Lithuanian report

Lithuanias answers (report)

1st day

I. Europeanization of administrative Law

I. The impact of Article 6 of the European Convention of Human Rights (ECHR) about the "right to a fair trial" on litigation proceedings applicable to the administrative courts

The text of article 6 of the European Convention on Human Rights :

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

An independent and impartial tribunal established by law : the concepts of jurisdiction and administrative court

The courts that, under the Constitution, implement the judicial power in Lithuania are to be attributed not to one, but to two or more (if that, while paying heed to the Constitution, is established in certain laws) systems of the courts. Under the Constitution and laws (The Republic of Lithuania Law on the Constitutional Court, The Republic of Lithuania Law on Courts), at present there are three systems of courts in Lithuania :

(1) the Constitutional Court executes constitutional judicial control ;

(2) the Supreme Court of Lithuania, the Court of Appeal of Lithuania, regional and local courts specified in Paragraph 1 of Article 111 of the Constitution, constitute the system of courts of general jurisdiction ;

(3) under Paragraph 2 of Article 111 of the Constitution, for the consideration of administrative, labour, family and cases of other categories, specialized courts may be established—at present, one system of specialised courts, namely administrative ones, is established by laws and is functioning, which is comprised of the Supreme Administrative Court and regional administrative courts.

The Constitutional Court

The purpose of the Constitutional Court is to guarantee the supremacy of the Constitution in the legal system as well as constitutional legality. Such purpose is entrenched in

Article 1 of the Law on the Constitutional Court, and it is also established therein that the Constitutional Court shall do that by deciding whether the laws and other acts adopted by the Seimas are not in conflict with the Constitution and whether acts of the President of the Republic and the Government are not in conflict with the Constitution or laws. The status of the Constitutional Court as free and independent court is entrenched in this article of the Law on the Constitutional Court.

Jurisdiction

The powers of the Constitutional Court, as part of the judiciary system, are entrenched in the Constitution.

In Paragraph 1 of Article 102 of the Constitution, it is established that the Constitutional Court shall decide whether the laws and other legal acts of the Seimas are not in conflict with the Constitution and whether the acts of the President of the Republic and the Government are not in conflict with the Constitution or laws. While construing Paragraph 1 of Article 102 of the Constitution in the context of other provisions of the Constitution, the whole constitutional legal regulation, inter alia the hierarchy of all legal acts arising from the Constitution, the Constitutional Court has held that the Constitutional Court has the exclusive competence to investigate and decide on whether any act of the Seimas, the President of the Republic or the Government, as well as any act (part thereof) adopted by referendum is not in conflict with any act of greater power, inter alia (and, first of all) with the Constitution, namely : whether any constitutional law (part thereof) is not in conflict with the Constitution, whether any law (part thereof) and the Statute of the Seimas (part thereof) are not in conflict with the Constitution and constitutional laws, whether any substatutory legal act (part thereof) of the Seimas is not in conflict with the Constitution, constitutional laws, laws, and the Statute of the Seimas, whether any act (part thereof) of the President of the Republic is not in

conflict with the Constitution, constitutional laws and laws, and whether any act (part thereof) of the Government is not in conflict with the Constitution, constitutional laws and laws (Constitutional Court ruling of 28 March 2006).

In Paragraph 3 of Article 105 of the Constitution it is established that the Constitutional Court shall present conclusions : (1) whether there were violations of election laws during elections of the President of the Republic or elections of members of the Seimas ; (2) whether the state of health of the President of the Republic allows him to continue to hold office ; (3) whether international treaties of the Republic of Lithuania are not in conflict with the Constitution ; (4) whether concrete actions of the Members of the Seimas and state officials against whom an impeachment case has been instituted are in conflict with the Constitution.

Under Paragraph 1 of Article 107 of the Constitution, a law (or part thereof) or other act (or part thereof) of the Seimas, act of the President of the Republic, act (or part thereof) of the Government may not be applied from the day of official promulgation of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution. In Paragraph 2 of Article 107 of the Constitution it is established that the decisions of the Constitutional Court on issues ascribed to its competence by the Constitution shall be final and not subject to appeal. The Constitutional Court has noted that Paragraph 1 of

Article 107 of the Constitution is to be construed as meaning that every legal act (or part thereof) passed by the Seimas, the President of the Republic or the Government or adopted by referendum, which is recognised as being in conflict with any legal act of greater power, inter alia (and, first of all) with the Constitution, is removed from the Lithuanian legal system for good, it may never be applied anymore. The power of the Constitutional Court to recognise a legal act or part thereof as unconstitutional may not be overruled by a repeated adoption of a like legal act or part thereof (Constitutional Court rulings of 30 May 2003 and 28 March 2006).

Thus, while deciding constitutional justice cases under corresponding petitions of petitioners, the Constitutional Court has the constitutional powers to annul the legal power of the corresponding legal acts (parts thereof) if they are in conflict with legal acts of greater power, inter alia (and, first of all) with the Constitution. In order to be able to establish and adopt a decision whether the investigated legal acts (parts thereof) are not in conflict with legal acts of greater power, the Constitutional Court has the constitutional powers to officially construe the investigated legal acts and the said legal acts of greater power.

Thus, also the exclusive powers of the Constitutional Court to construe the Constitution officially and to provide the official concept of the provisions of the Constitution-to

form the official constitutional doctrine arise from the Constitution itself. Under the Constitution, the concept of the constitutional provisions, the arguments set forth in the Constitutional Court rulings as well as in other acts of the Constitutional Court-conclusions and decisions, are also binding on law-making and law-applying institutions (officials), including courts of general jurisdiction and specialised courts established under Paragraph 2 of Article 111 of the Constitution (Constitutional Court decision of 20 September 2005 and ruling of 28 March 2006).

