Lt

On civil written procedure

Case No. 33/2009

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 RULING

ON THE COMPLIANCE OF PARAGRAPH 2 OF ARTICLE 153, PARAGRAPH 3 OF ARTICLE 319 AND PARAGRAPH 3 OF ARTICLE 352 OF THE CODE OF CIVIL PROCEDURE OF THE REPUBLIC OF LITHUANIA (WORDING OF 28 FEBRUARY 2002) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 6 December 2012

Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Egidijus Bieliūnas, Pranas Kuconis, Gediminas Mesonis, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas,

with the secretary—Daiva Pitrėnaitė,

pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 7 November 2012, in the Court’s public hearing, considered constitutional justice case No. 33/2009 subsequent to the petition (No. 1B-38/2009) of a group of Members of the Seimas of the Republic of Lithuania, the petitioner, requesting to investigate whether Paragraph 2 of Article 153, Paragraph 3 of Article 319 and Paragraph 3 of Article 352 of the Code of Civil Procedure of the Republic of Lithuania, insofar as they prescribe that when a case is considered under written procedure, the persons participating in the case are not invited to a court sitting and the court sitting takes place without their participation, are not in conflict with Paragraph 1 of Article 117 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

The petition of the group of Members of the Seimas, the petitioner, is substantiated by the fact that Paragraph 2 of Article 153, Paragraph 3 of Article 319 and Paragraph 3 of Article 352 of the Code of Civil Procedure (hereinafter also referred to as the CCP) prescribe that, when a case is considered under written procedure, the persons participating in the case are not invited to the court proceedings and the court proceedings take place without their participation. Under the general constitutional norm consolidated in Paragraph 1 of Article 117 of the Constitution, in all courts the consideration of cases is public, and only in separate situations a case may, though does not have to, be considered in a closed hearing. Whereas, when a civil case is considered under written procedure at appellate and cassational instances, a party to the case is not allowed to participate in the courtroom; thus, the constitutional rights of a participant of the proceedings are violated.

II

In the course of the preparation of the case for the Constitutional Court’s hearing written explanations were received from the representative of the Seimas, the party concerned, who was Konstantas Ramelis, a Member of the Seimas, wherein it is maintained that the provisions of the CCP impugned in the constitutional justice case at issue are not in conflict with the Constitution. The position of the representative of the party concerned is substantiated by the following arguments.

  1. Paragraph 1 of Article 117 of the Constitution consolidates the principle of publicity of consideration of a case, whereas the provisions of the CCP impugned by the petitioner prescribe only the form of a court sitting—written proceedings. While taking account of this, it is maintained that court proceedings consist of certain stages, whereas judicial consideration (at first, appellate or cassational instance) is one of those stages. Thus, the provision “In all courts, the consideration of cases shall be public” of Paragraph 1 of Article 117 of the Constitution consolidates the principle of publicity of not a separate part of court proceedings—judicial consideration, but that of court proceedings in its entirety. The implementation of the said constitutional provision does not require the publicity of each judicial stage, whereas the publicity of consideration of a case is duly implemented by consolidating oral proceedings at least in a court of first instance.
  2. In the course of written proceedings the parties set out the reasoning and circumstances related to their case—all that they would deliver orally during oral proceedings—in mandatory procedural documents. In addition, in the cases where a need arises in the course of written proceedings to examine certain circumstances of the case more thoroughly, the judge may assign oral consideration.
  3. The parties to the proceedings have not only the constitutional right to the publicity of proceedings, but also other constitutional rights that must be ensured when cases are considered under civil procedure. The said argument of the party concerned is substantiated by Article 28 of the Constitution, which stipulates that “While implementing his rights and freedoms, the human being must observe the Constitution and the laws of the Republic of Lithuania and must not restrict the rights and freedoms of other people”, also by the Constitutional Court’s rulings wherein it has been more than once noted that no right of a person is absolute and that a person may have a certain right at his disposal insofar as he does not violate the rights and legitimate interests of other persons.
  4. Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter also referred to as the Convention) consolidates the right of a human being to a fair trial, the constituent parts of which are the right to court proceedings of the duration as short as possible (the principle of concentration of proceedings) and the right to public consideration of a case at least in a court of first instance.

The provisions of Paragraph 2 of Article 153, Paragraph 3 of Article 319 and Paragraph 3 of Article 352 of the CCP, under which, when a case is considered under written procedure, the persons participating in the case are not invited to a court sitting, consolidate a compromise between the right to participate in a court sitting, i.e. the right to the publicity of a court hearing, and the right to fair proceedings of a reasonable duration. In addition, the provisions of the CCP under discussion ensure the public interest that the legal peace between the parties to the case would be restored in the most effective manner as soon as possible and at least expense, particularly, in uncomplicated cases. Otherwise, a situation could arise where the consideration of even uncomplicated cases would be especially lengthy and the expenses of the state (the public) as well as those of the parties to the case would be high.

The persons participating in the case have the right to get acquainted with all the material of the case and set out their position and reasoning in writing. Thus, the fact that the law consolidates written proceedings and court sittings take place without the participation of the parties to the case does not in itself violate the legitimate interests of the person or the Constitution.

III

In the course of the preparation of the case for the Constitutional Court’s hearing written explanations were received from Assoc. Prof. Dr. Egidija Stauskienė, Head of the Department of Civil Procedure of the Faculty of Law of Mykolas Romeris University, and Prof. Habil. Dr. Vytautas Nekrošius, Dean of the Faculty of Law of Vilnius University.

The Constitutional Court

holds that:

I

  1. The group of Members of the Seimas, the petitioner, requests investigation into whether Paragraph 2 of Article 153, Paragraph 3 of Article 319 and Paragraph 3 of Article 352 of the CCP, insofar as they prescribe that, when a case is considered under written procedure, the persons participating in the case are not invited to a court sitting and the court sitting takes place without their participation, are not in conflict with Paragraph 1 of Article 117 of the Constitution.

According to the petitioner, when a civil case is considered under written procedure at appellate and cassational instances, the parties are not allowed to participate in a court sitting; thus, the constitutional rights of the participants to the proceedings are violated.

  1. In its petition the petitioner does not indicate the compliance of which wording of the provisions of Paragraph 2 of Article 153, Paragraph 3 of Article 319 and Paragraph 3 of Article 352 of the CCP with the Constitution is requested to be investigated.

From the petition of the petitioner it is clear that the petitioner doubts as to whether Paragraph 2 of Article 153 (wording of 28 February 2002), Paragraph 3 of Article 319 (wording of 28 February 2002) and Paragraph 3 of Article 352 (wording of 28 February 2002) of the CCP are not (to the corresponding extent) in conflict with the Constitution.

Although the petitioner impugns the compliance of the entire Paragraph 2 of Article 153 (wording of 28 February 2002) of the CCP with the Constitution, from the arguments of the petition it is clear that the compliance is impugned insofar as that paragraph prescribed that, when a case is considered under written procedure in a court of appellate instance and the court of cassation, the persons participating in the case are not invited to a court sitting and do not participate in it.

Thus, subsequent to the petition of the group of Members of the Seimas, the petitioner, the Constitutional Court will investigate whether Paragraph 2 of Article 153 (wording of 28 February 2002) of the CCP, insofar as it prescribed that, when a case is considered under written procedure in a court of appellate instance and the court of cassation, the persons participating in the case are not invited to a court sitting and do not participate in it, also Paragraph 3 of Article 319 (wording of 28 February 2002) and Paragraph 3 of Article 352 (wording of 28 February 2002), insofar as they prescribed that, when a case is considered under written procedure, the persons participating in the case are not invited to a court sitting and the court sitting takes place without their participation, were not in conflict with Paragraph 1 of Article 117 of the Constitution.

  1. On 28 February 2002, the Seimas adopted the Republic of Lithuania Law on the Approval, Entry into Force and Implementation of the Code of Civil Procedure, by Article 1 whereof it approved the Code of Civil Procedure. Paragraph 2 of that law prescribes that the Code of Civil Procedure comes into force “as from 1 January 2003”; under Paragraph 2 of Article 13 of that law, upon the entry of the Code of Civil Procedure into force, inter alia the previously valid Code of Civil Procedure of the Republic of Lithuania (wording of 7 July 1964 with subsequent amendments and supplements; hereinafter also referred to as the previously valid CCP) became null and void.
  2. Article 153 “Forms of Court Hearings” (wording of 28 February 2002) of the CCP, which is in Chapter XII “Court Hearings” of Part I “General Provisions” of the CCP, prescribed:

“1. Court hearings shall take place under oral procedure, i.e. the persons participating in the case shall be invited to a court hearing, save the cases when this Code provides otherwise.

