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On the supervision carried out by the prosecution in the civil procedure

 THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA

 R U L I N G

 On the compliance of Article 53 of the Code of Civil Procedure of the Republic of Lithuania and Paragraph 3 of Article 21 of the Law on the Prosecutor’s Office of the Republic of Lithuania with the Constitution of the Republic of Lithuania

14 February 1994, Vilnius

The Constitutional Court of the Republic of Lithuania, composed from Justices of the Constitutional Court: Algirdas Gailiūnas, Kęstutis Lapinskas, Zigmas Levickis, Vladas Pavilonis, Pranas Vytautas Rasimavičius, Stasys Stačiokas, Stasys Šedbaras and Juozas Žilys

The court reporter—Rolanda Stimbirytė

Artūras Paulauskas, Prosecutor General of the Republic of Lithuania, acting as 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, in its public hearing, on 8 February 1994, considered case No. 15/93 subsequent to the petitions submitted to the Court by the Skuodas District Court and the Šiauliai District Court requesting an investigation into whether Article 53 of the Code of Civil Procedure and Paragraph 3 of Article 21 of the Law on the Prosecutor’s Office are in compliance with the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

On 30 November 1993, the petitioner—the Skuodas District Court—conducted the investigation of civil case upon the chief prosecutor’s of Skuodas region suit in defence of the interests of a farmers’ group pertaining to the recognition of the results of the competition on the rent of premises in Algirdo str. 8, Šiauliai, organised by the state enterprise of public utilities of Skuodas region, null and void. The prosecutor appealed to court pursuant to Article 53 of the Code of Civil Procedure and Paragraph 3 of Article 21 of the Law on the Prosecutor’s Office.

The Skuodas District Court by its ruling has suspended the court proceedings of the civil case and requests the Constitutional Court to investigate if Article 53 of the Code of Civil Procedure and Paragraph 3 of Article 21 of the Law on the Prosecutor’s Office are in compliance with the Constitution of the Republic of Lithuania.

The Court bases its request on the fact that Article 118 of the Constitution of the Republic of Lithuania does not provide for the prosecutor’s right to appeal to Court in the procedure prescribed by the Code of Civil Procedure. Whereas, Article 53 of the Code of Civil Procedure provides for the prosecutor’s right to appeal to Court with a petition to defend other persons’ rights and interests protected by law or to join the case at any stage of the procedure if the protection of the state or public interests or that of civil rights or interests safeguarded by law requires so, and it is established in Paragraph 3 of Article 21 of the Law on the Prosecutor’s Office that failing comply with the protests submitted in accordance with general competence or failing to submit results of consideration, the prosecutor shall have the right to apply to Court within 10 days on the annulling or amending of the unlawful legal act and then these cases shall be investigated in the procedure prescribed by the Code of Civil Procedure.

On 30 November 1993, the Petitioner—the Šiauliai District Court—investigated the civil case upon the chief prosecutor’s of the Šiauliai District Court suit in defence of the interests of the Šiauliai District Inspectorate of Cultural Heritage and Vytautas Janavičius related to the signing of shares while privatising the assets of the agricultural enterprise of Šiauliai region. The prosecutor instituted a legal action in accordance with Article 50 of the Code of Civil Procedure.

The Šiauliai District Court by its ruling suspended the legal proceedings of said civil case and applied to the Constitutional Court requesting an investigation into whether Article 53 of the Code of Civil Procedure is in conformity with the Constitution of the Republic of Lithuania. The court bases its request on the fact that Article 118 of the Constitution establishes the public prosecutor’s competence only in criminal cases and does not provide for any competence in civil ones, therefore, the prosecutor is not entitled to the right to institute a civil action or to take part in such a case.

The Constitutional Court by its decision of 3 January 1994 joined the petitions of the District Courts of Skuodas and Šiauliai into one case.