Courts of general jurisdiction

Under the Constitution, the system of courts of general jurisdiction, as a system of institutions, is comprised of four-level courts : the first (lowest) level—local courts, the second level—regional courts, the third level—the Court of Appeal of Lithuania, the fourth (supreme/highest) level—the Supreme Court of Lithuania. The legislator, taking account of the Constitution, has the discretion to establish as many local and regional courts, as, in his opinion, is necessary, and to establish such a quantitative composition, which, to his mind, is necessary in order to administer justice properly and in time, as well as to determine such territorial boundaries of the activity of corresponding local and regional courts, which, in his opinion, are necessary in order to administer justice properly and in time.

In the Constitution (inter alia Paragraph 1 of Article 111 of the Constitution) not only a four-level system of courts of general jurisdiction (as a system of institutions) is established, but also the fundamentals of the instance systems of courts of general jurisdiction, as a system of procedural levels of judicial consideration of cases, are entrenched. The instance system of courts of general jurisdiction, which stems from the Constitution, implies that there must be possibilities to lodge an appeal against any final act of a court of general jurisdiction of the first instance with a court of general jurisdiction of at least one higher instance. The Constitutional Court has held that the purpose of the instance court system is to remove possible mistakes of courts of lower instances, not to permit that injustice is executed, and thus to protect the rights and legitimate interests of the person, society and the state (Constitutional Court ruling of 16 January 2006). Thus, the purpose of the instance system of courts of general jurisdiction is to create preconditions for courts of higher instances to correct any mistakes of the fact (i.e. of the establishment and assessment of legally significant facts) or of the law (i.e. of the application of law), which for some reasons could be made by a court of lower instance, and not to allow that injustice is executed in any civil case, criminal case or case of other category considered by courts of general jurisdiction. The said correction of mistakes of courts of lower instance and the related prevention of injustice is conditio sine qua non of the confidence of the parties of corresponding cases and society in general not only in the court of general jurisdiction which considers the corresponding case, but also in the whole system of courts of general jurisdiction.

The establishment of four-level courts of general jurisdiction and the consolidation of the grounds of the instance system of courts of general jurisdiction in the Constitution in itself does not mean that it is four judicial instances (as levels of proceedings of cases and not as institutional links) that the legislator is constitutionally obliged to create by law, i.e. that he has to establish such legal regulation, under which it would be possible to consider any case in a local court, the regional court, the Court of Appeal of Lithuania and in the Supreme Court of Lithuania. On the contrary, in most of the democratic states under the rule of law such a tradition of the instance system of courts of general jurisdiction has been developed (which is not questioned), where these courts comprise a three-level instance system : in this system, the consideration of cases is attributed to the court of first instance, the court of appeal instance (when the facts that are important to the decision of the case are inter alia investigated and assessed anew) and the court of cassation instance (when no facts that are important to the decision of the case are newly established, because this has already been done by the court of appeal instance, but the issues on the application of law are decided anew). It is such—three-level—instance system of courts of general jurisdiction which is established by laws in Lithuania as well. It is to be noted that under the Constitution, the legislator has discretion to establish (by following inter alia expediency reasons) which civil, criminal cases or cases of other categories have to be considered by first instance in local courts, and which in regional courts ; the legislator has also certain discretion to establish (by following inter alia expediency reasons) whether the proceedings of appeal have to take place only in the Court of Appeal of Lithuania or also in regional courts. However, under the Constitution, it is not permitted to establish any such legal regulation, nor to form any such practice of courts that would eliminate the essential

difference among the proceedings of cases in the court of first instance, the proceedings of cases in the court of appeal instance and/or the proceedings of cases in the court of cassation instance, nor to establish any such legal regulation nor to form any such practice of courts that would deny the constitutional nature of the Court of Appeal of Lithuania, as a court of appeal instance, and/or the Supreme Court of Lithuania, as a court of cassation instance.

The instance system of the courts of general jurisdiction arising from the Constitution may not be construed as restricting the procedural independence of the courts of general jurisdiction

of lower instance, either : however, as it was mentioned, under the Constitution, when adopting decisions in the cases of corresponding categories, the courts of general jurisdiction of lower instance are bound by decisions of courts of general jurisdiction of higher instance—precedents in the cases of these categories ; courts of general jurisdiction of greater power (and their judges) may not interfere in the cases considered by courts of general jurisdiction of lower instance, nor give them any instructions, either obligatory or recommendatory, on how corresponding cases must be decided etc. From the aspect of the Constitution, such instructions (whether obligatory or recommendatory) would be assessed as acting of corresponding courts (judges) ultra vires. Under the Constitution, court practice is formed only when courts decide cases themselves. A different construction of the provisions of the Constitution entrenching the instance system of courts of general jurisdiction, as well as the legal regulation based on that different construction of the provisions of the Constitution, would create preconditions for courts of general jurisdiction of higher instance (or their judges) to assume the functions that are not provided for to them and the powers that are not established in the Constitution, would deny the independence of courts entrenched in the Constitution, would violate the provision of Paragraph 2 of Article 109 of the Constitution that while administering justice, the court and judges shall be independent, and the provision of Paragraph 3 of this article that when considering cases, judges shall only obey the law. It is also to be noted that the giving of obligatory or recommendatory instructions to courts of general jurisdiction of lower instance on how corresponding cases must be decided etc. would also restrict the possibilities of the courts of general jurisdiction of higher instance to independently and impartially review the corresponding cases under appeal and cassation procedure in case it might be necessary.

