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On the limitations for advocates on acting as representatives or legal counsels for the defence in a court

Case No. 15/99-34/99-42/2000

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of Paragraphs 3 and 4 Article 26 of the Republic of Lithuania’s Law on the Bar with the Constitution of the Republic of Lithuania

 

Vilnius, 12 February 2001

 

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

The court reporter—Daiva Pitrėnaitė

Jurgis Orlauskas, a senior consultant to the Law Department of the Office of the Seimas, and Egidijus Rumbutis, a consultant to the same Department, acting as the representatives of the Seimas of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 31 January 2000, in its public hearing, considered case No. 15/99-34/99-42/2000 subsequent to the following petitions:

the petition of the Alytus District Local Court requesting the Constitutional Court to investigate whether Paragraphs 3 and 4 of Article 26 of the Republic of Lithuania’s Law on the Bar were in compliance with Paragraph 6 of Article 31 and Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania;

the petition of the First Vilnius City Local Court requesting the Constitutional Court to investigate whether Paragraph 3 of Article 26 the Republic of Lithuania’s Law on the Bar was in compliance with Paragraph 6 of Article 31 the Constitution of the Republic of Lithuania;

the petition of the Kaunas Regional Court requesting the Constitutional Court to investigate whether Paragraph 3 of Article 26 the Republic of Lithuania’s Law on the Bar was in compliance with Paragraph 2 of Article 29 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

1. The petitioner—the Alytus District Local Court—was considering a criminal case. The said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into the compliance of Paragraphs 3 and 4 of Article 26 of the Republic of Lithuania’s Law on the Bar (Official Gazette Valstybės žinios, 1998, No. 64-1840) with Paragraph 6 of Article 31 and Paragraph 1 of Article 48 of the Constitution.

2. The petitioner—the First Vilnius City Local Court—was considering a criminal case. The said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into the compliance of Paragraph 3 of Article 26 of the Law on the Bar with Paragraph 6 of Article 31 of the Constitution.

3. The petitioner—the Kaunas Regional Court—was considering a civil case. The said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into the compliance of Paragraph 3 of Article 26 of the Law on the Bar with Paragraph 2 of Article 29 of the Constitution.

II

The petitions of the petitioners are based on these arguments.

1. The Alytus District Local Court points out that Paragraph 3 of Article 26 of the Law on the Bar provides that an advocate may not act as a representative nor counsel for the defence in court in cases when he previously worked at the same court as a judge provided three years have not expired from the end of his said work. Paragraph 4 of Article 26 of the Law on the Bar provides that an advocate may not act as a representative nor counsel for the defence in court in cases when his or her spouse (former spouse), children (adopted children), parents (foster-parents), brothers, sisters (step-brothers, step-sisters), cousins, grandparents or grandchildren work in the same court as judges. In the opinion of the petitioner, after he has begun to represent or defend either the suspect, the accused or the defendant, the advocate does not have the right to refuse him later. It is only either the suspect, the accused or the defendant who may refuse the counsel for the defence. Article 17 of the Code of Criminal Procedure of the Republic of Lithuania provides that the court must guarantee an opportunity for the accused to defend himself by means and ways provided by law from the charge brought against him. Therefore, it is doubtful if the norms of Paragraphs 3 and 4 of Article 26 of the Law on the Bar do not infringe the right of a person suspected of commission of crime and the accused to defence which is established in Paragraph 6 of Article 31 of the Constitution.

The petitioner also points out that Paragraph 1 of Article 48 of the Constitution provides that every human being may freely choose an occupation or business, and shall have the right to adequate, safe and healthy working conditions, adequate compensation for work, and social security in the event of unemployment. The petitioner doubts whether Paragraphs 3 and 4 of Article 26 of the Law on the Bar do not infringe the right of individuals to choose an occupation or business freely.

2. The First Vilnius City Local Court points out that the norm of Paragraph 3 of Article 26 of the Law on the Bar, prohibiting an advocate from acting as a representative or counsel for the defence in court in cases when he previously worked at the same court as a judge provided three years have not expired from the end of his said work, infringes the right of the defendant to choose a desirable lawyer in the criminal case. Therefore, in the opinion of the petitioner, there are grounds to assert that Paragraph 3 of Article 26 of the Law on the Bar conflicts with Paragraph 6 of Article 31 of the Constitution which guarantees persons the right to defence and legal counsel.

