THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA R U L I N G. Vilnius, 22 February 2001

Transcription

1 Case No. 19/99 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA R U L I N G On the compliance of Paragraph 1 of Article 55 of the Code of Civil Procedure of the Republic of Lithuania and Paragraphs 2 and 3 of Article 15 and Item 1 of Paragraph 2 of Article 32 of the Republic of Lithuania s Law on the Prosecutor s Office with the Constitution of the Republic of Lithuania Vilnius, 22 February 2001 The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė The court reporter Daiva Pitrėnaitė Jurgis Orlauskas, a senior consultant to the Law Department of the Office of the Seimas, acting as the representative of the Seimas of the Republic of Lithuania, 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, on 14 February 2001, in its public hearing, considered case No. 19/99 subsequent to the petition submitted to the Court by the petitioner the Šiauliai Regional Court requesting an investigation into whether Article 55 of the Code of Civil Procedure of the Republic of Lithuania and Paragraphs 2 and 3 of Article 15 as well as Article 32 of the Republic of Lithuania s Law on the Prosecutor s Office were in compliance with the Constitution of the Republic of Lithuania.

2 2 The Constitutional Court has established: I 1. The petitioner the Šiauliai Regional Court was considering a civil case. By means of its ruling of 9 July 1999, the said court suspended the consideration of the case and applied to the Constitutional Court requesting an investigation into: 1) whether bringing in an action for an independent legal person pursuant to the common rules of transactions according to Articles 253, 270 of the Republic of Lithuania Civil Code (hereinafter referred to as the CC) and other norms of the CC regulating liabilities is compulsory to courts; 2) whether bringing in an action for an independent legal person pursuant to the common rules of transactions according to Articles 253, 270 of the CC and other norms of the CC regulating liabilities is in compliance with the Constitution, Article 55 of the Code of Civil Procedure of the Republic of Lithuania (hereinafter also referred to as the CCP) and Article 3 of the Republic of Lithuania s Law on the Prosecutor s Office; 3) whether Article 55 of the CCP and Article 32 of the Law on the Prosecutor s Office are in compliance with the Constitution; 4) whether Paragraphs 2 and 3 of Article 15 of the Law on the Prosecutor s Office are in compliance with the Constitution. 5) whether Article 55 of the CCP and Paragraphs 2 and 3 of Article 15 and Article 32 of the Law on the Prosecutor s Office are in conformity with the norms of the CCP regulating cognisance rules. In addition, in its ruling the Šiauliai Regional Court expressed doubts whether it is within a prosecutor s competence to bring in an action at a court of another region without instruction by the Office of the Prosecutor General of the Republic of Lithuania. 2. By means of its decision of 29 September 1999, the Constitutional Court accepted the petition of the petitioner requesting an investigation into the compliance of Article 55 of the CCP (Official Gazette Valstybės žinios, 1994, No ) and Paragraphs 2 and 3 of Article 15 and Article 32 of the Law on the Prosecutor s Office (Official Gazette Valstybės žinios, No ) with the Constitution. By means of this decision, the Constitutional Court refused to investigate the following requests: whether bringing in an action for an independent legal person pursuant to the common rules of transactions according to Articles 253, 270 and other norms of the CC regulating liabilities is compulsory to courts and whether bringing in of such an action is in compliance with the Constitution, Article 55 of the CCP and Article 3 of the Law on the Prosecutor s Office;