The instance system of the courts of general jurisdiction arising from the Constitution may not be construed as restricting the procedural independence of the courts of general jurisdiction

of lower instance, either : however, as it was mentioned, under the Constitution, when adopting decisions in the cases of corresponding categories, the courts of general jurisdiction of lower instance are bound by decisions of courts of general jurisdiction of higher instance—precedents in the cases of these categories ; courts of general jurisdiction of greater power (and their judges) may not interfere in the cases considered by courts of general jurisdiction of lower instance, nor give them any instructions, either obligatory or recommendatory, on how corresponding cases must be decided etc. From the aspect of the Constitution, such instructions (whether obligatory or recommendatory) would be assessed as acting of corresponding courts (judges) ultra vires. Under the Constitution, court practice is formed only when courts decide cases themselves. A different construction of the provisions of the Constitution entrenching the instance system of courts of general jurisdiction, as well as the legal regulation based on that different construction of the provisions of the Constitution, would create preconditions for courts of general jurisdiction of higher instance (or their judges) to assume the functions that are not provided for to them and the powers that are not established in the Constitution, would deny the independence of courts entrenched in the Constitution, would violate the provision of Paragraph 2 of Article 109 of the Constitution that while administering justice, the court and judges shall be independent, and the provision of Paragraph 3 of this article that when considering cases, judges shall only obey the law. It is also to be noted that the giving of obligatory or recommendatory instructions to courts of general jurisdiction of lower instance on how corresponding cases must be decided etc. would also restrict the possibilities of the courts of general jurisdiction of higher instance to independently and impartially review the corresponding cases under appeal and cassation procedure in case it might be necessary.

Jurisdiction

According to Part 3 of Article 12 of the Republic of Lithuania Law on Courts the Supreme Court of Lithuania, the Court of Appeal of Lithuania, regional and local courts constitute the system of courts of general jurisdiction and they investigate civil, criminal and administrative violations cases. All courts shall be established by law (Part 1 of Article 12 of Law on Courts).

Administrative courts

Under Paragraph 2 of Article 111 of the Constitution, for the consideration of administrative, labour, family and cases of other categories, specialized courts may be established—at present, one system of specialised courts, namely administrative ones, is established by laws and is functioning, which is comprised of the Supreme Administrative Court and regional administrative courts (they are 5 – Vilnius, Kaunas, Klaipėda, Šiauliai and Panevėžys regional administrative courts).

Jurisdiction

According to Article 15 of the Republic of Lithuania Law on Administrative Proceedings administrative courts shall adjudicate in cases concerning :

1) the legality of legal statutes adopted and acts performed by the entities of state administration, also the lawfulness and justifiability of the entities’ refusal to act within their remit or their delay in acting ;

2) the legality of ordinances adopted and acts performed by the entities of municipal administration, also the lawfulness and justifiability of the entities’ refusal to perform acts within their remit or delay in the performance thereof ;

3) 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 local government institutions, agencies, services and their employees (Civil Code, Article 6.271) ;

4) taxes, other mandatory payments, levies and tax disputes ;

5) applications of civil servants and municipal employees concerning employment relations, including dismissal from office and application of disciplinary measures ;

6) The Chief Official Ethics Commission decisions and its applications for terminating civil servants duties ;

7) the Seimas controllers applications for terminating civil servants duties ;

8) disputes between entities of public administration not subordinate to each other concerning acts beyond their remit or infringement of laws, except for civil disputes which fall under the competence of courts of general jurisdiction ;

9) infringement of the electoral laws or the Law on the Referendum ;

10) legality of decisions taken by public institutions and non-governmental organizations and their actions in the sphere of public administration ;

11) legality of general acts adopted by public organisations, societies, political parties, political organisations or associations ;

12) disputes concerning refusal to grant asylum or status of refugee.

According to Article 18 of the Republic of Lithuania Law on Administrative Proceedings regional administrative court is the first instance for the cases specified in Article 15 of this Law, where one of the parties to the proceedings is the territorial entities of state or municipal administration, other than those specified in 6, 7, 10, 11 paragraphs thereof. According to Article 19 of the Republic of Lithuania Law on Administrative Proceedings Vilnius Regional administrative court has additional (supplementary) jurisdiction : in addition it is the first instance for the cases specified in Article 15 of this Law, where one of the parties to the proceedings is the central entity of state administration, other than concerning the legality of general administrative enactments adopted by central entities of state administration and the legality of general acts adopted by public organisations, societies, political parties, political organisations or associations. Vilnius regional administrative court is the court of first instance for appealing over the decisions of all kind of pre-trial insttitucions for disputes’ resolution (e.g. The Chief Administrative Disputes Commission or the Commission on Tax Disputes under the Government of the Republic of Lithuania).

According to Article 20 of the Republic of Lithuania Law on Administrative Proceedings Supreme administrative court is (1) the appeals instance (and the last instance because in Lithuania there is no cassation instance in administrative proceedings) for the cases which have been heard in the regional administrative courts as the courts of the first instance ; (2) the only and the last instance for cases concerning the legality of general administrative enactments adopted by central entities of state administration and the legality of general acts adopted by public organisations, societies, political parties, political organisations or associations ; (3) the last instance solving complaints about the decisions of the Central Electoral Committee, except those are solved by the Constitutional Court ; (4) the last instance for matters of jurisdiction of administrative cases. The Supreme administrative Court shall create uniform jurisprudence of Administrative Courts in law application.

In conclusion, administrative courts shall not hear cases assigned to the competence of the Constitutional Court, also

cases within the competence of courts of general jurisdiction.