  1. Written proceedings shall be possible in the cases provided for by this Code. In such cases the persons participating in the case shall not be invited to a court sitting and shall not participate in it. The persons participating in the case shall be notified of the written proceedings by means of notices, save the cases when this Code does not provide for the notification of performance of procedural actions.”

Paragraph 3 of Article 319 “Formation of the College of Judges and Establishment of the Date for a Court Hearing” (wording of 28 February 2002) of the CCP, which is in Chapter XVI “Case Proceedings in a Court of Appellate Instance” of Part III “Forms of the Control over Lawfulness and Reasonableness of Court Decisions and Rulings and Reopening of Proceedings” of the CCP, prescribed:

“The persons participating in the case shall be notified of the place and time of the consideration of the appellate case. When a case is considered under written procedure, the persons participating in the case shall not be invited to a court sitting and the court sitting shall take place without their participation. In the event of oral proceedings the persons participating in the case shall be invited to a court hearing, however, their non-attendance shall not preclude the consideration of the case.”

Paragraph 3 of Article 352 “Formation of the College of Judges and Assignment of a Court Hearing” (wording of 28 February 2002) of the CCP, which is in Chapter XVII “Case Proceedings in the Court of Cassation” of Part III “Forms of the Control over Lawfulness and Reasonableness of Court Decisions and Rulings and Reopening of Proceedings” of the CCP, prescribed:

“The persons participating in the case shall be notified of the place and time of the consideration of the cassational case. When a case is considered under written procedure, the persons participating in the case shall not be invited to a court sitting and the court sitting shall take place without their participation. In the event of oral proceedings the parties to the case, the third persons and their representatives specified in Article 354 of this Code shall be invited to a court hearing, however, their non-attendance shall not preclude the consideration of the case.”

  1. Thus, Paragraph 2 of Article 153 (wording of 28 February 2002), Paragraph 3 of Article 319 (wording of 28 February 2002) and Paragraph 3 of Article 352 (wording of 28 February 2002) of the CCP, insofar as their compliance with the Constitution is impugned by the petitioner, established certain peculiarities of proceedings taking place under written procedure, if compared with proceedings taking place under oral procedure: when a case is considered under written procedure, the persons participating in the case are not invited to a court sitting and the court sitting takes place without their participation; when a case is considered under oral procedure, the persons participating in the case are invited to a court hearing, save the cases provided for by the CCP.
  2. The CCP (wording of 28 February 2002) has been amended and/or supplemented more than once.

On 21 June 2011, the Seimas adopted the Republic of Lithuania Law on Amending and Supplementing the Code of Civil Procedure, by Articles 79, 99, 185 and 205 whereof it amended Paragraph 3 of Article 133 (wording of 28 February 2002), amended and supplemented Article 153 (wording of 28 February 2002) and amended Article 319 (wording of 28 February 2002) and Paragraph 3 of Article 352 (wording of 28 February 2002) of the CCP, respectively. That law, save the exceptions set in Paragraphs 2–5 of Article 387 thereof, came into force on 1 October 2011.

Article 153 “Forms of Court Hearings” (wording of 21 June 2011) of the CCP prescribes:

“1. Court hearings shall take place under oral procedure, i.e. the persons participating in the case shall be invited to a court hearing, save the cases when this Code provides otherwise.

  1. Written proceedings shall be possible in the cases provided for by this Code. In such cases the persons participating in the case shall not be invited to a court sitting and shall not participate in it. The persons participating in the case shall be notified of written proceedings in the manner provided for in Paragraph 3 of Article 133 of this Code.
  2. The procedural questions that must be considered under written procedure may be examined by a court under oral procedure if the court recognises this to be necessary.”

Paragraph 3 of Article 319 (wording of 21 June 2011) of the CCP prescribes:

“In the event of oral consideration of a case the persons participating in the case shall be sent notices of the place and time of the consideration of the case. In the event of written consideration of a case the persons participating in the case shall be notified of the place and time of the consideration of the case in the manner provided for in Paragraph 3 of Article 133 of this Code (on a special Internet website). In the event of written consideration of a case the persons participating in the case shall not be invited to a court sitting and the court sitting shall take place without their participation. In the event of oral consideration of a case the persons participating in the case shall be invited to a court hearing, however, their non-attendance shall not preclude the consideration of the case under appellate procedure.”

Paragraph 3 of Article 352 (wording of 21 June 2011) of the CCP prescribes:

“In the event of oral consideration of a case the persons participating in the case shall be notified of the place and time of the consideration of the case. In the event of written consideration of a case the persons participating in the case shall be notified of the place and time of the consideration of the case in the manner provided for in Paragraph 3 of Article 133 of this Code (on a special Internet website). In the event of written consideration of a case the persons participating in the case shall not be invited to a court sitting and the court sitting shall take place without their participation. In the event of oral consideration of a case the parties to the case, the third persons and their representatives specified in Article 354 of this Code shall be invited to a court hearing, however, their non-attendance shall not preclude the consideration of the case under cassational procedure.”

Paragraph 3 (wording of 21 June 2011) of Article 133 of the CCP prescribes:

“When a case is considered under written procedure in substance, an announcement about the date, time and place of a court sitting and the composition of the court shall be made on a special Internet website not later than seven days before the day of the court sitting, save the cases provided for by this Code when the persons participating in the case are notified in a different manner. The said information shall also be provided by the court office. When other procedural questions are considered under written procedure, the persons participating in the case shall be notified of a court sitting only in the cases provided for by this Code.”

  1. After comparing the legal regulation established in Paragraph 2 of Article 153 (wording of 28 February 2002), Paragraph 3 of Article 319 (wording of 28 February 2002) and Paragraph 3 of Article 352 (wording of 28 February 2002) of the CCP with that established in Paragraph 2 of Article 153 (wording of 21 June 2011), Paragraph 3 of Article 319 (wording of 21 June 2011) and Paragraph 3 of Article 352 (wording of 21 June 2011) of the CCP, respectively, it is clear that, although Paragraph 2 of Article 153 (wording of 28 February 2002), Paragraph 3 of Article 319 (wording of 28 February 2002) and Paragraph 3 of Article 352 (wording of 28 February 2002) of the CCP were amended, the legal regulation laid down therein, insofar as it is impugned by the petitioner, has remained unchanged, i.e. they still contain the provision that in the event of written consideration of a case the persons participating in the case are not invited to a court sitting and do not participate in it. The legal regulation established in Paragraph 2 of Article 153 (wording of 28 February 2002), Paragraph 3 of Article 319 (wording of 28 February 2002) and Paragraph 3 of Article 352 (wording of 28 February 2002) of the CCP, if compared to that established in Paragraph 2 of Article 153 (wording of 21 June 2011), Paragraph 3 of Article 319 (wording of 21 June 2011) and Paragraph 3 (wording of 21 June 2011) of Article 352 of the CCP, respectively, has changed inter alia in the aspect that in the event of written consideration of a case it provides that the persons participating in the case are notified of the place and time of the consideration of the case in a different manner.

II

  1. It has been mentioned that subsequent to the petition of the group of Members of the Seimas, the petitioner, in the constitutional justice case at issue it is investigated whether Paragraph 2 of Article 153 (wording of 28 February 2002) of the CCP, insofar as it prescribed that, when a case is considered under written procedure in a court of appellate instance and the court of cassation, the persons participating in the case are not invited to a court sitting and do not participate in it, also Paragraph 3 of Article 319 (wording of 28 February 2002) and Paragraph 3 of Article 352 (wording of 28 February 2002), insofar as they prescribed that, when a case is considered under written procedure, the persons participating in the case are not invited to a court sitting and the court sitting takes place without their participation, were not in conflict with Paragraph 1 of Article 117 of the Constitution.
  2. Paragraph 1 of Article 117 of the Constitution prescribes: “In all courts, the consideration of cases shall be public. A closed court hearing may be held in order to protect the secrecy of private or family life of the human being, or where public consideration of the case might disclose a State, professional or commercial secret.”

Paragraph 1 of Article 117 of the Constitution consolidates the principle of the public consideration of cases in courts, stipulates that in certain circumstances closed court hearings may be held and provides a list of such circumstances (the Constitutional Court’s ruling of 19 September 2000).

