On 9 January, the general meeting of judges of the Department of Civil Cases explained the right of an authorized representative of the party to proceedings to participate and to speak in a closed hearing in the presence of the represented person. The general meeting was summoned by the Chief Justice of the Supreme Court, Ivars Bickovics, on the basis of the Section 491, Paragraph one of the Law "On Judicial Power", taking into account the initiative of the Ombudsman of the Republic of Latvia.

During the general meeting of judges of the Department of Civil Cases it was found that the first and second instance courts have different understanding regarding the interpretation of the Section 82, Paragraph one of the Civil Procedure Law in cases related to absence of marriage record or to divorce and in cases arising from custody and access rights. In accordance with the Section 11, Paragraph one of the Civil Procedure Law, these cases are reviewed in closed hearings. According to one of the interpretations of the relevant provisions of the law, when examining the cases of the above categories, the courts allow the authorized representatives who are not advocates to participate in the closed hearing together with the represented party. According to another interpretation, the court does not allow the authorized representative of a party to attend the hearing together with a party when reviewing cases of above categories, but only an advocate providing legal aid on the basis of an order. In addition, in his letter to the Chief Justice of the Supreme Court, the Ombudsman referred to a particular case in which the court authorized a representative of a party to proceedings to attend a closed court hearing together with a party, but refused the representative the right to express his/her opinion.

The general meeting of judges of the Department of Civil Cases concluded that such a different judicial practice could adversely affect the right of access to the court by a party – a natural person. In order to ensure a unified legal understanding of the right of a party's authorized representative to participate and speak in closed court hearing dealing with cases of absence of marriage record or cases of divorce or cases arising from custody and access rights, the general meeting of the judges of the Department of Civil Cases of the Supreme Court decided to provide explanation of the disputed provisions of the law.

The judges of the Department admitted that the legislator has defined the option to choose the representative in the Section 82, Paragraph one of the Civil Procedure Law as an alternative to the conduct of the case by the party itself, without directly envisaging the joint conduct of the case. At the same time, the general meeting of judges indicated that the party does not lose his/her status in the case when authorizing representative, and the representative has the duty to act in the interests of the represented person.

When assessing the role of an authorized representative in a civil procedure and findings of the Constitutional Court judgments on this issue, the general meeting of judges of the Department of Civil Cases indicated that representation of a represented party includes two functions, that is, its principal function is to ensure representation of a party in the case, but the representative, like an advocate, can also provide the legal aid to represented person if the representative has the relevant legal knowledge, which shall not be verified by law. In the case of a representative providing legal assistance, he works together with the represented person instead of replacing him/her. Consequently, the alternative option contained in the Section 82, Paragraph one of the Civil Procedure Law applies to the implementation of the basic function of representation, but not to the provision of legal aid.

The judges of the Department of Civil Cases have indicated that in the cases of absence of marriage or in the cases of divorce and in cases arising from custody and access rights the party has limited powers provided for in Section 82, Paragraph one of the Civil Procedure Law to authorize a representative to replace himself/herself in a hearing. Such a limitation follows from the Section 236, Paragraph one and the Section 2444, Paragraph one of the Civil Procedure Law, which stipulates that the parties must participate in the hearing in person. At such court hearings, the party itself gives immediate explanations on the facts of the case, but the representative on behalf of the represented person cannot provide such explanations. On the other hand, the right of an authorized representative to provide legal aid is not restricted, as well as the representative may, on the party's behalf, make legally substantiated observations on the circumstances of the case at the hearing. Accordingly, the presence of a representative at a hearing is also not restricted.

The decision of the general meeting of judges of the Department of Civil Cases in accordance with the Section 491, Paragraph three of the Law "On Judicial Power" has been published on the website of the Supreme Court (available in the section Judicature/Decisions of the general meetings of judges/Department of Civil Cases – see here).

 

Information prepared by

Rihards Gulbis, Legal Research Counsel to the Department of Civil Cases

Telephone +371 67020318, e-mail rihards.gulbis@at.gov.lv