Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Paragraph 1 of Article 37123
of the Code of Civil Procedure of the Republic of
Lithuania with the Constitution of the Republic of
Lithuania
Vilnius, 5 June 2001
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court 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 representative of the party concerned-the Seimas of
the Republic of Lithuania-Jurgis Orlauskas, a senior consultant
at the Legal Department of the Office of the Seimas,
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
30 May 2001 in its public hearing conducted the investigation
of Case No. 6/2000 subsequent to the petition submitted to the
Constitutional Court by the petitioner-the Anykščiai District
Local Court-requesting the investigation into the compliance of
Paragraph 1 of Article 37123 of the Code of Civil Procedure of
the Republic of Lithuania with Paragraph 1 of Article 29 of the
Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
On 7 February 2000, the Anykščiai District Local Court was
investigating the request of a person to renew the procedure in
a civil case. The said court suspended the investigation of the
case and appealed to the Constitutional Court with the petition
requesting the investigation into the compliance of Paragraph 1
of Article 37123 of the Code of Civil Procedure (Official
Gazette Valstybės žinios, 1998, No. 112-3106; hereinafter also
referred to as the CCP) with Paragraph 1 of Article 29 of the
Constitution.
II
The request is based on these arguments.
Paragraph 1 of Article 37123 of the CCP provides that the
court, without summoning the parties to the case to its
sitting, shall examine if the request on renewal of the
procedure is submitted within the time limit established in
Article 37121 of the CCP and if the request is grounded on the
bases pointed out in Paragraph 1 of Article 37118 of the CCP.
Under this norm, the participants of the investigated case may
learn about the fact of the submission of the request on
renewal of the procedure only after the case has been appointed
for consideration at a court hearing, therefore the persons
participating in the case do not have an opportunity to state
their opinion and challenge whether the bases pointed out in
the request are reasonable and whether the time limit for
submission of the request has not been exceeded. Alongside, the
court, appointing the case for consideration subsequent to the
request to renew the procedure at a court hearing prior to the
renewal of the procedure, recognises that certain circumstances
pointed out in the request by the person requesting for renewal
of the procedure are grounded ones, however, the persons who
previously took part in the case have no right to challenge
such an opinion of the court.
In the opinion of the petitioner, by such a procedure of
consideration of renewal of the procedure, an unequal
procedural situation is established in respect to the person
requesting to renew the procedure and the persons who
participated in the case. Due to this, the petitioner has
doubts whether Paragraph 1 of Article 37123 of the CCP is in
compliance with the provision of Paragraph 1 of Article 29 of
the Constitution that all persons shall be equal before the
law, the court, and other state institutions and officers.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from J. Orlauskas, the representative of the Seimas, a
senior consultant at the Law Department of the Office of the
Seimas.
The representative of the party concerned pointed out that
under Paragraph 1 of Article 37123 of the CCP the consideration
of the request is composed of two phases. First, the judge,
without appointing a court hearing, verifies whether the
request has been submitted within the time limit established in
Article 37121 of the CCP and whether the request is in
conformity to the requirements of Article 37122 of the CCP. In
case the request has been drawn up exceeding the time limit,
the request is not considered in essence. One refuses to renew
the procedure solely on the grounds that the claimant has not
followed the formal requirements established in the CCP. In
case the claimant has followed these requirements, the judge
passes a ruling to accept the case under the jurisdiction of
the court and appoints the date for consideration of the case
at a court hearing.
The court ruling to refuse to renew the procedure in the
case concerns only the rights of the claimant and his
legitimate interests, while the law grants him the right to
appeal against this ruling by an individual complaint. In the
opinion of the representative of the party concerned, it would
be against the logic to grant the same right for the persons
participating in the case, as in the first phase the court does
not consider the questions of renewal of the procedure in
essence, because only a formal verification takes place,
therefore the procedural rights of other persons which are not
provided for in Article 37123 of the CCP may not be violated.
The civil procedure begins only in the second phase of the
renewal of the procedure.
Only upon consideration and assessment of the presented
evidence in a court hearing is it possible to decide whether
the newly discovered facts are essential. A properly submitted
request, without inadequacies of its content (Articles 37121
and 37122 of the CCP), on renewal of the procedure must be
considered at a court hearing in essence, by notifying the
claimant and other persons participating in the case about the
place and time of the court hearing. The procedure is renewed
in pursuance with the rules regulating the procedure at a court
of the first instance. Thus, while the question of renewal of
the procedure is being considered in essence, the persons
participating in the case have the right to exercise fully the
rights granted them by the CCP.