The Constitutional Court emphasized in its 9 may 2006 ruling that the legislator, when establishing specialized courts, must also establish the procedure under which the competition of cognizance of cases between specialized courts and courts of general jurisdiction, as well as between the specialized courts, assigned for the consideration of cases of one category and the specialized courts assigned for the consideration of cases of another category (if there is more than one category of cases for whose consideration the individual specialized courts were established) will be decided. Moreover, the legislator must establish such legal regulation, which would not only ensure the forming of the same practice of courts in any of the individual systems of the specialized courts assigned for the consideration of cases of a certain category, but also which would not allow for the inconsequence and inconsistence to appear among the specialized courts and courts of general jurisdiction as well as among the specialized courts assigned for the consideration of cases of one category and the specialized courts assigned for the consideration of cases of another category (if there is more than one category of cases for whose consideration the individual specialized courts were established). The irregularity and inconsistency of the practice of courts among the specialized courts and courts of general jurisdiction as well as among the specialized courts assigned for the consideration of cases of one category and specialized courts, assigned for the consideration of cases of another category (if there is more than one category of cases for whose consideration the individual specialized courts were established) could be avoided inter alia by such legal regulation (of establishment of cognizance) when cases of certain categories may be considered only in the clearly specified courts of general jurisdiction or specialized courts and may not be considered in both, courts of general jurisdiction, as well as specialized courts, or in the specialized courts assigned for the consideration of cases of one category and specialized courts, assigned for the consideration of cases of another category (if there is more than one category of cases for whose consideration the individual specialized courts were established). It is important to note that disputes over jurisdiction between the court of general jurisdiction and the administrative court shall be settled by a special Chamber of Judges consisting of 4 judges : the Chairman of the Civil Division of the Supreme Court of Lithuania, the Vice-Chairman of the Supreme Administrative Court of Lithuania and 2 judges, appointed by the Chairman of the Supreme Court of Lithuania and the Chairman of the Supreme Administrative Court of Lithuania (Part 3 of Article 21 of the Republic of Lithuania Law on Administrative Proceedings). Appeals regarding jurisdiction shall be lodged with the Chamber through the Supreme Administrative Court. The sessions of the Chamber shall be presided over by the Chairman of the Civil Division of the Supreme Court of Lithuania or by the judge appointed by him. The

ruling with regard to jurisdiction over the case shall be final.

2. The right of access to a court and to effective judicial protection, the right to an effective judicial remedy

Paragraph 1 of Article 30 of the Constitution establishes that “The person whose constitutional rights or freedoms are violated shall have the right to apply to court”. The Constitutional Court, while construing the provisions of Paragraph 1 of Article 30 of the Constitution, has held that by these provisions the right of a person to judicial defence of his violated rights and freedoms is established and that every person has such a right (Constitutional Court ruling of 8 May 2000). The right of a person to apply to court is an absolute one (inter alia Constitutional Court rulings of 30 June 2000, 17 August 2004, 29 December 2004, 7 February 2005, 16 January 2006, and 9 May 2006). The right of a person to apply to court may not be limited or denied, since this would give rise to a threat for one of the most important values of a state under the rule of law. The rights of the person must be defended not formally, but in reality and effectively from unlawful actions of both private persons and state institutions or officials (inter alia Constitutional Court rulings of 1 October 1997, 8 May 2000, 12 July 2001, 17 August 2004, and 29 December 2004). The right of a person to apply to court and the requirement arising from the Constitution, inter alia the provisions of Paragraph 1 of Article 30 and Paragraph 6 of Article 31 thereof, to defend the rights of a person not formally, but in reality and in an efficient manner inter alia means that the legislator must establish such legal regulation, which would create preconditions for effective legal assistance rendered by an advocate, which the person can use in the course of protection of his violated rights and legitimate interests, inter alia while applying to court.

According to Article 5 of the Republic of Lithuania Law on Administrative Proceedings the right to lodge a complaint (application) concerning an administrative act adopted by an entity of public or internal administration or about the said entity’s act (or omission) shall be vested in every person believing his/her rights or lawful interests have been infringed upon.

However, according to Constitution (Article 106) only exceptional applicants can apply to the Constitutional Court : they

are the Government, not less than 1/5 of all the Members of the Seimas, and the courts (inter alia administrative courts).

The function of administration of justice determines the independence of the judge and courts, which is one of the essential principles of a democratic state under the rule of law : courts, while administering justice, must ensure the implementation of the rights established in the Constitution, the laws and other legal acts, to guarantee the supremacy of law, and to protect human rights and freedoms. The independence of judges and courts is not an end in itself : this is a necessary condition of protection of human rights and freedoms, not a privilege but one of the main duties of a judge and courts arising from the right (guaranteed in the Constitution (inter alia Paragraph 2 of Article 109 in which it is established that while administering justice the judge and courts shall be independent, as well as in Paragraph 1 of

Article 30, in which it is established that the person whose constitutional rights or freedoms are violated shall have the right to apply to court)) of every person who thinks that his rights or freedoms are violated to an independent and impartial arbiter of the dispute, which, under the Constitution and laws, would in essence solve the dispute at law (Constitutional Court rulings of 6 December 1995, 1 October 1997, 21 December 1999, 8 May 2000, 12 February 2001, 12 July 2001, 4 March 2003, 17 August 2004, 29 December 2004, 16 January 2006, 28 March 2006 and 9 May 2006). The autonomy and independence of the judicial power from other branches of state power are determined by the fact, that differently than other branches of state power, it is formed not on the political, but on the professional basis (Constitutional Court rulings of 21 December 1999, 12 July 2001, Constitutional Court conclusion of 31 March 2004, Constitutional Court rulings of 28 March 2006 and 9 May 2006).

