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Consultative Council of European Judges (CCJE)
Questionnaire for 2008 CCJE Opinion concerning the quality of judicial decisions: reply submitted by the delegation of Lithuania
Part I: Preparation of the judicial decision
Question 1
Is there a specific model to be followed in drafting judicial decisions? Can each individual judge choose his own style of drafting his decision?
There is no detailed specific model to be followed in drafting judicial decisions in Lithuania and to the certain extent judges are free to choose their own style, especially if to speak about the reasons a judgement. However, procedural laws do give some guidance as to what should the different parts of the judgement contain. For example, Article 270 of the Code of Civil Procedure of the Republic of Lithuania (CPC) states as follows:
Article 270. Content of a judgement
1. Judgement consists of the following parts: introduction, description, motivation and resolution.
2. Introductory part of a judgement should contain the following data:
1) Place and time of passing a judgement;
2) Name of the court;
3) Composition of the court (name of a judge (judges)), court secretary, parties, other participants to the case;
4) The essence of a dispute.
3. Descriptive part of a judgement should contain:
1) The summary of the claim;
2) The summary of the position of the defendant;
3) The summary of explanations of the other participants to the case.
4. Reasoning part of a judgement should contain:
1) Circumstances of the case established by the court;
2) Assessment of the evidence;
3) Arguments why certain evidence was refused by the court;
4) Legal acts, applied by the court, and other legal arguments.
5. Resolution should contain:
1) The conclusion of the court to satisfy the claim (counterclaim) fully or partially or to reject the claim (counterclaim);
2) In the cases provided by law – the amount of interest awarded;
3) Instruction about the distribution of court costs;
4) Other conclusions of the court;
5) Indication of the terms and order of appeal.
Articles 304 – 307 of the Code of Criminal Procedure of the Republic of Lithuania (CrPC) and Article 87 of the Law on Administrative Proceedings of the Republic of Lithuania contain similar provisions, adjusted to the peculiarities of the particular procedure.
Question 2
Where the court is composed of more than one member, do judicial decisions have to be taken unanimously or a majority decision is equally effective and binding? In a two or even more member panel, does the president or most senior judge have a second or casting vote?
If the case is heard by the panel of judges, the decision is taken by the majority vote. The voting of judges is secret, but a judge, disagreeing with the opinion of the majority, can issue the separate opinion. It has to be noted, however, that separate judicial opinions are extremely rare in Lithuanian legal system.
The only one exception to the principle of the majority vote is the special panel of judges at the Supreme Court of general jurisdiction (so called “selection panel”), which is deciding whether to grant the leave for the cassation complaint or not. If at least one member of the selection panel (composed of 3 justices of the Supreme Court) votes for the acceptance of the cassation complaint, the complaint is accepted. Therefore it can be said that the decision to refuse the leave for cassation must be taken unanimously.
As a rule, a panel of judges in Lithuania is composed of odd number of members (usually 3, but can be also 5 (extended panel at the Supreme Administrative Court of Lithuania) or 7 (extended panel at the Supreme Court of Lithuania)). Even number of the members of the panel is possible only:
1) if the case is heard by the plenary sessions of the supreme jurisdictions (that is possible both at the Supreme Court and Supreme Administrative Court of Lithuania). In that case, the presiding judge, which is, as a rule, the president of court or particular division, has a casting vote.
2) special panel of judges, deciding the conflicts over the jurisdiction between the courts of general jurisdiction and administrative courts, is composed of 4 members. The president of this panel has a casting vote.
Question 3
Do judicial decisions have to deal with all points raised by the parties or their lawyers or is a synthetic or concise approach considered sufficient?
According to the procedural laws, every judgement must be reasoned. Both the Supreme Court and the Supreme Administrative Court of Lithuania have explained, however, that the obligation to give reasons for the judgement does not mean the obligation of the court to deal with every single argument of the parties. Concise approach is considered sufficient as far as it is clear for the reasonable person why the court has passed particular judgement.
Question 4
In general terms, how is a first instance judicial decision drafted? (For example, does the decision state first the factual background, followed by the evidence, its evaluation and finally the application of the legal principles to the accepted facts?) How in general terms is an appeal /supreme court decision drafted? Is the appeal in your country by way of rehearing the case or not?
For the first instance judicial decision see the answer to the question 1.
Procedural laws also contain special rules as to the content of the judgement of the appellate/supreme court. They are quite similar to those applied to the judgement of the first instance court. In practice, judgements of the appellate courts, and especially those of the supreme courts, contain more detailed legal arguments than judgements of the first instance courts.
