010) of the ATPK, insofar as it did not provide that a person with regard to whom a court decision to discontinue a case on an administrative violation of law had been adopted in the absence of the event or body of a violation had the right to compensation for litigation costs, was in compliance with Article 30 and paragraph 6 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law.

16. According to the petitioner, such a legal regulation, as laid down in Article 3021 (wording of 18 November 2010) of the ATPK, under which, even if a case on an administrative violation of law is discontinued with regard to a person where the event or body of an administrative violation of law has not been established, the person is not compensated for litigation costs, limits the right of the person to effective judicial protection, consolidated in paragraph 1 of Article 30 of the Constitution, as well as the right of access to a lawyer, consolidated in paragraph 6 of Article 31 of the Constitution. The petitioner notes that the costs incurred in litigation may be higher than the contested administrative penalty, so the right of a person, inter alia, who does not have sufficient funds to hire a lawyer or who has calculated that the consideration of a case on an administrative violation of law will cost more than the penalty imposed, to apply to a court for the protection of his/her violated rights is restricted.

17. In deciding whether Article 3021 (wording of 18 November 2010) of the ATPK was in conflict with paragraph 1 of Article 30 and paragraph 6 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law, it should be noted that, as mentioned before:

– the right of a person to apply to a court, as consolidated in paragraph 1 of Article 30 of the Constitution, may not be artificially restricted, nor may the implementation of this right be unreasonably burdened; the rights of a person must be defended not formally, but in reality and effectively;

– the right of a person to apply to a court and the requirement, arising from the Constitution, inter alia, the provisions of paragraph 1 of Article 30 and paragraph 6 of Article 31 thereof, to defend the rights of a person not formally, but in reality and effectively, inter alia, mean that a person, in defending his/her violated rights and legitimate interests, inter alia, while applying to a court, has the right to make use of effective legal assistance provided by a lawyer; the constitutional right to defence, as well as the right of access to a lawyer, also gives rise to the duty of state institutions to ensure that the possibility of implementing these rights would be real; the right of a person to defence, as well as the right of access to a lawyer, may not be denied or restricted on any grounds or under any conditions;

– the right of a person to apply to a court for the defence of violated rights or freedoms, as consolidated in paragraph 1 of Article 30 of the Constitution, implies the legitimate expectation that the court will examine his/her case fairly and objectively and will adopt a reasoned and well-founded decision, inter alia, on the distribution of litigation costs; – the fair distribution of costs between the parties to a case depends, inter alia, on the reasonableness and necessity of the costs incurred by them and other significant circumstances;

– the guarantee of the judicial protection of the rights and freedoms of a person is an inseparable element of the content of the constitutional principle of a state under the rule of law; the right of a person to apply to a court also implies his/her right to the due process of law and is a necessary condition for the implementation of justice.

It should also be noted from the aspect relevant to this constitutional justice case that paragraph 1 of Article 30 and paragraph 6 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law give rise to the duty of the legislature to establish such a legal regulation under which the right of a person to defend his/her rights in a court, inter alia, by making use of legal assistance provided by a lawyer, is implemented in reality and effectively, among other things, to provide that, taking into account the circumstances of the case, a person who is not held legally liable, because it has not been established that he/she has committed a violation of law, is compensated for the necessary and reasonable costs incurred in the exercise of that right.

17.1. As mentioned before, the impugned Article 3021 (wording of 18 November 2010) of the ATPK established an exhaustive list of issues that had to be resolved upon the decision of a court to discontinue a case on an administrative violation of law where the event and body of an administrative violation of law had not been established; the said article did not provide that, upon the decision of a court to discontinue a case on an administrative violation of law, inter alia, where the event or body of an administrative violation of law had not been established, the costs incurred by the person as a result of the consideration of the case in the court, inter alia, the fees of a lawyer, were to be compensated.

It has also been mentioned that other provisions of the ATPK also did not provide that, upon the decision of a court to discontinue a case on an administrative violation of law, inter alia, where the event or body of a violation had not been established, the person with regard to whom the case on an administrative violation of law had been discontinued was to be compensated for the costs, inter alia, the fees of a lawyer, incurred as a result of the consideration of the case in the court.