  1. The Constitutional Court has held more than once that the courts executing, under the Constitution, judicial power in Lithuania are to be attributed not to one, but to two or more (if this, while heeding the Constitution, is established in certain laws) systems of courts. Under the Constitution and laws, at present in Lithuania there are three systems of courts: 1) the Constitutional Court executes constitutional judicial control (in addition to other provisions of the Constitution (including those that are designed for judicial power and judges in general), a separate chapter (VIII) of the Constitution is designed for the Constitutional Court); 2) the Supreme Court of Lithuania, the Court of Appeal of Lithuania, regional courts and local courts, specified in Paragraph 1 of Article 111 of the Constitution, constitute the system of courts of general jurisdiction; 3) under Paragraph 2 of Article 111 of the Constitution, for the consideration of administrative, labour, family and cases of other categories, specialised courts may be established. One system of specialised courts, specifically, that of administrative courts, which is comprised of the Supreme Administrative Court of Lithuania and regional administrative courts, is established by laws and is functioning at present.

The Constitution (inter alia Paragraph 1 of Article 111 thereof) not only establishes a four-level system of courts of general jurisdiction (as a system of institutions), but it also consolidates the fundamentals for the instance system of courts of general jurisdiction, as a system of procedural stages of judicial consideration of cases. The instance system of courts of general jurisdiction, which arises from the Constitution, implies that there must be, under the established procedure, possibilities of filing a complaint against any final act of a court of general jurisdiction of first instance with a court of general jurisdiction of at least one higher instance (the Constitutional Court’s rulings of 28 March 2006 and 24 October 2007). The Constitutional Court has held that the purpose of the instance court system is to remove possible mistakes of courts of lower instances, not to permit that injustice is executed and, thus, to protect the rights and legitimate interests of the person, society and the state (the Constitutional Court’s ruling of 16 January 2006). The purpose of the instance system of courts of general jurisdiction is to create preconditions for courts of higher instances to correct any mistakes of the fact (i.e. of the establishment and assessment of legally significant facts) or those of law (i.e. of the application of law), which could, for some reasons, be made by a court of lower instance, and not to allow that injustice is executed in any civil case, criminal case or case of other category considered by courts of general jurisdiction; the said correction of mistakes of courts of lower instance and the related prevention of injustice is a conditio sine qua non for the confidence of the parties of the corresponding case and society in general not only in the court of general jurisdiction that considers the corresponding case, but also in the whole system of courts of general jurisdiction (the Constitutional Court’s ruling of 28 March 2006).

Thus, the provision “in all courts” of Paragraph 1 of Article 117 of the Constitution embraces courts of all systems of courts, of all levels of courts and of all instances of courts.

  1. The judiciary is one of the institutions executing state power (Paragraph 1 of Article 5 of the Constitution). The Constitution stipulates that, in the Republic of Lithuania, justice is administered only by courts (Paragraph 1 of Article 109 of the Constitution). To administer justice is the purpose and constitutional competence of the judiciary; the judicial power implemented by courts—jurisdictional institutions—together with the legislative and executive branches of power, is a fully-fledged branch of state power and one of the branches of state power consolidated in the Constitution (the Constitutional Court’s ruling of 27 November 2006).

The Constitutional Court, while construing Article 109 of the Constitution (wherein it is established that, in the Republic of Lithuania, justice is administered only by courts (Paragraph 1), that, while administering justice, the judge and courts are independent (Paragraph 2), that, when considering cases, judges obey only the law (Paragraph 3), and that the court adopts decisions in the name of the Republic of Lithuania (Paragraph 4)), has held more than once (inter alia in its rulings of 21 December 1999, 9 May 2006, 6 June 2006, 27 November 2006 and 24 October 2007) that courts, while administering justice, must ensure the implementation of the rights established in the Constitution, laws and other legal acts, guarantee the supremacy of law and protect human rights and freedoms. A duty for courts arises from Paragraph 1 of Article 109 of the Constitution to consider cases justly and objectively and to adopt reasoned and grounded decisions (the Constitutional Court’s rulings of 15 May 2007 and 24 October 2007). The principle of justice consolidated in the Constitution, as well as the provision that justice is administered by courts, means that not the adoption of a decision itself in a court, but rather the adoption of a just court decision, constitutes a constitutional value; the constitutional concept of justice implies not only formal and nominal justice administered by the court, not only an outward appearance of justice administered by the court, but, most importantly, such court decisions (other final acts of the court) that are not unjust by their content; the justice administered only formally by the court is not the justice that is consolidated in and protected and defended by the Constitution (the Constitutional Court’s rulings of 21 September 2006, 24 October 2007, 21 January 2008 and 10 April 2009).

In its rulings the Constitutional Court has held more than once that justice is one of the basic objectives of law as the means of regulation of social relations. It is one of the basic moral values and one of the basic foundations of a state under the rule of law. It may be implemented by ensuring certain equilibrium of interests, by escaping fortuity and arbitrariness, instability of social life and conflict of interests (inter alia the Constitutional Court’s rulings of 17 November 2003, 3 December 2003, 24 December 2008, the decision of 20 April 2010 and the ruling of 29 June 2010).

  1. Proper court proceedings are a necessary condition for solving the case justly (the Constitutional Court’s rulings of 5 February 1999, 16 January 2006, 28 May 2008 and 8 June 2009).

The constitutional right of the person to proper court proceedings implies a duty for the legislator to establish by law such proceedings for consideration of cases in court that are in line with the norms and principles of the Constitution. The legislator, when regulating, by means of a law, the relations of consideration of cases in court, must heed the Constitution, inter alia the principles laid down in Article 117 thereof, as well as the constitutional principle of a state under the rule of law and those of equality of rights, justice, impartiality and independence of judges.

  1. While regulating the relations of consideration of cases in court, one is obliged to heed inter alia the principle of public consideration of cases in court, which is consolidated in Paragraph 1 of Article 117 of the Constitution.

6.1. The principle of public consideration of cases in court, which is consolidated in Paragraph 1 of Article 117 of the Constitution, the interest of the public to be informed, which stems from the Constitution, inter alia Article 25 thereof, also Paragraph 5 of Article 25 of the Constitution, under which the citizen has the right to receive, according to the procedure established by law, any information concerning him that is held by state institutions, as well as the constitutional principle of a state under the rule of law, inter alia the requirement of legal clarity, imply a duty of the legislator to regulate, by law, the relations of consideration of cases in court so that the conditions are provided for the participants of the proceedings and the public to inter alia be aware of the cases being considered in courts, the composition of the court considering the case, the disputes decided in the cases and the adopted decisions.

It needs to be noted that, under the Constitution, public consideration of cases is not an end in itself. Public consideration of cases is one of the conditions for administration and assurance of justice. The public consideration of cases in court creates preconditions to ensure the implementation of the right expressed in the Constitution, the laws and other legal acts, to guarantee the supremacy of law and to protect the rights and freedoms of the person. While ensuring the principle of the public consideration of cases in court, the legislator is obliged to heed the norms of the Constitution and other principles and not to create preconditions to violate the values (inter alia the rights and freedoms of the person) consolidated in and defended and protected by the Constitution.

In its rulings the Constitutional Court has held more than once that the Constitution is an integral act; the norms and principles of the Constitution constitute a harmonious system; it is not permitted to construe any provision of the Constitution entirely literally, it is not permitted to construe any provision of the Constitution so that the content of any other constitutional provision might be distorted or denied, since thus the essence of the entire constitutional legal regulation would be distorted and the balance of constitutional values would be disturbed.

In the context of the constitutional justice case at issue it needs to be noted that, as the Constitutional Court held in its ruling of 21 September 2006, “<...> under the Constitution, the legislative regulation of the relations of civil procedure must be such so that the legal preconditions would be created for a court to investigate all the circumstances important to the case and to adopt a just decision in the case. And, on the other hand, it is not permitted to establish any such legal regulation that would not permit a court, after it takes account of all the important circumstances of the case and while following law and without transgressing the imperatives of justice and reasonableness arising from the Constitution, to adopt a just decision in the case and, thus, to administer justice. Otherwise, the powers of a court to administer justice, which arise from inter alia Article 109 of the Constitution, would be limited or even denied, and one would deviate from the constitutional concept of the court as the institution administering justice in the name of the Republic of Lithuania, as well as from the constitutional principles of a state under the rule of law and justice.”

