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On refusing to consider a petition

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

D E C I S I O N

 

On the petition of the Šiauliai Regional Court requesting an investigation into whether a claim of the public prosecutor made for an independent legal person is mandatory to courts, and whether this is in compliance with Article 55 of the Code of Civil Proceedings of the Republic of Lithuania, Article 3 of the Republic of Lithuania’s Law on the Prosecutor’s Office and the Constitution of the Republic of Lithuania, and whether Article 55 of the Code of Civil Proceedings of the Republic of Lithuania, Article 32 and Paragraphs 2 and 3 of Article 15 of the Republic of Lithuania’s Law on the Prosecutor’s Office are in compliance with the Constitution of the Republic of Lithuania and the norms of the Code of Civil Proceedings of the Republic of Lithuania regulating cognisance rules

 

Vilnius, 29 September 1999

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Pranas Vytautas Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, in its organisational sitting, has discussed the petition of the Šiauliai Regional Court requesting an investigation into whether a claim of the public prosecutor made for an independent legal person is mandatory to courts, and whether this is in compliance with Article 55 of the Code of Civil Proceedings of the Republic of Lithuania, Article 3 of the Republic of Lithuania’s Law on the Prosecutor’s Office and the Constitution of the Republic of Lithuania, and whether Article 55 of the Code of Civil Proceedings of the Republic of Lithuania, Article 32 and Paragraphs 2 and 3 of Article 15 of the Republic of Lithuania’s Law on the Prosecutor’s Office are in compliance with the Constitution of the Republic of Lithuania and the norms of the Code of Civil Proceedings of the Republic of Lithuania regulating cognisance rules.

The Constitutional Court

has established:

I

The petitioner—the Šiauliai Regional Court—has applied to the Constitutional Court with petitions requesting an investigation into whether a claim of the public prosecutor made for an independent legal person is mandatory to courts, and whether this is in compliance with Article 55 of the Code of Civil Proceedings of the Republic of Lithuania, Article 3 of the Republic of Lithuania’s Law on the Prosecutor’s Office (Official Gazette Valstybės žinios, 1994, No. 81-1514) and the Constitution of the Republic of Lithuania, and whether Article 55 of the Code of Civil Proceedings of the Republic of Lithuania, Article 32 and Paragraphs 2 and 3 of Article 15 of the Republic of Lithuania’s Law on the Prosecutor’s Office are in compliance with the Constitution of the Republic of Lithuania and the norms of the Code of Civil Proceedings of the Republic of Lithuania regulating cognisance rules.

II

The petitioner grounds its request on the following arguments.

1. Under Paragraph 1 of Article 3 of the Republic of Lithuania’s Law on the Prosecutor’s Office, legally grounded claims issued by officials of prosecutor’s office shall be mandatory to all persons, therefore claims of prosecutors filed with courts have become unconditionally mandatory as this is tolerated by the Court of Appeal and the Supreme Court of Lithuania.

2. Article 55 of the Code of Civil Proceedings of the Republic of Lithuania provides for an opportunity for a public prosecutor to issue claims so that legally protected rights and interests of the state and those of other persons might be protected. This article is particularised by Articles 31 and 32 of the Law on the Prosecutor’s Office. Article 118 of the Constitution of the Republic of Lithuania determines the powers of the prosecutor in criminal cases only, while his powers concerning civil cases are not provided for therein. In addition, not a single article or chapter of the Constitution mentions his functions concerning issuance of claims for individual legal persons. In cases when claims are issued by the prosecutor, the payment of the stamp tax into the budget is evaded, thus, the prosecutor causes damage to state property interests.

3. Under Article 15 of the Law on the Prosecutor’s Office, the powers of district and region prosecutors are confined by the limits of their territory which corresponds to that of the court, and only on the commission of the Prosecutor General may the officials of the prosecutor’s office fulfil the functions of the public prosecutor in other territories or at another court.

The Constitutional Court

holds that:

Under Article 105 of the Constitution and Article 1 of the Law on the Constitutional Court, the Constitutional Court shall investigate and decide whether the laws and other legal acts adopted by the Seimas are in conformity with the Constitution, and whether the acts adopted by the President of the Republic or the Government correspond to the Constitution and laws.

Article 55 of the Code of Civil Proceedings of the Republic of Lithuania provides for the participation of the public prosecutor in civil proceedings in order to protect the rights of the state and those of other persons. The Republic of Lithuania’s Law on the Prosecutor’s Office provides for the right of the prosecutor’s office and its officials, under the procedure established by law and in protecting the legitimate interests of the state and infringed rights of persons, to prepare civil cases for their subsequent filing with a court and take part during their investigation in court (Item 7 of Article 1). The same law provides for an obligation for the prosecutor’s office and its officials, upon the establishment of violations of the law, by taking account of these violations, to issue claims and statements in court, and to participate in court proceedings during the investigation of civil cases which have been instituted on the initiative of the prosecutor (Items 1 and 2 of Article 32).