17.2. In assessing the constitutionality of the legal regulation laid down in Article 3021 (wording of 18 November 2010) of the ATPK from the aspect impugned by the petitioner, it should be noted that, under that legal regulation, a person with regard to whom a case on an administrative violation of law had been discontinued where the event or body of an administrative violation of law had not been established was not in any cases compensated for the fees of a lawyer incurred in the course of the consideration of the case in the court. It should also be noted that such a legal regulation created the preconditions for the emergence of a situation in which a person who applied to a court for the protection of his/her violated rights, if the court discontinued the case on an administrative violation of law without having established the event or body of an administrative violation of law, could find himself/herself in a worse situation because he/she used the assistance of a lawyer to defend his/her violated rights, as the incurred fees of a lawyer, which were necessary and reasonable taking into account the circumstances of the case, could be higher than the consequences of a decision adopted in the case on an administrative violation of law (as, for instance, the amount of an administrative penalty), i.e. the preconditions were created for a person, upon defending his/her rights in a court, to find himself/herself in a worse situation compared to that in which the person would have been if he/she had not defended his/her violated rights.

Thus, the legal regulation laid down in Article 3021 (wording of 18 November 2010) of the ATPK unduly burdened the implementation of the constitutional right of a person to apply to a court for the protection of his/her violated rights.

17.3. Consequently, the said legal regulation, as laid down in Article 3021 (wording of 18 November 2010) of the ATPK, disregarded the requirement, arising from paragraph 1 of Article 30 and paragraph 6 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law, to establish such a legal regulation under which the right of a person to defend his/her rights in a court, inter alia, by making use of legal assistance provided by a lawyer, is exercised in reality and effectively, among other things, to provide that, taking into account the circumstances of the case, a person who is not held legally liable, because it has not been established that he/she has committed a violation of law, is compensated for the necessary and reasonable costs incurred in the exercise of that right.

17.4. In view of the foregoing, it should be concluded that Article 3021 (wording of 18 November 2010) of the ATPK, insofar as that article did not provide that, upon the decision of a court to discontinue a case on an administrative violation of law where the event or body of an administrative violation of law had not been established, the person, taking into account the circumstances of the case, was to be compensated for the necessary and reasonable fees of a lawyer, was in conflict with paragraph 1 of Article 30 and paragraph 6 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law.

18. Having held this, the Constitutional Court will not further investigate in this constitutional justice case whether Article 3021 (wording of 18 November 2010) of the ATPK was in conflict with paragraph 2 of Article 30 of the Constitution.

19. The Constitutional Court has held that, if it finds the unconstitutionality of provisions that are not impugned by a petitioner but regulate the same relationships and are consolidated in a legal act amending the legal regulation impugned by the petitioner, it must state that the said provisions not impugned by the petitioner have been found to be unconstitutional (ruling of 8 November 2019). This also applies to provisions that are consolidated in another legal act but are inseparably linked to the provisions regulating the same relationships if a reference is made to these provisions in a legal act amending the legal regulation impugned by the petitioner.

The implementation of constitutional justice implies that a legal act (part thereof) that is in conflict with the Constitution must be removed from the legal system (inter alia, the rulings of 29 November 2001, 22 September 2015, and 24 July 2020); therefore, under the Constitution, the Constitutional Court must remove from the legal system all anti-constitutional provisions whose conflict with the Constitution becomes apparent in a constitutional justice case under consideration (inter alia, the rulings of 12 June 2020, 24 July 2020, and 11 September 2020).

20. As mentioned before, upon the entry into force of the ANK on 1 January 2017, the ATPK, with all its amendments and supplements, became no longer valid. It has also been mentioned that the legal regulation established in Article 643 of the ANK regarding compensation for the costs of the consideration of a case in a court where the court discontinues a case on an administrative offence, which is analogous to the legal regulation impugned by the petitioner, has not substantially changed from the aspect impugned by the petitioner, but Article 666 of the ANK provides that the costs of the consideration of a case on an administrative offence in a court, inter alia, the fees of a lawyer, where the court discontinues a case on an administrative offence without having established indications of an offence, are compensated by mutatis mutandis applying the respective provisions of the BPK. It has also been mentioned that Article 106 (as amended on 26 June 2020) of the BPK, which provides for the special legal regulation governing compensation for the costs incurred by a person for the services of a lawyer, does not provide that a person is compensated for the costs incurred for the services of a lawyer where the court gives an acquitting judgment, among others, including where no act with indications of a crime or criminal offence has been committed.