The representative of the party concerned has explained:

  1. Article 118 of the Constitution does not contain any exhaustive enumeration of all functions, rights and obligations of the prosecutor, thus, there is no ground for maintaining that the prosecutor may not perform other functions as well. In the opinion of the representative of the party concerned, such understanding of prosecutor’s functions is also confirmed by the linguistic analysis of the contents of Article 118 of the Constitution.
  2. The Code of Civil procedure and the Law on the Prosecutor’s Office were enacted prior to the adoption of the present Constitution of the Republic of Lithuania, therefore, with regard to said legal acts the Law “On the Procedure for the Enforcement of the Constitution of the Republic of Lithuania” should be applied in Article 2 of which it is established: “Laws, other legal acts, or parts thereof which were in effect on the territory of the Republic of Lithuania prior to the adoption of the Constitution of the Republic of Lithuania, shall be effective provided that they do not contradict the Constitution and this law, and shall remain effective until they are either declared null and void or co-ordinated with the provisions of the Constitution.” The impugned laws have not been declared null and void, thus, they are binding on everyone. The representative of the party concerned has maintained that this provision was expressed by the Seimas of the Republic of Lithuania in the Resolution “On the Outline of Legal System Reform and its Implementation”, adopted 14 December 1993, which specifies: “The Prosecutor’s Office performs the functions prescribed by means of effective laws until the Seimas adopts decisions concerning the termination of these functions or their delegation to other state institutions.” Further in the Seimas resolution it is emphasised that “the main function of the prosecutor’s office is criminal prosecution”. Thus, by said resolution the Seimas confirmed the provision that criminal prosecution is not the only but the main function of the prosecutor’s office.

Pursuant to the above-mentioned arguments, the representative of the party concerned requested the Constitutional Court to recognise that Article 53 of the Code of Civil Procedure and Paragraph 3 of Article 21 of the Law on the Prosecutor’s Office are in conformity with the Constitution of the Republic of Lithuania.

The Constitutional Court

holds that:

The Constitution of the State is a legal act having the supreme legal power on which the whole legal system of the state is grounded. Upon its amending, issues of the compliance of legal acts adopted earlier with the new Constitution as well as their co-ordination and validity arise. Usually in states adopting new Constitutions special laws are also enacted which regulate to what extent earlier adopted laws are in effect as well as the term for co-ordinating the laws in force with the Constitution. Various legal means of settling this issue are known in jurisprudence as well as in history. The principle of legal succession and gradual co-ordination of laws in effect with the new Constitution is established in the Republic of Lithuania’s Law “The Procedure for the Enforcement of the Constitution of the Republic of Lithuania” adopted by referendum on 25 October 1992 along with the Constitution of the Republic of Lithuania. Thereby, while forming a new legal system based on the Constitution an attempt is made to avoid gaps and controversies in law. It is established in Article 2 of said Law: “Laws, other legal acts, or parts thereof which were in effect on the territory of the Republic of Lithuania prior to the adoption of the Constitution of the Republic of Lithuania, shall be effective provided that they do not contradict the Constitution and this law, and shall remain effective until they are either declared null and void or co-ordinated with the provisions of the Constitution.” Thus, the provisions of the Code of Civil Procedure and the Law on the Prosecutor’s Office that were in force prior to the adoption of the Constitution shall be effective provided that they do not contradict the present Constitution.

In Article 53 of the Code of Civil Procedure it is determined that the prosecutor is entitled to the right to apply to court with a petition. Other special rights of the prosecutor in legal civil proceedings (the right to join the case at any phase of the proceedings, submit the conclusions to court, to appeal against court decisions, rulings and resolutions and to perform other procedural actions prescribed by law) are established in said Article as well as Article 54, which in essence make up a separate area of the prosecutor’s activities that in Article 13 of the Code of Civil Procedure is defined as supervision carried out by a prosecutor in the civil procedure.

