Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
RULING
On the compliance of Article 53 of the Code of
Civil Procedure of the
Republic of Lithuania and Part 3, Article 21 of
the Law on the
Procurator's Office of the Republic of Lithuania
with
the Constitution of the Republic of Lithuania
14 February 1994, Vilnius
The Constitutional Court of the Republic of Lithuania,
composed from Justices of the Constitutional Court Algirdas
Gailiūnas, Kęstutis Lapinskas, Zigmas Levickis, Vladas
Pavilonis, Pranas Vytautas Rasimavičius, Stasys Stačiokas,
Stasys Šedbaras and Juozas Žilys,
the secretary of the hearing - Rolanda Stimbirytė,
the party concerned - Artūras Paulauskas, Procurator -
General of the Republic of Lithuania,
pursuant to Part 1, Article 102 of the Constitution of the
Republic of Lithuania and Part 1, Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, in its
public hearing of 8 February 1994 conducted the investigation
of Case No 15/93 subsequent to the petitions submitted to the
Court by Skuodas District Court and Šiauliai District Court
requesting to investigate if Article 53 of the Code of Civil
Procedure and Part 3, Article 21 of the Law on the Procurator's
Office are in compliance with the Constitution of the Republic
of Lithuania.
The Constitutional Court
has established:
The petitioner - Skuodas District Court on 30 November
1993 conducted the investigation of civil case upon the chief
procurator's of Skuodas region suit in defence of the interests
of a farmers' group pertaining to the recognition of the
results of the competition on the rent of premises in 8 Algirdo
str Šiauliai, organized by the state enterprise of public
utilities of Skuodas region, null and void. The procurator
appealed to court pursuant to Article 53 of the Code of Civil
Procedure and Part 3, Article 21 of the Law on the Procurator's
Office.
Skuodas District Court by its ruling has suspended the
court proceedings of the civil case and requests the
Constitutional Court to investigate if Article 53 of the Code
of Civil Procedure and Part 3, Article 21 of the Law on the
Procurator's Office are in compliance with the Constitution of
the Republic of Lithuania.
The Court bases its request on the fact that Article 118
of the Constitution of the Republic of Lithuania does not
provide for the procurator's right to appeal to Court in the
procedure prescribed by the Code of Civil Procedure. Whereas,
Article 53 of the Code of Civil Procedure provides for the
procurator's right to appeal to Court with a petition to defend
other people's rights and interests protected by law or to join
the case at any stage of the procedure if the protection of the
state or public interests or that of civil rights or interests
safeguarded by laws requires so, and it is established in Part
3, Article 21 of the Law on the Procurator's Office that
failing comply with the protests submitted in accordance with
general competence or failing to submit results of
consideration, the procurator shall have the right to apply to
Court within 10 days on the annulment or amending of the
unlawful legal act and then these cases shall be investigated
in the procedure prescribed by the Code of Civil Procedure.
The Petitioner - Šiauliai District Court - on 30 November
1993 investigated the civil case upon the chief - procurator's
of Šiauliai District Court suit in defence of the interests of
the Šiauliai District Inspectorate of Cultural Heritage and
Vytautas Janavičius related to signing of shares while
privatizing the assets of the agricultural enterprise of
Šiauliai region. The procurator instituted a legal action in
accordance with Article 50 of the Code of Civil Procedure.
Šiauliai District Court by its ruling suspended the legal
proceedings of said civil case and applied to the
Constitutional Court requesting to investigate if Article 53 of
the Code of Civil Procedure is in conformity with the
Constitution of the Republic of Lithuania. The court bases its
request on the fact that Article 118 of the Constitution
establishes the public procurator's competence only in criminal
cases and does not provide for any competence in civil ones,
therefore, the procurator is not entitled to the right to
institute a civil action or to take part in such a case.
The Constitutional Court by its decision of 3 January 1994
joined the petitions of District Courts of Skuodas and Šiauliai
into one case.
The representative of the party concerned has explained:
1. Article 118 of the Constitution does not contain an
exhaustive enumeration of all functions, rights and obligations
of the procurator, thus, there is no ground for maintaining
that the procurator may not perform other functions as well. In
the opinion of the representative of the party concerned, such
understanding of procurator's functions is also confirmed by
the linguistic analysis of the contents of Article 118 of the
Constitution.
2. The Code of Civil procedure and the Law on the
Procurator's Office were enacted prior to the adoption of
present Constitution of the Republic of Lithuania, therefore,
with regard to said legal acts the Law "On the Procedure for
the Enforcement of the Constitution of the Republic of
Lithuania" should be applied in Article 2 of which it is
established: "Laws, other legal acts, or parts thereof which
were in effect on the territory of the Republic of Lithuania
prior to the adoption of the Constitution of the Republic of
Lithuania, shall be effective provided that they do not
contradict the Constitution and this law, and shall remain
effective until they are either declared null and void or
co-ordinated with the provisions of the Constitution". The laws
in dispute have not been declared null and void, thus they are
binding to all. The representative of the party concerned has
maintained that this provision was expressed by the Seimas of
the Republic of Lithuania in the resolution "On the Outline of
Legal System Reform and its Implementation", adopted 14
December 1993, which specifies that: "The Procurator's Office
performs the functions prescribed by laws in effect until the
Seimas adopts decisions concerning the termination of these
functions or their delegation to other state institutions".