Speaking about the essence of the appellate (second instance) proceedings in Lithuania it is difficult to give unanimous answer. In civil procedure the appeal is clearly revisio prioris instantiae. In criminal proceedings appeal is by the way of rehearing of a case. The Law on Administrative Proceedings is not so unambiguous speaking about the essence of appeal in administrative proceedings, but it can be said that appeal here is also more revisio prioris instantiae than rehearing of a case.
Procedure at the Supreme Court of general jurisdiction (third instance proceedings) is cassation procedure. The Supreme Court does not deal with the factual circumstances of the case, be it civil or criminal one. Administrative proceedings in Lithuania are two-instance proceedings and the Supreme Administrative Court acts as the court of appeal.
Question 5
Is there a difference in the way a judgement is drafted according to the subject matter (civil, criminal, administrative)?
There are some differences. Legal requirements for the content of judgement in civil and administrative cases are quite similar. However, requirements for the judgement in a criminal case are more detailed, different for the conviction and exculpatory judgements.
Question 6
Could you describe precisely how the decision is transmitted to the parties? Is the judicial decision binding only on the specific litigants or does it affect the public in general? Does your country acknowledge a difference in judicial decisions in personam and in rem?
Every judgement is pronounced publicly and the copies of it are sent to the parties (by the court ex officio, or only following the respective request of the parties – depending on the type of proceedings and the type of a judgement).
The judgement is binding only on the specific litigants, with the exception of cases where the mere nature of the judgement determines that it affects the public in general (e.g. so-called “judgements on recognition”).
The distinction between judicial decisions in personam and in rem is acknowledged by the legal doctrine, but is not provided for by the law.
Question 7
How is a judicial decision enforced in your country? Does your country allow for contempt proceedings against a litigant who does not comply with a decision/order of the court?
Judicial decisions in Lithuania are enforced by bailiffs – persons, authorised by the State, empowered by it to perform the functions of enforcement of writs of execution, to make material ascertainment on the factual circumstances, to serve proceedings and carry out any other functions provided by law, appointed and dismissed by the Minister of Justice. Enforcement is supervised by the respective local court.
In Lithuania no contempt proceedings against a litigant who does not comply with a decision/order of the court are allowed, but for the non- compliance with the judgement a fine may be imposed by the court. Non-compliance with the judgement is also a criminal offence, which can be punished with fine, public works or arrest (Article 245 of the CrPC).
Question 8
Are judicial decisions handed down/announced in open court? Always or can the public/journalists be excluded - If so on what grounds?
According to the Article 117 of the Constitution of the Republic of Lithuania, in all courts, the consideration of cases shall be public. A closed court hearing may be held in order to protect the secrecy of private or family life of the human being, or where public consideration of the case might disclose a State, professional or commercial secret.
According to the Article 7 of the Law on Courts of the Republic of Lithuania, courts shall have a public hearing of cases, save in the circumstances provided by law. Judgements handed down by the court shall be pronounced publicly.
According to the Article 9 of the CPC, the court may hold a closed session in a civil case seeking to protect the private or family life of an individual, or if the public hearing of a case can disclose state, professional or commercial secret. Judgement handed down by the court in such cases is pronounced publicly, with the exception of adoption cases. Similar rule for administrative cases is set by the Article 8 of the Law on Administrative proceedings.
According to the Article 9 of the CrPC, all criminal cases are heard in the open court, unless that contradicts the interest of preserving state, service, professional or commercial secrets. Close hearing is also possible when hearing criminal cases if accused is a minor under the age of 18, sexual crimes, if, in the opinion of the court, it is necessary to protect the private life of individuals or if the anonymous witness or victim is interrogated. The court can declare that all the hearing of a case will be closed, or only the part of it. Resolution of the judgement is nevertheless pronounced publicly.
It must also be noted that in Lithuania, the presence in the courtroom of persons who are under the age of 16 is not allowed, unless they are parties to the proceedings, accused, victims of a crime or witnesses.
Question 9
To what extent do judicial decisions in your country take into account personal data protection legislation (i.e. publication of litigants’ names, other personal details etc)?
According to the Order of Publication of Court Judgements on the internet, approved by the Resolution of the Council of Judges of Lithuania of 9 September 2005, No. 13 P – 378, before publishing judgement on the internet, depersonalized version of the judgement must be prepared, where the litigants’ names are replaced by initials, and other personal details (personal codes, residential addresses, dates of birth, etc.) removed, replacing them with the phrase “off the record data”.
If after the removal of personal data the publication of the judgement would not further meet the aim to inform the society about the practice of interpretation and application of laws in the courts, such judgement is not published on the internet.
Judgements in refugee or adoption cases can be published on the internet only after the data that can disclose the secret of adoption or determine the personality of the person, seeking the refugee status, is removed.
It must be noted, however, that the mentioned order is applied only to the publication of judgements on the internet and periodical bulletins of the supreme jurisdictions, but not for the public pronouncement of a judgement in the court building after the hearing of a case.
