On Tuesday, 7 June, the general meeting of judges of the Department of Civil Cases of the Supreme Court provided an explanation on right of a party to a case – a natural person – to process authorisation by oral declaration at the court hearing. The general meeting, in accordance with Section 491, Paragraph One, of the law “On Judicial Power” and observing proposal of the Ministry of Justice, was convened by Ivars Bickovics, the Chief Justice of the Supreme Court. 

The general meeting of judges of the Department of Civil Cases established that there is different understanding in praxis of courts of the first and the second instances regarding right of a party to a case – a natural person – to process authorisation of a representative by oral declaration at the court hearing established in the second sentence of Section 85, Paragraph One, of the Civil Procedure Law.  In accordance with one interpretation of legal norm, a natural person is entitled to authorise a representative only to a court hearing, in which such declaration is made; however, in accordance with another interpretation, such right refers to giving of authorisation for performance of any procedural activities, including activities stipulated in Section 86, Paragraph Two, of the Civil Procedure Law, which require special authorisation. Observing significantly different interpretations, the general meeting of judges of the Department of Civil Cases concluded that such different case-law may negatively affect right of a party to a case – a natural person - to access to justice.

To ensure uniform application of the second sentence of Section 85, Paragraph One, of the Civil Procedure Law, the general meeting of judges of the Department of Civil Cases decided to provide explanation of contestable provision. Judges of the Department considered that a party to a case – a natural person – may authorise a representative, by oral declaration at the court hearing, to execute all procedural activities, inter alia, activities stipulated in Section 86, Paragraph Two, of the Civil Procedure Law, in the particular civil case on his or her behalf.    Such explanation is justified by several considerations. First, judges recognised that authorisation declared in the court, in accordance with the second sentence of Section 85, Paragraph One, of the Civil Procedure Law, may not be considered as less credible than authorisation approved by a notary provided for in the first sentence of Section 85, Paragraph One, of the Civil Procedure Law. Second, the general meeting of judges concluded that the Civil Procedure Law does not envisage limitation of permissible amount of oral authorisation, and such limitation may not be come to, when interpreting respective legal norm. 

The general meeting of judges of the Department of Civil Cases also pointed out that authorisation declared at the court hearing may refer only to particular case, and that, when processing authorisation for representation of a natural person in the cassation instance, it must be observed that, in accordance with Section 82, Paragraph Six, of the Civil Procedure Law, only an advocate is entitled to represent a natural person. Authorisation declared orally has been processed as a record in minutes of the court hearing, and it may not be replaced by authorisation fixed in sound record.

In respect of role of the court in fixing of oral authorisation, the general meeting of judges explained that, before making a record on authorisation of representative in minutes of the court hearing, the court must explain to a person being represented limitations stipulated in the Civil Procedure Law regarding persons, who may not be representatives in civil procedure. The court must also establish will of a person being represented in respect of amount of authorisation of a representative.  

In respect of giving of special authorisation, the general meeting of judges of the Department of Civil Cases turned attention to the decision of the Department of Civil Cases of the Supreme Court of 26 November 2015 passed in the case No SKC – 2391/2015, where the department recognised that special authorisation is not necessary to file ancillary complaint against the decision of the court, in accordance with Section 86, Paragraph Two, of the Civil Procedure Law.   

In accordance with Section 491, Paragraph Three, of the law “On Judicial Power”, the decision of the general meeting of judges of the Department of Civil Cases is published in Latvian language on the website of the Supreme Court on the Internet (available in section  Judicature/ Decisions of general meetings of judges/ Department and Chamber of Civil Cases: see here).

 

Information prepared by

Rihards Gulbis, the Legal adviser of the Department of Civil Cases of the Supreme Court