Further in the Seimas resolution it is emphasized that "the
main function of the procurator's office is criminal
prosecution". Thus, by said resolution the Seimas confirmed the
provision that criminal prosecution is not the only but the
main function of the procurator's office.
Pursuant to the above-mentioned arguments, the
representative of the party concerned requested the
Constitutional Court to recognize that Article 53 of the Code
of Civil Procedure and Part 3, Article 21 of the Law on the
Procurator's Office are in conformity with the Constitution of
the Republic of Lithuania.
The Constitutional Court
holds that:
The Constitution of the State is a legal act having the
supreme legal power on which the whole legal system of the
state is grounded. Upon its amending, issues of the compliance
of legal acts adopted earlier with the new Constitution as well
as their co-ordination and validity arise. Usually in states
adopting new Constitutions special laws are also enacted which
regulate to what extent earlier adopted laws are in effect as
well as the term for co-ordinating the laws in force with the
Constitution. Various legal means of settling this issue are
known in jurisprudence as well as in history. The principle of
legal succession and gradual co-ordination of laws in effect
with the new Constitution is established in the Law of the
Republic of Lithuania "The Procedure for the Enforcement of the
Constitution of the Republic of Lithuania" adopted by
referendum on 25 October 1992 along with the Constitution of
the Republic of Lithuania. Thereby, while forming a new legal
system based on the Constitution an attempt is made to avoid
gaps and controversies in law. It is established in Article 2
of said Law that: "Laws, other legal acts, or parts thereof
which were in effect on the territory of the Republic of
Lithuania prior to the adoption of the Constitution of the
Republic of Lithuania, shall be effective provided that they do
not contradict the Constitution and this law, and shall remain
effective until they are either declared null and void or
co-ordinated with the provisions of the Constitution". Thus,
the provisions of the Code of Civil Procedure and the Law on
the Procurator's Office that were in force prior to the
adoption of the Constitution shall be effective provided that
they do not contradict the present Constitution.
In Article 53 of the Code of Civil Procedure it is
determined that the procurator is entitled to the right to
apply to court with a petition. Other special rights of the
procurator in legal civil proceedings (the right to join the
case at any phase of the proceedings, submit the conclusions to
court, to appeal against court decisions, rulings and
resolutions and to perform other procedural actions prescribed
by law) are established in said Article as well as Article 54,
which in essence make up a separate area of procurator's
activities that in Article 13 of the Code of Civil Procedure is
defined as procuratorial supervision in civil procedure.
The provisions of Article 21 of the Law on the
Procurator's Office are closely related to the implementation
of another area of procurator's activities, i.e. general
competence of the procurator earlier defined as general
procuratorial supervision.
Until the adoption of the Constitution of the Republic of
Lithuania in 1992, both said guidelines of procurator's
activities and functions were adequate to the concept and
purpose of the procurator's Office as the supreme law - abiding
institution.
In the first part of Article 5 of the Constitution it is
set forth that in Lithuania the powers of the State shall be
exercised by the Seimas, the President of the Republic and
Government, and the Judiciary. The functions of procurators are
determined in Chapter 9 of the Constitution "The Court". Thus,
procurators are interpreted here as an integral part of
judicial authority. However, this does not mean that
procurators may perform the functions of justice assigned for
courts. It is especially important to precisely observe the
procurator's functions defined in the first part, Article 118
of the Constitution: "Public prosecutors shall prosecute
criminal cases on behalf of the State, shall carry out criminal
prosecutions, and shall supervise the activities of the
interrogative bodies". Neither this nor other Articles of the
Constitution specify the procurator's supervisory functions
with regard to the activities of courts or their powers to
carry out the so-called general supervision. Therefore, from
the formal point of view, the procurators' authoritarian
activities of said nature are not in accordance with the
procurators' functions established in Article 118 of the
Constitution. Such interpretation of Article 118 of the
Constitution is based on the provision of the second part,
Article 5 of the Constitution which specifies that the scope of
powers shall be defined by the Constitution.
One of the most relevant principles of administration of
justice is independence of judges and courts. It is determined
in Article 109 of the Constitution which specifies that, while
administering justice, judges and courts shall be independent;
while investigating cases, judges shall obey only the law.
Therefore, the right of the procurator, prescribed by Article
53 of the Code of Civil Procedure, to join the case at any
stage of proceedings and an inseparable adjective right thereof
to submit the court the conclusions pertaining to the essence
of the case under investigation as well as upon separate issues
arising in the process of investigation, also to appeal against
illegal and unreasonable decisions, rulings and resolutions
passed by the court in the procedure prescribed by law and to
carry out other procedural actions, stipulated in the law
(items 2, 3, 4, Part I, Article 54 of the Code of Civil
Procedure) contradict the constitutional provision of
independence of judges and courts while administering justice.
