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Content updated: 22-03-2021 15:59

If a court terminates the case of a violation of law, the person is entitled to the reimbursement of the necessary and reasonable lawyer’s fees

19-03-2021

By its ruling of 19 March 2021, the Constitutional Court recognised that Article 3021 of the Code of Administrative Violations of Law (wording of 18 November 2010), insofar as that article had not provided that, if a court decided to terminate an administrative offence case without determining the event or body of an administrative offence, the person, when taking into account the circumstances of the case, had to be reimbursed for the necessary and reasonable lawyer’s fees, had been in conflict with Paragraph 1 of Article 30 and Paragraph 6 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law. Article 106 (as amended on 26 June 2020) of the Code of Criminal Procedure (Baudžiamojo proceso kodeksas (BPK), hereinafter referred to as the BPK) was also declared to be in conflict with those provisions of the Constitution, insofar as, under that article, a person with regard of whom an acquitting court judgement has been adopted is not reimbursed for the necessary and reasonable lawyer’s fees when taking into account the circumstances of the case. According to the effective Code of Administrative Offences, namely the BPK’s provisions apply mutatis mutandis to the issues of the reimbursement of the costs of the proceedings incurred in administrative offence cases.

The Constitutional Court noted that Paragraph 1 of Article 30, Paragraph 6 of Article 31 of the Constitution and the constitutional principle of a state under the rule of law give rise to the legislature’s duty to establish such a legal regulation under which a person’s right to defend his/her rights in a court, inter alia, through legal assistance provided by a lawyer, is exercised in a real and effective manner, among other things, to stipulate that a person not subject to legal responsibility, as it has not been established that he/she has committed a violation of law, when taking into account the circumstances of the case, is reimbursed for the necessary and reasonable costs incurred in the exercise of that right.

In view of this, the Constitutional Court concluded that such a legal regulation under which a person with regard of whom an administrative offence case has been terminated without determining the event or body of an administrative offence or who has been acquitted in a criminal case is in no case reimbursed for lawyer’s fees incurred in the court proceedings unduly aggravates the exercise of the constitutional right of a person to apply to a court for the protection of his/her violated rights and the exercise of the constitutional right to have an advocate. Such a legal regulation created the preconditions for the emergence of a situation in which a person who applied to a court for the protection of his/her violated rights, if the court terminated an administrative offence case without finding the event or body of an administrative violation or acquitted the person in a criminal case, could find himself/herself in a worse situation because he/she used the assistance of a lawyer to defend his/her violated rights, as the lawyer’s fees incurred by him/her, which were necessary and reasonable when taking into account the circumstances of the case, could be higher than, for example, the consequences of an administrative offence ruling (such as the amount of an administrative penalty), i.e. the preconditions had been created for a person who has defended his/her rights in a court to find himself/herself in a worse situation compared to that where he/she would have been if he/she had not defended his/her violated rights.

 This is the second case following an individual constitutional complaint that has been resolved in favour of the petitioner. The adoption of this ruling by the Constitutional Court creates the preconditions for avoiding in the future such a violation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms as the one that was found by the European Court of Human Rights in its judgment of 18 February 2020, delivered in the case of Černius and Rinkevičius v Lithuania, in which it was noted that the refusal to reimburse the litigation costs incurred in administrative proceedings in which the applicants obtained the quashing of the imposed fines as unjustified violated the applicants’ right of access to court.