Thus, although Article 666 of the ANK, which regulates compensation for the costs of the consideration of cases on administrative offences in a court, inter alia, the fees of a lawyer, refers to the respective provisions of the BPK, under Article 106 (as amended on 26 June 2020) of the BPK, which provides for compensation for the costs incurred by a person for the services of a lawyer, such costs are not compensated even where a court gives an acquitting judgment.

21. In assessing the compliance Article 106 (as amended on 26 June 2020) of the BPK with the Constitution, it should be noted that, as mentioned before:

– the constitutional right of a person to apply to a court and the requirement, arising from the Constitution, inter alia, the provisions of paragraph 1 of Article 30 and paragraph 6 of Article 31 thereof, to defend the rights of a person not formally, but in reality and effectively, inter alia, mean that a person, in defending his/her violated rights and legitimate interests, inter alia, while applying to a court, has the right to make use of effective legal assistance provided by a lawyer; the constitutional right to defence, as well as the right of access to a lawyer, also gives rise to the duty of state institutions to ensure that the possibility of implementing these rights would be real; the right of a person to defence, as well as the right of access to a lawyer, may not be denied or restricted on any grounds or under any conditions;

– paragraph 1 of Article 30 and paragraph 6 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law give rise to the duty of the legislature to establish such a legal regulation under which the right of a person to defend his/her rights in a court, inter alia, by making use of legal assistance provided by a lawyer, is implemented in reality and effectively, among other things, to provide that, taking into account the circumstances of the case, a person who is not held legally liable, because it has not been established that he/she has committed a violation of law, is compensated for the necessary and reasonable costs incurred in the exercise of that right.

21.1. It should be held that the legal regulation laid down in Article 106 (as amended on 26 June 2020) of the BPK, under which a person with regard to whom an acquitting judgment has been adopted is not in any cases compensated for the incurred necessary and reasonable fees of a lawyer, creates the preconditions for a situation in which, in the absence of the possibility of compensating a person for the necessary and reasonable fees of a lawyer, even if the person has been acquitted, that person cannot in reality and effectively defend his/her violated rights by making use of the assistance of a lawyer. Thus, such a legal regulation unduly burdens the implementation of the constitutional right of a person to judicial protection, as well as the right of access to a lawyer.

21.2. Consequently, the legal regulation laid down in Article 106 (as amended on 26 June 2020) of the BPK, disregards the requirement, arising from paragraph 1 of Article 30 and paragraph 6 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law, to establish such a legal regulation under which the right of a person to defend his/her rights in a court, inter alia, by making use of legal assistance provided by a lawyer, is exercised in reality and effectively, among other things, to provide that, taking into account the circumstances of the case, a person who is not held legally liable, because it has not been established that he/she has committed a violation of law, is compensated for the necessary and reasonable costs incurred in the exercise of that right.

21.3. In view of the foregoing, it should be concluded that Article 106 (as amended on 26 June 2020) of the BPK, insofar as, under that article, a person with regard to whom an acquitting judgment has been adopted, taking into account the circumstances of the case, is not compensated for the necessary and reasonable fees of a lawyer, is in conflict with paragraph 1 of Article 30 and paragraph 6 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 531, 54, 55, and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that Article 3021 (wording of 18 November 2010; the official gazette Valstybės žinios, 2010, No 142-7257) of the Code of Administrative Violations of Law of the Republic of Lithuania, insofar as that article did not provide that, upon the decision of a court to discontinue a case on an administrative violation of law where the event or body of an administrative violation of law had not been established, the person, taking into account the circumstances of the case, was to be compensated for the necessary and reasonable fees of a lawyer, was in conflict with paragraph 1 of Article 30 and paragraph 6 of Article 31 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

2. To recognise that Article 106 (as amended on 26 June 2020; Register of Legal Acts, 03-07-2020, No 15006) of the Code of Criminal Procedure of the Republic of Lithuania, insofar as, under that article, a person with regard to whom an acquitting judgment has been adopted, taking into account the circumstances of the case, is not compensated for the necessary and reasonable fees of a lawyer, is in conflict with paragraph 1 of Article 30 and paragraph 6 of Article 31 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

This ruling of the Constitutional Court is final and not subject to appeal.

Justices of the Constitutional Court: Elvyra Baltutytė
                                                                      Gintaras Goda
                                                                      Vytautas Greičius
                                                                      Giedrė Lastauskienė
                                                                      Algis Norkūnas
                                                                      Daiva Petrylaitė
                                                                      Dainius Žalimas