It also needs to be noted that the principle of the public consideration of cases in court is not absolute. Paragraph 1 of Article 117 of the Constitution, in which the said principle is consolidated, provides for certain exceptions to the publicity of consideration of cases as well as for the situations where a closed court hearing may be held: in order to protect the secrecy of private or family life of the human being, or where public consideration of the case might disclose a state, professional or commercial secret. Thus, under Paragraph 1 of Article 117 of the Constitution, the publicity of proceedings is limited for the purposes of protecting the private or public interest. The principle of the public consideration of cases in court may also be limited by law with a view to protecting other constitutional values. For instance, the principle of independence of judges and courts, which is consolidated in inter alia Article 109 of the Constitution, gives rise to the requirement for the secrecy of deliberation by judges when adopting a decision. In addition, while seeking to protect the human dignity and the inviolability of private life (Article 22 of the Constitution) as well as other values, the protection of which stems from the Constitution, it is permitted to limit, by law, the publicity of separate elements of the process of consideration of cases, inter alia the public announcement of a final act of a court, and the publicity of case material.

6.2. The constitutional principle of the public consideration of cases in court likewise determines the publicity of a court hearing in which a case is considered. Seeking to ensure the publicity of a court hearing as an element of the consideration of cases in court, the legislator must regulate the procedure for court hearings so that the conditions are created to ensure the right of the participants of the proceedings to express their opinion on all the issues that are decided in the case as well as the interest of the public to be informed about court proceedings and the adopted decisions. From Paragraph 1 of Article 117 of the Constitution as well as other norms of the Constitution a duty arises for the legislator to establish such forms of a court hearing that would create the conditions to ensure the implementation of the right of the participants of the proceedings to public court proceedings as well as the interest of the public to be informed and that would not, at the same time, create any preconditions to violate the values (inter alia the rights and freedoms of the person) consolidated in and defended and protected by the Constitution.

Paragraph 1 of Article 117 of the Constitution does not expressis verbis consolidate any forms of public and/or non-public (closed) consideration of cases in courts. The constitutional principle of the public consideration of cases in courts may be ensured by means of various forms of consideration of cases in courts established by the legislator. The discretion of the legislator is bound by the Constitution, inter alia Paragraph 1 of Article 117 thereof, as well as the constitutional principles of a state under the rule of law, justice and reasonableness.

From the Constitution, as an integral act (Paragraph 1 of Article 6 of the Constitution), a duty arises for the legislator to ensure that the principles and norms of the Constitution are not opposed when regulating the relations of consideration of cases in courts. When establishing, by law, the forms of consideration of cases in courts, first of all, one should seek to ensure the constitutional principle of justice, under which a duty arises for the legislator to regulate the relations of consideration of cases so that the legal preconditions are created for a court to investigate all the circumstances important to the case and adopt a just decision in that case. While regulating the forms of consideration of cases in courts, it is necessary to heed other constitutional principles as well, inter alia those of a state under the rule of law, reasonableness and the publicity of consideration of cases in court.

It needs to be noted that the Constitution, inter alia the principle of justice as well as the constitutional right to apply to court for the defence of the violated rights and freedoms, gives rise to the requirement of promptness and efficiency of court proceedings. The legislator, when regulating the relations of consideration of cases in court, must establish such legal regulation that would create the conditions to investigate a case and execute a decision without any unjustified interruptions, thus, precluding procrastination of consideration of cases in court, inter alia in the cases when persons abuse their procedural rights.

III

  1. Under Paragraph 2 of the Constitutional Act “On Membership of the Republic of Lithuania in the European Union”, which is a constituent part of the Constitution, the norms of European Union law shall be a constituent part of the legal system of the Republic of Lithuania. In this context it needs to be mentioned that Paragraph 1 of Article 5 of Regulation (EC) No. 861/2007 of the European Parliament and of the Council of 11 July 2007, establishing a European Small Claims Procedure, prescribes: “The European Small Claims Procedure shall be a written procedure. The court or tribunal shall hold an oral hearing if it considers this to be necessary or if a party so requests. The court or tribunal may refuse such a request if it considers that with regard to the circumstances of the case, an oral hearing is obviously not necessary for the fair conduct of the proceedings. The reasons for refusal shall be given in writing. The refusal may not be contested separately.” The regulation applies, “in cross-border cases, to civil and commercial matters, whatever the nature of the court or tribunal, where the value of a claim does not exceed EUR 2000 at the time when the claim form is received by the court or tribunal with jurisdiction, excluding all interest, expenses and disbursements”. The said regulation applies “from 1 January 2009” (Article 29 of the regulation).
  2. In the context of the constitutional justice case at issue it needs to be noted that the construction of the right to a fair trial, which is consolidated in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, is also topical in the case at issue.

The Constitutional Court has more than once held that the jurisprudence of the European Court of Human Rights (hereinafter referred to as the ECtHR), as a source of construction of law, is also important to construction and application of Lithuanian law. The ECtHR has more than once noted that the right to a public hearing consolidated in Paragraph 1 of Article 6 of the Convention embraces the right to an oral hearing (the judgement in the case of Fredin v. Sweden (petition No. 18928/91) of 23 February 1994 and judgement in the case of Helmers v. Sweden (petition No. 11826/85) of 29 October 1991).The ECtHR has more than once noted that hearings conducted at first and the only instance must be held orally (the judgement in the case of Håkansson and Sturesson v. Sweden (petition No. 11855/85) of 21 February 1990, etc.). On the other hand, the ECtHR has also held that the obligation to hold a public hearing is not an absolute one, and that an oral hearing may be dispensed with if a party unequivocally waives his or her right thereto and there are no questions of public interest (the judgement in the case of Döry v. Sweden (petition No. 28394/95) of 12 November 2002, etc.). A waiver can be done explicitly or tacitly, in the latter case by refraining from submitting or maintaining a request for a hearing (the judgement in the case of Håkansson and Sturesson v. Sweden (petition No. 11855/85) of 21 February 1990, the judgement in the case of Schuler-Zgraggen v. Switzerland (petition No. 14518/89) of 24 June 1993, etc.). A hearing may not be necessary due to exceptional circumstances of the case, for example, when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case-file and the parties’ written observations (the judgement in the case of Döry v. Sweden (petition No. 28394/95) of 12 November 2002). Provided a public hearing has been held at first instance, the absence of such a hearing before a second or third instance may accordingly be justified (the judgement in the case of Helmers v. Sweden (petition No. 11826/85) of 29 October 1991). Thus, unless there are exceptional circumstances that justify dispensing with a hearing at second and third instance, the right to a public hearing under Paragraph 1 of Article 6 of the Convention implies a right to an oral hearing at least before one instance (the judgement of ECtHR in the case of Lundevall v. Sweden (petition No. 38629/97) of 12 November 2002).

  1. Thus, under the ECtHR jurisprudence, the obligation to hold a public hearing is not an absolute one, and an oral hearing may be dispensed with if a party to the case unequivocally waives his or her right thereto and there are no questions of public interest; a hearing may not be necessary due to exceptional circumstances of the case, for example, when it raises no questions of fact or law that cannot be adequately resolved on the basis of the case-file and the parties’ written observations; provided a public hearing has been held at first instance, the absence of such a hearing before a second or third instance may accordingly be justified.
  2. It also needs to be noted that Recommendation No. R(95)5 of the Council of Europe “Concerning the Introduction and Improvement of the Functioning of Appeal Systems and Procedures in Civil and Commercial Cases” adopted on 7 February 1995, in order to ensure that appeals are heard expeditiously and efficiently, inter alia proposed that member states limit the application of the principle of oral proceedings in courts of appellate instance, for instance, by reducing the length of oral hearings and by making more use of written procedures (Item d of Article 6).


IV

On the compliance of Paragraph 2 of Article 153 (wording of 28 February 2002), Paragraph 3 of Article 319 (wording of 28 February 2002) and Paragraph 3 of Article 352 (wording of 28 February 2002) of the CCP, insofar as they prescribed that, when a case is considered under written procedure, the persons participating in the case are not invited to a court sitting and the court sitting takes place without their participation, with Paragraph 1 of Article 117 of the Constitution.

  1. It has been mentioned that subsequent to the petition of the group of Members of the Seimas, the petitioner, in the constitutional justice case at issue the Constitutional Court will investigate whether Paragraph 2 of Article 153 (wording of 28 February 2002) of the CCP, insofar as it prescribed that, when a case is considered under written procedure in a court of appellate instance and the court of cassation, the persons participating in the case are not invited to a court sitting and do not participate in it, also Paragraph 3 of Article 319 (wording of 28 February 2002) and Paragraph 3 of Article 352 (wording of 28 February 2002), insofar as they prescribed that, when a case is considered under written procedure, the persons participating in the case are not invited to a court sitting and the court sitting takes place without their participation, were not in conflict with Paragraph 1 of Article 117 of the Constitution.

