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QUESTIONNAIRE:

In connection with the General Assembly of AEAJ in Lisbon the Working Group Independence and Efficiency will discuss the system with lay participation in the Administrative courts. We will therefore ask a representative from each country to give an oral representation at the WG meeting based on the following questions:

1°) 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.)

2°) In what kind of courts? Which instances?

3°) How are the lay judges nominated? Politically or in other ways?

4°) How many lay judges serve in the same bench?

5°) What is the purpose with the lay judges? (To represent the public, to possess local knowledge, to have special competence, other?)

6°) Do they swear an oath?

7°) Do they have an individual vote?

8°) Can they overrule the professional judge?

9°) Is there any discussion going on in your country concerning the role of the lay judges?

10°) What is your personal experience of working with lay judges?

11°) Do you have others, besides the professional judges, who may take part in the adjudication process, like experts in different fields?

 

SYNTHESIS

28 participants coming from 14 countries: Austria, Croatia, Estonia, Finland, France, Germany, Greece, Italy, Lithuania, the Netherlands, Portugal, Romania, Slovenia, Sweden.

A lay judge is a person assisting a judge in a trial. Lay judges are appointed, and often require some legal instruction. Lay judges are usually used when the country does not have juries. Lay assessor is also used alternatively with "lay judges" as the English term for laymen participating in judging in courts within the judicial system of Sweden (Swedish:nämndeman).

“Lay judges in Administrative courts”: this topic is connected with the concepts of independence and efficiency.

There are lay judges in Administrative courts in Europe only in Germany and Sweden. It is an important tradition in those two countries. And there is a draft law about that in Lithuania.

In other countries, there are sometimes lay judges but only in some civil or criminal courts:

  • in civil, labour and commercial courts;
  • in criminal courts: especially through the system of the “jury” (not in The Netherlands) ;

Usually there are lay judges alone or in a panel with professional judges only at the first instance level, but not at the second instance (appeal and cassation).

Why this difference between administrative courts and ordinary courts? It is not easy to give only one explanation. In some countries, like in France, administrative public cases are considered as to be very important cases for the state, much more than the private cases. On the contrary, ordinary judges are sometimes regarded with suspicious by the executive and legislative power. And lay judges are in practice reducing the influence of the judiciary.


Austria

As far as Austria is concerned we dont have any direct lay-participation in the administrative sector (in some rare cases we have experts integrated within the deciding panels of the administration). Maybe that there will be some lay pariticipation in deciding panels, when we introduce new administrative courts of first instance in 2014 (The lay-participation is only foreseen in severe criminal cases and in some civil-right-cases similar as in Germany).


Croatia

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.)

In administrative courts in the Republic of Croatia there are no lay judges at all. Until 1st January 2012 in the Republic of Croatia was only one Administrative court as the court of the state level and the court of the first and the last instance. This court has originated from the Supreme court. As a consequence of a new jurisdiction reform from 1st January 2012 we have four first instance courts and High administrative court (to which Administrative court of the Republic of Croatia was transformed). As lay judges have never been involved in administrative jurisdiction, there are no lay judges in administrative jurisdiction now.

In what kind of courts? Which instances?

In general courts we have got lay judges but only in the first instance courts (civil and criminal). There are also lay judges in specialized commercial courts.

How are the lay judges nominated? Politically or in other ways?

Any citizens of the Republic of Croatia who has reached the age of eighteen and who is worthy of performing the function of juror may be appointed a juror. Jurors shall be appointed for a period of four years, and may be re-appointed.

Jurors of municipal courts, commercial courts and county courts shall be appointed by the County Council or the City Assembly of the City of Zagreb on the basis of nominations by municipal councils, city councils, trade unions, Employers’ Associations and the Chamber of Commerce.

Jurors of other courts shall be appointed by the Parliament of the Republic of Croatia on the basis of nominations proposed by the Minister of Justice in such a way that the proportional representation of all counties shall be provided for.

Regarding the nominees for jurors, the opinion of the President of a respective court shall be obtained before the appointment is made.

How many lay judges serve in the same bench?

Usually the bench consists of one professional judge and two lay judges.

What is the purpose with the lay judges? (To represent the public, to possess local knowledge, to have special competence, other?)

To represent the public.

Do they swear an oath?

