The Constitutional Court delivered a judgment on 30 March on the defendant’s rights to appeal against decisions regarding preliminary injunctions Apr 21, 2010
The Civil Procedure Law (as it stands after amendments adopted on 07.09.2006, 14.12.2006 and 05.02.2009) provides that a defendant cannot appeal against a decision granting a preliminary injunction or against a decision by which the court refuses to revoke (cancel) a preliminary injunction. The plaintiff, in his turn, is entitled to appeal against a decision by which the court rejects the plaintiff’s application regarding the preliminary injunction.
Two applicants brought a constitutional claim before the Constitutional
Court of the Republic of Latvia, considering that the current legal
framework is incompatible with the Constitution (Satversme).
The Constitutional Court delivered a judgment on 30 March, declaring that the Civil Procedure Law (Article 141 (1)), insofar as it deprives the defendants of the right to appeal against a decision granting a preliminary injunction and against a decision by which the court refuses to revoke the preliminary injunction, is incompatible with the right to a fair trial.
The Constitutional Court agreed that the contested legal norm places the parties in an unequal situation, and the defendant’s rights are restricted in a non-proportional manner.
The Constitutional Court ruled that, until the Latvian Parliament (Saeima) will introduce amendments to the Civil Procedure Law, Article 141 (1) of the Civil Procedure Law will remain valid (will be applied) in the wording as it was on 14 December 2006. The said wording provides that the plaintiff is entitled to submit an appeal against a decision by which the court refuses to revoke the preliminary injunction. It follows that firstly the defendant will have to submit an application to the same court that granted a preliminary injunction, asking the court to revoke (cancel) it. And if the court refuses to revoke a preliminary injunction, the defendant will be entitled to submit an appeal against this decision.
The judgment came into force on 1 April 2010, when it was published in the official gazette “Latvijas Vēstnesis”, and the judgment is final and not subject to appeal. This means that as of 1 April 2010, plaintiffs are entitled to submit appeals against decisions by which courts refuse to revoke a preliminary injunction.
However, the practical effect of the Constitutional Court’s judgment could be criticized because according to case-law, a preliminary injunction is revoked only, if the defendant can prove that the factual situation has changed and there are no longer doubts about the possibility to enforce the possible judgment against the defendant.
Thus, to achieve a truly fair trial, entrance into force of the amendments to the Civil Procedure Law must be awaited.
For further information please contact Ms Linda Berzina
The Constitutional Court delivered a judgment on 30 March, declaring that the Civil Procedure Law (Article 141 (1)), insofar as it deprives the defendants of the right to appeal against a decision granting a preliminary injunction and against a decision by which the court refuses to revoke the preliminary injunction, is incompatible with the right to a fair trial.
The Constitutional Court agreed that the contested legal norm places the parties in an unequal situation, and the defendant’s rights are restricted in a non-proportional manner.
The Constitutional Court ruled that, until the Latvian Parliament (Saeima) will introduce amendments to the Civil Procedure Law, Article 141 (1) of the Civil Procedure Law will remain valid (will be applied) in the wording as it was on 14 December 2006. The said wording provides that the plaintiff is entitled to submit an appeal against a decision by which the court refuses to revoke the preliminary injunction. It follows that firstly the defendant will have to submit an application to the same court that granted a preliminary injunction, asking the court to revoke (cancel) it. And if the court refuses to revoke a preliminary injunction, the defendant will be entitled to submit an appeal against this decision.
The judgment came into force on 1 April 2010, when it was published in the official gazette “Latvijas Vēstnesis”, and the judgment is final and not subject to appeal. This means that as of 1 April 2010, plaintiffs are entitled to submit appeals against decisions by which courts refuse to revoke a preliminary injunction.
However, the practical effect of the Constitutional Court’s judgment could be criticized because according to case-law, a preliminary injunction is revoked only, if the defendant can prove that the factual situation has changed and there are no longer doubts about the possibility to enforce the possible judgment against the defendant.
Thus, to achieve a truly fair trial, entrance into force of the amendments to the Civil Procedure Law must be awaited.
For further information please contact Ms Linda Berzina
