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[ccje2004/docs/CCJE(2004)14e] English only
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
(CCJE)
QUESTIONNAIRE ON MANAGEMENT OF CASES,
JUDES’ ROLE IN THE PROCEEDINGS,
AND USE OF ALTERNATIVE DISPUTE SETTLEMENT METHODS
Reply submitted
by
the delegation of Lithuania
A. ACCESS TO JUSTICE
7. Have measures been taken, by legislatures and/or the court system, in order to inform the public on the functioning of the judicial system? If so, please comment on the impact of such actions on the amount of cases brought before courts.
Following the extensive critics of the judicial system by the politicians, mass media and legal academics for the closeness, last 2 years in Lithuania may be distinguished for intensive efforts of courts and self-government institutions of the judiciary to inform the publics about the activities of courts.
By the Resolution of Judicial Council of 24th of July 2003, the working group for the preparation of order for providing information to the public on the functioning of judicial system was created. The working group still continues its work. Judicial Council also considered a possibility to issue a special magazine containing the periodical information for the public on judicial system and activities of courts,[1] but or the moment the realization of this idea is suspended due to the lack of necessary funds.
In 2004 first official reports on the activities of courts were presented to the publics. On 22nd of January 2004 the annual report of Supreme Administrative Court, on 8th of March 2004 – the annual report of the Court of Appeals of Lithuania were presented. During the press conference of 2nd of March 2004, official reports containing the information on the activities of Lithuanian courts in general and the Supreme Court of Lithuania were presented by the president of the Supreme Court (ex officio president of the Judicial Council).
On 16 January 2004 the Judicial Council has passed a resolution “On providing the information to the public about the activities of courts”, containing such measures as:
composition of the working group for the preparation of amendments to the order of familiarizing with the case material;
assignment to the presidents of courts to appoint a person responsible for the providing information to the public;
assignment to the presidents of courts to prepare written annual reports on the activities of court;
and other.
Information on the activities of courts is also presented on the internet sites of the Supreme Court, Supreme Administrative Court, the Court of Appeals of Lithuania, National Courts Administration and Ministry of Justice.
Due to the lack of necessary budgetary allocations, the provision contained in the Law on Courts of 1994[2] to publish in the internet decisions of all Lithuanian courts is still unrealised. Presently, only decisions of the courts of higher instances (Supreme Court, Supreme Administrative Court and (to the certain extent) the Court of Appeals) are available on internet.
According to the statistical data, the number of cases brought before the Lithuanian courts remain approximately the same[3]. It should be noted however, that no statistics for the year 2004 is presently available, thus it is still early to comment on the impact of such actions on the amount of cases brought before courts.
8. Have measures been taken, by legislatures and/or the court system, in order to reduce the costs of bringing actions before the courts (e.g., by simplifying and/or standardizing legal documents to commence or continue litigation; by waiving, at least in some circumstances, the need to employ a lawyer; etc.). If so, please comment on the impact of such actions on the amount of cases brought before courts.
Stamp duty in administrative cases and for non-proprietary civil claims is relatively low in Lithuania. The new Code of Civil procedure[4] has reduced the stamp duty in proprietary claims replacing the previous 5 percent of the total amount claimed, with the differentiated stamp duty and placing the topmost limit.[5]
The Code of Civil Procedure also provides for a possibility of a waiver of court fees on a number of grounds, including indigence. If a person following the order established by the Government has been recognized as needing social support, he or she is relieved from the litigation costs even if he/she loses the case (with some exceptions related to lawyers fees).
The court or the judge presiding over the case may also partially relieve applicant from stamp duty on the basis of his/her financial situation. The new Code of Civil Procedure has also introduced a possibility for the court to suspend the payment of stamp duty until the end of the case (such a possibility according to the Code of Civil procedure of 1964 was limited to the term of 6 months).
Compulsory representation of a lawyer according to the Code of Civil Procedure is limited to the proceedings at the Supreme Court (cassation instance) and several types of cases (e.g. investigation of activities of legal person).
There is still no statistical data resembling the impact of such actions on the amount of cases brought before courts available.
9. Have measures been taken to ensure an effective "legal aid" system? If so, please describe the system, with specific reference to:
(a) eligibility requirements;
(b) identification of authorities entitled to grant the aid;
(c) budgetary arrangements.
The Law on State-Guaranteed Legal Aid[6] significantly broadened the scope of cases eligible for legal aid and set up clear procedures for qualified people to receive legal aid. Under the Law on State-Guaranteed Legal Aid, people who meet certain eligibility criteria are entitled to receive state-guaranteed legal assistance, which is defined as legal information, legal advice, defense, and representation in proceedings.
In 2002, the Seimas adopted a new Code of Criminal Procedure[7] and a new Code of Civil Procedure. The two new procedural laws incorporated some norms of the new Law on State-Guaranteed Legal Aid and provided further detail on the delivery of state-guaranteed legal aid in criminal and civil cases.
According to the Law on State-Guaranteed Legal Aid, the following people are eligible for state-guaranteed legal assistance: whose annual income and property are within the limits established by the government of the Republic of Lithuania (or others in cases provided for in laws of the Republic of Lithuania and international agreements), if they are: 1) suspects, accused or convicts in criminal cases; 2) victims or civil claimants in criminal cases, plaintiffs, defendants or third parties in civil cases, or claimants in administrative cases. Legal assistance is not provided to people entitled to insurance benefits for legal expenses.
The state covers the expenses for legal aid according to the applicant’s property and income. Five different levels of coverage are established: first level, 100 percent; second level, 95 percent; third level, 80 percent; fourth level, 65 percent; and fifth level, 50 percent. If the level of a person’s property and/or income changes during the proceedings, the level of coverage will be adjusted accordingly.
By the Resolution of Government of the Republic of Lithuania of 22nd of January 2001 “Concerning the Levels of the Person’s Property and Income to Receive State-Guaranteed Legal Aid and Concerning the Maximum Expenses Relating to State-Guaranteed Legal Aid”, the following criteria determining the levels of coverage were established:
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Levels |
Criteria |
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First level |
When the value of property of the person does not exceed the value of property determined by the government regulation and his or her annual income does not exceed the amount of twelve minimal monthly salaries deducting income tax and social insurance tax. |
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Second level |
When the value of property of the person does not exceed 1.05 times the value of property determined by the government regulation and his or her annual income does not exceed the amount of 12.6 minimal monthly salaries deducting income tax and social insurance tax. |
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Third level |
When the value of property of the person does not exceed 1.2 times the value of property determined by the government regulation and his or her annual income does not exceed the amount of 14.4 minimal monthly salaries deducting income tax and social insurance tax. |
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Fourth level |
When the value of property of the person does not exceed 1.35 times the value of property determined by the government regulation and his or her annual income does not exceed the amount of 16.2 minimal monthly salaries deducting income tax and social insurance tax. |
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Fifth level |
When the value of property of the person does not exceed 1.5 times the value of property determined by the government regulation and his or her annual income does not exceed the amount of 18 minimal monthly salaries deducting income tax and social insurance tax. |
According to the Law on State-Guaranteed Legal Aid, the maximum amount of total costs per case to be covered by the state is to be determined by the Government. The mentioned resolution of the Government of the Republic of Lithuania of 22 January 2001 determines the maximum cost per case to be covered by the state, which in criminal cases is equivalent to one minimum monthly salary[8], in civil cases – 0,5 minimum monthly salary, in administrative cases – 0,4 minimum monthly salary.
The provisions of the Code of Criminal Procedure establish that a defense counsel is allowed to participate in a case at the request of the suspect or the accused from the moment of detention or the first interrogation. Under the Code of Criminal Procedure and the Law on State-Guaranteed Legal Aid, the relevant proceeding authority (interrogator, investigator, prosecutor, judge, or court dealing with the case) makes the decision to assign defense counsel and to grant state-guaranteed legal aid.
According to the Code of Civil Procedure, any person can receive legal aid in civil cases, provided that the person meets the eligibility requirements of the Law on State-Guaranteed Legal Aid. The availability of legal aid does not depend on the type of civil case. The decision to grant state-guaranteed legal aid in civil cases is made by the judge presiding over the case. Decision to grant or to refuse state-guaranteed legal aid is subject to appeal.
According to the Law on State-Guaranteed Legal Aid, anyone wishing to receive legal aid in administrative cases has to file an application with the judge dealing with the case. Decision to grant or to refuse state-guaranteed legal aid is subject to appeal.