Before assuming their function, jurors shall give the following solemn oath:

"I swear by my honour to perform the duty of a juror in accordance with the Constitution and laws of the Republic of Croatia, and to perform the juror’s duty conscientiously and impartially."

Jurors of municipal courts, commercial courts and county courts shall give the oath in front of the President of the County Assembly or the City Assembly of the City of Zagreb. Jurors of High commercial court of the Republic of Croatia shall give the oath in front of the President of the Parliament of the Republic of Croatia, or in front of a representative who may be designated by the President.

Do they have an individual vote?

Yes.

Can they overrule the professional judge?

It usually never happens.

Is there any discussion going on in your country concerning the role of the lay judges?

No.

What is your personal experience of working with lay judges?

As administrative court judge we have no experience 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 High administrative court we can engage law experts but only while reviewing the general acts. In administrative dispute concerning individual act there is no such possibility.


Estonia

 

Finland

 

France

1°) Do you have lay judges in your country?

Yes, not in administrative courts, only in some ordinary courts. But it is very interesting to study this topic also about France, not only the practice but mainly the theory.

2°) If not, what is the reason for this?

It is possible to explain the absence of lay judges in administrative courts in France by important historical reasons.

The French administrative courts system is completely separated from the ordinary courts. This separation is a very important principle in France, which have a constitutional value. And it is quite inconceivable to imagine that lay judges would be involved in the control of the executive and other public authorities (review of acts, liability, taxation, litigations, elections).

Main dates in the evolution of the review of administrative acts

The activity of the administrative courts were originally made by the administration itself. And the administrative judges were high civil servants (the members of the Council of State still have this statute).

If the principle of separation of the administrative and judicial authorities originates in the edict of Saint-Germain-en-Laye of February 1641, it was established, in its modern accepted meaning, by the revolutionary law of August 16 and 24, 1790. The creation, in Year VIII (1799), of the councils of prefecture and the Council of State, heir of the king’s council, completed the birth of French administrative justice. The French administrative court system has been built from the Council of State. The history of the Council of State and its evolution explains the evolution and the current characteristics of administrative justice in France.

The Council of State originates from the 13th century. The kings, who had the power to dispense justice and hand down judgments as the court of last resort, delegated this judicial power to royal courts and “parlements”. But the French king still retained the power to override them at will. Specifically, French kings maintained their privilege to decide major issues and hand down judgements when administrative acts were in dispute. The judgments of the King’s Council of State were regarded as being issued under the King’s residual proper jurisdiction (justice retenue), that is, the sovereign’s reserved power to dispense justice in certain matters.

The jurisdictional dualism rests on a specific conception of the state and the separation of powers and the purpose of the administrative court on the principle that ”to judge the administration is still to manage the administration”. This is the principle of separation of administrative and judicial authorities, which is the basis for the jurisdiction of administrative courts and not the separation of powers.


3°) Do you have others, besides the professional judges, who may take part in the adjudication process, like experts in different fields?

It is important to describe about the administrative courts system two other situations.

a) Inside the system of the Administrative courts: a sort of exception with the National court for asylum law

The National court for asylum law (Cour nationale du droit d’asile) is the French administrative court set up to review appeals from decisions of the National agency for Asylum (Office de Protection des Réfugiés et Apatrides - OFPRA), granting, refusing or withdrawing refugee status and subsidiary protection.

The Article L 731-1 of the French law code for rights of foreigners states: "The Commission on Refugee Board is an administrative court, under the authority of a president, a member of the Council State appointed by the vice president of the Council of State."

The chamber is chaired by a professional judge (or honorary), assisted by two assessors who are qualified persons.

One of the assessors, the "UNHCR assessor", seated to the left of the President and to the right of the rapporteur, is appointed by the United Nation Refugee Agency. This mechanism is not contrary to the principle that the judicial role acting "on behalf of the French people" can not be entrusted to a foreign body.

The other assessor, the «OFPRA assessor", seated at the right of the president and the secretary left) is a qualified person appointed by the Vice President of the Council of State on a proposal from one of the ministers represented in the board of OFPRA.

b) The Administrative committees

Administrative judges are presidents of many administrative committees which are not courts. Their composition consists of representatives of professions and administrative authorities. These committees are usually searching an amicable settlement in order to avoid litigation proceedings before an administrative court.

