Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Paragraphs 3 and 4 Article 26
of the Republic of Lithuania Law on the Bar with
the Constitution of the Republic of Lithuania
Vilnius, 12 February 2001
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Egidijus
Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas
Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representatives of the party concerned-the Seimas of
the Republic of Lithuania-Jurgis Orlauskas, a senior consultant
to the Law Department of the Office of the Seimas, and Egidijus
Rumbutis, a consultant to the same Department,
pursuant to Paragraph 1 of Article 102 of the Constitution
of the Republic of Lithuania and Paragraph 1 of Article 1 of
the Republic of Lithuania Law on the Constitutional Court, on
31 January 2000 in its public hearing conducted the
investigation of Case No. 15/99-34/99-42/2000 subsequent to the
following petitions:
a petition of the Alytus Local District Court requesting
the Constitutional Court to investigate whether Paragraphs 3
and 4 of Article 26 of the Republic of Lithuania Law on the Bar
were in compliance with Paragraph 6 of Article 31 and Paragraph
1 of Article 48 of the Constitution of the Republic of
Lithuania;
a petition of the Vilnius City Court of the First District
requesting the Constitutional Court to investigate whether
Paragraph 3 of Article 26 the Republic of Lithuania Law on the
Bar was in compliance with Paragraph 6 of Article 31 the
Constitution of the Republic of Lithuania;
a petition of the Kaunas Regional Court requesting the
Constitutional Court to investigate whether Paragraph 3 of
Article 26 the Republic of Lithuania Law on the Bar was in
compliance with Paragraph 2 of Article 29 of the Constitution
of the Republic of Lithuania.
The Constitutional Court
has established:
I
1. The petitioner-the Alytus Local District Court-was
investigating a criminal case. The said court suspended the
investigation of the case and appealed to the Constitutional
Court with the petition requesting investigation of the
compliance of Paragraphs 3 and 4 of Article 26 of the Republic
of Lithuania Law on the Bar (Official Gazette Valstybės žinios,
1998, No. 64-1840) with Paragraph 6 of Article 31 and Paragraph
1 of Article 48 of the Constitution.
2. The petitioner-the Vilnius City Court of the First
District-was investigating a criminal case. The said court
suspended the investigation of the case and appealed to the
Constitutional Court with the petition requesting investigation
of the compliance of Paragraph 3 of Article 26 of the Law on
the Bar with Paragraph 6 of Article 31 of the Constitution.
3. The petitioner-the Kaunas Regional Court-was
investigating a civil case. The said court suspended the
investigation of the case and appealed to the Constitutional
Court with the petition requesting investigation of the
compliance of Paragraph 3 of Article 26 of the Law on the Bar
with Paragraph 2 of Article 29 of the Constitution.
II
The requests of the petitioners are based on these
arguments.
1. The Alytus Local District Court points out that
Paragraph 3 of Article 26 of the Law on the Bar provides that
an advocate may not act as a representative nor counsel for the
defence in court in cases when he previously worked at the same
court as a judge provided three years have not expired from the
end of his said work. Paragraph 4 of Article 26 of the Law on
the Bar provides that an advocate may not act as a
representative nor counsel for the defence in court in cases
when his or her spouse (former spouse), children (adopted
children), parents (foster-parents), brothers, sisters
(step-brothers, step-sisters), cousins, grandparents or
grandchildren work in the same court as judges. In the opinion
of the petitioner, after he has begun to represent or defend
either the suspect, the accused or the defendant, the advocate
does not have the right to refuse him later. It is only either
the suspect, the accused or the defendant who may refuse the
counsel for the defence. Article 17 of the Republic of
Lithuania Code of Criminal Procedure provides that the court
must guarantee an opportunity for the accused to defend himself
by means and ways provided by law from the charge brought
against him. Therefore, it is doubtful if the norms of
Paragraphs 3 and 4 of Article 26 of the Law on the Bar do not
infringe the right of a person suspected of commission of crime
and the accused to defence which is established in Paragraph 6
of Article 31 of the Constitution.