Under the Law on State-Guaranteed Legal Aid, indigent people are likewise entitled to primary legal assistance. The law defines the primary legal aid as legal assistance and legal advice provided by a lawyer or apprentice of a lawyer in the form of one-hour primary legal counseling upon a referral of the local government executive institution. The refusal of the local government executive institution to grant primary legal assistance may be appealed before the regional administrative court. Terms and conditions of provision and reimbursement of primary legal assistance rendered by lawyers, apprentice of lawyers and local government executive institutions are established by agreements concluded between lawyers and local government executive institutions. A standard form of agreement is approved by the Ministry of Justice.
Fees of legal aid lawyers are awarded on a per-hour basis, based on the time spent preparing and conducting the case in accordance with the governmental resolution on the “Order and Payment Rates for State-Guaranteed Legal Aid Provided by a Lawyer and Apprentice of a Lawyer” .The fees are determined on the basis of the minimal monthly salary. The apprentices are paid 80 percent of the determined rates.
According to the Law on State-Guaranteed Legal Aid, state-guaranteed legal assistance is financed by the budget of the state. Primary legal assistance is financed from the budget of the local government. The Ministry of Finance is supposed to disburse funds to cover actual costs of municipalities in connection with primary legal aid rendered by lawyers and apprentices of lawyers. About 1,5 per cent of state budget is spent for the state-guaranteed legal aid yearly.[9]
Presently there are different state models of organization of the provision of legal aid in Lithuania, as free legal aid is granted by:
ex officio appointed private lawyers (this model is the most common);
public defenders working in public attorneys offices established in Šiauliai and Vilnius as pilot projects;
private lawyers, working in association with a non-governmental organization (the Lithuanian Red Cross), who were contracted after a bidding procedure (contracting model);
legal aid advice centers (such as the Legal Assistance Center in Vilnius and Kaunas), where law students and lawyers provide legal advice in some civil and administrative cases, including legal representation;
a university-based legal clinic (the Legal Clinic of Vilnius University)[10].
Prior to the establishment of the public attorneys offices, the provision of legal representation to criminal defendants relied solely on an ex officio model, in which lawyers were appointed at each stage of the criminal proceedings for cases requiring the presence of a defense counsel. Although the lawyers are paid for the ex officio cases, the pay is minimal, and it is often delayed for several months due to government budget shortfalls. Several years ago, all practicing attorneys were obliged to take ex officio criminal cases. This made private lawyers, to a large extent, view mandatory defense as a burden imposed by the government. In December 1999 and October 2001, respectively, the Ministry of Justice, the Lithuanian Bar Association, and the Open Society Fund–Lithuania signed the founding agreements of the Šiauliai and Vilnius Public Attorneys Offices. The legal status of public attorneys offices is as a non-governmental organization established under the Law on Public Institutions.
On the 25th of November 2003 the Government have adopted the Outline for the further reform of state-guaranteed legal aid system[11]. The Outline inter alia contains such measures as:
establishment of Coordination Council for the coordination of rendering of state – guaranteed legal aid and formulation of principles governing this particular area;
transfering the rendering of primary legal assistance to the employed laweyrs of municipalities;
expanding the activities of public attorneys offices into civil and administrative cases, establishment of public attorneys offices in all 5 court districts, thus making the pubklic attorneys offices the main suppliers of state – guaranteed legal aid;
replacement of existent 5 coverage levels with ;2
amendment of existent order of payment for lawyers for state-guranteed legal aid.
4. Have other measures been taken? For example,
a) conditional fee agreements (“CFAs”), whereby a party does not have to pay his or her lawyers if he or she loses, but his or her lawyers are entitled to charge the losing party up to a multiple of the normal fee if her or she wins;
Conditional fee agreements in Lithuania are prohibited by the Law on the Bar[12], with the exception of civil cases concerning claims for compensation of damage, caused by the physical injury of a person. In those cases the lawyer fee may not exceed 1/3 of the adjudged sum.
b) legal costs insurance for
- a party’s own legal costs and/or
- any costs which if her or she loses he or she has to pay to the winning party;
According to the Law on Insurance[13], legal expenses insurance insurance is one of non-life insurance classes and possible under the contract with the insurance companies.
c) fixed costs, so that the winning party can only recover a limited amount from the losing party, whatever he or she may have chosen to pay to his or her own lawyers.
According to the Code of Civil Procedure, lawyers’ payments, covered by the loosing party, may not exceed the amount, determined by recommendations of the Minister of Justice together with the President of Council of Bar. The court is obliged to award the mentioned amount taking into account the complexity of a case as well as the expenditure of time of the lawyer. There were numerous cases when courts, taking into account the mentioned criteria, refused to award for the wining party the entire amount requested.
B. REDUCTION OF EXCESSIVE WORKLOADS IN THE COURTS
Have measures been taken to relieve judges from non‑judicial tasks such as those listed, as examples, in the Appendix of Rec. No. R (86) 12 concerning measures to prevent and reduce the excessive workload in the courts? Please give comments as to any other tasks performed by judges that, according to the particular circumstances of the country, could be assigned to other persons or bodies; please identify tasks that could be entrusted to administrative court staff, whose jobs would thus be enriched.
Most of non-judicial tasks, listed in the Appendix of Rec. No. R (86) 12 in Lithuania were never performed by courts. On the other hand, at least the following tasks, listed in the Appendix, presently fall under the responsibility of courts:
- authorising one spouse to represent the other: replacing the consent of the spouse prevented from giving consent;
- ban to keep the family name after divorce;
- issuance of leave for amendments of marriage contracts;
- appointment of administrator of the property of those lacking legal capacity;
- appointment of a legal representative for legally incapacitated adults and for absent persons;
- measures relating to estates of deceased persons;
- civil status documents and registers.
It should be noted that the new Civil code[14] entrusted to the courts even more tasks of non-judicial nature (such as issuance of permits, administration of property, etc.). This situation may be explained by the particular situation in Lithuania –mistrust in public administration institutions and aim of the legislator to ensure higher level of legality, especially where the rights of children or persons lacking legal capacity are at stake. The new Code of Civil procedure provides for the very short and simplified procedures for the disposition of matters of such type. At the moment it is still a bit early to assess the impact of such a legislative decision on the overall workload in the courts, although the statistical data shows that the number of such cases is quite great[15].
Another more burning problem is the lack of legally trained court staff, especially in the courts of lowest instance. Although the Law on Courts provides for the possibility for every judge to have a legally trained assistant (assisting the judge on the issues relating to the analysis, application and systematisation of laws, providing support to the judge in preparing the cases for court hearing, preparing drafts of procedural documents and assisting him in the performance of his other duties), due to the budgetary constraints presently only in the highest courts (Constitutional Court, the Supreme Court and the Supreme Administrative Court) all judges have assistants. In the Court of Appeal of Lithuania there are 15 advisers and assistants (for 25 working judges). In all 5 regional courts of general jurisdiction there are only 12 assistants of judges (142 judges), in 56 local courts – 15 assistants (417 judges)[16]. As a result, judges are forced to spend most of their time for the tasks that do not really require intervention of a judge, instead of concentrating on essential functions of their office.
On 3rd of October 2003 General meeting of the Lithuanian Association of Judges has adopted a resolution On the Assistants of Judges, encouraging the Government of Lithuania to ensure proper funding of courts, enabling to employ assistants of judges. The Resolution points to the fact that judges will be able to work more efficiently and deliver their judgments more promptly if they are assisted by adequate back-up staff. The situation as it exists presently, does not guarantee efficiency of functioning of the judicial system, as the problem of growing caseload must be solved by continuously increasing the number of judges. Judicial Council has approved this Resolution on the 7th of November 2003 and established a working group for the evaluation of the present needs of legally trained staff in courts and possibilities of gradually employing assistants of judges, firstly in those courts where need is the most pressing.
Are there bodies, outside the judicial system, at the disposal of parties to solve specific "small claims" disputes? If so, please comment on the impact of the availability of such procedures on the amount of cases brought before courts.
There are no such bodies in Lithuania.
Is there a regular review of court workloads, and are consequent measures (i.e. changes in courts' geographical distributions; variations in the territorial, monetary and subject matter competence of courts; variations in the court personnel) taken to ensure a balanced distribution of the workload? Please identify bodies responsible for such review and for consequent policy choices; please also describe the role of the judiciary in this process.
Statistics, concerning inter alia the workload of courts and judges, is presented by the courts periodically to the National Courts Administration (an institution funded from the State budget, providing services to the institutions of judicial autonomy). National Courts Administration under the Law on Courts is obliged to gather, analyse and sum up statistics of the courts and submit it to the Judicial Council, the courts and the Ministry of Justice, analyse the activities of courts, with the exception of administration of justice and make proposals about the conditions of work in courts, consider and approve proposals on draft investment programmes for courts and proposals for the budgets of district, regional and regional administrative courts and submit them to the Government.