3 3 whether Article 55 of the CCP and Paragraphs 2 and 3 of Article 15 and Article 32 of the Law on the Prosecutor s Office are in conformity with the norms of the CCP regulating cognisance rules; and whether it is within a prosecutor s competence to bring in an action at a court of another region without instruction by the Office of the Prosecutor General. II 1. The petition of the petitioner regarding an investigation into the compliance of Article 55 of the CCP and Article 32 of the Law on the Prosecutor s Office with the Constitution is based on the following arguments. Article 55 of the CCP provides for an opportunity for a prosecutor to bring in an action so that the rights and interests of the state and other persons safeguarded by law would be protected. In the opinion of the petitioner, this norm of the CCP is particularised by Article 32 of the Law on the Prosecutor s Office wherein, inter alia, it is provided that the prosecutor, having found out violations of law, taking account of their nature, must bring actions and applications in courts; participate in judicial hearings in which the civil cases instituted on the initiative of the prosecutor are considered; lodge appeals against unlawful or unjustified court judgments, decisions and rulings in the said cases. The petitioner is of the opinion that, by bringing in an action, a prosecutor inflicts damage on property interests of the state, as in such cases the stamp tax is not paid. Meanwhile, the Constitution does not provide for the function of the prosecutor to bring in actions for independent legal persons. His competence in civil cases is not provided for. According to the petitioner, Article 118 of the Constitution provides for the competence of prosecutors in criminal cases only. 2. The petition of the petitioner regarding an investigation into the compliance of Paragraphs 2 and 3 of Article 15 of the Law on the Prosecutor s Office with the Constitution is based on the following arguments. In the said article the powers of regional and district prosecutors are bound by their territory which corresponds to the territory of the court. Officials of the prosecutor s office may discharge the functions of a prosecutor in other areas or courts as well, however, only upon the instruction of the Prosecutor General. Meanwhile, as it is pointed out by the petitioner, in the case considered by the Šiauliai Regional Court, the prosecutor brought in an action without being empowered by the Prosecutor General. According to the petitioner, this is incompatible with the provisions of Articles 5, 109, 114 and 118 of the Constitution. III In the course of the preparation of the case for the Constitutional Court hearing, a written explanation was received from the representative of the party concerned J. Orlauskas. 1. In the opinion of the representative of the party concerned, the impugned provision of

4 4 Paragraph 1 of Article 55 of the CCP that in cases provided by law the prosecutor may appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected, is virtually equivalent to the provision of earlier in force Article 53 of CCP that the prosecutor may appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected. It is pointed out in the explanation that, in its ruling of 15 February 1994, the Constitutional Court recognised that the latter provision was in compliance with the Constitution, therefore, in the opinion of J. Orlauskas, the question of the compliance of the impugned Paragraph 1 of Article 55 of the CCP with the Constitution has been decided. Due to an analogous reasoning, the provisions of Article 32 of the Law on the Prosecutor s Office, concerning the rights and duties of the prosecutor in the course of the preparation of material for institution of a civil case in court and his participation in the judicial consideration of the case, are also in compliance with the Constitution. 2. The representative of the party concerned also pointed out that the Constitution does not establish particular territories for activities of the institutions of the prosecutor s office. Therefore, in his opinion, the impugned Paragraphs 2 and 3 of Article 15 of the Law on the Prosecutor s Office are in compliance with the Constitution. IV In the course of the preparation of the case for the Constitutional Court hearing, a written explanation was received form then Prosecutor General K. Pėdnyčia, wherein it is maintained that the impugned articles (paragraphs thereof) of the CCP and the Law on the Prosecutor s Office were in conformity with the Constitution. V At the Constitutional Court hearing, the representative of the party concerned J. Orlauskas virtually reiterated the arguments set down in his written explanation. The Constitutional Court holds that: I 1. The petitioner requests the Constitutional Court to investigate whether Article 55 of the CCP and Paragraphs 2 and 3 of Article 15 and Article 32 of the Law on the Prosecutor s Office are in compliance with the Constitution. 2. Article 55 of the CCP entitled Participation of the Prosecutor, State Administration Institutions, Enterprises, Establishments and Organisations, Natural Persons Who Protect the Rights of the State and Other Persons in the Procedure provides: In cases provided for by law the prosecutor, state administration institutions, enterprises,

5 5 establishments and organisations, as well as natural persons, may appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected. In cases provided for by law state administration bodies may be included, by court order, to participate in the procedure, or enter into the procedure on their own initiative so that they would present a conclusion in a case in an attempt to carry out the duties commissioned to them and would protect the rights of persons and the state interests. The participation of the aforementioned state administration bodies in the procedure to present a conclusion regarding the case is obligatory in case the court recognises it necessary. 3. Paragraphs 2 and 3 of Article 15 Powers of Officials of the Prosecutor s Office in the Territory of the Republic of Lithuania of the Law on the Prosecutor s Office provide: 2. Officials of region and district prosecutor s offices shall fulfil the powers within their competence in the territory of the region or district assigned to them and corresponding to the territory of the respective court of justice. 3. On the instruction of the Prosecutor General, officials of the prosecutor s office may also perform the functions of a prosecutor in another territory or town. 4. Article 32 The Rights and Duties of the Prosecutor in Preparing Material for Instituting Civil Proceedings in Court and Participating in the Hearing of the Law on the Prosecutor s Office provides: 1. When preparing material for instituting civil proceedings in court, the prosecutor shall have the right to: 1) request that bodies of state administration and subordinate institutions, state controlled bodies, municipalities, enterprises, establishments, organisations and banks as well as parties and public organisations present standard and other legal acts, documents and other information; 2) to charge heads and other officials of bodies of state administration and national audit, enterprises, establishments and organisations to carry out checks, audits, expert examinations and to present findings; 3) to summon citizens and officials and receive their explanations concerning violations of law; and 4) as necessary, perform a direct in situ investigation into the circumstances of violations of civil interest specified in the applications. 2. Upon establishing violations of law, the prosecutor, taking into account the character of the violations, must: 1) in the manner established by the law on civil procedure bring actions and file applications in court; and 2) participate in civil proceedings initiated on the prosecutor s initiative, appeal against