The petitioner also points out that Paragraph 1 of Article
48 of the Constitution provides that every person may freely
choose an occupation or business, and shall have the right to
adequate, safe and healthy working conditions, adequate
compensation for work, and social security in the event of
unemployment. The petitioner doubts whether Paragraphs 3 and 4
of Article 26 of the Law on the Bar do not infringe the right
of individuals to choose an occupation or business freely.
2. The Vilnius City Court of the First District points out
that the norm of Paragraph 3 of Article 26 of the Law on the
Bar, prohibiting an advocate to act as a representative or
counsel for the defence in court in cases when he previously
worked at the same court as a judge provided three years have
not expired from the end of his said work, infringes the right
of the defendant to choose a desirable lawyer in the criminal
case. Therefore, in the opinion of the petitioner, there are
grounds to assert that Paragraph 3 of Article 26 of the Law on
the Bar conflicts with Paragraph 6 of Article 31 of the
Constitution which guarantees persons the right to defence and
legal counsel.
3. The Kaunas Regional Court points out that under the
Republic of Lithuania Code of Civil Procedure, persons may
conduct their cases in court either by themselves or through
representatives. Paragraph 3 of Article 26 of the Law on the
Bar provides that an advocate may not act as a representative
nor counsel for the defence in court in cases when he
previously worked at the same court as a judge provided three
years have not expired from the end of his said work. Thus,
under Paragraph 3 of Article 26 of the Law on the Bar the
respondent is not free to choose his representative for conduct
of his case. The petitioner maintains that Paragraph 2 of
Article 29 of the Constitution provides that a person may not
have his rights restricted in any way, therefore doubts arise
if Paragraph 3 of Article 26 of the Law on the Bar is in
compliance with Paragraph 2 of Article 29 of the Constitution.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representatives of the party concerned-the
Seimas-J. Orlauskas and E. Rumbutis.
1. It is maintained in the explanation by J. Orlauskas
that the purpose of Paragraph 4 of Article 26 of the Law on the
Bar is to secure the independence of judges and courts, it
creates conditions to exclude possible influence on judges and
to evade situations which might lead to doubts as for
impartiality of the judge. The representative of the party
concerned points out that the right to freely choose an
occupation is restricted by laws by establishing qualifications
requirements and restrictions on work of relatives in the civil
service etc. The restrictions set for advocates are not
exceptional and they are in line with the legal system.
In the opinion of J. Orlauskas, Paragraph 4 of Article 26
of the Law on the Bar is in conformity with Paragraph 6 of
Article 31 of the Constitution, while Paragraph 3 of Article 26
of the said law is in conformity with Paragraph 1 of Article 48
of the Constitution.
2. E. Rumbutis points out in his written explanation that
Paragraph 2 of Article 29 of the Constitution establishes the
provision prohibiting to restrict the rights of a person in any
way, or to grant him or her any privileges, on the basis of his
or her sex, race, nationality, language, origin, social status,
religion, convictions, or opinions. In this constitutional norm
the principle of non-discrimination of persons is entrenched.
The norm of Paragraph 3 of Article 26 of the Law on the Bar is,
without exceptions, applied to all advocates who wish to act as
a representative or counsel for the defence in court in cases
when he previously worked at the same court as a judge provided
three years have not expired from the end of his said work,
irrespective of their sex, nationality or other properties.
In the opinion of E. Rumbutis, Paragraph 3 of Article 26
of the Law on the Bar is in compliance with Paragraph 2 of
Article 29 of the Constitution.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from G. Švedas, Vice-minister of Justice, M.
Anciuvienė, Deputy Director General of the European Law
Department under the Government of the Republic of Lithuania,
A. Bugelevičienė, Deputy Chairwoman of the Lithuanian Bar
Council, and T. Klimas, Head of the Law Department of the
University of Vytautas the Great.
V
At the Constitutional Court hearing, the representatives
of the party concerned J. Orlauskas and E. Rumbutis virtually
reiterated the arguments set down in their written
explanations.