Question 10
Are judicial decisions available to persons or authorities other than the litigants themselves? If so on what terms and prerequisites?
As a general rule, after the judgement in a case becomes effective, all the material of the case (including the judgement itself) becomes public and any interested person (even if he/she was not the litigant) can become acquainted with it. Such a person must apply to the president of the respective court with the written request, indicating his/her name, address, personal code and the reason why he/she wishes to get acquainted with the material of a case. If the material of a case contains state or service secret, the person can get acquainted with the material of a case only if special right is granted to him/her according to the laws.
According to the Order of Getting Acquainted with the Material of Closed Criminal Cases, approved by the Resolution of the Council of Judges of 9 September 2005, No. P-379, the permission to get acquainted with the material of the closed criminal case is granted to individuals, who can show legitimate law-protected interest. It is presumed that litigants, state or municipal institutions, and persons conducting the scientific researches have legitimate and law-protected interest to get acquainted with the material of the closed criminal case. Other persons must prove that they have such interest.
Material of cases, heard in the closed session (see the answer to the question 8), does not become public after the judgement becomes effective. The court can also rule, on the request of the parties or ex officio that the material of a case or a part of it is not public, if it is necessary in order to protect the secrecy of the private life or property of an individual, to preserve the confidentiality of the information about the health of an individual, or if there is a risk to disclose the state, professional, commercial or other secret, protected by laws. Depersonalized versions of judgements in such cases can still be published on the internet, unless after the depersonalization the publication of a judgement would not further meet the aim to inform the society about the practice of interpretation and application of law in the courts (see the answer to the question 11 for more details).
Depersonalized versions of the effective judgements are also published on the internet (see the answer to the question 11 for more details).
Depersonalized judgements of the supreme jurisdictions, that are the most important for the unification of the judicial practice, are published in the periodical bulletins of the Supreme Court “Teismų praktika” (“Judicial practice”) and Supreme Administrative Court “Administracinių teismų praktika” (“Practice of Administrative Courts”).
Question 11
Are judicial decisions published/available on the internet? If so, are all decisions available or only appeal or supreme court cases?
According to the Order of Publication of Court Judgements on the internet, approved by the Resolution of the Council of Judges of Lithuania of 9 September 2005, No. 13 P – 378, all effective final judgements of courts, with the exception of judgements of the local courts,[1] should be published on the internet site of the National Courts Administration. Judgements of the Supreme Court and Supreme Administrative Court should also be published on the internet site of the mentioned courts.
Interim rulings of courts, solving separate procedural questions, can be published on the internet by the decision of a judge, a panel of judges, president of the respective court or court division, if public interest so requires.
It has to be noted, however, that in practice for the moment only the Supreme Court and the Supreme Administrative Court of Lithuania publish their judgements in their internet sites. Therefore for the moment only judgements of the supreme jurisdictions are available.
Part II: Evaluation of the judicial decision
Question12
Is a system of evaluation of quality of justice in force in your country?
No.
Question 13
Does this evaluation include/envisage the evaluation of the quality of judicial decisions?
Not applicable.
Question 14
If your country does evaluate the quality of judicial decisions by means of a specific system, could you specify the latter:
· legal basis:
· identification of the agencies that are responsible for the process:
· parameters that are evaluated:
· methods by which each parameter is evaluated:
There is no general system of evaluation of quality of judicial decisions in Lithuania other than by the way of appeal. However, if the judge seeks judicial promotion, one of the evaluation criteria is the conclusion of superior court, hearing appeals on the judgements of the candidate, on the quality and the main reasons for the amendment or abolishment of his/her judgements. This conclusion is provided by all the judges of the superior court (or particular division of the superior court) and presented to the Selection Commission (special institution, selecting the best candidates for the judicial appointments and promotion).
Question 15
What are the advantages and disadvantages discussed in your country as far as the evaluation of quality of justice is concerned?
· advantages:
· disadvantages:
There is no such ongoing discussion at the moment.
Question 16
In the opinion of the judiciary in your State, which factor could help to improve the quality of decisions?
The question is not easy to answer as the mere concept of “quality of the decisions” is not totally unambiguous. At the moment, there is no ongoing discussion on the mentioned subject in Lithuania.
Question 17
Is a system of evaluation of quality of each of the following in force in your State:
· professional performance of police? yes □ no □
· professional performance of public prosecution services? yes □ no □
· professional performance of lawyers? yes □ no х
· enforcement of judgements? yes □ no х
· efficiency of ministry of justice services in general? yes □ no х
· quality of legislation? yes □ no х
[1] Lowest courts of general jurisdiction, hearing most civil and criminal cases as 1st instance courts. More complicated civil and criminal cases are heard by the regional courts as first instance courts.