Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of item 1, Part 1 of Article 8
of the Law of the Republic of Lithuania on the Bar
with the Constitution of the Republic of Lithuania
10 July 1996, Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the justices of the Constitutional Court Egidijus
Jarašiūnas, Kęstutis Lapinskas, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Pranas Vytautas
Rasimavičius, Teodora Staugaitienė, and Juozas Žilys,
the secretary of the hearing - Daiva Pitrėnaitė,
the party concerned - Alfonsas Vileita (an associate
professor, PhD), the representative of the Seimas of the
Republic of Lithuania,
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the Law of
the Republic of Lithuania on Constitutional Court, in its
public hearing on 4 July 1996 conducted the investigation of
Case No. 11/95 - 9/96 subsequent to the petitions submitted to
the Court by the petitioner - Vilnius City District Court No. 2
- requesting to investigate if the provision "a citizen of the
Republic of Lithuania may be an advocate provided that he/she
[...] has university higher legal education" of item 1, Part 1
of Article 8 of the Law of the Republic of Lithuania on the Bar
is in compliance with Part 1 of Article 48 of the Constitution
of the Republic of Lithuania.
The Constitutional Court
has established:
I
On 25 September 1995, the petitioner - the Vilnius City
District Court No. 2 - was investigating a civil case
subsequent to the complaint of a citizen J. Raudonis regarding
illegal actions of the Ministry of Justice officials, also on
10 June 1996 it was investigating a civil case subsequent to
the complaint of a citizen V. Markovas regarding illegal
actions of the Ministry of Justice officials. In both cases the
aforesaid citizens appealed to the Minister of Justice with the
request to include them into the register of advocates,
however, they received responses indicating that they may not
be included therein on the grounds that they do not have
university higher legal education. By its interlocutory rulings
the said court suspended the investigation of these civil cases
and appealed to the Constitutional Court with the petitions
requesting to investigate if item 1, Part 1 of Article 8 of the
Law of the Republic of Lithuania on the Bar (Official Gazette
"Valstybės Žinios" No. 30-911, 1992) is in compliance with Part
1 of Article 48 of the Constitution of the Republic of
Lithuania.
Both aforementioned petitions of the said court have been
joined into one case on the decision of the Constitutional
Court adopted on 26 June 1996.
The petitioner grounds its requests with the following
arguments.
It is established in item 1, Part 1 of Article 8 of the
Law on the Bar: "a citizen of the Republic of Lithuania may be
an advocate provided that he/she [...] has university higher
legal education". Such a requirement of the law contradicts
Part 1 of Article 48 of the Constitution wherein it is
established that "every person may freely choose an occupation
or business". Thus this law violates citizens' freedom to
freely choose an occupation or business as people who have
higher legal, however, not university, education may not be
advocates.
II
Replying the Constitutional Court paper to the party
concerned, when the case was being prepared for the Court
hearing, Pranciškus Vitkevičius, the Chairman of the Seimas
Committee of State and Law, explained in writing that the
provision of Part 1 of Article 48 of the Constitution which
stipulates that every person may freely choose an occupation or
business may not be interpreted as permitting a person to
freely choose an occupation irrespective of his education,
qualifications and preparedness. Besides, not only the Law on
the Bar but also other laws (e.g., the Law on Health System) as
well as normative acts establish certain requirements for
education, qualifications and preparedness. These requirements
are not uniform for various posts. This should be taken account
of when assessing qualifications of the lawyer.
It was also pointed out in the paper that, in the Soviet
Union, there had been a lot of schools of varied purpose and
level which would grant lawyer qualifications. Such
qualifications had been granted even by juridical schools,
therefore persons who had secondary legal education worked in
the legal system of Lithuania until 1990 quite oftentimes.
Along with universities, the higher educational establishments
of the Ministry of Interior Affairs, the Ministry of Defence
and those of other departments used to grant lawyer
qualifications. In these schools the specialists would be
prepared according to different syllabi than those in
universities. The preparation of such specialists used to be
oriented to the specific character of the activities of
particular departments and little attention was paid to
fundamental legal disciplines, viz., civil law, labour law,
family law, social insurance law, etc., therefore legal
education of the graduates of these schools is not sufficient.
For these reasons it is possible to assert that the provision
"a citizen of the Republic of Lithuania may be an advocate
provided that he/she [...] has university higher legal
education" of item 1, Part 1 of Article 8 of the Law on the Bar
is in compliance with Part 1 of Article 48 of the Constitution.
In the Court hearing the representative of the party
concerned repeated the arguments set forth whereas the argument
that there exist fundamental differences between the university
and special higher school was grounded by comparing the syllabi
of the Faculty of Law of Vilnius University and the Police
Academy of Lithuania.
The Constitutional Court
holds that:
1. The provision of Article 48 of the Constitution that
"every person may freely choose an occupation or business"
signifies an objectivised opportunity (i.e., guaranteed by the
law) to choose a type of occupation at his discretion, i.e., by
deciding freely on this subject. Certain qualifications,
professional knowledge and skills, however, are necessary for
complex work, therefore corresponding requirements for persons
who aspire to complex or obligated work are held indisputable
and, as a rule, universally recognised. As it happens, this
could be illustrated by the norm of Part 2 of Article 15 of the
Law of the Republic of Lithuania on Labour Agreement which
reads: "In case the labour laws bind admission to work by
certain education or professional preparedness, state of
health, the employer must demand that the applicant should
present corresponding documents which confirmed the required
education, professional preparedness, state of health [...]"