Such supervisory function of procurators also restricts the
scope of the powers of judicial authority. Thus, the conclusion
is to be draw that the provision set forth in Article 53 of the
Code of Civil Procedure as well as other provisions determining
the procurator's right to supervise administration of justice
in civil proceedings along with other special rights,
contradict Articles 5 and 109 of the Constitution.
Forms of response that can be applied by the procurator in
carrying out the so-call general supervision of the procurator
are established in Article 21 of the Law on the Procurator's
Office.
Thus, the procurator's right to apply to court which is
prescribed in the third part of this Article is inseparable
from the procurator's forms of response. As general supervision
is not mentioned among the procurator's functions defined in
the Constitution, the contradiction of the forms of response
applied in the procedure of general supervision to the
Constitution is obvious. Therefore, the provisions of Article
21 along with other provisions establishing the procurators'
powers to supervise the legality of executive acts and carry
out procurator's supervision in civil proceedings fail to
conform to the Constitution.
While performing the constitutional function prescribed by
Article 118 of the Constitution, i.e. criminal prosecution,
public procurators deal not only with criminal acts but also
other crimes. Being the institution of legal protection,
procurators must be entitled to the right to respond to this,
however, the forms and scope of response must not contradict
the Constitution as well as laws conforming to it. The
procurators' rights in carrying out criminal prosecution are
defined by the Code of Criminal Procedure and other laws
regulating these activities. Thus, the procurator's right to
institute a civil action or to support an action which has
already been brought in criminal case is beyond doubt, if it is
required by the protection of state or public interests or
other people's rights. In such cases, however, the procurator
may not exceed the adjective rights the plaintiff is entitled
to by the law. In contrary case, it would be a violation of the
provision of Article 29 of the Constitution which specifies
that all people shall be equal before the law and court.
The Constitutional Court also calls attention to the fact
that, due to the abundance of legal acts, their repeated
amending and frequent cases of controversy in the complex
period of legal system reform, a number of issues arise while
attempting to perceive properly rights and duties that would be
in conformity with the person's legal status. The ability to
perceive and realize one's rights may be aggravated by other
circumstances of objective as well as subjective nature. It
must also be stated that the court system stipulated in Article
111 of the Constitution has not been formed yet, the
institution of the Seimas' controllers has not started its
functioning, as well as not all the laws meant to guarantee the
constitutional status of a person and reliable protection of
his rights have been drafted. The Law on the Procurator's
Office, in which the procurator's rights and obligations are
determined, is not co-ordinated with his functions established
in Article 118 of the Constitution of the Republic of
Lithuania. In such rather complicated situation, a person does
not feel free and safe. Many people apply to the procurator as
a state official to get protection of their rights.
The way of solving said problems is provided for by the
Constitution in Article 30 of which it is established that any
person whose constitutional rights and freedoms are violated
shall have the right to appeal to court. A person, of his own
free will manages his private life, relations with other
persons, and of his own free will enjoys legal protection in
court (Article 22 of the Constitution). However, in case some
circumstances aggravate the opportunity to exercise one's right
to legal protection or make it impossible at all, the
declarativeness of said constitutional right would have to be
recognized. Therefore, empowering of state institutions or
their officials by law in order to help people in necessary
cases to realize the protection of their constitutional rights,
is expedient and justifiable but only on condition that it is
in compliance with the Constitution. However, in this case it
should also be emhasized that the most reliable means of
protection of human rights is legal protection in court.
Conforming to Articles 4 and 5 of the Code of Civil Procedure,
any interested person and procurator as well as other subjects
in other cases prescribed by the law, are entitled to the right
to apply to court and ask for legal protection. In the second
part, Article 33 of the Constitution, each citizen is
guaranteed the right of appeal, i.e. the right to appeal
against the decisions of state institutions and their officers.
To investigate citizens' appeals and petitions is a duty of
every state institution. Thus, procurators while performing
their function of criminal prosecution as well as investigating
appeals and petitions of citizens, in case of need, may also
submit a petition to the court and ask for the protection of
other persons' rights. Procurators, as one of the most
significant institutions of legal protection, have the right to
apply to the court also pertaining to lawful state interests as
well as the protection of the public law in case it has been
violated. In such cases they may demand from the administrative
bodies, enterprises, institutions and other organizations as well
as officials to submit documents and information necessary to
start a civil case.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania as well as Articles 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of
Lithuania has taken the following
ruling :
1. To recognize that the provisions of Article 53 of the
Code of the Republic of Lithuania of Civil Procedure pertaining
to the procurator's right to submit a petition to the court for
the protection of other persons' rights and state interests
safeguarded by laws do not contradict the Constitution.
2. To recognize that the provisions of Article 53 as well
as Articles 13 and 54 that provide for the procurator's right
to join the case at any stage and carry out procuratorial
supervision in civil proceedings contradict Articles 5, 109 and
118 of the Constitution of the Republic of Lithuania.
3. To recognize that Article 21 of the Law on the
Procurator's Office as well as the provisions of Articles 2,
19, 20, 22, 25 and 27 that establish the empowering of the
prosecutor to supervise the lawfulness of executive acts and
carry out procuratorial supervision in civil proceedings
contradict Articles 5, 109, and 118 of the Constitution of the
Republic of the Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.