The provisions of Article 21 of the Law on the Prosecutor’s Office are closely related to the implementation of another area of prosecutor’s activities, i.e. general competence of the prosecutor earlier defined as general supervision carried out by a prosecutor.

Until the adoption of the Constitution of the Republic of Lithuania in 1992, both said guidelines of prosecutor’s activities and functions were adequate to the concept and purpose of the prosecutor’s office as the supreme law-abiding institution.

In the first paragraph of Article 5 of the Constitution it is set forth that in Lithuania the powers of the State shall be exercised by the Seimas, the President of the Republic and Government, and the Judiciary. The functions of prosecutors are determined in Chapter IX “The Court” of the Constitution. Thus, prosecutors are interpreted here as an integral part of judicial authority. However, this does not mean that prosecutors may perform the functions of justice assigned for courts. It is especially important to precisely observe the prosecutor’s functions defined in the first paragraph of Article 118 of the Constitution: “Public prosecutors shall prosecute criminal cases on behalf of the State, shall carry out criminal prosecutions, and shall supervise the activities of the interrogative bodies”. Neither this nor other Articles of the Constitution specify the prosecutor’s supervisory functions with regard to the activities of courts or their powers to carry out the so-called general supervision. Therefore, from the formal point of view, the prosecutors’ authoritative activities of said nature are not in accordance with the prosecutors’ functions established in Article 118 of the Constitution. Such interpretation of Article 118 of the Constitution is based on the provision of the second paragraph of Article 5 of the Constitution which specifies that the scope of powers shall be limited by the Constitution.

One of the most relevant principles of administration of justice is independence of judges and courts. It is determined in Article 109 of the Constitution which specifies that, while administering justice, judges and courts shall be independent; while investigating cases, judges shall obey only the law. Therefore, the right of the prosecutor, prescribed by Article 53 of the Code of Civil Procedure, to join the case at any stage of proceedings and an inseparable adjective right thereof to submit the court the conclusions pertaining to the essence of the case under investigation as well as upon separate issues arising in the process of investigation, also to appeal against illegal and unreasonable decisions, rulings and resolutions passed by the court in the procedure prescribed by law and to carry out other procedural actions, stipulated in the law (Items 2, 3, 4 of Paragraph 1 of Article 54 of the Code of Civil Procedure) contradict the constitutional provision of independence of judges and courts while administering justice. Such supervisory function of prosecutors also limits the scope of the powers of judicial authority. Thus, the conclusion is to be draw that the provision set forth in Article 53 of the Code of Civil Procedure as well as other provisions determining the prosecutor’s right to supervise administration of justice in the civil proceedings along with other special rights, contradict Articles 5 and 109 of the Constitution.

The forms of response that can be applied by the prosecutor in carrying out the so-call general supervision of the prosecutor are established in Article 21 of the Law on the Prosecutor’s Office.

Thus, the prosecutor’s right to apply to court which is prescribed in the third paragraph of this Article is inseparable from the prosecutor’s forms of response. As general supervision is not mentioned among the prosecutor’s functions defined in the Constitution, the contradiction of the forms of response applied in the procedure of general supervision to the Constitution is obvious. Therefore, the provisions of Article 21 along with other provisions establishing the prosecutors’ powers to supervise the legality of executive acts and carry out prosecutor’s supervision in the civil proceedings fail to conform to the Constitution.

While performing the constitutional function prescribed by Article 118 of the Constitution, i.e. criminal prosecution, public prosecutors deal not only with criminal acts but also other crimes. Being an institution of legal protection, prosecutors must be entitled to the right to respond to this, however, the forms and scope of response must not contradict the Constitution as well as laws conforming to it. The prosecutors’ rights in carrying out criminal prosecution are defined by the Code of Criminal Procedure and other laws regulating these activities. Thus, the prosecutor’s right to institute a civil action or to support an action which has already been brought in criminal case is beyond doubt, if it is required by the protection of state or public interests or other persons’ rights. In such cases, however, the prosecutor may not exceed the adjective rights the plaintiff is entitled to by law. In contrary case, it would be a violation of the provision of Article 29 of the Constitution which specifies that all persons shall be equal before the law and court.

