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On the renewal of civil procedure

Case No. 6/2000

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of Paragraph 1 of Article 37123 of the Code of Civil Procedure of the Republic of Lithuania with the Constitution of the Republic of Lithuania

 

Vilnius, 5 June 2001

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: 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 at the Legal Department of the Office of the Seimas, acting as the representative of the Seimas of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 30 May 2001, in its public hearing, considered case No. 6/2000 subsequent to the petition submitted to the Constitutional Court by the Anykščiai District Local Court, the petitioner, requesting an investigation into the compliance of Paragraph 1 of Article 37123 of the Code of Civil Procedure of the Republic of Lithuania with Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

On 7 February 2000, the Anykščiai District Local Court was considering the request of a person to renew the procedure in 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 1 of Article 37123 of the Code of Civil Procedure (Official Gazette Valstybės žinios, 1998, No. 112-3106; hereinafter also referred to as the CCP) with Paragraph 1 of Article 29 of the Constitution.

II

The petition is based on these arguments.

Paragraph 1 of Article 37123 of the CCP provides that the court, without summoning the parties to the case to its sitting, shall examine if the request on the renewal of the procedure is submitted within the time limit established in Article 37121 of the CCP and if the request is grounded on the bases pointed out in Paragraph 1 of Article 37118 of the CCP. Under this norm, the participants of the considered case may learn about the fact of the submission of the request on the renewal of the procedure only after the case has been appointed for consideration at a court hearing, therefore, the persons participating in the case do not have an opportunity to state their opinion and challenge whether the bases pointed out in the request are reasonable and whether the time limit for submission of the request has not been exceeded. Alongside, the court, appointing the case for consideration subsequent to the request to renew the procedure at a court hearing prior to the renewal of the procedure, recognises that certain circumstances pointed out in the request by the person requesting for the renewal of the procedure are grounded ones, however, the persons who previously took part in the case have no right to challenge such an opinion of the court.

In the opinion of the petitioner, by such a procedure of consideration of the renewal of the procedure, an unequal procedural situation is established in respect to the person requesting to renew the procedure and the persons who participated in the case. Due to this, the petitioner has doubts whether Paragraph 1 of Article 37123 of the CCP is in compliance with the provision of Paragraph 1 of Article 29 of the Constitution that all persons shall be equal before the law, the court, and other state institutions and officers.

III

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from J. Orlauskas, the representative of the Seimas, a senior consultant at the Law Department of the Office of the Seimas.

The representative of the party concerned pointed out that under Paragraph 1 of Article 37123 of the CCP the consideration of the request is composed of two phases. First, the judge, without appointing a court hearing, verifies whether the request has been submitted within the time limit established in Article 37121 of the CCP and whether the request is in conformity to the requirements of Article 37122 of the CCP. In case the request has been drawn up exceeding the time limit, the request is not considered in essence. One refuses to renew the procedure solely on the grounds that the claimant has not followed the formal requirements established in the CCP. In case the claimant has followed these requirements, the judge passes a ruling to accept the case under the jurisdiction of the court and appoints the date for consideration of the case at a court hearing.

The court ruling to refuse to renew the procedure in the case concerns only the rights of the claimant and his legitimate interests, while the law grants him the right to appeal against this ruling by an individual complaint. In the opinion of the representative of the party concerned, it would be against the logic to grant the same right for the persons participating in the case, as in the first phase the court does not consider the questions of the renewal of the procedure in essence, because only a formal verification takes place, therefore, the procedural rights of other persons which are not provided for in Article 37123 of the CCP may not be violated. The civil procedure begins only in the second phase of the renewal of the procedure.

Only upon the consideration and assessment of the presented evidence in a court hearing is it possible to decide whether the newly discovered facts are essential. A properly submitted request, without inadequacies of its content (Articles 37121 and 37122 of the CCP), on the renewal of the procedure must be considered at a court hearing in essence, by notifying the claimant and other persons participating in the case about the place and time of the court hearing. The procedure is renewed in pursuance with the rules regulating the procedure at a court of the first instance. Thus, while the question of the renewal of the procedure is being considered in essence, the persons participating in the case have the right to exercise fully the rights granted them by the CCP.

The representative of the party concerned is of the opinion that Article 37123 of the CCP is in compliance with Paragraph 1 of Article 29 of the Constitution.