6 6 unlawful or unjustified judgments, decisions or rulings of the court passed in the said cases. 5. Taking account of the arguments set forth, the Constitutional Court will investigate whether the provision in cases provided for by law the prosecutor < > may appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected of Paragraph 1 of Article 55 of the CCP and Paragraphs 2 and 3 of Article 15 and Item 1 of Paragraph 2 of Article 32 of the Law on the Prosecutor s Office, which are impugned by the petitioner, are in compliance with Article 5, Paragraphs 1, 2 and 3 of Article 109, Paragraph 1 of Article 114 and Paragraphs 1 and 3 of Article 118 of the Constitution. II On the compliance of the provision in cases provided for by law the prosecutor < > may appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected of Paragraph 1 of Article 55 of the Code of Civil Procedure with Paragraphs 1 and 3 of Article 118 of the Constitution. 1. According to the petitioner, the provision in cases provided for by law the prosecutor < > may appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected of Paragraph 1 of Article 55 of the CCP conflicts with Paragraphs 1 and 3 of Article 118 of the Constitution. 2. Paragraph 1 of Article 118 of the Constitution provides: 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, while Paragraph 3 thereof stipulates: The procedure for the appointment of public prosecutors and investigators and their status shall be established by law. 3. Paragraph 1 of Article 118 of the Constitution establishes the functions of prosecutors, i.e. prosecution of criminal cases on behalf of the state, carrying out criminal prosecutions, and supervision of the activities of the interrogative bodies. It needs to be noted that, under the Constitution, only the prosecutors may prosecute criminal cases on behalf of the state, carry out criminal prosecutions, and supervise the activities of the interrogative bodies. This is their exceptional competence. As mentioned, under Paragraph 3 of Article 118 of the Constitution, the procedure for the appointment of public prosecutors and their status shall be established by law. Establishing the status of prosecutors, taking account of the functions of prosecutors entrenched in Paragraph 1 of Article 118 of the Constitution, the legislature enjoys the competence to determine the place of prosecutors in the system of state institutions, to establish the powers of prosecutors, to regulate the arrangement of prosecutors activities and procedures, as well as to regulate the professional and other requirements for prosecutors, to establish the guarantees of their activities, etc. In this area the

7 7 legislature enjoys the discretion within the limits of the Constitution. 4. The formula the rights and interests of the state and other persons safeguarded by law employed in Paragraph 1 of Article 55 of the CCP should be construed as including the rights and interests of the state and various persons in cases of infringement whereof the public interest would be violated also. Alongside, the said formula should be construed as including such rights and interests which cannot, due to certain circumstances, be defended by the person who directly enjoys such rights and has such interests or who has very limited opportunities to defend them, which also covers his appeal to court. Attention must be paid to the fact that in its 14 February 1994 ruling the Constitutional Court noted that in case some circumstances aggravate the opportunity to exercise one s right to legal protection or make it impossible at all, the declarative character of said constitutional right would have to be recognised. Therefore, the 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 the condition that it is in compliance with the Constitution. The legislature has the right to establish the limits of the public interest in particular relations (the Constitutional Court s ruling of 6 May 1997), thus, without violating the Constitution, the laws may provide for the situations and procedure when the authorised institutions and officials may defend the public interest in court. The impugned provision of Paragraph 1 of Article 55 of the CCP provides that in cases provided for by law the prosecutor may appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected. 5. The impugned provision of Article 55 of the CCP was set down in Paragraph 33 of Article I of the Law On Amending and Supplementing the Code of Civil Procedure of the Republic of Lithuania of 8 November 1994 (hereinafter referred to as the law of 8 November 1994). By Paragraph 32 of Article I of the same law, earlier in force Article 53 of the CCP was abolished, in which, inter alia, it had been established that the prosecutor was entitled to bring in an action if this is required by the protection of the interests of society and the state or the rights and interests of citizens safeguarded by law. The Constitutional Court notes that after the abolishment of the until then in force Article 53 of the CCP and setting down of Paragraph 1 of Article 55 of the CCP anew by the law of 8 November 1994, the legal regulation establishing the right of the prosecutor to appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected has remained virtually intact. In its ruling of 14 February 1994, the Constitutional Court held that then in force provisions of Article 53 of the CCP pertaining to the prosecutor s right to submit a petition to court for the protection of other persons rights and state interests safeguarded by law did not contradict the

