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Content updated: 29-05-2019 11:13

The provision of the Code of Civil Procedure that, in a civil case, an appeal must be drawn up by a lawyer declared unconstitutional

01-03-2019

By its ruling adopted today, the Constitutional Court recognised that Paragraph 3 (wording of 8 November 2016) of Article 306 of the Code of Civil Procedure, which establishes that, in a civil case, an appeal may be drawn up only by a lawyer (with the exception of the cases provided for in this paragraph) was in conflict with Paragraph 1 (“A person whose constitutional rights or freedoms are violated shall have the right to apply to a court”) of Article 30 of the Constitution and the constitutional principle of a state under the rule of law.

According to the Vilnius City Local Court, the petitioner, having established, under the impugned legal regulation, the requirement for an appeal to be drawn up by a lawyer, the legislature unduly limited the right of a person to apply to court, among other things, to the court of higher instance, as, in the case, where a person does not have the possibilities to access a lawyer and the state-guaranteed legal aid is not provided to him/her, he/she may not lodge an appeal.

In its ruling, the Constitutional Court noted that, under the Constitution, Paragraph 1 of Article 30 thereof, and the constitutional principle of a state under the rule of law, the right to lodge an appeal with at least one court of higher instance against any final act adopted in a case by a court of first instance, in order to ensure the possibility of correcting potential mistakes, is an inseparable part of the constitutional right to apply to court and the right to due process. It is not allowed to artificially restrict or deny the right to apply to at least one court of higher instance and no such legal regulation may be established, which would disproportionately limit the right to apply to the court of higher instance for the person, who believes that his/her rights or freedoms were not defended properly by the court of first instance. In implementing the constitutional duty to ensure the possibility for the participants of the proceedings to verify, with at least one court of higher instance, the legality and rationality of the decision that was adopted by the court of first instance but have not come into force yet, the legislature must establish such legal regulation that would create preconditions for each person to effectively exercise his/her right to lodge an appeal with the court of appeal instance against a decision of the court of first instance. No such grounds, terms, and conditions for lodging an appeal may be provided for, due to which it would become especially difficult or impossible at all to apply to the court of appeal instance. Otherwise, the constitutional right to appeal with the court of appeal instance against a decision of the court of first instance would be declaratory, and the legislature would prevent from correcting potential mistakes of the court of first instance, as well as from applying law correctly and administering justice.

The Constitutional Court also emphasised that, under the Constitution, the right to an advocate, as one of the conditions for effective implementation of the right of the person to judicial defence, in regulating the implementation of the constitutional right to appeal with the court of appeal instance against the final act of the court of first instance, may not be transformed into the duty restricting this constitutional right, in particular, to the extent that the possibility to exercise the right itself would be denied.

The Constitutional Court interpreted that the impugned Paragraph 3 of Article 306 of the Code of Civil Procedure established the general rule that an appeal must be drawn up by a lawyer, as well as certain exceptions to this rule, where such an appeal may be drawn by a person having a university education in law, if he/she represents himself/herself or his/her close relative or spouse (cohabiting partner) and, in certain cases, other specified entities. Disregarding the difficulty of the case or its extent, this requirement applies to all natural and legal persons in civil cases of all categories: the cases concerning legal questions, as well as the cases where factual circumstances are impugned, and the cases where it is appealed against all the decision of the court of first instance, or part thereof. Thus, a person, who wished to submit any appeal, even in a non-complex case or only regarding the establishment of factual circumstances but who did not have a university education in law or a close relative, who would have obtained this degree, under the impugned provision, was forced to refer to a lawyer. The Constitutional Court noticed that there is no such requirement established for submitting an appeal in other judicial proceedings (in criminal proceedings, administrative proceedings, and proceedings linked to administrative offences): although the requirements for an appeal are, in the cases of these categories, essentially similar to the requirements laid down in civil cases, an appeal may also be drawn up by the person submitting it.   