Review of court workloads may result in variations in the court personnel or establishment of the new courts. According to the Law on Courts, the number of courts (with the exception of the Supreme Court, the Supreme Administrative Court and the Court of Appeals of Lithuania) and their territorial jurisdiction shall be established by law.
The number of judges of the Supreme Court of Lithuania shall be determined by the Seimas of the Republic of Lithuania subject to the advice of the President of the Republic and on the proposal of the President of the Supreme Court of Lithuania. The number of judges of the Supreme Administrative Court of Lithuania shall be determined by the President of the Republic on the proposal of the President of the Supreme Administrative Court. The number of judges at other courts shall be determined by the President of the Republic on the advice of the Judicial Council.
Judicial Council also approves model structures of district, regional and regional administrative courts, model lists of non-judicial positions and job descriptions.
What role do judges (especially chief judges) play in the management of judicial infrastructures, human resources, information and technology equipment? Do they receive regular training in management techniques? What role, on the contrary, is played by administrative top officials?
Ordinary judges in Lithuania do not play any role in the management of judicial infrastructures, human resources, information and technology equipment. The role of the presidents of courts (and to the certain extent the presidents of court divisions) is on the contrary essential.
According to the Law on Courts, the president, the vice president of the court and the president of a division are officers of court administration who shall, in accordance with the procedure prescribed by laws direct the organisational work of the court. Besides assigning judges to the divisions of the court and establishing the specialisation of judges, the president of court also organises training of the judges and the court staff, approves the structure of the court and the list of non-judicial positions and categories, job descriptions of the court staff and ensures that adequate conditions are provided for the judges and the court staff to perform their functions, recruits and dismisses the court staff in accordance with the Law on Public Service, and takes other measures for ensuring a normal functioning of the court. The president of court holds personal responsibility for providing adequate conditions for the judges and the court staff and must ensure that the court building and premises are in good condition, that the court is well provided with inventory and other organisational and technical facilities.
Material support for the courts shall also be organised and ensured, in accordance with the approved expenditure estimates, by the presidents of the courts.
The president of court also acts as head of the court staff. Upon direction of the president of court, the vice president, the president of a division or an employee of the court may act as heads of individual structural units of the court.
Administrative top officials (so called court chancellors) at present are employed only at the Constitutional Court and the Supreme Court of Lithuania. Court chancellors lead the structural units of courts and take most functions in the management of judicial infrastructures, human resources, information and technology equipment. Court chancellors generally can act on their own account without the necessary interference of the president of court.
In other courts some functions are carried out by the maintenance departments (or house administrators). According to the Law on Courts, maintenance department of court is responsible that the building and premises of the court are in adequate condition, for their repairs, renovation and construction, provision of adequate working conditions for the judges and the court staff, installation of organisational and technical facilities, it is also in charge of other technical, economic and maintenance work necessary for a proper functioning of the court. The finance department (the financier) of the court administers accounts and records of supplies, draws up the draft budget of the court for the next year, prepares financial and other statements relating to finance and supplies and performs other functions within its competence. However, neither the head of maintenance department, nor the head of finance department can be compared to court chancellors and act without the essential supervision of the president of court. Assistance provided by those units is of purely technical nature.
The long-term training programme for judges, approved by the Judicial Council on 17 June 2002 and an order of Minister of Justice of 16 July 2002 includes separate programme for the presidents and vice-presidents of courts on the administration and management issues. This particular programme is carried out by the Ministry of Justice. A seminar (which lasted 2 days) under this programme was organized in 2003. Seminar covered such topics as strategic planning; principles of formation of budget, financial control, application of Law on Public Procurement, application of Law on State Service, etc. 72 judges have participated in the programme[17].
C. QUALITY OF JUSTICE AND ITS ASSESSMENT; QUANTITATIVE STATISTICAL DATA; MONITORING PROCEDURES
Is there any system in operation in your country having the aim of assessing quality of judicial activity? Please comment on indicators chosen for such assessments, as well as on results obtained.
Since the restoration of independence in Lithuania, the evaluation of quality of judicial activity was maid mainly on the basis of statistical data presented periodically by courts to the Department on Courts at the Ministry of Justice and, after the reorganization of Department, to the National courts administration. The mentioned statistical data involved the number of cases heard by a particular judge, number of decisions appealed, number of reversals on appeal and percent of legitimacy of decisions, calculated on the basis of the last two numbers. Those statistical criteria had played the essential role in the judicial promotion.
A monitoring system, based on the statistics, has been always strictly criticized by the Lithuanian Association of Judges as having a possible negative influence on the judicial independence. Moreover, as no reasons for the reversals on appeals or the complexity of cases heard by the candidate has been taken into account, such an evaluation could hardly be found objective. That position was also supported by the CCJE Opinion No 1, stating that any statistical data in the evaluation of judicial activities must be used with a great caution and may not be equated or replace the objective evaluation and promotion criteria[18].
The situation has changed after the relevant amendmens to the Law on Courts had been made in November 2002. According to those amendments, activities of judges, seeking the promotion, are evaluated by the special Selection Commision[19] according to the evaluation criteria, approved by the Judicial Council. By the Resolution No 71, adopted on the 7th of February 2003, the Judicial Council has approved the list of evaluation criteria, where the statistical data plays a mere collateral role. The evaluation of work of a judge is made by the poll of higher instance court judges, hearing appeals on the judgments of the particular judge. Other criteria, such as personal and professional qualities of a candidate, intensity of in-service training and others are also important. There is no unanimous opinion on the operation of the system in practice – some feel that the evaluation criteria are not clear enough, leaving too much discretion on the Selection Commision. On the other hand, more detailed criteria are difficult to define.
The system created, however, is intended to be used only for the purposes of deciding on the promotion of judges. There is no periodic system for the evaluation of judicial activities in operation, thus, if a particular judge does not seek the promotion, his/her activities are not evaluated. Bering in mind this fact, by the Resolution of Judicial Council No. 74, adopted on the 7th of February 2003, the working group for the preparation of Outline for Evaluation of Judicial Activities was created and presently is working on the draft of the mentioned document. The draft envisages for the periodical evaluation of judicial activities (every 10 years), irrespective of seeking for promotion, as well as for the extraordinary evaluation under the certain prescribed circumstances. The evaluation is expected to be carried out by the evaluation commission, consisting of judges of higher instance court (or judges of court where a judge works in case if activities of judges of last instance courts are evaluated). As the mentioned document is still under preparation, more detailed description of it would not be purposive. However, it should be mentioned that the evaluation criteria proposed under the draft Outline are quite similar to the criteria, listed in the List of evaluation criteria, approved by the Resolution of Judicial Council No. 71 only expressed in more general terms – such as for example efficiency of hearing cases, personal qualities of a judge, observance of rules of judicial ethics, etc.
Please describe the operation of quantitative statistical data collection concerning judicial activity.
As it was already mentioned, under the Article 125 of the Law on Courts, the obligation to analyse and give a general overview of statistics of the courts and submit it to the Judicial Council, the courts and the Ministry of Justice is placed on the National Courts Administration. This statistical analysis is intended to be used mainly for the proper operation of courts. On the basis of statistical data the National Courts Administration analyses the activities of courts, with the exception of administration of justice, makes proposals about the conditions of work in courts, organises and ensures a centralised system of supply to the courts of necessary inventory and services. Judicial Council is given the right to advise the President of the Republic in respect of determining or changing of the number of judges in courts, approve model structures of district, regional and regional administrative courts, model lists of non-judicial positions (assistants, secretaries, consultants, etc.) and job descriptions.
In addition, as it was already mentioned, the relevant statistical data may sometimes be used to evaluate the performance of judge seeking judicial promotion or used in the procedure of disciplinary responsibility of judges.
Statistical reports are submitted to the National Courts Administration periodically by filling the standard forms, approved by the Judicial Council. According to the Article 109 of the Law on Courts, staff of the records office of courts is responsible for the preparation of relevant statistics. The standard forms usually include the number of cases received and finished in a particular court, number of cases heard by a judge, as well as percentage of so called “stability of decisions”, which is calculated on the basis of judgements passed by a judge and reversals on appeal. The latter index has previously played a major role in the procedure of promotion of judges. At present, as was already mentioned, this criterion may be used only as a supporting argument for the evaluation made by the higher instance court.
Statistical data may influence the better allocation of resources by the powers of the Judicial Council to advise the President of the Republic in respect of determining or changing of the number of judges in courts. There is no possibility of "performance contracts" in Lithuania or the possibility of revision of territorial or subject matter distribution of cases according to the statistical data. However, according to the Article 63 of the Law on Courts, there is a possibility to temporarily transfer a judge to another court of the same level in order to ensure the functioning of the court (in cases where the judge of this court is unavailable due to ill health, where there is a vacancy in the court or where the judge of this court is not able to carry out his functions for other reasons). The transfer is made by the decree of the President of the Republic, on the advice of Judicial Council and may not last longer than six months or occur more frequently than once every three years.