It has also been mentioned that, according to the petitioner, when a civil case is considered under written procedure at appellate and cassational instances, the parties are not allowed to participate in a court sitting; thus, as a result of this, the constitutional rights of the participants of the proceedings are presumably violated.

  1. Paragraph 2 of Article 153 (wording of 28 February 2002) of the CCP, as mentioned before, prescribed:

 “Written proceedings shall be possible in the cases provided for by this Code. In such cases the persons participating in the case shall not be invited to a court sitting and shall not participate in it. The persons participating in the case shall be notified of the written proceedings by means of notices, save the cases when this Code does not provide for the notification of performance of procedural actions.”

Thus, Paragraph 2 (wording of 28 February 2002) of Article 153 of the CCP consolidated the general norm establishing a possibility in the concrete cases provided for by the CCP to consider a case under written procedure, as well as certain peculiarities of proceedings taking place under written procedure, if compared to proceedings taking place under oral procedure: when a case is considered under written procedure, the persons participating in the case are not invited to a court sitting and the court sitting takes place without their participation.

  1. While assessing whether Paragraph 2 of Article 153 (wording of 28 February 2002) of the CCP, insofar as it prescribed that, when a case is considered under written procedure in a court of appellate instance and the court of cassation, the persons participating in the case are not invited to a court sitting and do not participate in it, was not in conflict with the Constitution, it is necessary, first of all, to elucidate whether the legal regulation established in Paragraph 3 of Article 319 (wording of 28 February 2002) and Paragraph 3 of Article 352 (wording of 28 February 2002) of the CCP was not in conflict with the Constitution.
  2. The relations related to written proceedings are regulated not only in the articles impugned by the petitioner, but in other articles (paragraphs and items thereof) of the CCP as well.

4.1. The provision of Paragraph 3 of Article 319 (wording of 28 February 2002) of the CCP, which is impugned (to the corresponding extent) by the group of Members of the Seimas, the petitioner, is also related to other provisions of the CCP regulating the relations of consideration of cases in a court of appellate instance. It needs to be noted that, under Paragraph 1 of Article 301 (wording of 28 February 2002), a complaint could be, under appellate procedure, filed against the decisions (orders, rulings) of a court of first instance that have not come into force, save the cases provided for by the CCP.

4.1.1. The provision “when a case is considered under written procedure, the persons participating in the case shall not be invited to a court sitting and the court sitting shall take place without their participation” of Paragraph 3 of Article 319 (wording of 28 February 2002) of the CCP is, first of all, to be construed together with the legal regulation laid down in Articles 321 and 322 of the CCP (wording of 28 February 2002).

Paragraph 1 of Article 321 “Consideration of a Case under Written Procedure” (wording of 28 February 2002) of the CCP prescribed:

“A college of judges may decide an appellate complaint under written procedure where:

1) a court of first instance with which the appellate complaint was filed should have refused to accept that appellate complaint. In that case a court of appellate instance shall dismiss the appellate proceedings and shall adopt a ruling to refund the paid stamp fee;

2) it holds that there are absolute grounds for the invalidity of the decision of the court of first instance.”

It needs to be mentioned that, under Paragraphs 2 and 3 of Article 329 (wording of 28 February 2002) of the CCP, inter alia the following cases were recognised as absolute grounds for the invalidity of the aforementioned decision: the case has been considered by the court in the composition that is unlawful; the decision of the court of first instance has been adopted not by the judge who has considered the case; the decision or ruling contains no reasoning (abridged reasoning); the minutes of the court hearing have not been included in the case file, where the case has been considered under oral procedure; in the course of considering the case in the court of first instance the rules for the language of the proceedings have been flouted and the person whose rights have been violated has used the said circumstance as a ground for his appellate complaint.

Article 322 “The Right of an Appellant to Request Written Proceedings” (wording of 28 February 2002) of the CCP prescribed: “At the appellant’s request the case under appellate procedure may be considered under written procedure provided that other persons participating in the case make no objections to this in their responses to the appellate complaint.”

Thus, under the legal regulation laid down in the CCP (wording of 28 February 2002), in appellate proceedings civil cases had to be considered under oral procedure; a court of appellate instance could consider a case under written procedure only in the concrete cases provided for by the CCP (upon the dismissal of appellate proceedings or the establishment of absolute grounds for the invalidity of the decision of the court of first instance), as well as at the appellant’s request provided that written proceedings were not objected to by other persons participating in the case.

4.1.2. Articles 187 and 188 of the Law on Amending and Supplementing the Code of Civil Procedure, adopted by the Seimas on 21 June 2011, amended and supplemented Article 321 (wording of 28 February 2002) and amended Article 322 (wording of 28 February 2002), respectively.

Article 321 (wording of 21 June 2011) of the CCP prescribes:

“1. An appellate complaint shall be considered under written procedure, save the cases provided for in Article 322 of this Code.

  1. When considering an appellate complaint under written procedure, a court sitting shall consist of a report on the case, appellate complaint and response to the appellate complaint, the expression of opinions by the judges, voting and the adoption of a decision (ruling).
  2. When an appellate complaint has been filed only against the part of a court decision as to the distribution of litigation costs or other procedural issues resolved by the court decision, such an appellate complaint shall be considered mutatis mutandis by applying the rules for considering separate complaints. The said provision shall not apply where in the same case an appellate complaint is filed against the substance of the court decision.”

Article 322 “Consideration of a Case under Written Procedure” (wording of 21 June 2011) of the CCP prescribes:

“An appellate complaint shall be considered under oral procedure where the court considering the case recognises oral consideration to be necessary. With their appellate complaint, response to the appellate complaint or statement on joining the appellate complaint, the persons participating in the case may submit a reasoned request to consider the case under oral procedure; however, such a request shall not be binding on the court.”

Having compared the legal regulation laid down in Paragraph 1 of Article 321 (wording of 28 February 2002) and Article 322 (wording of 28 February 2002) of the CCP with the one laid down in Paragraph 1 of Article 321 (wording of 21 June 2011) and Article 322 (wording of 21 June 2011) of the CCP, it needs to be noted that the legal regulation in question has changed in the aspect that in appellate proceedings cases are, as a rule, considered not under oral, but written procedure; a court of appellate instance considers a case under oral procedure where it recognises oral consideration to be necessary; a request of the persons participating in the case that the case be considered under oral procedure is not binding on the court.

It needs to be noted that the legal regulation laid down in Articles 321 and 322 (wording of 21 June 2011) of the CCP is not a matter of investigation in the constitutional justice case at issue.

4.1.3. The provision of Paragraph 3 of Article 319 (wording of 28 February 2002) of the CCP, which is impugned (to the corresponding extent) by the group of Members of the Seimas, the petitioner, is also related to other provisions of the CCP (wording of 28 February 2002) that consolidate the peculiarities of written proceedings in a court of appellate instance as well as the procedural rights and guarantees of the persons participating in the case. In this context one needs to mention the following provisions of the CCP (wording of 28 February 2002):

– “Besides the general requirements set for procedural documents, an appellate complaint must contain the following: <...> the appellant’s request to consider the case under written procedure if the appellant wishes so” (Item 5 of Paragraph 1 of Article 306);

– “The person who has filed an appellate complaint shall have the right to withdraw it prior to closing speeches, whereas, where an appellate complaint is considered under written procedure—prior to the beginning of the consideration of the appellate complaint in substance <...>” (Paragraph 1 of Article 308);

– “Within twenty days of the sending of an appellate complaint from the court of first instance to the court of appellate instance, the parties must, whereas other persons participating in the case shall have the right to, submit in writing comprehensive responses to the appellate complaint, wherein they shall set out their opinion regarding the filed appellate complaint” (Paragraph 1 of Article 318);

– “The question of acceptance of responses to an appellate complaint shall be decided by the corresponding court of appellate instance. After a response to an appellate complaint has been accepted, duplicates thereof shall be sent to the appellant and a person joining the appellate complaint” (Paragraph 2 of Article 318);

– “The persons participating in the case shall be notified of the place and date of the consideration of the appellate case <...>” (Paragraph 3 Article 319);

– “The persons participating in the case shall be notified of the decision or ruling adopted under written procedure by the court of appellate instance <...>” (Paragraph 4 of Article 325).