While deciding on the compliance of such legal regulation with the Constitution, the Constitutional Court assessed the above-mentioned general rule that an appeal must be drawn by a lawyer, which is consolidated in Paragraph 3 of Article 306 of the Code of Civil Procedure, as a condition limiting the submission of an appeal because a natural person, who does not have a university education in law, or a legal person, who does not have an employee who would have acquired such education, may not, in his/her case, draw up an appeal himself/herself, and if, under Paragraph 2 of Article 316 of the Code of Civil Procedure, he/she does not apply to a lawyer within the specified term, he/she may not lodge an appeal and initiate the appeal proceedings in the case. Thus, the possibilities to exercise the constitutional right to apply to the court of appeal instance are, in civil cases, limited for those persons who may not have access to a lawyer, among other things, due to financial reasons, as well as for the persons who do not wish that due to the fact that the case is not difficult or due to the fact that the person himself/herself better knows the factual circumstances of the case.

The Constitutional Court noted that the model established in the Law on State-Guaranteed Legal Aid is not such as to create preconditions for all persons seeking to lodge an appeal to effectively ensure the implementation of the requirement established in the impugned Paragraph 3 of Article 306 of the Code of Civil Procedure: under this law, not all persons and not in all civil cases may be eligible for state-guaranteed legal aid, among other things, for drawing up an appeal. Natural persons, who do not meet the conditions for receiving the state-guaranteed legal aid, such as the persons whose property and annual income at least slightly exceed the property and income levels established by the Government for the provision of legal aid, as well as legal persons, may in no case have access to state-guaranteed legal aid in civil cases. Therefore, natural and legal persons (natural persons – those persons who do not have university education in law or close relatives having it; legal persons – those persons who do not have the employees who would have completed it), who wish to exercise their right to appeal against the decision of the court of first instance in a civil case and who do not have the right to receive state-guaranteed legal aid, must refer to a lawyer and pay for his/her services from their own funds thus experiencing heavy financial burden, which may be unbearable for a number of persons.

In addition, as it has been noted in the ruling of the Constitutional Court, in regulating the relations of civil procedure, the legislature must respect the Constitution, among other things, the constitutional principles of a state under the rule of law, the equality of rights, public and fair trial, among other things, the principles of equality of arms and the right to be heard. Meanwhile, neither Paragraph 1 of Article 318 of the Code of Civil Procedure regulating the duty to lodge a response to the appeal nor other provisions of the Code of Civil Procedure specify any requirements, including the requirement to apply to a lawyer or to have relevant legal education, to be met by another party of the case, who must lodge a response to the appeal setting out the opinion on the justification of arguments of the appeal. Thus, by means of the impugned legal regulation, the legislature, among other things, established different conditions for the parties of a case to participate in the proceedings of appeal instance, and created preconditions to violate the principles of equality of arms and the right to be heard of the parties to the proceedings, without which the civil procedure may not be considered as appropriate.

In view of the arguments set out, the Constitutional Court held that the impugned Paragraph 3 of Article 306 of the Code of Civil Procedure established such a procedure for the implementation of the right to apply to the court of appeal instance, under which the right to an advocate was turned into the duty. Due to this duty, it becomes particularly difficult and, in certain cases, also impossible for a number of persons, especially those whose property and annual income at least slightly exceed the property and income levels established by the Government, to apply to the court of appeal instance. Thus, the constitutional right of a person to apply to the court of appeal instance in order to verify the legality and rationality of the decision that had been adopted by a court of first instance was disproportionately limited and, in certain cases, the essence of this right itself was denied. Such legal regulation prevented from correcting potential mistakes of a court of first instance, as well as from applying law correctly and administering justice. Therefore, the Constitutional Court decided that the impugned Paragraph 3 of Article 306 of the Code of Criminal Procedure was in conflict with Paragraph 1 of Article 30 of the Constitution and the constitutional principle of a state under the rule of law.