The model structures of district, regional and regional administrative courts, approved by the Judicial Council, link the number of administrative staff with the number of judges in a particular court. Thus variation of number of administrative staff with respect to the relevant statistical data is de jure possible by increasing the number of judges. However, as it was already mentioned, de facto most of administrative staff positions remain unfilled due to the budgetary restraints.
D. ALTERNATIVE DISPUTE RESOLUTION
a) in general
Please produce a list of ADR schemes in operation in your country, identifying private and public schemes, generalist and specialised schemes (both according to qualities of litigants and subject matter, with especial reference to family mediation, criminal mediation, administrative and civil mediation), voluntary and mandatory schemes (please clarify whether your system bars access to a court or allows a judge to stay court proceeding, in respect of some disputes, either in favour of ADR or pending ADR). Please specify if the parties or the State bear the costs of ADR.
Under the Lithuanian law, there is no out-of-court alternative dispute resolution scheme for solving civil, family, or labor disputes, except the commercial arbitration procedure for commercial disputes between corporations. Since 1996, the Ministry of Justice has registered three arbitration institutions: 1) the Arbitration Institution - the International Chamber of Commerce – Lithuania; 2) the Klaipėda International Maritime Commercial Arbitration, and 3) the Vilnius International Commercial Arbitration.
In administrative cases, internal review within the public administration institution is usually compulsory. In some administrative disputes mandatory pre-trial procedure in quasi judicial institutions is required. Use of mediation or arbitration in administrative cases is uncommon.
The non-compulsory pre-trial hearing of certain administrative disputes is carried out by the Chief Administrative Disputes Commission, established in 1999 under the Law on Administrative Proceedings and Law on Administrative Disputes Commissions. The Chief Administrative Disputes Commission is independent institution, formed by the Government for a 4-year period and consists of 5 members. The Commission members must have a university degree in law.
The Chief Administrative Disputes Commission considers complaints (applications) contesting the legality of the individual administrative acts and actions of central entities of state administration, also complaints concerning the legality and motivation of refusal by the above persons to perform actions assigned within their competence or delay in performing said actions. The decision of the Administrative Disputes Commission is dispatched for execution on the next day after its adoption. The entity of public administration must execute the decision within the time period specified therein and where the date is not indicated - within 20 days after the receipt of the decision. If the entity of public administration fails to execute the decision made by the Administrative Disputes Commission within the fixed time period, the applicant shall have the right to apply to administrative court with a request for the enforcement of the decision.
Decisions of the Chief Administrative Disputes Commission can be apealed against to the administrative court. The lodging of appeal suspends the execution of the decision.
The Law on Administrative Disputes Commisions also provides for the establishment of regional and municipal administrative disputes commisions. However, due to the budgetary constraints, members of regional administrative commisions were appointed only recently (on 24th of February 2004). Municipal administrative disputes commisions (which according to the law may be formed by the municipal councils) function in only several municipalities.
Some mediatory functions in administrative cases are carried our by the Seimas controllers (ombudsmen), in family matters – by the Controller for Protection of the Rights of the Child.
Are there legal provisions ensuring State supervision over ADR agencies, as well as training of mediators?
No, as there are no special mediation schemes in Lithuania.
b) in‑court ADR
What is the role of the judge in mediation during a court proceeding? May the judge recommend or order that the parties appear before a mediator, even without their consent? May the judge serve himself or herself as a mediator or a conciliator, or is a conflict of role envisaged? If so, please indicate solutions found. Please give details as to costs of the in‑court mediation.
According to the Code of Civil procedure, amicable settlement may be reached at any stage of proceedings. Judge is encouraged to help parties to reach amicable settlement, if necessary, acting as a conciliator. In some types of cases (e.g. family cases) in-court conciliation is compulsory. Conciliation procedure is also a compulsory part of preliminary hearing.
There are however some cases when judge can refuse to approve the amicable settlement of the parties – if it contradicts the imperative provisions of laws or public interest.
There is no common opinion about the possibility of amicable settlement in administrative cases (when the case already came before a court). Although there is no such prohibition, some feel that promotion of amicable settlements in administrative cases contradicts public interest. Thus amicable settlements in administrative cases are quite rare.
There is no possibility for the judge to order that the parties appear before a mediator under the Lithuanian law.
If the judge is entitled, by law or court practice, to appoint a mediator or a conciliator, what qualifications do these subjects have? What training have they received? What responsibilities do they incur? How is their independence guaranteed? Is equality among the parties guaranteed, so that no unfair agreement is concluded?
No possibility for the judge to appoint a mediator or a conciliator exists in Lithuania.
What legal relevance does an in‑court conciliation or mediation agreement have (in particular, as to its enforcement)? Are there specific provisions for agreements reached before certain accredited mediators and/or endorsed by a judicial homologation?
Amicable settlement approved by court is executable as court judgement.
c) out‑of‑court ADR
What kind of judicial control is possible on out‑of‑court ADR agreements?
According to the Law on Commercial Arbitration, recourse to the Lithuanian Court of Appeal against an arbitral award may be made by an application for setting aside. An arbitral award may be set aside by the Lithuanian Court of Appeal if the party making the application furnishes proof that:
1) a party to the arbitration agreement was under some incapacity; or the said agreement is not valid under the laws to which the parties have subjected it or, failing any indication thereon, under the laws of the country where the arbitral award was made; or
2) the party was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was unable to present his case for other valid reasons; or
3) the award deals with the dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration; or
4) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement between the parties, unless such agreement was in conflict with a provision of this Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Law, or
5) the subject-matter of the dispute is not capable of settlement by arbitration under laws of the Republic of Lithuania; or
6) the arbitral award is in conflict with the public policy of the Republic of Lithuania
Lithuanian Court of Appeal, after it has accepted application for the setting aside, at the request of a party may suspend the enforcement of the award.
d) ADR in administrative law disputes
Is it possible under your system that a public entity participates in an ADR procedure? Does the person representing the entity have the power to settle the dispute, or is an administrative proceeding needed to conclude the amicable settlement?
Some superior administrative bodies (as for example Telecommunication regulatory authority, Customs Department, State Social Insurance Board, etc.) hear complaints on the decisions of subordinate administrative institutions and have power to settle the dispute (internal review). In case if administrative institution is represented in the proceedings before the Administrative Disputes Commission or administrative court, the dispute is settled by the decision of court or commission, although in some cases additional administrative proceeding might be needed.
e) criminal law and ADR
Please describe the role and extent of ADR proceedings vis‑à‑vis criminal investigations and/or criminal proceedings in your country. What are the respective roles of police, public prosecution and the judge?
Agreements during the pre-trial investigation or court proceedings are possible:
Between the victim and accused – under the Article 38 of the Criminal Code[20]. Mediation is carried out by the police officer or prosecutor, decision to discontinue investigation is made by the prosecutor with the consent pre-trial investigation judge. In case if the case is already pending in the court, mediation and decision to discontinue proceedings are made by the court.
Between the prosecutor and accused – under the Article 39-1 of the Criminal Code[21]. Decision to discontinue proceedings is made by the prosecutor with the consent of pre-trial investigation judge.
Between the prosecutor, accused and bail – under the Article 40 of the Criminal Code[22]. Mediation is formalized with the commitment of the bail; decision to discontinue investigation is made by the prosecutor with the consent of pre-trial investigation judge. In case if the case is already pending in the court, mediation and decision to discontinue proceedings are made by the court.
There are also numerous cases under the Criminal Code when investigation may not be started or must be discontinued if there is no request by the victim to start investigation. In those occasions, there is always a possibility for the accused and victim to reach amicable settlement without applying to the official institutions. Official institutions can not start investigation, unless the prosecutor finds that there is a necessity to protect public interest.
Under the Articles 407 – 417 of the Code of Criminal Procedure (so-called “private accusation cases”) pre-trial investigation is not carried out. Court, after receiving the claim of the victim, summons him and the person accused to the court and proposes to reach the amicable settlement. If the amicable settlement is reached, criminal proceedings are discontinued.
E. CASE MANAGEMENT
a) in general
Please give details as to the average duration of a civil and a criminal proceeding (where charges are brought against an identified individual) in your country, with separate figures as to first degree and appellate proceedings, as well as Supreme Court proceedings. Please provide relevant information as to data used to calculate the average. Please also give details as to duration of simplified and accelerated procedures. Please state the source of data.