4.2. It needs to be mentioned that, under Article 302 (wording of 28 February 2002) of the CCP, appellate proceedings are subject to the general provisions of the CCP, as well as the provisions thereof that regulate court proceedings at first instance and do not conflict with the rules specified in the Chapter “Case Proceedings in a Court of Appellate Instance” of the CCP.

One needs to mention the following provisions of Part I “General Provisions” and Part II “Proceedings in a Court of First Instance” of the CCP (wording of 28 February 2002), which regulate the relations of consideration of cases in a court of first instance:

– “The objectives of civil proceedings shall be to defend the interests of persons whose material subjective rights or interests secured by laws have been violated or disputed, to properly apply laws when a court considers civil cases and adopts decisions as well as when executing those decisions, to restore, as promptly as possible, the legal peace between the parties to a dispute, and to construe and develop law” (Article 2);

– “The court shall take the measures established in this Code in order to prevent procrastination of proceedings and shall seek to consider a case in one court hearing provided that this does not prejudice the proper consideration of the case, as well as to ensure that an effective court decision is executed within the shortest time possible and in the most economical way” (Paragraph 1 of Article 7 “Concentration and Economy of Proceedings”);

– “The persons participating in the case must make use of their procedural rights in good faith and not abuse them, they must take care of a speedy consideration of the case and, by taking account of the course of the proceedings, submit to the court, in a careful and timely manner, the evidence and arguments grounding their demands or retorts” (Paragraph 2 of Article 7 “Concentration and Economy of Proceedings”);

– “In all courts the consideration of cases shall be public. Upon a reasoned ruling of the court, a closed court hearing may be held in order to protect the secrecy of private or family life of the human being, or where the public consideration of the case might disclose a state, service, professional or commercial secret” (Paragraph 1 of Article 9 “Publicity of a Court Hearing”);

– “The persons participating in the case and, if necessary—also witnesses, interpreters and experts, may attend a closed court hearing” (Paragraph 2 of Article 9 “Publicity of a Court Hearing”);

– “In a closed court hearing a case shall be considered in observance of all the rules set for proceedings. The resolution part of a court decision shall be announced in public, save the cases concerning child adoption” (Paragraph 3 of Article 9 “Publicity of a Court Hearing”);

– “All the material of a considered civil case and a case under trial, save the material of cases that have been considered in a closed court hearing, shall be public. The persons who did not participate or are not participating in the case shall be allowed to become acquainted with the material of the case and shall have the right to make copies an extracts thereof. The said persons shall acquire the latter right upon the entry into force of the corresponding court decision or the corresponding ruling closing the court proceedings, whereas, where the case may be considered under cassational procedure—upon the close of the cassational proceedings or the expiry of the time limits for filing a cassational complaint. Once the decision is executed, the material of the case under trial shall be available in order to get acquainted with it” (Paragraph 1 of Article 10 “The Publicity of Case Material”);

– “While adopting, in a pubic court hearing, a decision or a ruling closing the proceedings, at the request of the persons participating in the case or upon its initiative, a court has the right to establish, by its reasoned ruling, that the material of the case or part thereof is not public if it is necessary to protect the secrecy of the person of a human being, his private life and property, the confidentiality of information about the health of a human being, also where there is a ground to believe that a state, service, professional, commercial or any other secret protected by laws will be disclosed. A separate complaint may be filed against a court ruling on the dismissal of the aforesaid request” (Paragraph 2 of Article 10 “The Publicity of Case Material”);

– “Persons shall have the right to become acquainted with the case material constituting a state or service secret where such a right is specially granted to them pursuant to laws” (Paragraph 4 of Article 10 “The Publicity of Case Material”);

– “The parties and other participants of the proceedings shall have, while observing the provisions of this Code, the freedom of disposition of the procedural rights held by them” (Article 13 “The Principle of Disposition”);

– “The parties and other participants of the proceedings shall provide explanations and give testimonies, as well as make requests and express wishes, orally, save the cases provided for in this Code” (Article 15 “The Principle of Verbality”);

– “Removal must be grounded and declared (orally or in writing) prior to the beginning of the consideration of the case in substance. Declaration of removal in the course of further consideration of the case shall be permitted only if grounds for removal become known to the person declaring removal after the beginning of the consideration of the case in substance. In written proceedings removal must be declared in writing” (Paragraph 2 of Article 68 “Declarations Regarding Removals”);

– “Procedural documents of the persons participating in the case shall be their claims, counter-claims, responses to claims or counter-claims, replies (responses of the plaintiff to a response filed by the defendant), rejoinders (responses of the plaintiff to a reply), also separate, appellate and cassational complaints as well as responses to them and other documents wherein in the course of written proceedings the persons participating in the case present their requests, demands, retorts or explanations” (Article 110);

– “Court procedural documents (decisions, orders, rulings, resolutions, minutes of a court hearing, summonses and notices) shall be the documents adopted by a court in the course of proceedings”; “All court procedural documents shall be drawn up, adopted and served in accordance with the procedure prescribed by this Code“ (Paragraphs 1 and 2 of Article 116 “Court Procedural Documents”);

– “The persons participating in the case shall be notified by means of court summonses or notices of the time and place of a court hearing or the performance of separate procedural actions. Once a person participating in the case has been properly served a court summons, he shall be notified of other court hearings by means of notices. Witnesses, experts and interpreters shall be also summoned to court by means of court summonses” (Paragraph 1 of Article 133);

– “In the event of written proceedings a court shall notify, by means of notices, the persons participating in the case of the place and time of the adoption of procedural documents, save the cases where this Code does not provide for such notification” (Paragraph 3 of Article 133);

– “A case shall be considered orally and by the court in the same composition <...>” (Paragraph 2 of Article 235);

– “Upon a written consent or the one entered in the minutes of a court hearing and signed by the parties, which may be cancelled only if the procedural situation changes in essence, the court shall have the right, by its ruling, to decide to consider the case under written procedure. The consideration of a case under written procedure shall be impossible where the period from the consent declared by the parties exceeds three months” (Paragraph 4 of Article 235);

– “If a court recognises that oral consideration will lead to a more comprehensive investigation of the circumstances of the case, the court shall have the right to annul the rulings referred to in Paragraph 4 and assign oral consideration of the case” (Paragraph 5 of Article 235);

– “A decision shall be adopted <...> and announced immediately after the case has been considered, save the cases provided for by this Code <...>” (Paragraph 3 of Article 268);

– “A duplicate of the decision drawn up in the manner prescribed by Article 270 of this Code shall be issued to the persons participating in the court hearing upon their request. The parties and third persons who have not attended a court hearing shall, not later than within five days of the announcement of the decision, be sent a duplicate of the court decision” (Paragraph 1 of Article 275).

4.3. Under the quoted legal regulation laid down in the CCP (wording of 28 February 2002), when a case is considered under written procedure in a court of appellate instance, one must follow the principles consolidated in the CCP for proceedings (those of concentration and economy of proceedings, publicity of a court hearing, publicity of case material, disposition, etc.) and the persons participating in the case have the right to inter alia be notified of the place and time of the consideration of the case, declare removals, submit in writing their responses to the appellate complaint and set out in them their opinion regarding the filed appellate complaint and receive court decisions (final acts of the respective court).

