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Content updated: 14-02-2022 09:33

The requirement that a cassation appeal must be drawn up by an advocate is not in conflict with the Constitution

30-12-2021

The Constitutional Court has recognised by means of its ruling of 30 December 2021 that paragraph 3 (wording of 8 November 2016) of Article 347 of the Code of Civil Procedure, which provides that a cassation appeal must be drawn up by an advocate, is not in conflict with the Constitution.

It was noted in the ruling of the Constitutional Court that each person who believes that his/her rights or freedoms are violated has the right, which is consolidated in paragraph 1 of Article 30 of the Constitution, to the judicial protection of his/her violated constitutional rights or freedoms. However, the legislature has the discretion to determine, in accordance with the constitutional principle of a state under rule of law, the procedure by which a person may apply for the protection of his/her violated rights and freedoms, and it may lay down the conditions, time limits, and methods of the implementation of the right of access to justice, where those conditions, time limits, and methods are determined, among others, by the public interest.

The constitutional nature and purpose of a court of cassation instance presupposes that cases are examined under cassation procedure for the protection of possibly violated rights and freedoms of a person only on fundamental legal issues in order to ensure, among others, the public interest in the uniform interpretation and application of law and the formation of uniform case law. The Constitution does not presuppose a requirement for the legislature to establish such a legal regulation under which any court decision revised under appeal procedure may be appealed against by way of cassation. Taking into account the constitutional purpose of the cassation procedure, as well as the particularities of the examination of cases under cassation procedure, the legislature may, in accordance with the Constitution, lay down such a procedure, conditions, time limits, and methods of the implementation of the right to apply to the Supreme Court of Lithuania that are also determined by the public interest in ensuring the uniform interpretation and application of law and the formation of uniform case law, including the fact that a cassation appeal must be drawn up by an advocate in order to create the preconditions for ensuring the effective implementation of the right to judicial protection and also of the principle of justice in the cassation procedure.

The Constitutional Court noted that the legislature, in establishing the requirement in paragraph 3 of Article 347 of the Code of Criminal Procedure that a cassation appeal must be drawn up by an advocate, took into account the fact that a high legal qualification and appropriate legal skills are required for drawing up a cassation appeal. In addition, when establishing the impugned legal regulation, the legislature assessed the fact that the person’s right to apply to a court, guaranteed in paragraph 1 of Article 30 of the Constitution, in the defence of the rights or freedoms that he/she considers to have been violated has already been implemented by that person before the court of first instance and by appealing against the decision of that court to the court of appeal instance. The Constitutional Court noted that if persons with no higher university education in law were given the opportunity to draw up a cassation appeal without recourse to an advocate, the right to apply to a court of cassation might become only a mere formality and not a real and effective right. Thus, the impugned legal regulation, under which a cassation appeal is drawn up by an advocate, creates the preconditions for ensuring a fair balance between the public interest in the uniform interpretation and application of law and forming a uniform (coherent, consistent) case law and the interest of a person in effective judicial protection before the court of cassation.