The most important is the departmental committee on taxes.

It occurs when disagreements persist between the administration and the taxpayer. Its role is to advise and to try to find a consensus between the administration and taxpayers (Article 59 of the code about Tax Procedures). This commission which is not a court is looking for a consensual solution to avoid future legal actions.

Under Article 1651 of the Tax Code: “The provincial board of direct taxes and taxes on sales is chaired by an administrative judge. It also includes three taxpayer representatives and two representatives of the administration having at least the rank of inspector. One of the representatives of taxpayers is an accountant. The chairman of this commission has a casting vote.”

3. If your country has lay judges in general courts, you may describe that system instead

20 000 lay judges are acting in certain specialized courts belonging to the ordinary courts system.

a) In civil courts

Lay judges are judging commercial and labor disputes.

Members of the commercial courts, known as “consular judges”, are elected by their peers as well as a complex two-stage procedure. This method of appointment gives those judges legitimacy on their experiences in commercial matters.

The judges of commercial courts are business men. They are designated by a two-stage election with their peers. The judges are elected by an electoral college composed of delegates consular and judges or former judges of the commercial court. Consular judges are themselves elected by and from the merchants which are on the register of commerce and companies. Those judges are elected for a period of four years. They can make up to four consecutive terms. They receive legal training provided by the National School of Magistrates.

Similarly, members of labour courts (Conseils de Prud’hommes) are appointed at professional elections held nationwide, every 5 years. If this method of electing councilors prud’homaux gives some representation, it does raise an issue under the requirement of impartiality. The labor judges are elected in two colleges: by the employees on one hand, and by the employers on the other. Each "college" (employers and employees) elects the same number of councilors.

b) In criminal courts

French criminal justice gives place to the jury: this system leads to entrust temporarily the power to judge to ordinary citizens. This method of appointment is based on a mystical principle: the jury embodies national sovereignty, which allows justice to be directly made by the people. The jury’s role is limited however in the French system in the judgment of the most serious offenses under the Assize Court (cour d’assise).

 

In the “Cour d’assises”, there are nine (in first instance proceedings) or twelve (in appeal proceedings) jurors sit around three professional judges. The judges’ opinion adds up to the one of the jury to definitely convict the defendant, with a majority of seven (in first instance) or nine (in appeal) needed in order to convict the defendant. During these procedures, judges and jurors have equal positions on questions of facts, while judges decide on questions of procedure. Judges and jurors have also equal positions on sentencing.

Finally, certain specialized courts have lay judges among their assessors appointed temporarily to the performance of their duties: the Juvenile Court consists of the following addition of a professional judge and two assessors appointed for four years by the minister of justice according to their interest in children’s issues and their competence in this field.


Germany

Cf PDF document.

Greece

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 the administrative courts in Greece. But lay judges exist in the criminal courts and in some specific cases in the Special Supreme Court, which is an arbitrary ad hoc Court, convened when there is conflicting case-law between the Council of State, the Court of Cassation and the Court of Audit.

In what kind of courts? Which instances?

Lay judges participate to criminal courts in the first and second instance, in a proportion of 4 to 3 with ordinary judges, when judging very serious crimes such as those against life, sexual crimes, human trafficking, drugs etc. In the above Special Supreme Court, 2 professors of Law take part in a 13 members chamber, in which members of the 3 above mentioned Supreme Courts participate as well.

How are the lay judges nominated? Politically or in other ways?

The lay judges are appointed for a specific term (one month) by lot, selected from the electoral list. The only prequisition is an age limit (30 years of age for the court of first instance and 40 years of age for the Court of Appeal and not older than 70). The President of the Republic, members of the Parliament, the Government, the Judiciary, mayors, diplomats, clerics of all religions, administrative staff of the Courts and criminal convicts are excluded by the above selection.

How many lay judges serve in the same bench?

There is always a catalogue of lay judges from which the participants in a specific session of the Court (usually 12 days) are notified to participate to the public hearing, where there is a further selection by lot for nominating the specific lay judges that will hear the cases of the day. The above mentioned Professors of Law are nominated by lot for a term of one year.

What is the purpose with the lay judges? (To represent the public, to possess local knowledge, to have special competence, other?)