Duration of proceedings in Lithuania in comparison with western European countries is relatively low – hearing of civil and criminal cases at first instance courts usually last up to 6 months[23]. There is no official statistical data available on the exact duration of proceedings at the higher instance courts, but generally overall length of proceedings (both civil and criminal) if the case is heard on appeal and cassation may extend to a year or two (of which about 3 months takes hearing of the case in the Supreme Court). Average duration of criminal proceedings at 1st instance courts is relatively longer and appeals are more often (see tables below). There is also no official information available regarding the duration of simplified and accelerated procedures.
Statistical data on the hearing of criminal cases[24]
|
Year |
Cases heard in local courts |
Cases heard in regional courts (as 1st instance courts) |
Criminal cases heard (total) |
Judgements appealed to the 2nd instance court |
Judgements appealed (percentage of judgements of 1st instance courts) |
Cases heard by the Supreme Court |
Cases heard by the Supreme Court (percentage of judgements of 1st instance courts) |
|
2000 |
16404 |
816 |
17220 |
3442 |
19,98 |
1307 |
7,6 |
|
2001 |
16783 |
825 |
17608 |
4283 |
24,32 |
1103 |
6,3 |
|
2002 |
15940 |
950 |
16890 |
4198 |
24,85 |
966 |
5,7 |
|
2003 |
14853 |
951 |
15804 |
3602 |
22,79 |
769 |
4,86 |
Statistical data on the hearing of civil cases[25]
|
Year |
Cases heard in local courts |
Cases heard in regional courts (as 1st instance courts) |
Civil cases heard (total) |
Judgements appealed to the 2nd instance court |
Judgements appealed (percentage of judgements of 1st instance courts) |
Cases heard by the Supreme Court |
Cases heard by the Supreme Court (percentage of judgements of 1st instance courts) |
|
2000 |
116808 |
3035 |
119843 |
5555 |
4,6 |
1343 |
1,12 |
|
2001 |
114283 |
3838 |
118121 |
5735 |
4,85 |
1354 |
1,14 |
|
2002 |
121651 |
3723 |
125374 |
4346 |
3,46 |
1577 |
1,25 |
|
2003 |
119523 |
3250 |
122773 |
3902 |
3,17 |
1183 |
0,96 |
Statistical data on the hearing of civil and criminal cases at 1st instance courts in 2003[26]
|
Criminal cases heard |
Hearing of criminal cases at 1st instance |
Civil cases heard |
Hearing of civil cases at 1st instance |
|||||
|
lasted up to 6 months |
lasted 6-12 months |
lasted more than 12 months |
lasted up to 6 months |
lasted 6-12 months |
lasted more than 12 months |
|||
|
Local courts |
14853 |
13371 |
1061 |
421 |
119523 |
116739 |
2140 |
644 |
|
Regional courts |
951 |
814 |
91 |
46 |
3250 |
2636 |
340 |
274 |
|
Total |
15804 |
14185 |
1152 |
467 |
122773 |
119375 |
2480 |
918 |
|
Percentage (from total cases) |
100 |
89,8 |
7,3 |
2,9 |
100 |
97,3 |
2 |
0,7 |
Law on Administrative Procedure provides for the very strict terms for the hearing of administrative cases – the case in regional administrative court must be finished during 2 months. In 2002 the hearing of 2419 administrative cases (17, 52 per cent of total cases heard) in regional administrative courts lasted longer than 2 months and in 2003 - of 2341 case (23, 13 per cent of total cases heard) respectively, but the terms were violated marginally. It usually takes about 4 months for administrative case to be heard at the both court instances available – about 2 months at the regional administrative court (as the court of first instance) and 1-2 months at the Supreme Administrative Court of Lithuania (as an appellate and final instance). Only in exceptional cases the hearing in both court instances lasts about 6 months.[27]
Statistical data on the hearing of administrative cases[28]
|
Year |
Administrative sanction cases heard in local courts |
Judgements of local courts (administrative sanction cases) appealed to the Supreme Administrative Court |
Judgements of local courts (administrative sanction cases) appealed to the Supreme Administrative Court (percentage) |
Administrative cases heard by regional administrative courts as 1st instance courts |
Judgements of regional administrative courts appealed to the Supreme Administrative Court |
Judgements of regional administrative courts appealed to the Supreme Administrative Court (percentage) |
|
2001 |
44313 |
2146 |
4,84 |
13471 |
1985 |
14,73 |
|
2002 |
45927 |
1861 |
4,05 |
13802 |
2081 |
15,07 |
|
2003 |
42061 |
1393 |
3,31 |
10118 |
2300 |
22,73 |
Does in general the judge have sufficient powers to control the parties' activities, to choose between written or oral procedures, to resort to a summary judgement, to determine the calendar and the time‑limits for presentation of arguments and evidence, to sanction delaying tactics and/or abusive behaviours?
Problems related to insufficient powers of judge to control court proceedings in Lithuania were mostly linked with the civil cases, as both in criminal and administrative proceedings judges always seemed to enjoy a reliable degree of activity and procedural powers. The problem was solved after the new Code of Civil procedure came into force. The new Code of Civil procedure provides for the active role of a judge during the court proceedings and gives him/her sufficient powers to control the parties' activities as well as the progress of proceedings in general. The new Code of Criminal procedure on the other hand has introduced some types of summary proceedings, therefore enabling judges to act more flexible. Thus at the moment it can be said that in general judges in Lithuania are given reasonable powers to control court proceedings, at least de jure.
Have measures been taken to assure that most cases are adjudicated by a single judge, rather than by a panel?
Civil cases at the first instance (local and regional courts) are heard by a single judge. There is also a possibility provided for the president of court or the president of the civil division (in regional courts) to assign the case to a panel of 3 judges if the case is very complicated. Such a possibility was inexistent before the new Code of Civil procedure came into force[29], thus the new Code of Civil procedure actually expanded the use of panels in civil cases. On the other hand, this possibility is not used very often and it may sometimes diminish the possibility of appeal, therefore shortening the overall duration of proceedings.
Criminal cases at local courts are heard by the single judge, unless the president of court assigns the case to a panel of 3 judges (such a right is granted to the president of court if the case is very complicated). At regional courts, acting as 1st instance courts, criminal cases as a general rule are heard by a single judge, with the exception of certain cases listed in Code of Criminal Procedure[30], which are heard by a panel of 3 judges.
At the appellate instance (regional courts and the Court of Appeal of Lithuania) both civil and criminal cases are heard by a panel of 3 judges, and at the Supreme Court of Lithuania (cassation instance) – by a panel of 3 judges, expanded panel of 7 judges or plenary session of the relevant (civil or criminal) division.
Administrative cases at the regional administrative courts (1st instance courts) as a general rule are heard by a panel of 3 judges, with the exception of certain cases, listed in the Law of Administrative Proceedings, which are heard by a single judge[31]. There is also a possibility for the president of court to assign such a case for which the hearing by a single judge is provided to the panel of 3 judges. At the Supreme Administrative Court (appellate and final instance) cases are usually heard by a panel of 3 judges. For hearing of complex cases an expanded panel of five judges may be formed or the case may be referred to the plenary session of the court.
b) in civil disputes
Please describe, in general, implementation in your country of Recommendation No. R (84) 5 concerning principles of civil procedure designed to improve the functioning of justice. Some specific aspects will be dealt with by following questions.
The new Code of Civil Procedure was drafted in line with the Recommendation No. R (84) 5. Presently it may be said that this Recommendation is implemented in Lithuanian law, in particular:
the pre-trial stage was fully redesigned to ensure that normally the hearing of a case will not consist of more than 2 hearings, one of which is preparatory;
The Code of Civil Procedure provides for the active role of a judge in all stages of civil proceedings. Judge is given the proper powers to control the parties, by stating time limits for the submission of pleas and evidence (according to the Code of Civil Procedure, as a general rule, all the explanations and evidence must be presented to the court during the pre-trial stage. A judge (court) may refuse to accept evidence presented behind time, if founds that the acceptance of such evidence will prolong the proceedings), imposing procedural penalties, obligating the parties to provide monetary deposit for the security of performance of procedural actions, if necessary, proposing the party to show thought for legal representation, etc. Judges powers differ with respect to the case in question (whether the public interest is concerned or not) and generally include authority to give directions and expedite the proceedings, to call for evidence (in some cases – to collect evidence ex officio), to raise the questions of fact of law, to the certain extent – to choose between oral and written proceedings.
The obligation of parties to take care about the progress of proceedings and to act fairly is clearly fixed. For the violation of this right a party may face procedural restrictions (such as for example the loss of right to present new evidence), procedural sanctions (fines) or be obliged to cover damages faced by other party.