  1. The provision of Paragraph 3 of Article 352 (wording of 28 February 2002) of the CCP, which is impugned (to the corresponding extent) by the group of Members of the Seimas, the petitioner, is inter alia related to the following provisions of the CCP (wording of 28 February 2002) regulating the relations of consideration of cases in the court of cassation:

– “Decisions and rulings of courts of appellate instance <...> may be appealed against and reviewed under cassational procedure” (Paragraph 1 of Article 340);

– “The court of cassation, while not going beyond the boundaries of the cassational complaint, shall examine, in the aspect of application of law, the decisions and/or rulings against which cassational complaints have been filed. The court of cassation shall be bound by the circumstances established by courts of first and appellate instances” (Paragraph 1 of Article 353);

– “An appellant in cassation shall have the right to withdraw his cassational complaint prior to the end of speeches of the persons participating in the case in a court hearing, whereas in the event of written proceedings—prior to the beginning of a court sitting” (Paragraph 1 of Article 349);

– “The parties shall be notified of the fact of entering the accepted respective cassational complaint in the list of cases pending consideration under cassational procedure before the Supreme Court of Lithuania. In addition to the notice of the fact of entering the cassational complaint in the list of cases pending consideration, the parties and third persons shall be sent a duplicate of the cassational complaint” (Paragraph 7 of Article 350);

– “The parties shall be obliged, whereas other persons participating in the case shall have the right, to submit their responses to the cassational complaint in writing within one month of the entering of the complaint in the list of cases pending consideration under cassational procedure before the Supreme Court of Lithuania. A response to a cassational complaint must contain the comprehensive reasoned grounds for objection to the filed cassational complaint. A response to a cassational complaint shall be drawn up and signed in accordance with the same procedure as set for cassational complaints. Responses to a cassational complaint, as well as supplements and changes made thereto, submitted after the expiry of the fixed time limits shall not be accepted and shall be returned to the persons who have submitted them” (Paragraph 1 of Article 351);

– “Upon the assignment of oral consideration of a case, duplicates of an accepted response to the cassational complaint shall be sent to the parties and third persons, save the person by whom the said response has been submitted” (Paragraph 2 of Article 351);

– “The persons participating in the case shall be notified of the place and time of the consideration of the cassational case <...>” (Paragraph 3 of Article 352);

– “The persons participating in the case shall have the right to declare removals of the judges considering the case or one of them, as well as to make requests to them. Where the case is considered under written procedure, the persons participating in the case may implement their aforesaid rights in writing prior to the beginning of a court hearing <...>” (Paragraph 1 of Article 355);

– “The persons participating in the case shall have the right to receive information about the course and results of the consideration of the case under cassational procedure” (Paragraph 3 of Article 355);

– “A cassational case shall be considered after the expiry of the time limit for filing a cassational complaint. A cassational case shall be considered under written procedure. A court sitting shall consist of a report on the case, cassational complaint, response to the cassational complaint, the expression of opinions by the judges, voting and the adoption of a ruling” (Paragraph 1 of Article 356);

– “The college of judges shall assign oral consideration of the case if it decides this to be necessary <...>” (Paragraph 2 of Article 356);

– “A ruling adopted by the court shall be set out in writing and shall be signed by all the judges <...>” (Paragraph 2 of Article 358);

– “Having considered the case, the court of cassation shall, within three days of the day of drawing up the ruling, return it to the court of first instance or the court indicated in the ruling and shall send the duplicates of the ruling to the persons participating in the case” (Article 364).

It needs to be mentioned that, under Paragraph 5 of Article 340 of the CCP, where the performance of certain procedural actions is not regulated in the Chapter “Case Proceedings in the Court of Cassation” of the CCP, Articles 1–300 of the CCP, insofar as they are not in conflict with the provisions of the Chapter XVII “Case Proceedings in the Court of Cassation”, are applied.

  1. Thus, under the quoted legal regulation laid down in the CCP (wording of 28 February 2002), cassational cases are, as a rule, considered under written procedure; the court may decide to consider a case under oral procedure; the court of cassation considers cases exclusively in the aspect of application of law and is bound by the circumstances established by courts of first and appellate instances; when a case is considered under written procedure in the court of cassation, the persons participating in the case may, prior to the beginning of a court sitting, declare removals and make requests; the parties have the obligation, whereas other persons participating in the case—the right, to submit, within a fixed time limit, their responses to the cassational complaint; the parties and third persons receive the submitted responses to the cassational complaint; the persons participating in the case have the right to be notified of the course and results of the consideration of the case under cassational procedure and to receive duplicates of the court ruling after the case has been considered.
  2. While summing up the legal regulation quoted in this Constitutional Court’s ruling, which is impugned by the petitioner, together with the legal regulation related thereto, in the context of the constitutional justice case at issue it needs to be noted that:

– in a court of appellate instance cases had to be considered under oral procedure; a court of appellate instance could consider a case under written procedure only in the concrete cases provided for by the CCP (upon the dismissal of appellate proceedings or the establishment of absolute grounds for the invalidity of the decision of the court of first instance), as well as at the appellant’s request provided that written proceedings were not objected to by other persons participating in the case;

– in the court of cassation civil cases are, as a rule, considered under written procedure; the court may decide to consider a case under oral procedure;

– when a case is considered under written procedure, the persons participating in the case are notified of the place and time of the consideration of the case; the persons participating in the case have the right to declare removals and make requests in writing, to put forward their demands, retorts and explanations in procedural documents, as well as to receive court decisions (final acts of the respective court).

  1. In the context of the constitutional justice case at issue it also needs to be noted that an official publication of court decisions is regulated by Article 39 of the Republic of Lithuania Law on Courts. The said article inter alia prescribes: “Final acts of courts and annual reviews of case-law of the Supreme Court and the Supreme Administrative Court shall be published on the Internet website of the National Court Administration according to the procedure established by the Judicial Council, save the cases provided for by laws” (Paragraph 1 (wording of 3 July 2008)); “Final acts of courts and annual reviews of the case-law specified in Paragraph 1 of this Law shall be published without violating the requirements set for the protection of personal data as well as the protection of state, service, commercial, professional and other secrets protected by laws, also while keeping to the limitations and prohibitions provided for by laws” (Paragraph 3 (wording of 3 July 2008)).

Thus, final acts of courts are publicly published (save the limitations and prohibitions provided for by laws).

  1. While deciding whether Paragraph 3 of Article 319 (wording of 28 February 2002) and Paragraph 3 of Article 352 (wording of 28 February 2002) of the CCP, insofar as they prescribed that, when a case is considered under written procedure, the persons participating in the case are not invited to a court sitting and the court sitting takes place without their participation, were in conflict with Paragraph 1 of Article 117 of the Constitution, it needs to be noted that, as it has been mentioned in this Constitutional Court’s ruling:

– the constitutional right of the person to proper court proceedings implies a duty for the legislator to establish, by law, such proceedings of consideration of cases in court that are in line with the norms and principles of the Constitution; the legislator, when regulating, by means of a law, the relations of consideration of cases in court, must heed the Constitution, inter alia the principles laid down in Article 117 thereof, as well as the constitutional principle of a state under the rule of law and those of equality of rights, justice, impartiality and independence of judges;

– under the Constitution, public consideration of cases is not an end in itself; public consideration of cases is one of the conditions for the administration and assurance of justice; the public consideration of cases in court creates preconditions to ensure the implementation of the right expressed in the Constitution, the laws and other legal acts to guarantee the supremacy of law and to protect the rights and freedoms of the person;

– from Paragraph 1 of Article 117 of the Constitution, as well as other norms of the Constitution, a duty arises for the legislator to establish such forms of a court hearing that would create the conditions to ensure the implementation of the right of the participants of the proceedings to public court proceedings, as well as of the interest of the public to be informed about court proceedings and the adopted decisions, and that would not, at the same time, create any preconditions to violate the values (inter alia the rights and freedoms of the person) consolidated in and defended and protected by the Constitution;

– the constitutional principle of public consideration of cases in courts may be ensured by means of various forms of consideration of cases in courts established by the legislator; the discretion of the legislator is bound by the Constitution, inter alia Paragraph 1 of Article 117 thereof, as well as the constitutional principles of a state under the rule of law, justice and reasonableness;

– the Constitution, inter alia the principle of justice as well as the constitutional right to apply to court for the defence of the violated rights and freedoms, gives rise to the requirement of promptness and efficiency of court proceedings; when regulating the relations of consideration of cases in court, the legislator must establish such legal regulation that would create the conditions to investigate a case and execute a decision without any unjustified interruptions, thus precluding the procrastination of consideration of cases in court, inter alia in the cases when persons abuse their procedural rights.

9.1. It has been mentioned that Paragraph 3 of Article 319 (wording of 28 February 2002) of the CCP prescribed:

“The persons participating in the case shall be notified of the place and time of the consideration of the appellate case. When a case is considered under written procedure, the persons participating in the case shall not be invited to a court sitting and the court sitting shall take place without their participation. <...>”

It has also been mentioned that Paragraph 3 of Article 319 (wording of 28 February 2002) of the CCP established certain peculiarities of proceedings taking place under written procedure, if compared to proceedings taking place under oral procedure.

It has also been mentioned that, under the legal regulation laid down in the CCP (wording of 28 February 2002):

– in a court of appellate instance cases had to be considered under oral procedure; a court of appellate instance could consider a case under written procedure only in the concrete cases provided for by the CCP (upon the dismissal of appellate proceedings or the establishment of absolute grounds for the invalidity of the decision of a court of first instance), as well as at the appellant’s request provided that written proceedings were not objected to by other persons participating in the case;

– when a case is considered under written procedure in a court of appellate instance, one must follow the principles consolidated in the CCP for proceedings (those of concentration and economy of proceedings, publicity of a court hearing, publicity of case material, disposition, etc.) and the persons participating in the case have the right to inter alia be notified of the place and time of the consideration of the case, declare removals, submit, in writing, their responses to the appellate complaint and set out in them their opinion regarding the filed appellate complaint and receive court decisions (final acts of the respective court).