3. The Kaunas Regional Court points out that under the Code of Civil Procedure of the Republic of Lithuania, persons may conduct their cases in court either by themselves or through representatives. Paragraph 3 of Article 26 of the Law on the Bar provides that an advocate may not act as a representative nor counsel for the defence in court in cases when he previously worked at the same court as a judge provided three years have not expired from the end of his said work. Thus, under Paragraph 3 of Article 26 of the Law on the Bar the respondent is not free to choose his representative for conduct of his case. The petitioner maintains that Paragraph 2 of Article 29 of the Constitution provides that a human being may not have his rights restricted in any way, therefore, doubts arise whether Paragraph 3 of Article 26 of the Law on the Bar is in compliance with Paragraph 2 of Article 29 of the Constitution.

III

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representatives of the party concerned—the Seimas—J. Orlauskas and E. Rumbutis.

1. It is maintained in the explanation by J. Orlauskas that the purpose of Paragraph 4 of Article 26 of the Law on the Bar is to secure the independence of judges and courts, it creates the conditions for excluding any possible influence on judges and for evading situations which might lead to doubts as for the impartiality of a judge. The representative of the party concerned points out that the right to freely choose an occupation is limited by law by establishing qualifications requirements and limitations on work of relatives in the civil service etc. The limitations set for advocates are not exceptional and they are in line with the legal system.

In the opinion of J. Orlauskas, Paragraph 4 of Article 26 of the Law on the Bar is in conformity with Paragraph 6 of Article 31 of the Constitution, while Paragraph 3 of Article 26 of the said law is in conformity with Paragraph 1 of Article 48 of the Constitution.

2. E. Rumbutis points out in his written explanation that Paragraph 2 of Article 29 of the Constitution establishes the provision prohibiting restricting the rights of a human being in any way, or granting him or her any privileges, on the basis of his or her sex, race, nationality, language, origin, social status, religion, convictions, or opinions. In this constitutional norm the principle of non-discrimination of persons is entrenched. The norm of Paragraph 3 of Article 26 of the Law on the Bar is, without exceptions, applied to all advocates who wish to act as a representative or counsel for the defence in court in cases when he previously worked at the same court as a judge provided three years have not expired from the end of his said work, irrespective of their sex, nationality or other properties.

In the opinion of E. Rumbutis, Paragraph 3 of Article 26 of the Law on the Bar is in compliance with Paragraph 2 of Article 29 of the Constitution.

IV

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from G. Švedas, Vice-Minister of Justice, M. Anciuvienė, Deputy Director General of the European Law Department under the Government of the Republic of Lithuania, A. Bugelevičienė, Deputy Chairperson of the Lithuanian Bar Council, and T. Klimas, Head of the Law Department of the University of Vytautas the Great.

V

At the Constitutional Court hearing, the representatives of the party concerned J. Orlauskas and E. Rumbutis virtually reiterated the arguments set down in their written explanations.

The Constitutional Court

holds that:

I

On the compliance of Paragraphs 3 and 4 of Article 26 of the Law on the Bar with Paragraph 6 of Article 31 of the Constitution.

1. Paragraph 3 of Article 26 of the Law on the Bar provides: “An advocate may not act as a representative nor counsel for the defence in court in cases when he previously worked at the same court as a judge provided three years have not expired from the end of his said work.”

Paragraph 4 of Article 26 of the Law on the Bar provides: “An advocate may not act as a representative nor counsel for the defence in court in cases when his or her spouse (former spouse), children (adopted children), parents (foster-parents), brothers, sisters (step-brothers, step-sisters), cousins, grandparents or grandchildren work in the same court as judges.”

The petitioner—the Alytus District Local Court—maintains that the limitations imposed for advocates on acting as representatives or counsel for the defence in court, which are established in Paragraphs 3 and 4 of Article 26 of the Law on the Bar, violate the right of persons to choose an advocate, which is consolidated in Paragraph 6 of Article 31 of the Constitution. The petitioner—the First Vilnius City Local Court—also doubts whether Paragraph 3 of Article 26 of the Law on the Bar is in conformity with Paragraph 6 of Article 31 of the Constitution.

2. Paragraph 6 of Article 31 of the Constitution provides: “From the moment of arrest or first interrogation, persons suspected or accused of a crime shall be guaranteed the right to defence and legal counsel.”

The right to have an advocate entrenched in Paragraph 6 of Article 31 of the Constitution means that the person has the right to choose an advocate by himself, as well as the right to have an advocate appointed by the state. The right of the person to have an advocate also presupposes the right of the person to be clearly informed that he is entitled to have an advocate from the moment of arrest or first interrogation.

It needs to be noted that the right of persons to defence as well as the right to have an advocate is absolute: it may not be denied or restricted on any grounds or any conditions.

The right of a person suspected of commission of crime as well as that of the accused to defence is one of the guarantees of human rights protection. This right is a necessary condition so that every person who committed a crime would be justly punished and that an innocent person would not be brought to criminal liability and convicted.