The Constitution, the Law on Courts and other laws provide for the complex of safeguards guaranteeing the independence of judges and court. According to the detailed interpretation of the independence of judges and the court established in Part 2 of Article 109 of the Constitution and set forth in the Law on Courts and other laws of Lithuania, the following three groups of safeguards may be conditionally identified among the safeguards guaranteeing the independence of judges : a) those guaranteeing the security of tenure, b) guaranteeing personal immunity of a judge, and c) those securing social (material) guarantees of judges.

a) A judge who is fulfilling his duties conscientiously, is guaranteed by Article 115 of the Constitution that he will not be dismissed from the office on the grounds other than specified in this article (upon expiration of his tenure or reaching pensionable age as determined by law, for reasons of health and other). The security of the tenure is important since it permits the judge to remain independent from the government of the day and avoid the pressure to accommodate to the likely change of political power. On the other hand, Article 115 of the Constitution envisages two specific cases which constitute the grounds for dismissal of judge from the office : if his behaviour discredits his position as judge, and when judgement imposed on him by court comes into force. It means that judges must meet very strict professional and ethics requirements. Behaviour of judges in and outside the office should raise no doubt about

their independence.

b) Part 2 of Article 114 of the Constitution says that judges may not have legal actions instituted against them, nor may they be arrested or restricted of personal freedom without the consent of the Seimas, or in the period between sessions of the Seimas, of the President of the Republic of Lithuania. Article 116 maintains that if the Chairperson (President) or judges of the Supreme Court or the Court of Appeals grossly violate the Constitution, break their oath, or are found guilty of an offence, the Seimas may remove them from office according to impeachment proceedings. On the other hand, the judicial immunity also comprises their personal immunity from attempts to exert influence on them from outside. Article 114 of the Constitution establishes the liability for any attempts to prevent judges from conducting a fair and impartial hearing of the case and Article 298 of the Criminal Code specifies that any such actions shall incur criminal liability.

c) Being arbiters of legal disputes, judges must be not only qualified professionals and have authority, but also be independent materially. For that end, laws of many countries provide for a separate procedure for establishment of salaries or various additional payments for judges on the basis of a uniform criterion. Usually their remuneration is of significantly higher amount than that of the officials. This tradition used to be practised in Lithuania as well. Higher salaries of the judges had been established by a separate law.

3. The right to an adversarial proceedings and the principle of “equality of arms” between the parties

The cases shall be heard according to the adversarial principle in courts (Part 1 of Article 34 of the Law on Courts). The equality of rights of parties to the case in administrative proceedings is based upon the constitutional principle that all persons shall be equal before the law, the court and other institutions and officials (Part 1 of Article 29 of the Constitution, Article 6 of the Law on Administrative Proceedings). This principle is formulated in administrative process in this way : the parties to the case have equal procedural rights (Part 1 of Article 53 of the Law on Administrative Proceedings). Parties to the proceedings have the right to get familiar with the materialo of the case, make extractions, duplicates, and copies from it, decclare removals, provide evidence, participate in the investigation of evidence, give questions to other parties to the case, as well as to witnesses ans experts, make requests, give explanations, provide their own argumentsand reasoning, object to requests, arguments and reasoning of other persons participating in the case.

However, there are some specific cases when it needs to investigate secret materials. Secret materials can not usually be evidence (Part 3 of Article 57 of the Law on Administrative Proceedings), but if they are declassified they may be evidence.

4. The right to a reasoned decision

The Constitutional Court emphasized (16 January 2006 ruling) :
„The constitutional imperatives that only the courts administer justice, that law cannot be not public, as well as the requirement arising from the Constitution to consider the case justly, also imply that every court judgement (or another final act of the court) must be based on legal arguments (reasoning). The argumentation must be rational : the court judgement (or another final act of the court) must contain as many arguments so that it is sufficient to ground the court judgement (or another final act of the court). In this context it needs to be noted that the requirement of legal clarity, which arises from the constitutional principle of a state under the rule of law, inter alia means that a court judgement (or another final act of the court) cannot contain any concealed arguments, nor any non-specified circumstances, which are important for the adoption of a just court judgement (or another final act of the court). Court judgements (other final acts of the court) must be clear to the persons participating in the case as well as other persons. If this requirement is disregarded, then this is not the administration of justice which is entrenched in the Constitution.
While construing Article 109 of the Constitution in the context of the requirements of legal clarity, legal certainty, and legal publicity, as well as the requirement to ensure human rights and freedoms, which arise from the constitutional principle of a state under the rule of law, it needs to be noted that administration of justice implies also that a court judgement (or another final act of the court) is an integral legal act in which the ruling part is grounded on the arguments set forth in the part of reasoning. This inter alia means that when the court judgement (or another final act of the court) is officially published, it must contain all arguments upon which
it is grounded, that the arguments (or part thereof) of a court judgement (or another final act of the court) cannot be submitted by the court after the official publishing of the court judgement (or another final act of the court), and that after the official publishing of the court judgement (or another final act of the court), the court may not change or otherwise correct its arguments.
In this context it needs to be noted that if a court judgement (or another final act of the court) was announced officially, which is not grounded on legal arguments or which is grounded only on certain part of the arguments, and the remaining part of the arguments is made public after the official announcing of the court judgement (or another final act of the court), justice would not be administered-there would always be a reasonable doubt that such arguments only seek to justify the court judgement (or another final act of the court) that was adopted a priori.
Under the Constitution, the legislator enjoys powers to establish reasonable terms within which a reasoned court judgement (or another final act of the court) must be announced, and, if necessary, to establish exceptions to the establishment of general rules.
It needs to be noted that the said requirements concerning the reasoning of the judgement (or another final act of the court), its announcing and terms are applicable mutatis
mutandis not only to the criminal procedure, but also to other types of legal proceedings.“
If decision is not based on legal arguments, it is not valid (5 paragraph of 2 Part of 142 Article of the Law on Administrative Proceedings) because the execution of justice is treated as fictional. So the court of appeal can not correct decision of the first instance court which is without legal arguments – the case must be put back to reinvestigation.

