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