In addition, it has been mentioned that, under the Law on Courts, final acts of courts are published publicly (save the limitations and prohibitions provided for by laws).

Thus, the legal regulation established in Paragraph 3 of Article 319 (wording of 28 February 2002) of the CCP, under which, when a case is considered under written procedure in a court of appellate instance, the persons participating in the case are not invited to a court sitting and the court sitting takes place without their participation, created no preconditions to violate the principles of civil proceedings, nor to restrict the procedural rights of the participants of the proceedings. The aforesaid legal regulation, when it is construed in the context of other provisions of the CCP (wording of 28 February 2002), ensured the right of the participants of the proceedings to public court proceedings (inter alia ensured the right to express their opinion regarding all the issues being decided in the case) as well as the interest of the public to be informed about court proceedings and the adopted decisions and created the conditions to consider a case and execute a decision without any unjustified interruptions, thus precluding the procrastination of consideration of cases in court.

Consequently, the legal regulation laid down in the CCP (wording of 28 February 2002) consolidated the legal guarantees that, when a case is considered under written procedure in a court of appellate instance, the requirements arising from the Constitution for proper court proceedings and public consideration of cases in court will be fulfilled.

It needs to be held that there is no legal ground to maintain that the legal regulation established in Paragraph 3 of Article 319 (wording of 28 February 2002) of the CCP failed to ensure the right of the person to proper court proceedings and violated the principle of public consideration of cases in court, which is consolidated in Article 117 of the Constitution.

9.2. Taking account of the arguments set forth, a conclusion is to be drawn that Paragraph 3 of Article 319 (wording of 28 February 2002) of the CCP, insofar as it prescribed that, when a case is considered under written procedure, the persons participating in the case are not invited to a court sitting and the court sitting takes place without their participation, was not in conflict with Paragraph 1 of Article 117 of the Constitution.

9.3. It has been mentioned that Paragraph 3 of Article 352 (wording of 28 February 2002) of the CCP prescribed:

“The persons participating in the case shall be notified of the place and time of the consideration of the cassational case. When a case is considered under written procedure, the persons participating in the case shall not be invited to a court sitting and the court sitting shall take place without their participation. <...>”

It has also been mentioned that Paragraph 3 of Article 352 (wording of 28 February 2002) of the CCP established certain peculiarities of proceedings taking place under written procedure, if compared to proceedings taking place under oral procedure.

It has also been mentioned that, under the legal regulation laid down in the CCP (wording of 28 February 2002):

– in the court of cassation civil cases are, as a rule, considered under written procedure; the court may decide to consider a case under oral procedure;

– the court of cassation considers cases exclusively in the aspect of application of law and is bound by the circumstances established by courts of first and appellate instances; when a case is considered under written procedure in the court of cassation, the persons participating in the case may, prior to the beginning of a court sitting, declare removals and make requests; the parties have the obligation, whereas other persons participating in the case—the right, to submit, within a fixed time limit, their responses to the cassational complaint; the parties and third persons receive the responses submitted to the cassational complaint; the persons participating in the case have the right to be notified of the course and results of the consideration of the case under cassational procedure and to receive duplicates of the court ruling after the case has been considered.

It has also been mentioned that, under the Law on Courts, final acts of courts are published publicly (save the limitations and prohibitions provided for by laws).

Thus, the legal regulation established in Paragraph 3 of Article 352 (wording of 28 February 2002) of the CCP, under which, when a case is considered under written procedure in the court of cassation, the persons participating in the case are not invited to a court sitting and the court sitting takes place without their participation, created no preconditions to violate the principles of civil proceedings, nor to restrict the procedural rights of the participants of the proceedings. The aforesaid legal regulation, when it is construed in the context of other provisions of the CCP (wording of 28 February 2002), ensured the right of the participants of the proceedings to public court proceedings (inter alia ensured the right to express their opinion regarding all the issues being decided in the case) as well as the interest of the public to be informed about court proceedings and the adopted decisions and created the conditions to consider a case and execute a decision without any unjustified interruptions, thus precluding the procrastination of consideration of cases in court. In addition, under cassational procedure cases are considered exceptionally in the aspect of application of law; the court of cassation itself does not establish any factual circumstances and decides a case in view of the circumstances established by courts of first and appellate instances; thus, the persons, to whom those circumstances are known, do not need to attend a court sitting.

Consequently, the legal regulation laid down in the CCP (wording of 28 February 2002) consolidated the legal guarantees that, when a cassational case is considered under written procedure, the requirements arising from the Constitution for proper court proceedings and public consideration of cases in court will be ensured.

It needs to be held that there is no legal ground to maintain that the legal regulation established in Paragraph 3 of Article 352 (wording of 28 February 2002) of the CCP failed to ensure the right of the person to proper court proceedings and violated the principle of public consideration of cases in court, which is consolidated in Article 117 of the Constitution.

9.4. Taking account of the arguments set forth, a conclusion is to be drawn that Paragraph 3 of Article 352 (wording of 28 February 2002) of the CCP, insofar as it prescribed that, when a case is considered under written procedure, the persons participating in the case are not invited to a court sitting and the court sitting takes place without their participation, was not in conflict with Paragraph 1 of Article 117 of the Constitution.

  1. It has been mentioned that Paragraph 2 (wording of 28 February 2002) of Article 153 of the CCP consolidated the general norm establishing a possibility in the concrete cases provided for by the CCP to consider a case under written procedure, as well as certain peculiarities of proceedings taking place under written procedure, if compared to proceedings taking place under oral procedure: when a case is considered under written procedure, the persons participating in the case are not invited to a court sitting and the court sitting takes place without their participation.

Having held in this ruling that Paragraph 3 of Article 319 (wording of 28 February 2002) and Paragraph 3 of Article 352 (wording of 28 February 2002) of the CCP, insofar as they prescribed that, when a case is considered under written procedure, the persons participating in the case are not invited to a court sitting and the court sitting takes place without their participation, were not in conflict with Paragraph 1 of Article 117 of the Constitution, on the basis of the same arguments, it also needs to be held that Paragraph 2 of Article 153 (wording of 28 February 2002) of the CCP, insofar as it prescribed that, when a case is considered under written procedure in a court of appellate instance and the court of cassation, the persons participating in the case are not invited to a court sitting and do not participate in it, was not in conflict with Paragraph 1 of Article 117 of the Constitution, either.

  1. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 2 (wording of 28 February 2002) of Article 153 of the CCP, insofar as it prescribed that, when a case is considered under written procedure in a court of appellate instance and the court of cassation, the persons participating in the case are not invited to a court sitting and do not participate in it, was not in conflict with Paragraph 1 of Article 117 of the Constitution.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 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 passed the following

ruling:

  1. To recognise that Paragraph 2 of Article 153 (wording of 28 February 2002; Official Gazette Valstybės žinios, 2002, No. 36-1340; No. 42) of the Code of Civil Procedure of the Republic of Lithuania, insofar as it prescribed that, when a case is considered under written procedure in a court of appellate instance and the court of cassation, the persons participating in the case are not invited to a court sitting and do not participate in it, was not in conflict with the Constitution of the Republic of Lithuania.
  2. To recognise that Paragraph 3 of Article 319 (wording of 28 February 2002; Official Gazette Valstybės žinios, 2002, No. 36-1340; No. 42) and Paragraph 3 of Article 352 (wording of 28 February 2002; Official Gazette Valstybės žinios, 2002, No. 36-1340; No. 42) of the Code of Civil Procedure of the Republic of Lithuania, insofar as they prescribed that, when a case is considered under written procedure, the persons participating in the case are not invited to a court sitting and the court sitting takes place without their participation, were not in conflict with the Constitution of the Republic of Lithuania.

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

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

Justices of the Constitutional Court:                        Egidijus Bieliūnas

                                                                                             Pranas Kuconis

                                                                                             Ramutė Ruškytė

                                                                                             Egidijus Šileikis

                                                                                             Algirdas Taminskas

                                                                                             Romualdas Kęstutis Urbaitis

                                                                                             Dainius Žalimas