THE CONSTITUTIONAL COURT OF                                    
                  THE REPUBLIC OF LITHUANIA                                     
                                                                                
                                                                                
                           RULING                                               
                                                                                
    On the compliance of Article 53 of the Code of Civil                        
                      Procedure of the                                          
 Republic of Lithuania and Part 3, Article 21 of the Law on                     
                             the                                                
    Procurator'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 secretary of the hearing - Rolanda Stimbirytė,                         
      the party concerned - Artūras Paulauskas, Procurator -                    
General of the Republic of Lithuania,                                           
      pursuant to Part 1, Article 102 of the Constitution of                    
the  Republic of Lithuania and Part 1, Article 1 of the  Law                    
on the Constitutional Court of the Republic of Lithuania, in                    
its   public  hearing  of  8  February  1994  conducted  the                    
investigation  of Case No 15/93 subsequent to the  petitions                    
submitted  to  the  Court  by  Skuodas  District  Court  and                    
Šiauliai District Court requesting to investigate if Article                    
53  of the Code of Civil Procedure and Part 3, Article 21 of                    
the  Law  on the Procurator's Office are in compliance  with                    
the Constitution of the Republic of Lithuania.                                  
                                                                                
                                                                                
     The Constitutional Court                                                   
                         has established:                                       
      The petitioner - Skuodas District Court on 30 November                    
1993  conducted  the investigation of civil  case  upon  the                    
chief procurator'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                    
8 Algirdo str Šiauliai, organized by the state enterprise of                    
public  utilities  of Skuodas region,  null  and  void.  The                    
procurator appealed to court pursuant to Article 53  of  the                    
Code of Civil Procedure and Part 3, Article 21 of the Law on                    
the Procurator's Office.                                                        
      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 Part 3, Article 21 of the Law on                    
the   Procurator'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 procurator'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  procurator's  right to  appeal  to  Court  with  a                    
petition  to  defend  other people's  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  laws                    
requires so, and it is established in Part 3, Article 21  of                    
the  Law on the Procurator's Office that failing comply with                    
the protests submitted in accordance with general competence                    
or   failing   to  submit  results  of  consideration,   the                    
procurator shall have the right to apply to Court within  10                    
days on the annulment or amending of the unlawful legal  act                    
and  then these cases shall be investigated in the procedure                    
prescribed by the Code of Civil Procedure.                                      
      The  Petitioner - Šiauliai District  Court  -  on   30                    
November 1993 investigated the civil case upon the  chief  -                    
procurator's of  Šiauliai District Court suit in defence  of                    
the  interests  of  the  Šiauliai District  Inspectorate  of                    
Cultural Heritage and Vytautas Janavičius related to signing                    
of  shares  while privatizing the assets of the agricultural                    
enterprise  of Šiauliai region. The procurator instituted  a                    
legal  action in accordance with Article 50 of the  Code  of                    
Civil Procedure.                                                                
      Šiauliai  District Court by its ruling  suspended  the                    
legal  proceedings  of said civil case and  applied  to  the                    
Constitutional Court requesting to investigate if 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  procurator's  competence  only  in                    
criminal  cases and does not provide for any  competence  in                    
civil ones, therefore, the procurator 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 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 an                    
exhaustive   enumeration  of  all  functions,   rights   and                    
obligations of the procurator, thus, there is no ground  for                    
maintaining  that  the  procurator  may  not  perform  other                    
functions  as well. In the opinion of the representative  of                    
the  party  concerned,  such understanding  of  procurator'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                    
Procurator's  Office were enacted prior to the  adoption  of                    
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 laws  in  dispute                    
have  not been declared null and void, thus they are binding                    
to  all.  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  that:   "The                    
Procurator's  Office  performs the functions  prescribed  by                    
laws  in effect 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 emphasized that "the main function of the procurator'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 procurator's                    
office.                                                                         
       Pursuant   to  the  above-mentioned  arguments,   the                    
representative   of  the  party  concerned   requested   the                    
Constitutional  Court to recognize that Article  53  of  the                    
Code of Civil Procedure and Part 3, Article 21 of the Law on                    
the   Procurator'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  Law  of  the                    
Republic of Lithuania "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 that: "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 Procurator'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 procurator is entitled to the  right  to                    
apply to court with a petition. Other special rights of  the                    
procurator 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                    
procurator's activities that in Article 13 of  the  Code  of                    
Civil  Procedure is defined as procuratorial supervision  in                    