(Official Gazette "Valstybės Žinios" No. 36-973, 1991). Thus
the requirements of professional competence do not contradict
the human right to freely choose an occupation or business.
2. The Magna Charta (1988) of universities proclaim that
the university shall cherish and preserve European humanistic
traditions. Therefore it is not by accident that in the said
document the genuine universities are defined as the centres of
culture, knowledge and scientific research which created the
foundations of culture, science and technology of the humanity
that form preconditions to develop civilisation, as well as to
educate the posterity so that it learned to respect the great
harmony of nature and that of life itself.
The genuine universities, as a rule, have long-time
traditions and frequently are noted by a symbiosis of
humanities, social and natural sciences as well as mathematics
(and quite often medicine), therefore they retain equilibrium
between humanities, social and natural sciences, and this
influences the studies of various specialities. Thus not only
abundance of knowledge but also versatility and fundamentality
of the latter are characteristic of university education.
Scientists and students of various specialities communicate
with each other in the universities therefore the persons who
have university education acquire supplementary and universal
knowledge which is necessary when adopting crucial decisions in
various spheres of life.
Other higher educational establishments (specialised
universities, academies, institutes, departmental and special
higher educational establishments) perform a narrower function
of higher educational establishments, viz., they grant higher
education which is the foundation of professional activities in
a particular field. The experts of the Science Council of
Lithuania also emphasise that in the former Soviet Union higher
education had a departmental aspect as higher educational
establishments aimed at the decision of specific tasks of a
department or branch of economy belonging to particular
ministries or departments. According to their syllabi,
qualifications of lecturers, the ways of educating, etc., such
establishments did not provide with education conforming with
that of the university. Moreover, the differences between the
education granted by the university and that granted by other
higher educational establishments were recognised until the
reinstatement of the Independent State of Lithuania, too.
The indicated differences permit to assert that university
education is essentially different from special higher
education. Taking account of the motives set forth, the
Constitutional Court agrees with the conclusion of the Science
Council of Lithuania that when deciding educational matters of
persons who graduated from higher educational establishments in
the former Soviet Union, it is possible to consider that a
person has university education only in the case that it was
acquired in state universities.
The purpose of university legal education is preparation
of specialists who had wide outlook and who were able to assess
the entire legal system and decide difficult problems. A much
wider and diverged syllabus of university studies, the studies
which take place a longer time period and which are more
fundamental, a greater attention to general subjects of
humanities, private law, etc., help to achieve this aim.
Therefore legal education which was acquired in an institute,
academy or higher educational establishment of the former USSR
Ministry of Internal Affairs may not be unconditionally held as
analogous to university education, even though the former is
recognised as higher education.
3. The right to defence, as well as the right to have an
advocate, is one of the fundamental human rights promoting to
secure the person's freedom and inviolability with protection
of constitutional rights and freedoms. The implementation of
the constitutional right to defence is particularly dependent
of the level of advocate's professional preparedness, i.e., of
the qualifications acquired by the lawyer and skills of his
legal practice. International documents also mention
corresponding education as a necessary requirement for persons
who aspire to work as advocates. For instance, in Basic
Principles on the Role of Lawyers adopted in the Eighth United
Nations Congress on the Prevention of Crime and the Treatment
of Offenders it was pointed out that "Governments, professional
associations of lawyers and educational institutions shall
ensure that lawyers have appropriate education and training
[...]" (Item 9). Item 1 of the International Bar Association
Standards for the Independence of the Legal Profession
indicates: "every person having the necessary qualifications in
law shall be entitled to become a lawyer [...]". To foresee a
necessary level and type of legal education of the advocate, as
well as other additional requirements, is an internal affair of
every state. Some countries require not only corresponding
legal education but also additional practical training and
examinations.
The legislator of the Republic of Lithuania also has come
to a conclusion that legal education of wide outlook which
could be secured only by university higher legal education is
necessary to lawyers who work at the bar. The Constitutional
Court has recognised that this may be treated as increased
requirements of educational qualifications for the lawyers of
this profession. However, while establishing such requirements
it is pursued to secure that people may be rendered a more
qualified legal assistance, i.e., to strengthen the protection
and defence guarantees of human rights and freedoms. Besides,
according to the laws of Lithuania, a judge also may be only a
person having university legal education (Articles 22 and 23 of
the Law on Courts, the 8 November 1994 wording).
Thus the education requirement established in the Law on
the Bar may not be held either as a restriction of
discriminative character, or a constraint of citizens' rights
and freedoms. This is to be judged merely as a requirement of
qualification character for persons who wish to work at the
bar.
Taking account of the motives set forth and conforming to
Article 102 of the Constitution of the Republic of Lithuania
and Articles 53, 54, 55 and 56 of the Law of the Republic of
Lithuania on the Constitutional Court, the Constitutional Court
has passed the following
ruling:
To recognise that the provision "a citizen of the Republic
of Lithuania may be an advocate provided that he/she [...] has
university higher legal education" of item 1, Part 1 of Article
8 of the Law of the Republic of Lithuania on the Bar is in
compliance with the Constitution of the Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.