The representative of the party concerned is of the
opinion that Article 37123 of the CCP is in compliance with
Paragraph 1 of Article 29 of the Constitution.
IV
In the course of the preparation of the case for court
proceedings, written explanations were received from the
specialists-Assoc. Prof. Dr. V. Valančius, Head of the
Department of Family Law and Civil Procedure, the Law
University of Lithuania, and E. Krivka, a lecturer at the same
department.
V
At the Constitutional Court hearing, the representative of
the party concerned J. Orlauskas virtually reiterated the
arguments set down in his written explanations.
The Constitutional Court
holds that:
1. Paragraph 1 of Article 37123 of the CCP provides: "The
court, without summoning the parties to the case to its
sitting, shall examine if the request on renewal of the
procedure is submitted within the time limit established in
Article 37121 of this Code and if the request is grounded on
the bases pointed out in Paragraph 1 of Article 37118 of this
Code. By its ruling the court shall either refuse to renew the
procedure in case it states the inadequacies pointed out in
this paragraph or appoint a date for consideration of the case
at a court hearing."
The petitioner points out that under Paragraph 1 of
Article 37123 of the CCP the participants of the case may learn
about the fact of the submission of the request on renewal of
the procedure only after the case has been appointed for
consideration at a court sitting. Thus the opportunities to
challenge the reasonableness of the request on renewal of the
procedure are restricted. In the opinion of the petitioner, by
such legal treatment an unequal procedural situation is
established in respect to the person requesting to renew the
procedure and the persons participating in the case, therefore
the petitioner has doubts whether Paragraph 1 of Article 37123
of the CCP is in compliance with Paragraph 1 of Article 29 of
the Constitution.
2. Paragraph 1 of Article 29 of the Constitution provides:
"All persons shall be equal before the law, the court, and
other State institutions and officers."
The constitutional principle of equality of all persons
must be followed in the course of enactment of laws, their
application, and in the administration of justice. In civil
procedure law, upon the constitutional principle of equality of
all persons inter alia the principle of procedural equality of
the parties and that of adversarial argument are based.
3. In the course of the assessment of the compliance of
Paragraph 1 of Article 37123 of the CCP with Paragraph 1 of
Article 29 of the Constitution, one must take account of the
fact that under the Constitution a person has the right to
defend his rights and legitimate interests in an independent
and impartial court. Paragraph 1 of Article 30 of the
Constitution provides that any person whose constitutional
rights or freedoms are violated shall have the right to appeal
to court.
4. Under Paragraph 1 of Article 37123 of the CCP, the
court, without summoning the parties to the case to its
sitting, shall examine if the request on renewal of the
procedure is submitted within the time limit established in
Article 37121 of the CCP and if the request is grounded on the
bases pointed out in Paragraph 1 of Article 37118 of the CCP.
Thus, under Article 37123 of the CCP one verifies if the
request is in conformity with the requirements of the law.
Having stated that the time limit for submission of the request
has been exceeded and/or that the request is not grounded on
the bases pointed out in Paragraph 1 of Article 37118 of the
CCP, by its ruling the court refuses to renew the procedure. If
the court does not state the presence of such inadequacies, it
appoints a date for consideration of the case at its hearing.
Article 37120 of the CCP provides that the procedure of
renewal of the procedure takes place according to the rules
regulating the procedure at the court of the first instance
save the cases when the procedure is renewed at the Supreme
Court of Lithuania. All the persons participating in the case
must be informed about the date of the consideration of the
case at a court hearing. The procedure for renewal of the
procedure takes place pursuant to the requirements of civil
procedure, therefore the persons participating in the case
enjoy all the procedural rights provided for in the law, as
well as the right to express their opinion about the
reasonableness of renewal of the procedure. Thus there exist no
legal grounds to assert that disputed Paragraph 1 of Article
37123 of the CCP denies the constitutional principle of the
equality of all persons.
5. On the grounds of the arguments set forth, one is to
conclude that Paragraph 1 of Article 37123 of the Code of Civil
Procedure is in compliance with Paragraph 1 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 Paragraph 1 of Article 37123 of the Code
of Civil Procedure of the Republic of Lithuania 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.