The Constitutional Court
holds that:
I
On the compliance of Paragraphs 3 and 4 of Article 26 of
the Law on the Bar with Paragraph 6 of Article 31 of the
Constitution.
1. Paragraph 3 of Article 26 of the Law on the Bar
provides: "An advocate may not act as a representative nor
counsel for the defence in court in cases when he previously
worked at the same court as a judge provided three years have
not expired from the end of his said work."
Paragraph 4 of Article 26 of the Law on the Bar provides:
"An advocate may not act as a representative nor counsel for
the defence in court in cases when his or her spouse (former
spouse), children (adopted children), parents (foster-parents),
brothers, sisters (step-brothers, step-sisters), cousins,
grandparents or grandchildren work in the same court as
judges."
The petitioner-the Alytus Local District Court-maintains
that the restrictions for advocates to act as representatives
or counsel for the defence in court, which are established in
Paragraphs 3 and 4 of Article 26 of the Law on the Bar, violate
the right of persons to choose an advocate, which is
consolidated in Paragraph 6 of Article 31 of the Constitution.
The petitioner-the Vilnius City Court of the First
District-also doubts whether Paragraph 3 of Article 26 of the
Law on the Bar is in conformity with Paragraph 6 of Article 31
of the Constitution.
2. Paragraph 6 of Article 31 of the Constitution provides:
"From the moment of arrest or first interrogation, persons
suspected or accused of a crime shall be guaranteed the right
to defence and legal counsel."
The right to have an advocate entrenched in Paragraph 6 of
Article 31 of the Constitution means that the person has the
right to choose an advocate by himself, as well as the right to
have an advocate appointed by the state. The right of the
person to have an advocate also presupposes the right of the
person to be clearly informed that he is entitled to have an
advocate from the moment of arrest or first interrogation.
It needs to be noted that the right of persons to defence
as well as the right to have an advocate is absolute: it may
not be denied nor restricted on any grounds nor any conditions.
The right of a person suspected of commission of crime as
well as that of the accused to defence is one of the guarantees
of human rights protection. This right is a necessary condition
so that every person who committed a crime would be justly
punished and that an innocent person would not be brought to
criminal responsibility and convicted.
The right of persons to defence and legal counsel is also
established in international law acts. For example, Paragraph 3
of Article 6 of the Convention for the Protection of Human
Rights and Fundamental Freedoms provides that everyone charged
with a criminal offence, along with the other guarantees, has
the right to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require. In the Body of Principles for
the Protection of All Persons under Any Form of Detention or
Imprisonment confirmed by the 13 March 1989 resolution of the
United Nations General Assembly it is proclaimed that a
detained person shall be entitled to have the assistance of a
legal counsel. He shall be informed of his right by the
competent authority promptly after arrest and shall be provided
with reasonable facilities for exercising it.
From the right to defence and the right to have an
advocate entrenched in Paragraph 6 of Article 31 of the
Constitution stems the obligation of the legislator to
particularise by laws the implementation of the constitutional
rights of persons. Establishing such legal regulation, the
legislator is bound by the Constitution. From the
constitutional right to defence, as well as the right to have
an advocate, stems the obligation of state institutions to
ensure real opportunities for implementation of these rights.
3. It needs to be noted that the right to choose an
advocate by himself, unlike the right to have an advocate, is
not absolute. For instance, the advocate himself may not act as
counsel for the defence of two or more persons suspected of
commission of crime or two or more accused in cases when the
interests of defence of one of these persons conflict with
those of the other. Laws may provide that in cases when
exercise of defence of the person faces real difficulties, the
court may suggest that the person choose another advocate. The
European Court of Human Rights noted in the Case of Croissant
v. Germany (European Court of Human Rights, Case of Croissant
v. Germany, judgment of 25 September 1992, Series A No. 237-B)
that if this is necessary in the interests of justice, state
institutions can appoint counsel for the person even in cases
when the indicted person disagrees with this or when he wishes
to defend himself personally.