5. A judicial decision made within a reasonable time-limit

The principle of speedy (concentrated) process is very important. „Slow“ justice is not effective, although, doubtless to say, unreasonable haste of the court ussualy means an adoption of a deficient decision.
Strictly definite terms of the preliminary investigation of cases and the judicial investigation are established in the Law on Administrative Proceedings. Preparation to investigate the case in the administrative court must be completed within 1 month from the day of receipt of the complaint (application) in court (Part 2 of Article 65 of the Law on Administrative Proceedings). The hearing of an administrative case in the administrative court must be completed and a judgement must be passed in the court within 2 months from the day of adoption of the ruling to designate case to hearing (Part 3 of Article 65 of the Law on Administrative Proceedings). As necessary, the above general time limit may be extended by a justified court ruling, but only for a period not in excess of 1 month, whereas in cases where the legality of regulatory administrative enactments is contested - not in excess of 3 months (Part 4 of Article 65 of the Law on Administrative Proceedings).

II The influence of principles of European law in the evolution of administrative law in Lithuania
The EU law principles as ius non scriptum are constitutional principles of the Republic of Lithuania. They are principles of administrative law as well (some of them even are incorporated in legal statutes).

6. The principle of legality and the respect for fundamental rights

Any law or other act, which is contrary to the Constitution, shall be invalid (Part 1 of Article 7 Of the Constitution). From the constitutional principle of a state under the rule of law and other constitutional imperatives arises the requirement to the legislator to pay heed to the hierarchy of legal acts which originates from the Constitution. This requirement inter alia means that it is prohibited to regulate the public relations by legal acts of lower power, which may be regulated only by legal acts of higher power, it also means that it is prohibited to establish in legal acts of lower power any such legal regulation, which would compete with the one established in the legal acts of higher power. Within the context of the constitutional justice case at issue it is worth emphasising that by a substatutory legal act norms of the law are realised, therefore such a substatutory legal act may not replace the law itself or create any new legal norms of general character which would compete with the norms of the law, as thus the supremacy of laws in respect to substatutory acts which is established in the Constitution would be violated (Constitutional Court ruling of 21 August 2002) ; it is also to be stressed that substatutory legal acts cannot be in conflict with laws, constitutional laws, and the Constitution, that substatutory legal acts must be adopted on the basis of laws, that a substatutory legal act is an act of application of legislative norms irrespective of whether this act is of one-time (ad hoc) application, or of permanent validity.
The constitutional principle of a state under the rule of law implies various requirements for the legislator and other law-making entities ; the law-making entities may pass legal acts only without exceeding their powers ; the requirements established in legal acts must be based on the provisions of general type (legal norms and principles) which can be applied in regard to all the specified subjects of respective legal relations ; in order to ensure that the subjects of legal relations know what the legal norms require from them, the legal norms
must be established in advance, the legal acts must be published officially, they must be public and accessible ; the legal regulation established in laws and other legal acts must be clear, easy to understand, consistent, formulas in the legal acts must be explicit, consistency and internal harmony of the legal system must be ensured, the legal acts may not contain any provisions, which at the same time regulate the same public relations in a different manner ; in order that subjects of legal relations could orient their behaviour according to the requirements of law, the legal regulation must be relatively stable ; the legal acts may not require the impossible (lex non cogit ad impossibilia) ; the power of the legal acts is prospective, while retrospective validity of the laws and other legal acts is not permitted (lex retro non agit) unless the legal act mitigates the situation of the subject of legal relations and does not injure other subjects of legal relations by the same (lex benignior retro agit) ; violations of law, for which liability is established in legal acts, must be clearly defined.

According to 3 Article of the Republic of Lithuania Law on Public Administration the supremacy of law as law principle means that that the powers of entities of public administration to engage in public administration must be stipulated in legal acts, and their activities must comply with the legal principles laid down in this Law. Administrative acts related to the implementation of rights and duties of persons must in all cases be based on laws. Absence of abuse of power as law principle means that entities of public administration shall be prohibited from performing the functions of public administration without the powers of public administration granted in accordance with the procedure laid down by this Law or from taking administrative decisions seeking to attain purposes other than those prescribed by laws or other regulations (also see 24 August 2012 decision of the Supreme Administrative Court).