The consideration of the petition of the petitioner—the Šiauliai Regional Court—requesting a decision on whether a claim of the public prosecutor made for an individual legal person under the common rules of transactions under Article 253 and Article 270 of the Civil Code of the Republic of Lithuania and the other norms of the Civil Code regulating liabilities are mandatory to courts as well as that requesting a decision on whether the public prosecutor is empowered to file a claim with a court which is in a different region without the commission of the Office of the Prosecutor General are not within the competence of the Constitutional Court. The Šiauliai Regional Court had doubts regarding the rectitude of the application of the norms of the Code of Civil Proceedings and those of the Law on the Prosecutor’s Office but not the compliance of the legal act that must be applied in a particular case with the Constitution (Paragraph 1 of Article 67 of the Law on the Constitutional Court). It is the same regional court that has to remove these doubts by construing the applied norms. Paragraph 1 of Article 102 and Article 105 of the Constitution of the Republic of Lithuania, Article 1 and Article 63 of the Law on the Constitutional Court do “not entitle the Constitutional Court to the right to elucidate the application of laws” (the Constitutional Court’s decision of 11 July 1994), therefore, under Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, this constitutes grounds to refuse to investigate the petition.

The consideration of the petition of the petitioner requesting a decision on whether a claim of the public prosecutor made for an individual legal person under the common rules of transactions under Article 253 and Article 270 of the Civil Code of the Republic of Lithuania and the other norms of the Civil Code regulating liabilities is in compliance with Article 55 of the Code of Civil Proceedings of the Republic of Lithuania, Article 3 of the Republic of Lithuania’s Law on the Prosecutor’s Office and the Constitution of the Republic of Lithuania is not within the competence of the Constitutional Court. Paragraph 1 of Article 102 and Article 105 of the Constitution and Article 1 and Article 63 of the Law on the Constitutional Court do not grant the right to the Constitutional Court to investigate and decide whether legal acts adopted by a prosecutor are in conformity with the Constitution of the Republic of Lithuania and laws. Under Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, this constitutes the grounds to refuse to consider the petition.

The consideration of the petition requesting a decision on whether Article 55 of the Code of Civil Proceedings of the Republic of Lithuania, Article 32 and Paragraphs 2 and 3 of Article 15 of the Republic of Lithuania’s Law on the Prosecutor’s Office are in compliance with the norms of the Code of Civil Proceedings of the Republic of Lithuania regulating cognisance rules is not within the competence of the Constitutional Court. In this case the court requests a decision, in its opinion, on the question of the existence of the rivalry of the legal norms in the Code of Civil Proceedings and that of inter-compatibility of different norms of the legal acts of the same power (the Code of Civil Proceedings of the Republic of Lithuania and the Republic of Lithuania’s Law on the Prosecutor’s Office). Paragraph 1 of Article 102 and Article 105 of the Constitution of the Republic of Lithuania and Article 1 and Article 63 of the Law on the Constitutional Court do not grant the right to the Constitutional Court to investigate the questions of compatibility of legal norms (this is a prerogative of the legislature) and those of the application of laws (this is a duty of a state institution applying the law), therefore, under Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, this constitutes grounds to refuse to investigate the request.

Conforming to Paragraph 2 of Article 25, Article 28 and Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

1. To accept the petition requesting an investigation into whether Article 55 of the Code of Civil Proceedings of the Republic of Lithuania, Article 32 and Paragraphs 2 and 3 of Article 15 of the Republic of Lithuania’s Law on the Prosecutor’s Office are in compliance with the Constitution of the Republic of Lithuania and to begin the preparation of the case for the procedural court sitting.

2. To refuse to consider the petition requesting a decision on whether a claim of the public prosecutor made for an individual legal person under the common rules of transactions under Article 253 and Article 270 of the Civil Code of the Republic of Lithuania and the other norms of the Civil Code regulating liabilities are mandatory to courts.

3. To refuse to consider the petition requesting an investigation into whether the public prosecutor is empowered to file a claim with a court which is in a different region without the commission of the Office of the Prosecutor General.

4. To refuse to consider the petition requesting a decision on whether a claim of the public prosecutor made for an individual legal person under the common rules of transactions under Article 253 and Article 270 of the Civil Code of the Republic of Lithuania and the other norms of the Civil Code regulating liabilities are in compliance with Article 55 of the Code of Civil Proceedings of the Republic of Lithuania, Article 3 of the Republic of Lithuania’s Law On the Prosecutor’s Office and the Constitution of the Republic of Lithuania.

5. To refuse to consider the petition requesting a decision on whether Article 55 of the Code of Civil Proceedings of the Republic of Lithuania and Article 32 and Paragraphs 2 and 3 of Article 15 of the Republic of Lithuania’s Law on the Prosecutor’s Office are in compliance with the norms of the Code of Civil Proceedings of the Republic of Lithuania regulating cognisance rules.

Justices of the Constitutional Court:

 

Egidijus Jarašiūnas      Egidijus Kūris     Zigmas Levickis

 

Augustinas Normantas      Vladas Pavilonis      Jonas Prapiestis

 

Vytautas Sinkevičius      Stasys Stačiokas      Teodora Staugaitienė