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On the university legal education of advocates

Case No. 11/95-9/96

 THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA

 R U L I N G

 On the compliance of Item 1 of Paragraph 1 of Article 8 of the Republic of Lithuania’s Law 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 court reporter—Daiva Pitrėnaitė

Alfonsas Vileita (an associate professor, PhD), acting as the representative of the Seimas of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on Constitutional Court of the Republic of Lithuania, in its public hearing, on 4 July 1996, considered case No. 11/95-9/96 subsequent to the petitions submitted to the Constitutional Court by the Second Vilnius City Local Court, the petitioner, requesting an investigation into whether 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 of Paragraph 1 of Article 8 of the Republic of Lithuania’s Law on the Bar is in compliance with Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

On 25 September 1995, the Second Vilnius City Local Court, the petitioner, was investigating a civil case subsequent to the complaint of the 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 the 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 rulings the said court suspended the investigation of these civil cases and applied to the Constitutional Court with the petitions requesting an investigation into whether Item 1 of Paragraph 1 of Article 8 of the Republic of Lithuania’s Law on the Bar (Official Gazette Valstybės žinios, 1992, No. 30-911) is in compliance with Paragraph 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 by the decision of the Constitutional Court adopted on 26 June 1996.

The petitioner grounds its requests on the following arguments.

It is established in Item 1 of Paragraph 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 Paragraph 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 persons 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 Paragraph 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 the qualifications of a 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 the Interior, 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, the 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 of Paragraph 1 of Article 8 of the Law on the Bar is in compliance with Paragraph 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 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 Paragraph 2 of Article 15 of the Republic of Lithuania’s Law on Employment Contracts 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, 1991, No. 36-973). Thus, the requirements of professional competence do not contradict the human right to freely choose an occupation or business.
  2. The Magna Charta Universitatum (1988) proclaims that universities cherish and preserve European humanistic traditions. Therefore, it is not by accident that the said document defines true universities as centres of culture, knowledge, and research that created the foundations of culture, science and technology for humanity, which forms preconditions for developing civilisation, as well as educating future generations so that they could learn to respect the great harmonies of their natural environment and of life itself.

True 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 the abundance of knowledge, but also the 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 allow asserting that university education is essentially different from special higher education. In view of the reasoning 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, a person may be deemed to have 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, the legal education that was acquired in an institute, academy or higher educational establishment of the former USSR Ministry of the Interior may not unconditionally be deemed to be analogous to university education, even though the former is recognised as higher education.

  1. The right to defence, as well as the right to have an advocate, is one of the fundamental human rights promoting the ensuring of the person’s freedom and inviolability with the 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 that “every person having the necessary qualifications in law shall be entitled to become a lawyer <...>”. To foresee a necessary level and type of the legal education of advocates, 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 legislature of the Republic of Lithuania also has come to the conclusion that the legal education including a wide outlook that 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 certain limitation of a discriminative character, or a restriction of citizens’ rights and freedoms. This should be merely regarded as a requirement of a qualification character for persons who wish to work at the bar.

Taking account of the reasoning 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 on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives 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 of Paragraph 1 of Article 8 of the Republic of Lithuania’s Law on the Bar is in compliance with the Constitution of the Republic of Lithuania.

This ruling of the Constitutional Court is final and not subject to appeal.

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:

 Egidijus Jarašiūnas                           Kęstutis Lapinskas                           Zigmas Levickis

 Augustinas Normantas                    Vladas Pavilonis                              Jonas Prapiestis

 Pranas Vytautas Rasimavičius         Teodora Staugaitienė                       Juozas Žilys