7. The principles of supremacy and direct effect of European Union law :

On 13 July 2004, the Seimas adopted the Law on Supplementing the Constitution of the Republic of Lithuania with the Constitutional Act "On Membership of the Republic of Lithuania in the European Union" and Supplementing Article 150 of the Constitution of the Republic of Lithuania, by Article 1 whereof it supplemented the Constitution with the Constitutional Act of the Republic of Lithuania "On Membership of the Republic of Lithuania in the European Union", which is a constituent part of the Constitution (Article 150 of the Constitution). The said Constitutional Act came into force on 14 August 2004. Thereby the membership of the Republic of Lithuania in the European Union was constitutionally confirmed (Constitutional Court ruling of 13 December 2004).
Under Paragraph 2 of the Constitutional Act "On Membership of the Republic of Lithuania in the European Union", the norms of the European Union law shall be a constituent part
of the legal system of the Republic of Lithuania, and where it concerns the founding Treaties of the European Union, the norms of the European Union law shall be applied directly, while in the event of collision of legal norms, they shall have supremacy over the laws and other legal acts of the Republic of Lithuania.
Thus, the Constitution consolidates not only the principle that in cases when national legal acts establish the legal regulation which competes with that established in an international treaty, then the international treaty is to be applied, but also, in regard of European Union law, establishes expressis verbis the collision rule, which consolidates the priority of application of European Union legal acts in the cases where the provisions of the European Union arising from the founding Treaties of the European Union compete with the legal regulation established in Lithuanian national legal acts (regardless of what their legal power is), save the Constitution itself. (14 March 2006 ruling of the Constitutional Court).

8. The principle of subsidiarity

According to 3 Article of the Republic of Lithuania Law on Public Administration subsidiarity as law principle means that the decisions of entities of public administration must be adopted and implemented at the most efficient level of public administration system (also see 24 August 2012 decision of the Supreme Administrative Court).

9. The principle of transparency

According to Part 1 of Article 3 of the Republic of Lithuania Law on Civil Service the civil service in the Republic of Lithuania shall be based on the principles of the rule of law, equality, loyalty, political neutrality, transparency, responsibility for the decisions taken and career development.
It is universally recognised that transparency, as the principle of the activity of the institutions of public power and officials, implies the imparting of information and communication, openness and publicity (inasmuch as it does not harm other values protected by law), accountability to the corresponding community and responsibility for decisions adopted by the officials who adopt the said decisions, as well as the fact that the adopted decisions must be grounded and clear and that one could, if need may be, rationally reason these decisions ; other persons must have the possibility to dispute these decisions under the established procedure. Transparency is to be linked to participation democracy, freedom of information and the possibility for the citizens and other persons to criticise the activity of the institutions of power. The transparency of the state service is a necessary precondition against consolidation of corruption and protectionism, against discrimination of some persons and granting privileges to others, against abuse of power, thus, also a necessary precondition for the people to trust the institutions of public power and the state in general (22 January 2008 ruling of the Constitutional Court).

10. The principle of public participation

Constitutional principle that law can not be nonpublic draws even some imperative norms providing that society participates in public administration. For example, according to Article 30 of the Republic of Lithuania Law on Territorial Planning the procedures ensuring publicity of territorial planning (publication of the decision on the beginning of the preparation of planning documents and planning targets, consulting, public hearing, provision of information, etc.) shall be carried out by the organiser of planning ; the general and simplified procedure of the participation of the public in the territorial planning process shall be regulated by the Regulations of Consulting, Public Hearing, approved by the Government. The general and simplified procedure of hearing of the public participation in the process of territorial planning shall be set taking into account the levels and types of the territorial planning documents.

11. The principle of equality and non-discrimination

Paragraph 1 of Article 29 of the Constitution consolidates formal equality of all persons, and Paragraph 2 of this article – the principle of non-discrimination and not granting of privileges. In its rulings of 28 February 1996 and 17 November 2003, the Constitutional Court held that the constitutional principle of equality of persons should be applied not only to natural, but also to legal persons.

12. The principle of proportionality

According to 3 Article of the Republic of Lithuania Law on Public Administration proportionality as the law principle means that the scope and the implementation measures of an administrative decision must conform to the necessary and reasonable goals of administration (also see 24 August 2012 decision of the Supreme Administrative Court).
When setting legal restrictions and liability for violations of law, legislature must pay heed to the requirement of reasonableness and the principle of proportionality, according to which the established legal measures are to be necessary in a democratic society and suitable for achieving legitimate and universally important objectives (there must be a balance between the objectives and measures), they may not restrict the rights of the person more than it is necessary in order to achieve the said objectives, and if these legal measures are related to the sanctions for the violation of law, in such case the aforementioned sanctions must be proportionate to the committed violation of law.

13. The precautionary principle

Paragraph 2 of article 191 of the Lisbon Treaty states that "Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay”.
According to 23 Article of the Republic of Lithuania Law on Environmental protection persons must comply with the waste management requirements set forth by laws of the Republic of Lithuania and other legal acts ; waste management expenses shall be paid by the polluter.