4. The Constitution shall be an integral and directly
applicable statute (Paragraph 1 of Article 6 of the
Constitution). The provisions of Paragraph 6 of Article 31 of
the Constitution are linked with provisions of other articles
of the Constitution, and, first of all, with the right of every
indicted person to a fair and public hearing by an independent
and impartial court (Paragraph 2 of Article 31 of the
Constitution), as well as with the independence of judges and
courts in the course of administration of justice (Paragraph 2
of Article 109 of the Constitution).
The independence of judges and courts is one of essential
principles of a democratic and law-governed state. The social
role of courts is that courts, while administering justice,
must ensure the implementation of the rights established in the
Constitution, the laws and other legal acts, to protect human
rights and freedoms, and to guarantee the supremacy of law. The
independence of judges and courts is a necessary condition of
protection of human right and freedoms. Alongside, this is one
of most important duties of judges and courts, ensuing from the
human right to an impartial arbiter in a dispute guaranteed by
the Constitution (Constitutional Court rulings of 6 December
1995 and 21 December 1999).
The constitutional right of persons to a hearing by an
impartial court also means that a judge, whose impartiality may
raise doubts, may not investigate a case of the person. The
judge investigating the case must be neutral. Impartiality and
independence of the court are the essential guarantee of
ensuring of human rights and freedoms, and is a necessary
condition of fair investigation of the case, hence a condition
of trust in court as well.
5. The principle of independence of judges and courts
established in the Constitution as well as the right of persons
to a fair and public hearing by an independent and impartial
court, presupposes the duty of the state to provide for the
guarantees of judges and courts.
The independence and impartiality of judges and courts can
be secured by various means. In its ruling of 21 December 1999,
the Constitutional Court held that the independence of judges
and courts is secured by consolidating their procedural
independence, organisational independence and self-government
of courts, status of judges and social (material) guarantees of
judges by laws.
6. The impartiality of judges and courts is ensured by
means of establishing prohibitions and restrictions to consider
cases for a judge in cases when there are doubts as regards
impartiality of the judge.
In attempt to ensure the impartiality and independence of
judges and courts, the laws may also establish such legal
regulation which would remove the preconditions raising doubts
concerning impartiality of judges and courts. The preconditions
raising the said doubts may appear also in cases when an
advocate acts as a representative or counsel for the defence in
court in cases when he previously worked at the same court as a
judge provided three years have not expired from the end of his
said work and when an advocate acts as a representative or
counsel for the defence in court in cases when his or her
spouse (former spouse), children (adopted children), parents
(foster-parents), brothers, sisters (step-brothers,
step-sisters), cousins, grandparents or grandchildren work in
the same court as judges. There may occur preconditions for
doubts concerning the impartiality of the court only due to the
fact that the advocate is linked with a certain judge of the
same court by kinship ties or is (was) a spouse of the judge.
As mentioned, the independence of judges and courts and
the constitutional right of persons to an impartial court is
one of the most important guarantees for protection of human
rights and freedoms. By the restrictions established in
Paragraphs 3 and 4 of Article 26 of the Law on the Bar one
attempts to remove the preconditions raising doubts concerning
impartiality of judges and courts. In the Case of Langborger v.
Sweden, the European Court of Human Rights held that it is
necessary to secure the opinion about the objective
impartiality and independence of courts (European Court of
Human Rights, Langborger Case, judgement of 22 June 1989,
Series A No. 155).
It needs to be noted that although the legislator has the
right to establish varied legal regulation necessary to secure
impartiality of judges and courts, however, this must be done
without violating the principles and requirements enshrined in
the Constitution as well as the right of persons to defence and
legal counsel entrenched in Paragraph 6 of Article 31 of the
Constitution.
