Vehicle Confiscation as a Coercive Administrative Measure

Smuggling is shipping of goods, money, art treasures or other items required to be submitted to the Customs authorities across the Republic of Lithuania without submitting them to the control of the Customs authorities or avoiding the customs control by other means. There have been 1.768.220 packets of smuggled tobacco and 10.575,00 liters of alcohol seized on the border of Lithuania in 2018 alone. Smuggling is one of the administrative offences, for the committing of which vehicles are usually used, so the Court frequently has to handle the issue of vehicle confiscation.

Article 208 Section 4 of the Code of Administrative Offences of the Republic of Lithuania (hereinafter referred to as ANC) provides for the possibility to confiscate the vehicle intended for smuggling or concealment of items when transporting them across the border of the Republic of Lithuania. Confiscation of assets is defined under Article 29 Section 1, which indicates that confiscation of assets is a coercive unremunerated appropriation to the Exchequer of the assets to be confiscated in any form and at the disposal of the offender or other individuals. Only assets can be seized (an instrument, measure, matter of an administrative offence, or an outcome of a prohibited activity), which is the property of the offender, except for the cases laid down in Article 29 Section 4 of the Code of Administrative Offences. Article 29 Section 4 of the Code of Administrative Offences has determined that when handling certain cases of administrative offences (the offences determined under Article 208 of the Code of Administrative Offences, among other things, fall within this list) the property not belonging to the ownership of the offender indicated under Section 2 of this Article can also be confiscated, provided that: 1) when transferring property to the offender or to other persons, this person was aware that this property is going to be used to commit an administrative offence; 2) the property has been transferred to him or her having entered into an artificial transaction; 3) the property has been transferred to him or her as a family member of the offender or a close relative; 4) the property has been transferred to him or her as being a legal entity whose head, member of the management body or participants controls at least 50% of shares of the legal entity (stocks, contributions etc.), is an offender, his or her family members or close relatives; 5) when acquiring this property, he or she or the individuals who occupied the managing position of the legal entity and carried the responsibility to represent it, make decisions on the behalf of the legal entity, and the ones who had to the activity of the legal entity was aware or had to be or could be aware that this property is an instrument , measure, matter of an administrative offence or outcome of activity prohibited by law, received due to committing of an administrative offence. The Supreme Court of Lithuania (hereinafter referred to as SCL) has noted that the conditions laid down under Article 29 Section 4 of the Code of Administrative Offences, determination of which allows confiscation of assets not in the ownership of the offender, and a vehicle in this case, the vehicle are alternative conditions. It means that in accordance with the factual circumstances determined in the case, the Court has to establish at least one of the conditions laid down in Section 4 of the aforementioned Article, and also has to clearly specify and motivate, which Paragraph of Article 29 Section 4 of the Code of Administrative Offences is used as the basis for decision to confiscate the property not in the ownership of the offender. (The Supreme Court of Lithuania Ruling of 13 February 2018 in the administrative offence case No. 2AT-8-976/2018).

When analysing the case-law of Lithuanian courts on confiscation of the property-related vehicle owned by the offender, it can be seen that seizure of the vehicle is applied in two cases. First, if it is determined that the vehicle (asset) has been used for smuggling, and if it is determined that it has been specifically adapted for that purpose (equipped with a hiding place to hide the smuggling matter, Kaunas District Court Ruling of 5 March 2019 in the case of infringement of administrative law No. AN2-112-530/2019). Secondly, the vehicle directly used for the transport of smuggling matter, if transport without such a vehicle is impossible (for example, the Supreme Court of Lithuania has pointed out in one of the cases the fact of a truck and semi-trailer being not equipped with a special hideout for the smuggling matter is insignificant, instead it is significant the person would not have been able to transport the indicated quantity of cigarettes (1 700 packets) without a vehicle, the Supreme Court of Lithuania Ruling of 8 January 2013 in the case of infringement of administrative law No. 2AT-2-2013). In deciding on the issue of confiscation of the vehicle (assets), the value of the smuggled excise goods and the vehicle to be seized, and the personality of the offender are also taken into account (the Lithuanian Supreme Court Ruling No. 2AT-99-895/2015), in addition, the Court assesses whether the smuggling was a deliberate decision (for example, having evaluated that cigarettes were smuggled in places not intended for transport of items, but in the doors of a car and hideouts installed in the roof constructions, the Kaunas Regional Court pointed out that the smuggling was not a spontaneous or unconsidered decision, because it has been carefully prepared for this action by hiding cigarettes in the car cavities, the transport of goods by non-adapted, as appropriate, the Kaunas regional court the argument accepted by the Court of first instance for the confiscation of the offending vehicle, Kaunas District Court on 5 March 2019. — No administrative law in infringement proceedings. AN2-112-530/2019).