The Code of Civil Procedure has introduced various types of summary and accelerated procedures.
More possibilities for the written proceedings were introduced.
Please specify characteristics of procedures existing in your country that may qualified as accelerated, simplified, and/or summary.
It should be noted that in Lithuanian legal doctrine no clear distinction between summary or simplified procedures is made. Usually summary proceedings are understood as simplified procedures related to evidence of claim presented (e.g. the claim is fully based on written evidence). Sometimes the term “simplified procedure” to describe such types of proceedings is also used. Others use the term “simplified procedures” only when referring to certain types of non-contentious proceedings, for which special rules are provided in the Code of Civil procedure.
The new Code of Civil procedure determines 3 main forms of summary proceedings:
court order procedure,
documentary procedure
peculiarities of hearing minor cases.
Documentary procedure may be used in cases concerning monetary claims, claims for adjudgement of movable property or securities, as well as certain claims under the tenancty contracts in case if all claims may be supported by written evidence. The case is heard following the written procedure, the preliminary judgement, made on the basis of claim presented, acquires the force of res judicata if the defendant does not present written objection during 20 days from the day of service of preliminary judgement.
Court order procedure may be used for monetary claims and claims for adjudgement of movable property. Court order is issued without the verification of the validity of the claim and acquires res judicata power if the defendant does not present written objection during 20 days from the day of notification about the issuance of court order. Objection has not to be motivated.
The claimant is free to choose between the ordinary proceedings, documentary procedure or court order procedure. However, for the summary proceedings, the stamp duty is lower.
In cases concerning small monetary claims (minor cases), where the sum of claim does not exceed 1 000 litas (ossessionly 290 euro), the court is generally free to decide on the order and form (oral or written) of proceedings. Oral hearing should be summoned if one the parties so requests. Judgement in such cases must contain very short reasoning.
There are also some forms of simplified proceedings, depending on the nature of dispute, as for example:
cases on the violation of ossession rights;
some types of non-contentious proceedings: cases concerning the issuance of permits, renovation of terms, administration of property, etc.)
Labor and family cases may be described as accelerated proceedings because of the necessity to protect public interest. The Code of Civil procedure provides for the strict terms for hearing such types of cases. Unlike in the summary proceedings, expedition in this type of cases is mainly reached by more active role of a judge.
3. As to simplified procedures, please indicate (and provide details) if law or court practice, even if on the basis of "protocols", allow in your country:
(i) simplified methods of commencing litigation;
Yes, in all types of summary and simplified proceedings. Simplified methods usually contain written proceedings and limited number of issues to be dealt with by the court. In non-contentious matters, even if the oral hearing is summoned, the presence of parties is usually not necessary.
(ii) no hearing or convening of only one hearing or, as the occasion may require, of a preliminary preparatory hearing;
As a general rule, court proceedings should consist of no more than 2 hearings, one of which is preparatory. In case if the preparation was written (a judge is generally able to choose between the oral or written preparation), proceedings should consist of only ne hearing. The preparatory hearing may immediately transform to the normal hearing if a judge and parties agree that no break is necessary.
As to the simplified proceedings, they are usually written. Therefore no oral hearings are summoned.
(iii) exclusively written or oral proceedings, as the case may be;
For the minor cases oral hearing is not necessary if parties do not request. Documentary and court order proceedings are written and carried out following the specific rules. All non-contentious proceedings are written unless the law provides for the contrary.
(iv) prohibition or restriction of certain exceptions and defences;
Generally not. But in all civil cases official written evidence may not be disproved on the basis of testimony of witnesses.
In cases on the violation of possession rights the court is obliged to clear only the last fact of possession and violation of it. Defences based on the proprietary or other rights of defendant of his/her good will are excluded.
(v) more flexible rules of evidence;
In court order procedure the court does not verify the validity of a claim. Some authors argue that the right of court to decide on the order and form of proceedings in minor cases also includes more flexible rules of evidence. However, there is no common agreement on this point.
(vi) no adjournments or only brief adjournments;
There are no cases where adjournments are expressly prohibited. However, in some types of cases adjournments are not possible because of special procedural rules or strict procedural terms applicable.
(vii) the appointment of a court expert, either “ex officio” or on application of the parties, if possible at the commencement of the proceedings;
Appointment of expert (both on application of the parties and ex officio) is possible in all types of cases, unless the specific procedural rules applicable make it impossible.
(viii) an active role for the court in conducting the case and in calling for and taking evidence;
In family, labour cases and non-contentious proceedings the role of a judge is more active. He/she has also a right to collect evidence ex officio.
(ix) the rendering on the part of the judge of a mere “oral” judgement.
There is no possibility of oral judgements under the Lithuanian law.
4. As to summary proceedings (in which the examination of the case on the part of the judge is done on the basis of what is only evident), please indicate if in your country:
4.1. the judge has the power to decide summarily on:
(i) disputes on which an early decision is required (urgent cases procedure);
No judgement without the hearing of case on the merits is available, but there exist a possibility of application of provisional measures.
In some urgent cases, court judgements are provisionally executed.
(ii) disputes concerning recovery of certified uncontested debts;
Under the rules of documentary or court order proceedings described above.
(iii) small claims (please specify monetary limit);
Yes, where the sum claimed does not exceed 1000 litas.
(iv) employer‑employee relations;
No. Those cases are accelerated, but not simplified or summary. However, some judgements in such cases are provisionally executed.
(v) landlord and tenant relations;
Under the rules of documentary proceedings described above. Some cases related to landlord and tenant relations will fall under the simplified rules of non-contentious proceedings.
(vi) questions of family relations (divorce, custody of children, maintenance);
No. Those cases are accelerated, but not simplified or summary.
(vii) disputes involving consumers;
No. No special rules for disputes involving consumers are provided.
(viii) disputes relating to road accidents;
Administrative responsibility for road accidents falls under the notion of administrative disputes in Lithuania. Generally administrative sanctions for road accidents are applied by police officers and may be appealed against to the regional administrative court. As to the claims for damages made during the road accident, they will be heard by the way of ordinary civil proceedings.
(ix) manifestly ill‑founded claims.
No.
4.2. a summary judgement has or does not have the force of “res judicata”;
There is no notion of “summary judgement” under Lithuanian law. Judgements, passed following the summary proceedings, are ordinary judgements and acquire the force of res judicata after the term for appeal expires in case if appeal is possible. Probably the closest notions are “preliminary judgement” (in documentary proceedings) and “court order” (in court order proceedings) that are passed immediately without hearing a case on the merits and acquire the force of res judicata if the defendant does not present written objection within the time limit set by law.
4.3. a summary judgement is liable to determine rights and obligations of the parties even if a procedure on the merits is not initiated.
Yes, preliminary judgement and court order, if the defendant does not present written objection.
5. Please describe the extent to which injunction relief is available in your system (judicial orders of payment or to perform contractual obligations).
Some provisional measures available in Lithuanian legal system (as for example adjudication of temporary financial support, order to perform actions in order to prevent damages) contain elements of injunction relief.
6. Please describe the relevance of time‑limits and interlocutory judgements to assure a reasonable duration of ordinary proceedings.
Non-observance of time-limits, set by law or court, may result in the loss of certain procedural rights of the parties. In case if procedural obligation is concerned, such violations may be followed by procedural sanctions.
There are no interlocutory judgements under the Lithuanian law. The law provides for the possibility of so called partial judgements, in case if some of demands are clear and others require further consideration. Partial judgement is a final judgement on the demands concerned, it may be appealed separately.
What protective measures are available in your system? You may refer to protective measures aimed to protecting the practicability of enforcement, or to anticipate enforcement; protective measures aimed to "freezing" a certain situation of fact pending the trial, e.g. through appointment of a receiver; measures that can be indicated as protective in a very broad sense, since they aim at anticipating the decision in the substance of the case. Please specify the cases in which urgency is required, and cases in which remedies may be granted without both parties having been heard.
The Code of Civil procedure does not provide the comprehensive list of provisional measures. Most often the arrest of property of the defendant is used. The appointment of administrator of property of the defendant, prohibition of certain actions to be performed, adjudication of temporary financial support, obligation to perform certain actions and other provisional measures are also available.
Request for provisional measures may be presented in any stage of proceedings as well as before the original claim is made. Court can also decide on the application of provisional measures ex officio, if it is necessary in order to protect public interest.
Decision to apply or not provisional measures must be made within 3 days from the receipt of application. As a general rule, the defendant is informed about the request for provisional measures. But the court can decide not to inform the defendant if there is a fear that such notification will prevent the possibility to apply the provisional measures.