civil procedure.                                                                
      The  provisions  of  Article 21  of  the  Law  on  the                    
Procurator's   Office   are   closely   related    to    the                    
implementation  of another area of procurator's  activities,                    
i.e. general competence of the procurator earlier defined as                    
general procuratorial supervision.                                              
      Until the adoption of the Constitution of the Republic                    
of  Lithuania  in 1992, both said guidelines of procurator's                    
activities  and functions were adequate to the  concept  and                    
purpose  of  the procurator's Office as the  supreme  law  -                    
abiding institution.                                                            
      In the first part 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                    
procurators  are determined in Chapter 9 of the Constitution                    
"The  Court". Thus, procurators are interpreted here  as  an                    
integral part of judicial authority. However, this does  not                    
mean  that procurators may perform the functions of  justice                    
assigned for courts. It is especially important to precisely                    
observe  the  procurator's functions defined  in  the  first                    
part,  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 procurator'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                    
procurators' authoritarian activities of said nature are not                    
in accordance with the procurators' functions established in                    
Article  118  of  the Constitution. Such  interpretation  of                    
Article 118 of the Constitution is based on the provision of                    
the  second  part,  Article  5  of  the  Constitution  which                    
specifies that the scope of powers shall be defined  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                    
procurator,  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, Part I, 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 procurators also restricts 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   procurator's   right    to    supervise                    
administration  of justice in civil proceedings  along  with                    
other  special rights, contradict Articles 5 and 109 of  the                    
Constitution.                                                                   
     Forms of response that can be applied by the procurator                    
in  carrying  out  the so-call general  supervision  of  the                    
procurator are established in Article 21 of the Law  on  the                    
Procurator's Office.                                                            
     Thus, the procurator's right to apply to court which is                    
prescribed  in the third part of this Article is inseparable                    
from   the  procurator's  forms  of  response.  As   general                    
supervision   is   not  mentioned  among  the   procurator'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  procurators'  powers  to  supervise   the                    
legality  of  executive  acts  and  carry  out  procurator's                    
supervision  in  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 procurators deal not only with  criminal                    
acts   but also other crimes. Being the institution of legal                    
protection,  procurators 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 procurators' rights in  carrying  out                    
criminal  prosecution are defined by the Code  of   Criminal                    
Procedure and other laws regulating these activities.  Thus,                    
the  procurator'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 people's rights. In  such                    
cases,  however, the procurator may not exceed the adjective                    
rights  the plaintiff is entitled to by the law. In contrary                    
case,  it would be a violation of the provision of   Article                    
29 of the Constitution which specifies that all people 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 realize 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' controllers                    
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 Procurator's Office, in which the procurator'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 people                    
apply  to  the  procurator  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 recognized. Therefore,                    
empowering of state institutions or their officials  by  law                    
in  order  to help people in necessary cases to realize  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  emhasized 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 procurator as well as other  subjects                    
in  other cases prescribed by the law, are entitled  to  the                    
right to apply to court and ask for legal protection. In the                    
second part, 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, procurators  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. Procurators, 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 organizations 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 has taken the following                                               
                          ruling :                                              
                                                                                
      1.  To recognize that the provisions of Article 53  of                    
the  Code  of  the Republic of Lithuania of Civil  Procedure                    
pertaining  to the procurator's  right to submit a  petition                    
to the court for the protection of other persons' rights and                    
state  interests safeguarded by laws do not  contradict  the                    
Constitution.                                                                   
      2.  To recognize that the provisions of Article 53  as                    
well as Articles 13 and 54 that provide for the procurator's                    
right  to  join  the  case  at  any  stage  and  carry   out                    
procuratorial  supervision  in civil proceedings  contradict                    
Articles 5, 109 and 118  of the Constitution of the Republic                    
of Lithuania.                                                                   
      3.  To  recognize that Article 21 of the  Law  on  the                    
Procurator'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  procuratorial supervision in  civil  proceedings                    
contradict  Articles 5, 109, and 118 of the Constitution  of                    
the Republic of the Lithuania.                                                  
                                                                                
      This  Constitutional Court ruling  is  final  and  not                    
subject to appeal.                                                              
      The ruling is promulgated on behalf 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