According to Article 29 Section 4 Paragraph 1 of the Code of Administrative Offences, property not in the ownership of the offender may be confiscated, if, when transferring his or her property to the offender or other persons, this person (not the offender) knew that his estate will be used to commit an offence. As the Supreme Court of Lithuania has established, in order to ascertain the existence of the condition indicated under Article 29 Section 4 Paragraph 1, it has to be proven that it was not the offender who knew that the transferred property would be used to commit an administrative offence. For example, the mere fact that the vehicle, which was used to commit the violation of law, belongs to a family member or a close relative of the offender, does not prove the awareness of the offender that the vehicle will be used to commit an administrative offence (the Supreme Court of Lithuania Ruling in the administrative offence case No. 2AT-update 8-976/2018). A person’s knowledge of illegal actions by the offender may be confirmed by the nature of the offence, the special circumstances surrounding it, for example, the broad right given to spouse to dispose of the car, with the right to use it at any time, permanent residence with spouse, the vehicle being equipped with hideouts, presence in the vehicle when the administrative offence was committed (Vilnius District Court Ruling of 18 June 2018 in the case of an administrative offence No. eAN2-267-898/2018).

It is important to note that following Article 29 Section 1 Paragraph 1 of the Code of Administrative Offences, a vehicle in the ownership of the employer may be also confiscated (for example, a vehicle that transports cargoes or passengers). When handling the case concerning confiscation of a vehicle in the ownership of the employer, the Regional Court of Kaunas evaluated the possibility of application of Article 29 Section 4 Paragraph 1 and decided not to confiscate the vehicle in the ownership of the carrier, having regard to several important circumstances: firstly, the employer could not reasonably foresee the use of the car for illegal activities, because the employee had never been penalised for making an analogous infringement, secondly, the auto transport truck was not specifically equipped (the employee transported the cigarettes hidden under the bottom of the auto transport truck between the longitudinal beams of the frame), thirdly, the mere fact that the smuggling matter was transported in an auto transport truck in the individual ownership of a transport company, it is not a sufficient basis for confiscation of the car and to conclude that the owner of such a car was aware of the existence of a hideout in his or her car, this circumstance cannot be presumed (Kaunas District Court Ruling of 12 September 2017 in the case of an administrative offence No. AN2-541-319/2017).

According to Article 29 Section 4 Paragraph 3 of the Code of Administrative Offences, assets in the ownership of an individual other than the offender may be confiscated, if the asset has been transferred to him or her as being a family member or a close relative. The Supreme Court of Lithuania has clarified that determination of the mere fact of a vehicle, which was used to commit a violation of law, owned by a family member or a relative of the offender, is no basis for application of confiscation in accordance with Article 29 Section 4 Paragraph 3 of the Code of Administrative Offences (the Supreme Court of Lithuania has not ascertained the existence of the condition determined under Article 29 Section 4 Paragraph 3 of the Code of Administrative Offences on the mere ground that the vehicles were owned by the mother of the offender both before and after committing of the offence, the Supreme Court of Lithuania Ruling in an updated case of an administrative offence 2AT-8-976/2018). In addition, awareness, or lack thereof, of the family member (close relative) about the use of the car being transferred to the offender in committing an administrative offence is irrelevant to the application of Article 29 Section 4 Paragraph 3 of the Code of Administrative Offences, it is a legally insignificant factor, since Article 29 Section 4 Paragraph 3 of the Code of Administrative Offences does not address the owner’s awareness (the Supreme Court of Lithuania Ruling in an updated case of an administrative offence 2AT-8-976/2018). However, Article 29 Section 4 Paragraph 3 of the Code of Administrative Offences obliges to found that the property to be confiscated has been transferred to a person who is a family member or close relative of the offender, rather than the reverse (Vilnius District Court Ruling of 25 April 2018 in the case of an administrative offence No. AN2-187-898/2018).