8 8 Constitution. 6. Taking account of the arguments set forth, it should be concluded that the provision in cases provided for by law the prosecutor < > may appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected of Paragraph 1 of Article 55 of the CCP is in compliance with Paragraphs 1 and 3 of Article 118 of the Constitution. III On the compliance of the provision in cases provided for by law the prosecutor < > may appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected of Paragraph 1 of Article 55 of the Code of Civil Procedure with Paragraphs 1, 2 and 3 of Article 109 of the Constitution. 1. According to the petitioner, the provision in cases provided for by law the prosecutor < > may appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected of Paragraph 1 of Article 55 of the CCP conflicts with Paragraphs 1, 2 and 3 of Article 109 of the Constitution. 2. Paragraphs 1, 2 and 3 of Article 109 of the Constitution provide: In the Republic of Lithuania, the courts shall have the exclusive right to administer justice. While administering justice, judges and courts shall be independent. While considering cases, judges shall obey only the law. 3. The right of the prosecutor to appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected which is entrenched in Paragraph 1 of Article 55 of the CCP does not mean that the function of administration of justice is established for the prosecutor; this provision does not deny the provisions of the Constitution that, while administering justice, judges and courts shall be independent, and that, while considering cases, judges shall obey only the law. The impugned legal regulation does not create any legal preconditions for the prosecutor to interfere with administration of justice nor to violate the independence of judges and courts enshrined in the Constitution. 4. Taking account of the arguments set forth, it should be concluded that the provision in cases provided for by law the prosecutor < > may appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected of Paragraph 1 of Article 55 of the CCP is in compliance with Paragraphs 1, 2 and 3 of Article 109 of the Constitution. IV On the compliance of the provision in cases provided for by law the prosecutor < >

9 9 may appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected of Paragraph 1 of Article 55 of the Code of Civil Procedure with Paragraph 1 of Article 114 of the Constitution. 1. According to the petitioner, the provision in cases provided for by law the prosecutor < > may appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected of Paragraph 1 of Article 55 of the CCP conflicts with Paragraph 1 of Article 114 of the Constitution. 2. Paragraph 1 of Article 114 of the Constitution provides: Institutions of State power and administration, members of the Seimas and other officials, political parties, political or public organisations, and citizens shall be prohibited from interfering with the activities of a judge or the court, and violation of this shall incur liability provided by law. The provisions of Article 114 of the Constitution are directly linked with the constitutional principle of independence of judges and courts. The said principle is particularised therein. 3. As it has been held in this Ruling, the provision in cases provided for by law the prosecutor < > may appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected of Paragraph 1 of Article 55 of the CCP does not create any legal preconditions for the prosecutor to interfere with administration of justice nor to violate the independence of judges and courts enshrined in the Constitution. The right of the prosecutor to appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected does not create any legal preconditions for the prosecutor to interfere with activities of judges or courts. 4. Taking account of the arguments set forth, it should be concluded that the provision in cases provided for by law the prosecutor < > may appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected of Paragraph 1 of Article 55 of the CCP is in compliance with Paragraph 1 of Article 114 of the Constitution. V On the compliance of the provision in cases provided for by law the prosecutor < > may appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected of Paragraph 1 of Article 55 of the Code of Civil Procedure with Article 5 of the Constitution. 1. According to the petitioner, the provision in cases provided for by law the prosecutor < > may appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected of Paragraph 1 of Article 55 of the CCP conflicts with Article 5 of the Constitution. 2. Article 5 of the Constitution provides:

10 10 In Lithuania, the powers of the State shall be exercised by the Seimas, the President of the Republic and the Government, and the Judiciary. The scope of powers shall be defined by the Constitution. State institutions shall serve the people. 3. By establishing the right of the prosecutor to appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected, one does not interfere with the powers of the institutions which exercise state powers and which are pointed out in Paragraph 1 of Article 5 of the Constitution, nor violates the separation of powers, independence and balance between the branches of state power established in the Constitution, nor creates any legal preconditions for violation of the principle enshrined in Paragraph 3 of Article 5 of the Constitution by which state institutions shall serve the people. 4. Taking account of the arguments set forth, the conclusion should be drawn that the provision in cases provided for by law the prosecutor < > may appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected of Paragraph 1 of Article 55 of the CCP is in compliance with Article 5 of the Constitution. VI On the compliance of Item 1 of Paragraph 2 of Article 32 of the Law on the Prosecutor s Office with Article 5, Paragraphs 1, 2 and 3 of Article 109, Paragraph 1 of Article 114 and Paragraphs 1 and 3 of Article 118 of the Constitution. 1. According to the petitioner, Item 1 of Paragraph 2 of Article 32 of the Law on the Prosecutor s Office conflicts with Article 5, Paragraphs 1, 2 and 3 of Article 109, Paragraph 1 of Article 114 and Paragraphs 1 and 3 of Article 118 of the Constitution. 2. The impugned norm of Item 1 of Paragraph 2 of Article 32 of the Law on the Prosecutor s Office is a blanket one: it indicates to the law on civil procedure. Under the impugned norm, the prosecutor has the right to bring actions and file applications in court only if this is provided in the law on civil procedure and only under procedure established in the law on civil procedure. As it has been held in this Ruling, the provision in cases provided for by law the prosecutor < > may appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected of Paragraph 1 of Article 55 of the CCP is in compliance with Article 5, Paragraphs 1, 2 and 3 of Article 109, Paragraph 1 of Article 114 and Paragraphs 1 and 3 of Article 118 of the Constitution. 3. Taking account of the arguments set forth, it should be concluded that Item 1 of Paragraph 2 of Article 32 of the Law on the Prosecutor s Office is in compliance with Article 5, Paragraphs 1, 2 and 3 of Article 109, Paragraph 1 of Article 114 and Paragraphs 1 and 3 of Article 118 of the Constitution.

11 11 VII On the compliance of Paragraphs 2 and 3 of Article 15 of the Law on the Prosecutor s Office with Article 5, Paragraphs 1, 2 and 3 of Article 109, Paragraph 1 of Article 114 and Paragraphs 1 and 3 of Article 118 of the Constitution. 1. According to the petitioner, Paragraphs 2 and 3 of Article 15 of the Law on the Prosecutor s Office conflict with Article 5, Paragraphs 1, 2 and 3 of Article 109, Paragraph 1 of Article 114 and Paragraphs 1 and 3 of Article 118 of the Constitution. 2. As it has been held in this Ruling, the legislator, establishing the status of prosecutors, taking account of the functions of prosecutors entrenched in Paragraph 1 of Article 118 of the Constitution, enjoys the discretion within the limits of the Constitution to determine the place of prosecutors in the system of state institutions, to establish the powers of prosecutors, to regulate the arrangement of prosecutors activities and procedures. Paragraph 2 of Article 15 of the Law on the Prosecutor s Office provides that officials of region and district prosecutor s offices shall fulfil the powers within their competence in the territory of the area or district assigned to them and corresponding to the territory of the respective court of justice, while Paragraph 3 thereof provides that on the instruction of the Prosecutor General, officials of the prosecutor s office may also perform the functions of a prosecutor in another territory or town. Article 5, Paragraphs 1, 2 and 3 of Article 109, Paragraph 1 of Article 114 and Paragraphs 1 and 3 of Article 118 of the Constitution do not regulate these relations. 3. Taking account of the arguments set forth, it should be concluded that Paragraphs 2 and 3 of Article 15 of the Law on the Prosecutor s Office are in compliance with Article 5, Paragraphs 1, 2 and 3 of Article 109, Paragraph 1 of Article 114 and Paragraphs 1 and 3 of Article 118 of the Constitution. Conforming to Article 102 of the Constitution of the Republic of Lithuania and 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 provision in cases provided for by law the prosecutor < > may appeal to court with a petition so that the rights and interests of the state and other persons safeguarded by law would be protected of Paragraph 1 of Article 55 of the Code of Civil Procedure of the Republic of Lithuania is in compliance with the Constitution of the Republic of Lithuania. 2. To recognise that Paragraphs 2 and 3 of Article 15 and Item 1 of Paragraph 2 of Article 32 of the Republic of Lithuania s Law on the Prosecutor s Office are in compliance with the

12 12 Constitution of the Republic of 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: Egidijus Jarašiūnas Egidijus Kūris Zigmas Levickis Augustinas Normantas Vladas Pavilonis Jonas Prapiestis Vytautas Sinkevičius Stasys Stačiokas Teodora Staugaitienė