Does your system provide, besides protective measures in view of the taking of evidence (provisional hearing of witnesses, experts reports, site inspections, taking of samples), also measures that enhance the possibility for the plaintiff to gather information before the trial (see the Anton Piller order in the English experience)?
No.
In what circumstances is a first degree judgement provisionally enforceable? If provisional enforcement is granted by the judge or by the law, upon which conditions the party filing an appeal may obtain suspension of enforcement?
Under the Lithuanian law there are cases where provisional enforcement is compulsory and cases where the court can decide on the provisional enforcement.
Provisional enforcement is compulsory if a decision:
concerns the claim for sustenance;
concerns the claim for adjudication of remuneration - part of the decision not exceeding 1 minimal monthly salary;
concerns the reinstatement of evicted persons;
concerns the institution of bankruptcy proceedings;
concerns the reduction of share capital of a bank.
Court (judge) may decide on the provisional enforcement of the decision concerning:
claim for compensation of damages caused by injuring a persons health or killing a person;
claim for remuneration related to intellectual property rights (royalty or remuneration for the use of patented invention);
claim of employee for the amendment of statement of reasons of dismissal;
claim of employee for the reinstatement;
other claims in case if, due to extraordinary circumstances, delay of execution may cause great damage to the creditor, or prevent the possibility of enforcement.
Suspension of enforcement of those types of judgements is not possible.
Please describe implementation in your country of Recommendation No. R (95) 5 concerning the introduction and improvement of the functioning of appeal systems and procedures in civil and commercial cases. Under what circumstances, if any, is a court decision not subject to appeal? Is in your country in force a system that admits appeal, at least for some disputes, only upon court leave? If not, would such a system be desirable?
The new Code of Civil Procedure was drafted in line with the Recommendation R (95) 5 and it can be said that this Recommendation is implemented in Lithuanian law, in particular :
In Lithuania, as a general rule, all court judgements may be appealed to the court of second instance. Court rulings on the contrary may be appealed against only in cases expressly stated by law or together with the main appeal on the court judgement. This provision is in the line with Recommendation No. R (95) 5, stating that in principle, it should be possible for any decision of a lower court ("first court") to be subject to the control of a higher court ("second court").
Appeal to the second instance court is not possible on the default judgement, preliminary judgement, court order and in cases concerning monetary claims, if the disputed sum does not exceed 250 litas.
Appeal in Lithuania is revisio prioris instantiae. The issues of the litigation should therefore be defined and all possible claims, facts and evidence presented to the court of first instance. On appeal, new claims, facts and evidence is not accepted, unless the appelate court finds that the court of first instance unfoundedly refused to accept evidence presented by the party or that necessity to present new evidence arose after the first isntance proceedings.
Appelant is required to clearly state the grounds of appeal, as the appelate court is bound by it. Any amendments to the appeal can be made only untill the term for appeal expires. Other party is obliged to present written response. Submissions of the parties are limited to those 2 procedural documents. Proceedings at the appelate court are oral, but the parties may agree on the written proceedings.
There is no leave required for the appeal to the “second court”. As to the “third court” (cassation instance) the leave issued by the Supreme Court itself is required. This system is introduced by the new Code of Civil procedure. Appeal to the Supreme Court is possible only in exceptional cases, related to the uniform interpretation of the law. The Supreme Court does not deal with the questions of fact.
Please express your view concerning measures to improve:
(i) enforcement of court judgements and effectiveness of the activity of enforcement agents;
The system of enforcement of court judgments was presently reformed in Lithuania. On 27 December 1999, the Guidelines for the Institutional Reform of the Office of the Bailiff were approved by a decree of the Government. Its purpose was the reform of the system of the office of the bailiff at local courts on the basis of experience of Western European countries.
Law on Bailiffs[32] entered into effect from the 1st of January 2003. The law introduced private execution stating that bailiff shall be a person authorised by the State, empowered by it to perform the functions of enforcement of writs of execution, to make material ascertainments on the factual circumstances, to serve proceedings and carry out any other functions provided by law.Thus bbailiffs have been given the status of persons providing professional services, though the Minister of Justice still has certain powers to exercise control of the activities of bailiffs and of some other spheres. As the system is relatively new, it is early to assess its effectiveness. However, some complaints regarding the disproportionate costs of execution related to the private execution system, were already raised.
transparency of information concerning assets of debtors;
According to the Law on Bailiffs, in the performance of his/her functions, a bailiff shall have a right to receive, free of charge, the necessary information from the State Tax Inspectorate under the Ministry of Finance of the Republic of Lithuania, agencies of the State Social Insurance Fund, cadastres and registers as well as from other natural and legal persons, including banks and other credit and financial institutions, irrespective of the form and method of providing the information, copies of documents, computer data or their copies concerning the property, funds, proceeds, expenditure and activities as well as other information necessary for the performance of the bailiff’s functions.Realisation of this right is however in some respect was complicated by the abscence of universal compulsory declaration of assets and property.
recognition of judicial decisions rendered by judges from another Member State of the Council of Europe.
Applications for recognition of judgments of foreign courts and permission for their enforcement in the territory of the Republic of Lithuania are heard by the Court of Appeals of Lithuania. Decision of the Court of Appeal may be appealed against to the Supreme Court. Statistical data show that in most cases judgments of the courts of foreign states are recognized and their enforcement in the territory of the Republic of Lithuania is permitted[33].
c) in criminal matters
Please describe, in general, implementation in your country of Recommendations No. R (87) 18 concerning the simplification of criminal justice and No. R (95) 12 on the management of criminal justice. Some specific aspects will be dealt with by following questions.
After the New Criminal Code, new Code of Criminal Proceedings and new wording of the Law on Prosecutors Office came into force, it can be said that the mentioned recommendations are to the great extent implemented in Lithuanian law. Some issues addressed by the Recommendation No. R (95) 12 on the management of criminal justice however remain unsolved due to insufficient budgetary allocations.
Please specify characteristics of procedures existing in your country that may qualified as accelerated, simplified, and/or summary. Please refer to materials (available on the Council of Europe's website) presented during the European Conference of Judges on the theme "Early settlement of disputes and the role of judges" held in Strasbourg, 24‑25 November 2003 (although these materials mainly concern civil justice).
Code of Criminal Procedure provides for 2 types of simplified proceedings:
1) accelerated proceedings in cases of obvious crimes, if no more than 5 days have passed from the day of commitment, and the case falls under the jurisdiction of local court. Pre-trial investigation is not carried out; prosecutor applies to the court directly.
2) penal order proceedings order in cases where the punishment for the crime (main or alternative) is fine. The only sanction available by way of the penal order is monetary fine.
Please indicate (and provide details) if in your country:
(i) discretionary decisions to waive or discontinue proceedings are possible, although adequate evidence of guilt has been found (please identify cases and competent authorities);
Yes. In addition to cases described in paragraph D e), it is also possible:
Under the Article 36 of the Criminal Code – if a court finds that until the hearing of a case a person convicted or actions he/she made has become inoffensive because of change of particular circumstances. Decision is made by the prosecutor with the consent of pre-trial investigation judge, or by court.
Under the Article 37 of the Criminal Code – if actions committed by the accused are recognized as insignificant because of the object of a crime, damage caused or other particular circumstances. Decision is made by the prosecutor with the consent of pre-trial investigation judge, or by court.
Under the Article 39 of the Criminal Code – a person accused for commitment of criminal offence or minor crime for the very first time may be released from criminal responsibility by the court, if there are at least 2 extenuating circumstances and no aggravating circumstances. Decision can be made solely by the court.
Under the Article 213 of the Criminal Code – if several investigations are started against the same person, some of them including major or very harsh crimes, others – criminal offences or minor crimes, a prosecutor may decide to discontinue investigation of criminal offences or minor crimes if thinks that the investigation in that case will become more expedient. Decision is made by the prosecutor solely.
(ii) mass offences such as road traffic, tax and customs law, if they are minor, are decriminalised;
Yes. Offences such as road traffic, tax and customs law, if they are minor are administrative offences under Lithuanian Law. Responsibility for such offences arises under the Code of Administrative Offences or special laws.
(iii) out‑of‑court settlements are possible;
Yes, as already described in paragraph D e)
(iv) penal orders such as those described in Recommendation No. R (87) 18, or equivalent simplified proceedings are employed (please provide information as to percentage of crimes so tried);
Yes, the Code of Criminal Proceedings provides for the possibility of penal order in cases where the punishment for the crime (main or alternative) is fine. After the conclusion of pre-trail investigation, a prosecutor may refer the case to the court without written indictment, asking for the issuance of penal order. The consent of the accused is necessary. Penal order is issued without the hearing a case on the merits.
