2 July 1999 № D-85/99
The Constitutional Court of the Republic of Belarus comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, Deputy Chairman - A.V. Maryskin, judges T.S. Boiko, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, R.I. Filipchik, V.I. Shabailov, G.B. Shishko, V.Z. Shuklin having examined on the ground of Article 40 of the Constitution of the Republic of Belarus the motion of the Ministry of Justice of the Republic of Belarus on come issues of representation in court on civil cases established the following.
Under Article 62 of the Constitution everyone shall have the right to legal assistance to exercise and defend his rights and liberties, including the right to make use, at any time, of the assistance of lawyers and one's other representatives in court, other state bodies. Opposition to the rendering of legal assistance shall be prohibited in the Republic of Belarus. The specified constitutional norm envisages that, in particular, the right of each citizen to make use, at any time, of the assistance not only of lawyers but also one's other representatives in court, other state bodies, bodies of local government, enterprises, establishments, organizations, public associations, and also in relation with officials and citizens. In the instances specified in law, legal assistance shall be rendered from public funds.
The effective civil legislation of procedure (Articles 70-79 of the Civil code of Procedure - hereafter CCP) envisages that citizens shall have the right to plead a case in court personally or through representatives. At the same time the law allows two ways of execution of the representation in court: presentation of properly drew up warrant of attorney or oral statement made in court which shall be entered in the records of proceedings.
Under Article 72 of CCP a representative in court may be any competent person who has duly executed power to plead cases in court, except for the persons listed in Article 73 of CCP.
The representatives in court, in particular, may be:
1) advocates;
2) workers of legal entities - on the cases of those entities;
3) the authorized persons of public associations which under the law or by-law are giving the right to represent and defend the legitimate interests of one's members in court;
4) the authorized persons of organizations which under the legislation are giving the right to represent and defend in court the rights and legitimate interests of other persons;
5) parents, adopters, guardians and trustees - on the cases of wards;
6) the authorized persons of establishments and organizations which are entrusted by the law with performing of the duties of guardians and trustees;
7) representatives appointed by court;
8) one of the procedural co-parties - on behalf of those co-parties;
Article 73 of CCP envisages that the representatives in court may not be:
1) persons who have not come of age, except of parents under age - on the cases of their children;
2) persons who have been declared incapable or restricted capable in the procedure specified in law;
3) judges, investigators and public prosecutor, except for the instances, when they take part in the case as lawful representatives of incapable persons, or representatives of court, the Procurator's office, or another body of investigation.
Under Article 75 of CCP representatives by attorney shall be admitted by court to take part in a case given duly drew up warrant of attorney. Warrant of attorney may be invested for making certain procedural actions, pleading the concrete civil case, several cases or for the representation of the interests of the principle in court on any case during the definite term.
In accordance with the Law "On the Bar" the Bar shall carry out the professional law protection activities. The main task of the Bar - rendering qualified legal aid for natural persons and legal entities while protecting their rights, freedoms and legitimate interests. Lawyers may be engaged in advocate activities only upon obtaining in the established procedure the licence. Moreover, legal services for citizens may be rendered both by legal entities and natural persons who were granted the licences under the effective legislation. The specified persons may be representatives in economic court.
Thus, the effective legislation shall not exclude the right to act as representatives: lawyers; persons who have licences for rendering legal aid; any other citizens who have properly drew up their representation.
The Constitutional Court notices from the motion of the Ministry of Justice that in practice there are instances when the persons who have no licences for the right to be engaged in advocate activities and render legal services, systematically render legal services as representatives on paid basis.
In the Constitutional Court opinion the situation in question may took place as a result of multivalued approach in the procedural legislation (criminal, civil, economic) to the issue on rendering different types of legal services. On the one hand the state while guaranteeing the qualified legal aid for carrying out and protecting the rights and liberties of the citizens shall introduce the obligatory licencing of advocate activities of legal entities and natural persons for rendering certain legal services, on the other hand - shall allow representation in court of any person without licence. By allowing the representation in court of any person on civil case, the lawmaker did not specified whether that representation may be of systematic character and be the source of income of a person who is engaged in representation in court without the licence for the right to carry out advocate activities or for the right to render legal services.
The analysis of the norms of the civil legislation of procedure (Article 75 of CCP etc.) shows that there is no determination in them how often a person who has no licence may be a representative in court, as well as they establish no conditions for making the representation in question. In this connection in order to secure uniform approach to the realization of the norms of Article 62 of the Constitution, the Constitutional Court deems that in the specified concrete case the understanding of the position of the lawmaker on the given issue is possible by means of official interpretation of the relevant norms of legislation.
Based on the aforementioned and guided by Article 40 of the Constitution, Articles 36 and 37 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court
RULED:
To propose the Ministry of Justice of the Republic of Belarus to apply in the established procedure with the issue on official interpretation of Article 62 of the Constitution and norms of the procedural legislation of the Republic of Belarus concerning the representation in court.
Presiding Officer —
Chairman of the
of the