Lisbon 8-9 June - Lay judges in Administrative Courts
Do you have lay judges in your countries? ( If not: 1. What is the reason for this? 2. If your country has lay judges in general courts you may describe that system instead.)
No, there are no lay judges in Lithuania. There used to be such judges during Soviet times, but since Lithuania is independent, lay judges were removed from the judiciary. Reasons are most likely political and economic. Nevertheless there is a proposal to change the Law on Courts of Lithuania and to introduce lay judges in certain cases from 1st January, 2014. In the meantime this is only the draft of the amendment of the Law which will be under consideration till an adoption or the rejection. Although there is a huge support from the courts, but nonetheless the draft of the law is still under criticism from different points of view. There will be the project described further.
In what kind of courts? Which instances?
Following the proposal, lay judges would participate in proceedings of the first and appellate instances of general jurisdiction and administrative courts . Cases, in which participation of lay judges would be possible, are following:
criminal cases, upon the request of the defense, when the accused is a minor;
criminal cases, upon the request of the defense, when there is a possibility of a sentence of imprisonment for life according to provisions of the Penal Code of the Republic of Lithuania ;
criminal cases in corruption-related crimes;
civil proceedings on the protection of honour and dignity, if both parties request it or at the request of one party with the consent of other party;
civil and administrative proceedings in disputes regarding protection of public interest;
administrative proceedings on the decisions of Chief Official Ethics Commission.
How are the lay judges nominated? Politically or in other ways?
Firstly, the lists of lay judges would be composed. To participate as a lay judge in a particular case a person shall be appointed from a the list of the district’s lay judges.
The lists of districts lay judges shall be composed for 4 years out of the people, which declared their residence within the territory of an appropriate district court. The list shall be administered by the National Courts Administration according to the procedure established by the Judicial Council except in the cases provided by this law. The number of the lay judges in every list of Districts lay judges shall be established by the Judicial Council. A list of lay judges shall be compiled by the National Courts Administration randomly selecting persons on the basis of the public register of the Republic of Lithuania of citizens of the Republic of Lithuania above the age of 21 and below the age of 65, who have declared their permanent residence within the territory of an appropriate district court. The National Courts Administration enters the person to the list of lay judges after verifying that there are no circumstances mentioned below and after receiving a consent of the candidate to perform the duties of the lay judge and following a completed declaration specified by the National Courts Administration of conformity with the requirements for lay judges. The National Courts Administration is entitled to receive all the relevant information for inspection from state and municipal institutions, public registers and other persons.
A person shall not be appointed as a lay judge, which:
is below the age of 21 years or is older than 65 years of age;
is a legally incapable person or a person of limited active capacity;
does not know the Lithuanian language;
does not have a secondary education;
the person abuses narcotic, toxic, psychotropic substances or alcohol;
under an effective court judgment has been found guilty of commission of a criminal offence;
the person has been convicted of an administrative offense and from the date of the execution of an administrative penalty ended, less than one year have passed;
the person was removed from the lists of lay judges because of failure to comply with duties of lay judges or improper performance of duties;
has been dismissed from the office of a judge, a prosecutor, an advocate, a notary, a bailiff for professional misconduct or misconduct in office or dismissed from the office of a civil servant and less than five years have passed from the date of dismissal;
The person is a state politician, a public official, a statutory public servant, a judge, a prosecutor, an advocate, member of the personnel of a court or other law enforcement institution or a public servant, a servicemen in professional military service or carry out mandatory military service or the alternative national defense service;
does not have a citizenship of the Republic of Lithuania;
has not declared permanent residence in the Republic of Lithuania.
A person is removed from the list of district lay judges in these cases:
when the abovementioned circumstances are established;
when the prosecution of a person is started;
on the advice of the president of a court, when a person fails to comply with or properly perform the duties of a lay judge in court proceedings.
A person, entered into a list of lay judges is able to submit a written request to the National Courts Administration to remove him from the list of lay judges. The person must carry out the duties of a lay judge before the end of the proceedings if he has been selected as a lay judge in a particular case, except the cases he is not able to attend due to important reasons. The decision on the release of a lay judge from participating in further proceedings is adopted by the court hearing the case.