7. In the course of consideration whether the restrictions
on implementation of advocate's functions established in
Paragraphs 3 and 4 of Article 26 of the Law on the Bar do not
infringe the constitutional right of persons to defence and
legal counsel entrenched in Paragraph 6 of Article 31 of the
Constitution, the fact is of essential importance that the
disputed legal norms do not deny the right of persons suspected
or accused of a crime to defence and legal counsel, nor do they
deny their right to choose an advocate by themselves. The
person is entitled to choose an advocate from those who, under
the laws, may act as representatives or counsel for the defence
at the court in which the case is being investigated.
8. Taking account of the motives set forth, one is to
conclude that Paragraphs 3 and 4 of the Law on the Bar are in
compliance with Paragraph 6 of Article 31 of the Constitution.
II
On the compliance of Paragraphs 3 and 4 of Article 26 of
the Law on the Bar with Paragraph 1 of Article 48 of the
Constitution.
1. The petitioner-the Alytus Local District Court-doubts
whether Paragraphs 3 and 4 of Article 26 of the Law on the Bar
establishing restrictions on advocate's functions are in
compliance with Paragraph 1 of Article 48 of the Constitution.
2. Paragraph 1 of Article 48 of the Constitution provides:
"Every person may freely choose an occupation or business, and
shall have the right to adequate, safe and healthy working
conditions, adequate compensation for work, and social security
in the event of unemployment."
Paragraphs 3 and 4 of the Law on the Bar do not contain
any restrictions hindering persons from becoming (being) an
advocate, i.e. they contain no restrictions on the
implementation of the constitutional right to freely choose an
occupation or business. The prohibition for an advocate to act
as a representative or counsel for the defence in court in
cases when he previously worked at the same court as a judge
provided three years have not expired from the end of his said
work (Paragraph 3 of Article 26 of the Law on the Bar) and in
cases when his or her spouse (former spouse), children (adopted
children), parents (foster-parents), brothers, sisters
(step-brothers, step-sisters), cousins, grandparents or
grandchildren work in the same court as judges (Paragraph 4 of
Article 26 of the Law on the Bar) are not prohibitions to
become (be) an advocate, i.e. they are not prohibitions of free
choice of an occupation or business. The prohibitions
established in Paragraphs 3 and 4 of Article 26 of the Law on
the Bar restrict the exercise of some functions of advocates
only but not all their functions, and not in all courts of
Lithuania but only in the courts in which a respective advocate
previously worked as a judge or his/her spouse (former spouse)
or the persons listed in the law with whom respective advocates
are linked by kinship relations work as judges.
4. Taking account of the aforementioned arguments, one is
to conclude that Paragraphs 3 and 4 of Article 26 of the Law on
the Bar are in compliance with Paragraph 1 of Article 48 of the
Constitution.
III
On the compliance of Paragraph 3 of Article 26 of the Law
on the Bar with Paragraph 2 of Article 29 of the Constitution.
1. The petitioner-the Kaunas Regional Court-is of the
opinion that the restrictions for advocates set in Paragraph 3
of Article 26 of the Law on the Bar to act as a representative
or counsel for the defence in court in cases when he previously
worked at the same court as a judge provided three years have
not expired from the end of his said work do not permit a
person to choose the advocate that he wishes to represent him
in his case, therefore doubts arise whether Paragraph 3 of
Article 26 of the Law on the Bar is in conformity with
Paragraph 2 of Article 29 of the Constitution.
2. Paragraph 2 of Article 29 of the Constitution provides:
"A person may not have his rights restricted in any way, or be
granted any privileges, on the basis of his or her sex, race,
nationality, language, origin, social status, religion,
convictions, or opinions."
It needs to be noted that Paragraph 3 of Article 26 of the
Law on the Bar does not contain any norms which might deny or
restrict a person's right to choose an advocate on the basis of
his or her sex, race, nationality, language, origin, social
status, religion, convictions, or opinions.
3. Taking account of the aforementioned arguments, one is
to conclude that Paragraph 3 of Article 26 of the Law on the
Bar is in compliance with Paragraph 2 of Article 29 of the
Constitution.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the
Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
To recognise that Paragraphs 3 and 4 Article 26 of the
Republic of Lithuania Law on the Bar are 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.