IV

In the course of the preparation of the case for court proceedings, written explanations were received from the specialists—Assoc. Prof. Dr. V. Valančius, Head of the Department of Family Law and Civil Procedure, the Law University of Lithuania, and E. Krivka, a lecturer at the same department.

V

At the Constitutional Court hearing, the representative of the party concerned J. Orlauskas virtually reiterated the arguments set down in his written explanations.

The Constitutional Court

holds that:

1. Paragraph 1 of Article 37123 of the CCP provides: “The court, without summoning the parties to the case to its sitting, shall examine if the request on the renewal of the procedure is submitted within the time limit established in Article 37121 of this Code and if the request is grounded on the bases pointed out in Paragraph 1 of Article 37118 of this Code. By its ruling the court shall either refuse to renew the procedure in case it states the inadequacies pointed out in this paragraph or appoint a date for consideration of the case at a court hearing.”

The petitioner points out that under Paragraph 1 of Article 37123 of the CCP the participants of the case may learn about the fact of the submission of the request on the renewal of the procedure only after the case has been appointed for consideration at a court sitting. Thus, the opportunities to challenge the reasonableness of the request on the renewal of the procedure become limited. In the opinion of the petitioner, by such legal treatment an unequal procedural situation is established in respect to the person requesting to renew the procedure and the persons participating in the case, therefore, the petitioner has doubts whether Paragraph 1 of Article 37123 of the CCP is in compliance with Paragraph 1 of Article 29 of the Constitution.

2. Paragraph 1 of Article 29 of the Constitution provides: “All persons shall be equal before the law, the court, and other State institutions and officers.”

The constitutional principle of the equality of all persons must be followed in the course of enactment of laws, their application, and in the administration of justice. In civil procedure law, inter alia, the principle of the procedural equality of the parties and that of adversarial argument are based upon the constitutional principle of the equality of all persons.

3. In the course of the assessment of the compliance of Paragraph 1 of Article 37123 of the CCP with Paragraph 1 of Article 29 of the Constitution, one must take account of the fact that under the Constitution a person has the right to defend his rights and legitimate interests in an independent and impartial court. Paragraph 1 of Article 30 of the Constitution provides that any person whose constitutional rights or freedoms are violated shall have the right to appeal to court.

4. Under Paragraph 1 of Article 37123 of the CCP, the court, without summoning the parties to the case to its sitting, shall examine if the request on the renewal of the procedure is submitted within the time limit established in Article 37121 of the CCP and if the request is grounded on the bases pointed out in Paragraph 1 of Article 37118 of the CCP. Thus, under Article 37123 of the CCP one verifies if the request is in conformity with the requirements of the law. Having stated that the time limit for submission of the request has been exceeded and/or that the request is not grounded on the bases pointed out in Paragraph 1 of Article 37118 of the CCP, by its ruling the court refuses to renew the procedure. If the court does not state the presence of such inadequacies, it appoints a date for consideration of the case at its hearing.

Article 37120 of the CCP provides that the procedure of the renewal of the procedure takes place according to the rules regulating the procedure at the court of the first instance save the cases when the procedure is renewed at the Supreme Court of Lithuania. All the persons participating in the case must be informed about the date of the consideration of the case at a court hearing. The procedure for the renewal of the procedure takes place pursuant to the requirements of civil procedure, therefore, the persons participating in the case enjoy all the procedural rights provided for in the law, as well as the right to express their opinion about the reasonableness of the renewal of the procedure. Thus, there exist no legal grounds to assert that the impugned Paragraph 1 of Article 37123 of the CCP denies the constitutional principle of the equality of all persons.

5. On the grounds of the arguments set forth, it should be concluded that Paragraph 1 of Article 37123 of the Code of Civil Procedure is in compliance with Paragraph 1 of Article 29 of the Constitution.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 55 and 56 of the 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 Paragraph 1 of Article 37123 of the Code of Civil Procedure of the Republic of Lithuania is in compliance with the Constitution of the Republic of Lithuania.

This 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 Kūris      Zigmas Levickis      Augustinas Normantas

 

Vladas Pavilonis      Jonas Prapiestis     Vytautas Sinkevičius

 

Stasys Stačiokas      Teodora Staugaitienė