The Constitutional Court also calls attention to the fact that, due to the abundance of legal acts, their repeated amending and frequent cases of controversy in the complex period of legal system reform, a number of issues arise while attempting to perceive properly rights and duties that would be in conformity with the person’s legal status. The ability to perceive and realise one’s rights may be aggravated by other circumstances of objective as well as subjective nature. It must also be stated that the court system stipulated in Article 111 of the Constitution has not been formed yet, the institution of the Seimas’ ombudsmen has not started its functioning, as well as not all the laws meant to guarantee the constitutional status of a person and reliable protection of his rights have been drafted. The Law on the Prosecutor’s Office, in which the prosecutor’s rights and obligations are determined, is not co-ordinated with his functions established in Article 118 of the Constitution of the Republic of Lithuania. In such rather complicated situation, a person does not feel free and safe. Many persons apply to the prosecutor as a state official to get protection of their rights.

The way of solving said problems is provided for by the Constitution in Article 30 of which it is established that any person whose constitutional rights and freedoms are violated shall have the right to appeal to court. A person, of his own free will manages his private life, relations with other persons, and of his own free will enjoys legal protection in court (Article 22 of the Constitution). However, in case some circumstances aggravate the opportunity to exercise one’s right to legal protection or make it impossible at all, the declarativeness of said constitutional right would have to be recognised. Therefore, empowering of state institutions or their officials by law in order to help people in necessary cases to realise the protection of their constitutional rights, is expedient and justifiable but only on condition that it is in compliance with the Constitution. However, in this case it should also be emphasised that the most reliable means of protection of human rights is legal protection in court. Conforming to Articles 4 and 5 of the Code of Civil Procedure, any interested person and prosecutor as well as other subjects in other cases prescribed by law, are entitled to the right to apply to court and ask for legal protection. In the second paragraph of Article 33 of the Constitution, each citizen is guaranteed the right of appeal, i.e. the right to appeal against the decisions of state institutions and their officers. To investigate citizens’ appeals and petitions is a duty of every state institution. Thus, prosecutors while performing their function of criminal prosecution as well as investigating appeals and petitions of citizens, in case of need, may also submit a petition to the court and ask for the protection of other persons’ rights. Prosecutors, as one of the most significant institutions of legal protection, have the right to apply to the court also pertaining to lawful state interests as well as the protection of the public law in case it has been violated. In such cases they may demand from the administrative bodies, enterprises, institutions and other organisations as well as officials to submit documents and information necessary to start a civil case.

Conforming to Article 102 of the Constitution of the Republic of Lithuania as well as 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:

  1. To recognise that the provisions of Article 53 of the Code of the Republic of Lithuania of Civil Procedure pertaining to the prosecutor’s right to submit a petition to the court for the protection of other persons’ rights and state interests safeguarded by law do not contradict the Constitution.
  2. To recognise that the provisions of Article 53 as well as Articles 13 and 54 that provide for the prosecutor’s right to join the case at any stage and carry out supervision in the civil proceedings contradict Articles 5, 109 and 118 of the Constitution of the Republic of Lithuania.
  3. To recognise that Article 21 of the Law on the Prosecutor’s Office as well as the provisions of Articles 2, 19, 20, 22, 25 and 27 that establish the empowering of the prosecutor to supervise the lawfulness of executive acts and carry out supervision in the civil proceedings contradict Articles 5, 109, and 118 of the Constitution of the Republic of the 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:

Algirdas Gailiūnas                           Kęstutis Lapinskas                           Zigmas Levickis

Vladas Pavilonis                              Pranas Vytautas Rasimavičius         Stasys Stačiokas

Stasys Šedbaras                               Juozas Žilys