The Prosecutor as the Subject of the Procedure Renewal
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Abstract
The topicality of the article is determined by the function of prosecutor’s office (prosecutor) in the law of civil procedure and by the abundance of regulatory enactments in the latter years which change the regulation of activity of prosecutor’s office of the Republic of Lithuania, public protection of interests and procedure renewal as well as by the need in scientific research of these legal phenomena because the science of the law of civil procedure of prosecutor’s office and the institute of procedure renewal have not been investigated in the science of the law of civil procedure of the Republic of Lithuania.
The article analyses the forms of prosecutor’s participation in the stage of renewal, rights and duties of the General prosecutor to make an application for procedure renewal in the protection of public interest, the problems that the General prosecutor of the Republic of Lithuania faces in exercising the right given by Part 2 of Article 365 of the Civil Procedure Code of the Republic of Lithuania. The analysis reveals the particularity of prosecutor’s participation in the stage of procedure renewal.
Almost three years have already passed since the adoption of the new Civil Procedure Code of the Republic of Lithuania, therefore, legal practice in applying the norms of the Civil Procedure Code of the Republic of Lithuania that regulate the prosecutor’s activity in the civil procedure as well as in the stage of procedure renewal may be observed.
The prosecutor’s rights of initiating the civil procedure are regulated by the Civil Procedure Code of the Republic of Lithuania and the Law of prosecutor’s office of the Republic of Lithuania.
Article 365 of the Civil Procedure Code of the Republic of Lithuania stipulates that the procedure of a case ended by a binding sentence may be renewed on the bases and order established in Chapter XVIII of the Civil Procedure Code of the Republic of Lithuania. The abovementioned Article includes a list of persons at the request of whom the process may be renewed, i.e. parties and third persons as well as persons not brought to trial. Part 2 of Article 365 of the Civil Procedure Code of the Republic of Lithuania stipulates that aiming at the protection of public interest the applications for the procedure renewal may be submitted by the General prosecutor of the Republic of Lithuania.
Thus in the stage of procedure renewal the prosecutor may participate in two forms: first, according to the order set in Part 1 of Article 365 of the Civil Procedure Code of the Republic of Lithuania when the application for the procedure renewal is submitted by the prosecutor being a party (Article 49 and Part 1 of Article 365 of the Civil Procedure Code of the Republic of Lithuania, Article 19 of the Law of prosecutor’s office of the Republic of Lithuania) and second according to the order set in Part 2 of Article 365 of the Civil Procedure Code of the Republic of Lithuania. In the latter case the legislator makes a provision that the application for the procedure renewal may be submitted only by the General prosecutor.
This article consistently investigates the second form prosecutor’s participation in the stage of procedure renewal when the application for the procedure renewal is submitted by the General prosecutor.
Two conditions apply to the right of the General prosecutor to justice with a request to renew the procedure in a case ended by a binding sentence: the first essential condition is that the application for the procedure renewal must be submitted aiming at the protection of a public interest, the second – the application must be submitted following the order set in Chapter XVIII of the Civil Procedure Code of the Republic of Lithuania. The court having renewed the procedure and decided the case establishes whether the public interest was violated.
Therefore, the circumstance that there is a public interest in the case is not attributed to the precondition of the right to justice but is one of the conditions of the right to the satisfaction of the requirement.
Except the requirements concerning the content of the application for the procedure renewal set in Article 369 of the Civil Procedure Code of the Republic of Lithuania the General prosecutor’s application must also include the violation of a public interest that is to be defended and evidences proving this fact.
The article analyses the forms of prosecutor’s participation in the stage of renewal, rights and duties of the General prosecutor to make an application for procedure renewal in the protection of public interest, the problems that the General prosecutor of the Republic of Lithuania faces in exercising the right given by Part 2 of Article 365 of the Civil Procedure Code of the Republic of Lithuania. The analysis reveals the particularity of prosecutor’s participation in the stage of procedure renewal.
Almost three years have already passed since the adoption of the new Civil Procedure Code of the Republic of Lithuania, therefore, legal practice in applying the norms of the Civil Procedure Code of the Republic of Lithuania that regulate the prosecutor’s activity in the civil procedure as well as in the stage of procedure renewal may be observed.
The prosecutor’s rights of initiating the civil procedure are regulated by the Civil Procedure Code of the Republic of Lithuania and the Law of prosecutor’s office of the Republic of Lithuania.
Article 365 of the Civil Procedure Code of the Republic of Lithuania stipulates that the procedure of a case ended by a binding sentence may be renewed on the bases and order established in Chapter XVIII of the Civil Procedure Code of the Republic of Lithuania. The abovementioned Article includes a list of persons at the request of whom the process may be renewed, i.e. parties and third persons as well as persons not brought to trial. Part 2 of Article 365 of the Civil Procedure Code of the Republic of Lithuania stipulates that aiming at the protection of public interest the applications for the procedure renewal may be submitted by the General prosecutor of the Republic of Lithuania.
Thus in the stage of procedure renewal the prosecutor may participate in two forms: first, according to the order set in Part 1 of Article 365 of the Civil Procedure Code of the Republic of Lithuania when the application for the procedure renewal is submitted by the prosecutor being a party (Article 49 and Part 1 of Article 365 of the Civil Procedure Code of the Republic of Lithuania, Article 19 of the Law of prosecutor’s office of the Republic of Lithuania) and second according to the order set in Part 2 of Article 365 of the Civil Procedure Code of the Republic of Lithuania. In the latter case the legislator makes a provision that the application for the procedure renewal may be submitted only by the General prosecutor.
This article consistently investigates the second form prosecutor’s participation in the stage of procedure renewal when the application for the procedure renewal is submitted by the General prosecutor.
Two conditions apply to the right of the General prosecutor to justice with a request to renew the procedure in a case ended by a binding sentence: the first essential condition is that the application for the procedure renewal must be submitted aiming at the protection of a public interest, the second – the application must be submitted following the order set in Chapter XVIII of the Civil Procedure Code of the Republic of Lithuania. The court having renewed the procedure and decided the case establishes whether the public interest was violated.
Therefore, the circumstance that there is a public interest in the case is not attributed to the precondition of the right to justice but is one of the conditions of the right to the satisfaction of the requirement.
Except the requirements concerning the content of the application for the procedure renewal set in Article 369 of the Civil Procedure Code of the Republic of Lithuania the General prosecutor’s application must also include the violation of a public interest that is to be defended and evidences proving this fact.
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