(v) the procedure of "guilty plea" (whereby the alleged offender is required to appear at an early stage to declare whether he or she accepts charges, and court may decide the case in an accelerated way without investigations), or equivalent procedures are employed;
The procedure of “guilty plea” in its classical understanding does not exist in Lithuania. However, some similarities may be fount with the procedure provided for by the Article 273 of the Code of Criminal Procedure, containing the simplified examination of evidence. In case if a person is not accused for the commitment of major or very harsh crime, after the announcement of indictment he/she can plead guilty to the court, request for the immediate presentation of his/her testimony and agree that no examination of additional evidence is necessary. Agreement of prosecutor and defence council on the simplified examination of evidence is also necessary.
The procedure of penal order, described above, also contains some similarities with “guilty plea” procedure. Although the law does not expressly require that accused should plead guilty (only his/her consent is required), it may be understood as implied requirement, resultant from the very essence of penal order procedure.
Some similarities may also be found with the procedure of private accusation (Articles 407 – 417 of Code of Criminal Procedure).
(vi) declarations of voidness of proceedings are limited to cases in which failure to comply with procedural requirements have caused real damage to the interest of the defence or prosecution;
Under the Code of Criminal Procedure, substantial procedural violations are described as violations that restricted the legal rights of accused, or prevented the court to reach fair judgement. There is no compulsory list of such violations given. However, not every substantial violation is a basis for declaration of voidness of proceedings. The new Code of Criminal Procedure to the great extent restricted the possibility to refer the case back to the previous stage of proceedings. Presently, the case can be reffered back to the court of lower instance only if the court was partial or the case was heard by court violating the rules of jurisdiction. To refer case back to the pre-trial investigation stage is possible only if indictment totally unclear, and the court founds that the rights of defence were therefore violated.
(vii) notification of summons and decisions of the court is done through simple, rapid procedures, including by mail;
Yes, summons and decisions are sent by mail.
(viii) trial court is exempted, when parties agree or the case is not serious, from issuing the decision in writing (please also refer to simplified forms of written decisions).
There is no possibility of oral judgements under the Lithuanian law. Under the Article 306 of the Code of Criminal Procedure, a judge of local court (tthat is in cases of criminal offences, minor crimes or medium severity crimes) is enabled to issue simplified judgement, without stating the evidence and reasons. In case if subjects having a right of appeal present a request within 7 days, the court is obliged to write full judgement. The same rule is applicable if appeal has been made – the court is then obliged to write full judgement within 3 days.
Please describe the role of the bench in the several stages of investigations (concentrating on the three stages referred to Principle III, a.6 of Recommendation No. R (87) 18). Please also describe the role of the bench as to "guilty pleas" and sentencing, if such phases may take place out of court. Please describe the respective role of professional judges and juries in findings of guilt and determination of penalties, in those cases that are tried before a jury.
There is no jury in Lithuanian legal system. Findings of guilt and determination of penalties are made by professional judges.
Pre-trial investigation is carried out by the police (or other institutions), and is organized and supervised by the prosecutor. Most procedural constraints can be applied only by prosecutor or judge of pre-trial investigation. Detention or arrest may be applied only by the decision of pre-trial investigation judge.
According to the Code of Criminal Procedure, court may base a judgements only on the evidence heard at the court trial, thus the court always makes conclusive investigations during the hearing in order to determine itself the validity of the charges laid before it. In case if supplementary enquiries are necessary, the court may address this issue to the judge of pre-trial investigation.
[1] Resolution of Judicial Council of 10th October 2003 No. 151
[2] Replaced by the new wording of the Law on Courts from the 1st of May 2002 (Law amending the Law on Courts of 24th of January 2002 No. IX-732)
[3] Information about the activities of Lithuanian courts during the year 2003, published in the website of the Supreme Court of Lithuania www.lat.litlex.lt
[4] 28 February 2002 No. IX-743, entered into effect on 1 January 2003
[5] Under the new Code of Civil Procedure, there are the following court filing fees for proprietary claims: (1) if the amount to be adjudicated is less than 100,000 litas, 3 percent of the claimed amount, but not less than 50 litas; if the amount to be adjudicated is more than 100,000 litas but less than 300,000 litas, 3,000 litas plus 2 percent of the claimed amount that exceeds 100,000 litas; if the amount to be adjudicated is more than 300,000 litas, 7,000 litas plus 1 percent of the claimed amount that exceeds 300,000 litas. The stamp duty may not in any case exceed 30, 000 litas (approximately 8687 euro).
[6] 28 March 2000 No. VIII-1591, entered into effect on 1 January 2001
[7] 14 March 2002 No. IX-785, entered into effect on 1 May 2003
[8] which presently amounts to 500 litas (approximately 150 euro).
[9] Access to Justice Country Report: Lithuania. Linas Sesickas, Open Society Justice Initiative Bernotas and Dominas Glimstedt
[10] Ibidem
[11] 25 November 2003 No. 1463
[12] 25 June No. VIII-811, entered into effect from 1 October 1998
[13] 18 September 2003 No. IX-1737
[14] 18 July No. VIII-1864, entered into effect from 1 July 2001
[15] According to the statistical data presented by the National Courts Administration, in 2003 courts of 1st instance have heard 35870 cases on the issuance of permits, confirmation of legal facts, administration of property, etc. (that is under the new requirements introduced by the new Civil Code)
[16] Information about the activities of Lithuanian courts during the year 2003, published in the website of the Supreme Court of Lithuania www.lat.litlex.lt
[17] Information about the activities of Lithuanian courts during the year 2003, published in the website of the Supreme Court of Lithuania www.lat.litlex.lt
[18] CCJE (2001) OP N°1 On standards concerning the independence of the judiciary and the irremovability of judges, Strasbourg, 23 November 2001
[19]The Selection Commission introduced consists of 7 members, elected for the period of 3 years. 2 candidates are nominated by the President of the Republic, 2 – by the Chairperson of Seimas, 2 – by the Chairperson of Judicial Council and 1 by the Minister of Justice. At least 4 among the members of the Commission should be judges. The members of Judicial Council may not be appointed as the members of the Selection Commission.
[20] A person convicted for the commitment of criminal offence, unintended or minor crime, or medium severity malicious crime, can be released from criminal responsibility if he/she has pleaded guilty, voluntarily compensated damage or has agreed on the compensation, conciliated with the victim and there is a basis to assume that he/she will not commit new crimes in the future.
[21] A person can be released from the criminal responsibility if he/she has helped to discover the crimes made by organized group or criminal gang. Exception is made for the person who has participated in intentional murder, has already been released from criminal responsibility on the same basis, or is organizer or leader of organized group or criminal gang.
[22] A person convicted for the commitment of criminal offence, unintended or minor crime, or medium severity malicious crime, can be released from criminal responsibility, if there is a request of a person, found trustworthy by the court, to release a convict on bail. A person can be released from criminal responsibility on that basis only if he/she has committed a crime the very first time, has pleaded guilty, voluntarily compensated or has pledged to compensate damage and there is a basis to assume that he/she will not commit new crimes in the future.
[23] Information about the activities of Lithuanian courts during the year 2003, published in the website of the Supreme Court of Lithuania www.lat.litlex.lt
[24] Ibidem
[25] Statistical data taken from the Information about the activities of Lithuanian courts, published in the website of the Supreme Court of Lithuania. www.lat.litlex.lt
[26] Statistical data taken from the Information about the activities of Lithuanian courts, published in the website of the Supreme Court of Lithuania. www.lat.litlex.lt
[27] Annual report of the Supreme Administrative Court of Lithuania of 2003. www.lvat.lt
[28] Statistical data taken from the Information about the activities of Lithuanian courts, published in the website of the Supreme Court of Lithuania. www.lat.litlex.lt
[29] On the 1st of January 2003
[30] Cases where persons are accused for the commitment of the very harsh crime (malicious crime the punishment for which according to the law exceeds 10 years of imprisonment), as well as cases where the accused during the commitment of a crime was holding an office of President of the Republic, member of Seimas (parliament), government, judge or prosecutor.
[31] Claims for compensation for material and moral damage inflicted on a natural person or organisation by unlawful acts or omission in the sphere of public administration by state or municipal institutions, agencies, services and their employees, office-related disputes, where one of the parties is a public or municipal servant possessing the powers of public administration (including officers and heads of agencies), and complaints against the decision in cases of administrative sanctions, except for the complaints on the rulings of local courts.
[32] 9 May 2002, No. IX-876
[33] For example, during the year 2003, the Court of Appeal have heard 80 cases concerning applications for recognition of judgments of foreign courts. 67 applications were satisfied, 1 application was rejected, proceedings discontinued in 11 cases.