The right of persons to defence and legal counsel is also established in international law acts. For example, Paragraph 3 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms provides that everyone charged with a criminal offence, along with the other guarantees, has the right to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. In the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment confirmed by the 13 March 1989 resolution of the United Nations General Assembly it is proclaimed that a detained person shall be entitled to have the assistance of a legal counsel. He shall be informed of his right by the competent authority promptly after arrest and shall be provided with reasonable facilities for exercising it.

The obligation of the legislature to particularise by law the implementation of the constitutional rights of persons stems from the right to defence and the right to have an advocate entrenched in Paragraph 6 of Article 31 of the Constitution. Establishing such legal regulation, the legislature is bound by the Constitution. The obligation of state institutions to ensure real opportunities for the implementation of these rights stems from the constitutional right to defence, as well as the right to have an advocate.

3. It needs to be noted that the right to choose an advocate by himself, unlike the right to have an advocate, is not absolute. For instance, the advocate himself may not act as counsel for the defence of two or more persons suspected of commission of crime or two or more accused in cases when the interests of defence of one of these persons conflict with those of the other. Laws may provide that in cases when exercise of defence of the person faces real difficulties, the court may suggest that the person choose another advocate. The European Court of Human Rights noted in the Case of Croissant v. Germany (European Court of Human Rights, Case of Croissant v. Germany, judgment of 25 September 1992, Series A No. 237–B) that if this is necessary in the interests of justice, state institutions can appoint counsel for the person even in cases when the indicted person disagrees with this or when he wishes to defend himself personally.

4. The Constitution shall be an integral and directly applicable statute (Paragraph 1 of Article 6 of the Constitution). The provisions of Paragraph 6 of Article 31 of the Constitution are linked with provisions of other articles of the Constitution, and, first of all, with the right of every indicted person to a fair and public hearing by an independent and impartial court (Paragraph 2 of Article 31 of the Constitution), as well as with the independence of judges and courts in the course of administration of justice (Paragraph 2 of Article 109 of the Constitution).

The independence of judges and courts is one of essential principles of a democratic state under the rule of law. The social role of courts is that courts, while administering justice, must ensure the implementation of the rights established in the Constitution, the laws and other legal acts, to protect human rights and freedoms, and to guarantee the supremacy of law. The independence of judges and courts is a necessary condition of protection of human right and freedoms. Alongside, this is one of most important duties of judges and courts, ensuing from the human right to an impartial arbiter in a dispute guaranteed by the Constitution (the Constitutional Court’s rulings of 6 December 1995 and 21 December 1999).

The constitutional right of persons to a hearing by an impartial court also means that a judge, whose impartiality may raise doubts, may not consider a case of the person. The judge considering a case must be neutral. The impartiality and independence of a court are an essential guarantee of the ensuring of human rights and freedoms, and is a necessary condition of a fair consideration of the case, thus, a condition of trust in courts as well.

5. The principle of independence of judges and courts established in the Constitution as well as the right of persons to a fair and public hearing by an independent and impartial court, presupposes the duty of the state to provide for the guarantees of judges and courts.

The independence and impartiality of judges and courts can be secured by various means. In its ruling of 21 December 1999, the Constitutional Court held that the independence of judges and courts is secured by consolidating their procedural independence, organisational independence and self-government of courts, status of judges and social (material) guarantees of judges by law.

6. The impartiality of judges and courts is ensured by means of establishing prohibitions and limitations on the consideration of cases by a judge in situations where there are doubts as regards the impartiality of the judge.

In an attempt to ensure the impartiality and independence of judges and courts, the laws may also establish such legal regulation which would remove the preconditions raising doubts concerning the impartiality of judges and courts. The preconditions raising the said doubts may appear also in cases when an advocate acts as a representative or counsel for the defence in court in cases when he previously worked at the same court as a judge provided three years have not expired from the end of his said work and when an advocate acts as a representative or counsel for the defence in court in cases when his or her spouse (former spouse), children (adopted children), parents (foster-parents), brothers, sisters (step-brothers, step-sisters), cousins, grandparents or grandchildren work in the same court as judges. There may occur preconditions for doubts concerning the impartiality of the court only due to the fact that the advocate is linked with a certain judge of the same court by kinship ties or is (was) a spouse of the judge.

As mentioned before, the independence of judges and courts and the constitutional right of persons to an impartial court is one of the most important guarantees for protection of human rights and freedoms. By means of the limitations established in Paragraphs 3 and 4 of Article 26 of the Law on the Bar one attempts to remove the preconditions raising doubts concerning the impartiality of judges and courts. In the Case of Langborger v. Sweden, the European Court of Human Rights held that it is necessary to secure the opinion about the objective impartiality and independence of courts (European Court of Human Rights, Langborger Case, judgment of 22 June 1989, Series A No. 155).