Later the selection of a lay judge to participate in a particular case would be proceeded. The president of a court, hearing a particular case, organizes a selection of lay judges. Lay judges are selected randomly from a list of district lay judges using an information system of the court. To ensure the smooth functioning of the proceedings a higher than the prescribed number of lay judges are selected upon the recommendation of the Council of Judges.
The selected lay judges must attend the first hearing of a case. During the hearing of a case, the court regarding to the parties grounded opinions on the eligibility of the selected lay judges to carry out their duties and the existence of abovementioned circumstances, appoints the lay judges who will participate in the proceedings. Due to important reasons, the court may appoint substitute lay judges and set the terms and procedures of their participation in the proceedings if the proceedings can be lengthy and etc.
The same person may be appointed as a lay judge no more than for ten hearings a year. A higher performance of a lay judge may be admissible by the decision of the president of a court only due to the important reasons, especially when there is a need to end the proceedings, to which the lay judge has been appointed
How many lay judges serve in the same bench?
Abovementioned categories of cases would be heard in the presence of two lay judges.
On the failure of lay judges to attend a court hearing, the court may postpone a court hearing or decide to proceed with the trial without the lay judge, after assessing the causes of the absence and the parties’ opinions on the opportunities to proceed court hearing without lay judges. If a substitute lay judge had been appointed in the case, by the court’s decision, the substitute lay judge replaces the lay judge, who failed to appear in a court hearing. The court may impose a fine on a lay judge of up to 1000 litas for the failure to attend the court hearing without any serious reasons.
What is the purpose with the lay judges? (To represent the public, to possess local knowledge, to have special competence, other?)
According the proposal, the activity of lay judges is based on the principles of voluntarism, transparency, impartiality and independence.
They will have a duty to express the opinion on the merits of the case according to the inner conviction. Therefore it is announced that the presence of lay judges in certain cases would involve the society into the courts system and increase its confidence in courts.
Do they swear an oath?
Do they have an individual vote?
No, they don’t. According the proposal, there are two alternatives of the role of lay judges established:
First alternative: the lay judge shall express his opinion on the merits of the case orally, before the court retires to the conference room. The opinion shall be recorded in the minutes of the court hearing. The judge to the court decision shall involve the assessment of the opinion of the lay judge and in the case of disagreement with the opinion the judge shall set out the opposite arguments.
Second alternative (necessary amendment to the Constitution of the Republic of Lithuania): the lay judge shall express his opinion on the merits of the case to the judge hearing the case at the deliberation room. The judge shall involve the opinion of the lay judge to the court decision and in the case of disagreement with the opinion; the judge shall set out the opposite arguments. The lay judge disagreeing with the decision is entitled within three working days after the pronouncement of the decision to announce his individual opinion on the decision and on the merits of the case.
The court may impose a forfeit to the lay judge, who violated the procedure during the court hearing. The fact about an imposed forfeit to the lay judge shall be reported to the National Courts Administration and the person shall be removed from the list of districts lay judges. The removal from the list shall not excuse the lay judge from a performance of the duties of a lay judge in that concrete trial to which the lay judge was appointed.
Can they overrule the professional judge?
Is there any discussion going on in your country concerning the role of the lay judges?
Following the Supreme Administrative Court position, the lay judges should participate only hearing the certain cases in the courts of first instances (in order to ensure the unified development of doctrine and to shorten the terms of case hearings as lay judges will take more time to go into the case).
Also it could be discussed if disputes, concerning urbanization, building sites and environmental cases should be included into the list of cases where the possibility of participating of lay judges would be established.
One can also find public opinions, that lay judges will cost a lot for the state (as they would be entitled for judge’s salary for the time participating in the hearings) and will not be effective, as they would not be able to overrule the position of the professional judge(s).
What is your personal experience of working with lay judges?
Do you have others, besides the professional judges, who may take part in the adjudication process, like experts in different fields?
In the administrative courts two types of other participants of the case could be involved: specialists and experts.
Specialist could be invited by the administrative court when the special knowledge is needed for evaluation, examination and investigation of documents, materials and actions.
Experts are invited by the judge or the court in case an expertise in certain science, art, technics or trade sphere is required. Conclusion of an expert is not binding to the court.