14. Protection of legitimate expectations and the principles of legal certainty and good faith

In its rulings the Constitutional Court has held more than once that the principle of a state under the rule of law which is entrenched in the Constitution, in addition to other requirements also implies that human rights and freedoms must be ensured, that all the institutions implementing state power and other state and municipal institutions, and all the officials must act on the basis of law and must obey the Constitution and law, that the Constitution bears the supreme legal power, and that all the legal acts must be in compliance with the Constitution. Inseparable elements of the principle of a state under the rule of law are the protection of legitimate expectations, legal certainty and legal security. The principle of legal security is one of the basic elements of the entrenched in the Constitution principle of a state under the rule of law, which means the obligation of a state to ensure the certainty and stability of the legal regulation, to protect the rights of the subjects of legal relations, as well as the acquired rights, to respect the legitimate interests and legitimate expectations. If the protection of legitimate expectations, legal certainty and legal security were not ensured, the trust of the person in the state and law would not be guaranteed. The state must fulfil all its obligations to the person.
In its rulings of 4 July 2003 and 3 December 2003, the Constitutional Court held that one of the elements of the principle of legitimate expectations is the protection of rights which were acquired under the Constitution as well as laws and other legal acts which are not in conflict with the Constitution. It needs to be noted that, according to the Constitution, only those expectations of the person in relationships with the state are protected and defended, which arise from the Constitution itself or from the laws and other legal acts that are not in conflict with the Constitution. Only these expectations of the person in relationships with the
state are considered legitimate.
The constitutional protection of legitimate interests of the person is to be construed inseparably from the entrenched in the Constitution principle of justice, the entrenched in the Constitution protection of the acquired rights, the necessity to ensure the trust of a person, who obeys law and follows the requirements of the laws, in the state and law. The trust of the person in the state and law as well as the protection of legitimate interests, as constitutional values, are inseparable from the constitutionality of legal acts and presumption of legitimacy. Legal acts (parts thereof) are considered to be in compliance with the Constitution and legitimate until the
moment, when, upon the procedure established by the Constitution and the Law on the Constitutional Court, they are recognised as being in conflict with the Constitution (substatutory legal acts-as being in conflict with the Constitution and/or the laws). Thus, until the moment when legal acts (parts thereof), upon the procedure established by the Law on the Constitutional Court, are recognised as being in conflict with the Constitution (substatutory legal acts-as being in conflict with the Constitution and/or the laws) or until the moment when, upon the established procedure, they are recognised as no longer effective, the legal regulation established therein is compulsory for respective subjects of legal relations. The person who obeys law, who follows the requirements of the laws, is protected and defended by the Constitution. A failure to pay heed to this provision would mean a deviation from the principle of justice which is enshrined in the Constitution as well.
It is to be stressed that there may be factual situations, where the person who meets the conditions established in legal acts, under the said legal acts acquired particular rights and therefore gained expectations, which could be considered by this person to be reasonably legitimate during the period of validity of the said legal acts, therefore, he could reasonably expect that if he obeys law, and fulfils the requirements of the laws, his expectations will be held legitimate by the state and will be defended and protected. Even the legal acts which, on the basis and upon the procedure established in the Constitution and the laws, are later recognised as being in conflict with the Constitution (substatutory legal acts-as being in conflict with the Constitution and/or the laws), may give rise to such expectations. It is worth noticing in this context that there may also be factual situations, where the person has already fulfilled his rights and obligations arising from the legal act which was later recognised as being in conflict with the Constitution (substatutory legal acts-as being in conflict with the Constitution and/or the laws) in regard to other persons and after that, due to this, the aforementioned other persons gained particular expectations, the defence and protection of which by the state they could reasonably expect, as well. It should be especially stressed that in certain cases quite a long period of time may pass from the moment of appearance of such expectations and recognition of respective legal acts as being in conflict with the Constitution (substatutory legal acts-as being in conflict with the Constitution and/or the laws). The imperative of the balance between the constitutional values, the constitutional requirements of legal certainty and legal security, the enshrined in the Constitution protection of the acquired rights, and the presumption of constitutionality and legitimacy of legal acts pre-determines inter alia the fact that the Constitution generally does not prevent from protecting and defending in certain special cases also such acquired rights of the person arising from the legal acts recognised later as being in conflict with the Constitution (substatutory legal acts-as being in conflict with the Constitution and/or the laws), which, if not defended or protected, would result in greater harm to the person, other persons, society or the state, than the harm inflicted in case of total non-defence or non-protection or partial defence or protection of the said rights. When deciding whether the acquired rights gained by the person during the period of validity of the legal act which was recognised later as being in conflict with the Constitution (substatutory legal acts-as being in conflict with the Constitution and/or the laws) are to be protected and defended or not (and if so, to what extent), in each case it is necessary to find out whether in case of failure to protect and defend such acquired rights, other values protected by the Constitution would not be violated, and whether the balance between the values entrenched in and protected and defended by the Constitution would not be disturbed. Upon recognising the legal acts as being in conflict with the Constitution (substatutory legal acts-as being in conflict with the Constitution and/or the laws) and, due to this, certain persons
who have obeyed law, followed the laws and respected the state and its law before the said recognition can suffer negatyve consequences, while the legislator bears the constitutional duty to evaluate all the circumstances related with this and, if necessary, establish such legal regulation, which would provide an opportunity in the aforementioned extraordinary cases to fully or partially protect and defend the acquired rights of the persons who obeyed law and followed the requirements of the laws, arising from the legal acts which were later recognised as being in conflict with the Constitution (substatutory legal acts-as being in conflict with the Constitution and/or the laws), so that the enshrined in the Constitution principle of justice would not be deviated from, too.
By the same it is worth stressing that the Constitution does not protect and defend the acquired rights of persons which are privileges in their essence ; the protection and defence of privileges would mean that the constitutional principle of equal rights of persons and the constitutional principle of justice, the imperative of a harmonious civil society enshrined in the Constitution, and, therefore, the constitutional principle of a state under the rule of law, are violated.

15. The principle of responsibility

According to Part 1 of Article 3 of the Republic of Lithuania Law on Civil Service the civil service in the Republic of Lithuania shall be based on the principles of the rule of law, equality, loyalty, political neutrality, transparency, responsibility for the decisions taken and career development.

2nd day
Implementation of the EC Recommendation (2010)12 on judges : independence, efficiency and responsibilities (Adopted by the Committee of Ministers on 17 November 2010)

Thus, because the EC Recommendation (2010)12 on judges was adopted only on 17 November 2010, we will present the most recent problems concerning judges independence in Lithuania. This is problem on pensions of judges. The Constitutional Court on 29 July 2010 (came into force on 16 November 2010) adopted ruling and ruled that some norms of the Republic of Lithunia Law on the State Pensions of Judges were in conflict with the Constitution. However, until now legislature didn‘t adopt new statute concerning pensions of judges.