It needs to be noted that although the legislature has the right to establish varied legal regulation necessary to secure the impartiality of judges and courts, however, this must be done without violating the principles and requirements enshrined in the Constitution as well as the right of persons to defence and legal counsel entrenched in Paragraph 6 of Article 31 of the Constitution.

7. In the course of the consideration whether the limitations on the implementation of an advocate’s functions established in Paragraphs 3 and 4 of Article 26 of the Law on the Bar do not infringe the constitutional right of persons to defence and legal counsel entrenched in Paragraph 6 of Article 31 of the Constitution, the fact is of essential importance that the impugned legal norms do not deny the right of persons suspected or accused of a crime to defence and legal counsel, nor do they deny their right to choose an advocate by themselves. The person is entitled to choose an advocate from those who, under the laws, may act as representatives or counsel for the defence at the court in which the case is being considered.

8. Taking account of the reasoning set forth, it should be concluded that Paragraphs 3 and 4 of the Law on the Bar are in compliance with Paragraph 6 of Article 31 of the Constitution.

II

On the compliance of Paragraphs 3 and 4 of Article 26 of the Law on the Bar with Paragraph 1 of Article 48 of the Constitution.

1. The petitioner—the Alytus District Local Court—doubts whether Paragraphs 3 and 4 of Article 26 of the Law on the Bar establishing limitations on an advocate’s functions are in compliance with Paragraph 1 of Article 48 of the Constitution.

2. Paragraph 1 of Article 48 of the Constitution provides: “Every human being may freely choose an occupation or business, and shall have the right to adequate, safe and healthy working conditions, adequate compensation for work, and social security in the event of unemployment.”

Paragraphs 3 and 4 of the Law on the Bar do not contain any limitations hindering persons from becoming (being) an advocate, i.e. they contain no limitations on the implementation of the constitutional right to freely choose an occupation or business. The prohibition for an advocate from acting as a representative or counsel for the defence in court in cases when he previously worked at the same court as a judge provided three years have not expired from the end of his said work (Paragraph 3 of Article 26 of the Law on the Bar) and in cases when his or her spouse (former spouse), children (adopted children), parents (foster-parents), brothers, sisters (step-brothers, step-sisters), cousins, grandparents or grandchildren work in the same court as judges (Paragraph 4 of Article 26 of the Law on the Bar) are not prohibitions on becoming (being) an advocate, i.e. they are not prohibitions against a free choice for an occupation or business. The prohibitions established in Paragraphs 3 and 4 of Article 26 of the Law on the Bar limit the exercise of some functions of advocates only but not all their functions, and not in all courts of Lithuania but only in the courts in which a respective advocate previously worked as a judge or his/her spouse (former spouse) or the persons listed in the law with whom respective advocates are linked by kinship relations work as judges.

4. Taking account of the aforementioned arguments, it should be concluded that Paragraphs 3 and 4 of Article 26 of the Law on the Bar are in compliance with Paragraph 1 of Article 48 of the Constitution.

III

On the compliance of Paragraph 3 of Article 26 of the Law on the Bar with Paragraph 2 of Article 29 of the Constitution.

1. The petitioner—the Kaunas Regional Court—is of the opinion that the limitations for advocates set in Paragraph 3 of Article 26 of the Law on the Bar on acting as a representative or counsel for the defence in court in cases where he previously worked at the same court as a judge provided three years have not expired from the end of his said work do not permit a person to choose the advocate that he wishes to represent him in his case, therefore, doubts arise whether Paragraph 3 of Article 26 of the Law on the Bar is in conformity with Paragraph 2 of Article 29 of the Constitution.

2. Paragraph 2 of Article 29 of the Constitution provides: “A human being may not have his rights restricted in any way, or be granted any privileges, on the basis of his or her sex, race, nationality, language, origin, social status, religion, convictions, or opinions.”

It needs to be noted that Paragraph 3 of Article 26 of the Law on the Bar does not contain any norms which might deny or restrict a person’s right to choose an advocate on the basis of his or her sex, race, nationality, language, origin, social status, religion, convictions, or opinions.

3. Taking account of the aforementioned arguments, it should be concluded that Paragraph 3 of Article 26 of the Law on the Bar is in compliance with Paragraph 2 of Article 29 of the Constitution.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

To recognise that Paragraphs 3 and 4 Article 26 of the Republic of Lithuania’s Law on the Bar are in compliance with the Constitution of the Republic of Lithuania.

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

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

Justices of the Constitutional Court:

 

Egidijus Jarašiūnas     Egidijus Kūris     Zigmas Levickis

 

Augustinas Normantas      Vladas Pavilonis      Jonas Prapiestis

 

Vytautas Sinkevičius      Stasys Stačiokas     Teodora Staugaitienė