It has been mentioned that Article 208 Section 4 of the Code of Administrative Offences has afforded the discretion of the Court along with an administrative penalty, having considered all of the circumstances of the case, to resolve the matter on confiscation or non-confiscation of the smuggling items, as well as means of transportation and other means designed to smuggle items across the border of the Republic of Lithuania or to hide them. The Court has to resolve the matter having regard to the proportionality of confiscation. The principle of proportionality means that the sanctions imposed for law violations have to be proportionate to the violation of law, they must comply with the pursued legitimate objectives of general public importance, they cannot restrict the person clearly more than necessary to achieve those objectives (the Regional Court of Klaipėda Ruling of 4 September 2017 in the case of administrative offence No.AN2-373-380/2017). As interpreted by the Supreme Court of Lithuania, the proportionality of confiscation can be evaluated and in some cases it is necessary to evaluate it only after establishing the legal basis for the confiscation of property in the ownership of an individual other than the offender (the Supreme Court of Lithuania Ruling in the case of updated administrative offence 2AT-8-976/2018). The argument of the Supreme Court of Lithuania is logical, because not having determined any of the conditions indicated in Article 29 Section 4 of the Code of Administrative Offences, confiscation of property of another is not applicable at all. When handling the matter of confiscation of property owned by the offender, the proportionality principle is applied at all times. For example, having evaluated the circumstances the administrative offence was committed, the quantity and value of the illegally transported goods, and personality of the offender (has not been previously penalised for an offence of an analogous nature, generally punished administratively for the first time), the Regional Court of Klaipėda indicated that the offender was imposed with a pecuniary sanction, the confiscation of the goods transported is a sufficient measure to ensure the purposes of punishment and prevention, therefore, it changed the decision of First Instance, by abolishing its part concerning the confiscation of the vehicle (the Regional Court of Klaipėda Ruling of 27 February 2019 in the case of an administrative offence No. AN2-85-557/2019).

So, the Code of Administrative Offences provides that both a vehicle owned by the offender and a person other than the offender may be confiscated, but a vehicle owned by a person who is not the offender may be seized only having determined the aforementioned additional conditions, which restrict the confiscation of the vehicle owned by the property owner (not the offender). In any case, confiscation of the vehicle must be proportionate to the violation of law, it cannot restrict the person clearly more than necessary to achieve the objectives of the administrative sanctions.

Tags:

Multimodal Cargo Transportation – One Carrier, Different Liabilities

the cargo transportation by different modes of transport is governed by different international conventions that differently regulate the problems of foundations of limitation and exemption from liability for the carrier. Therefore, when transporting a cargo in different modes of transport there will inevitably be questions raised related to the regulation of the liability of the operator carrying out the multimodal transportation.

More

The Carrier’s Civil Liability Insurance (CMR) in Lithuania: a Different Understanding of Gross Negligence in the Relationship of Cargo Transportation and Insurance

Bearing in mind that the damage caused in the course of the performance of a cargo transportation contract by the carrier inherently does not arise spontaneously, but for violation of various conditions of transportation contract, failure (illegal actions) to comply with the requirements applicable to the activity of cargo transportation or behavior rules, finding of gross negligence by the carrier has become so widely used that the arguments that have actually become standard on the fact that the damage has been caused due to gross negligence of the carrier can be found in almost every decision of an insurance company when refusing to meet the requirements of the carrier or the victim that suffered the damage due to cargo loss or damage for payment of an insurance claim.

More

How to establish a transport company in Lithuania?

The activity of cargo transportation by road vehicles with a maximum permissible weight, including a trailer (semi-trailer), of more than 3.5 tons and for a fee may be conducted only by carriers holding a licence issued in the manner prescribed.

More
Map