The reason is the democratic principle of representing the public. In the case of Special Supreme Court is legal knowledge.

Do they swear an oath?

Yes, they do.

Do they have an individual vote?

Yes, they do.

Can they overrule the professional judge?

Yes, they can and in Greece many lawyers refer to the “4-3 majority” in criminal cases, which, some times, are overturned by the Court of Cassation for being badly justified.

Is there any discussion going on in your country concerning the role of the lay judges?

No.

What is your personal experience of working with lay judges?

None.

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.


Italy

 

Lithuania

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?

Above mentioned 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?

No.

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?

No.

Is there any discussion going on in your country concerning the role of the lay judges?

Yes. 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?

None.

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.

 

Unofficial translation of the Lithuanian draft law regarding the introduction of lay judges into the national judicial system

4 june 2012

The draft law has been prepared by the Ministry of Justice and has already received approval of the Government of Lithuania (the cabinet of ministers). It is presently awaiting examination and other relevant procedures before the Parliament. The draft law shows the direction, which Lithuania has chosen with regard to lay judges. However, this position, of course, might still be altered, discussed upon.

Draft Law

(Unofficial translation)

Law of the Republic of Lithuania on the Amendment of the Preamble of the Law on Courts of the Republic of Lithuania and Supplement of the Law with Part III1

2012 m. d. Nr.

Vilnius

 

(Žin., 1994, Nr. 46-851; 2002, Nr. 17-649)

Article 1. Amendment to the Preamble of the Law

To amend the preamble of the law as follows:

The Law on Courts shall establish the court system of the Republic of Lithuania, the jurisdiction, organisation, activities, administration and self-governance of courts, their principles, the status of judges, the procedure of selection of candidates to judges, appointment of judges, their promotion and liability, the social guarantees of judges, the requirements of the lay judges, the procedure of the acquisition of powers of the lay judges, the rights, duties and the social guarantees of the lay judges and other issues relating to courts.

Legal regulation of the organisation and activities of courts, legal regulation of the status of judges and lay judges and related issues shall be based on the universally recognised principles of law laid down in the Constitution of the Republic of Lithuania, other laws and international agreements to which the Republic of Lithuania is a party - respect for human rights and freedoms, the right of everyone to judicial remedy, to a fair and public hearing by an independent and impartial tribunal, the principles of separation of powers under which justice in the Republic of Lithuania is administered only by courts, the rule of law, independence of courts and judges, the autonomy of courts, their financial independence from other government institutions and decisions of the officials, self-regulation and self-governance of courts, other principles of court structuring, the status of judges and lay judges and judicial process.

Article 2. Supplement to the law with part III1

To complement the law with part III1

PART III1

LAY JUDGES

Article 1011. Foundations of activity of lay judges

The activity of lay judges is based on the principles of voluntarism, transparency, impartiality and independence.

lay judges shall act fairly ant impartially and shall not reveal and not use the disclosed personal data and personal life circumstances for any other purpose than the performance of duties of the lay judges and shall keep commercial and other secrets protected by law.

In carrying out their functions lay judges shall be independent from the parties to the proceedings, judges, the court administration, government institutions, officials and other persons. lay judges may not be exposed to any political, economic, psychological or social pressure or any other unlawful influence which might affect their decisions.

Article 1012 . Requirements for lay judges

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 judgement 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 defence service;

does not have a citizenship of the Republic of Lithuania;

has not declared permanent residence in the Republic of Lithuania.

Other restrictions for lay judges on the basis of race, origin, nationality, sex, property status, religion, beliefs or other basis are prohibited.


Article 1013. Lists of lay judges

To participate as a lay judge in a particular case a person shall be appointed from a the list of the distric’s lay judges.

The lists of distric lay judges shall be composed for four years out of the people, which declared their residence within the teritorry of an approriate 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 Distric lay judges shall be established by the Judicial Council.

The National Courts Administration compiles a list of lay judges 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 referred to in Paragraph 1 of Article 1012 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 is removed from the list of distric lay judges in these cases:

when circumstances referred to in Paragraph 1 of Article 1012 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, enetered 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, exept 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.


Article 1014. The selection of a lay judge to participate in a particular case.

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 (in Paragraph 1 of Article 1016 ) 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 circumstances reffered to in Article 1017, 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.


Article 1015. Cases, in which participation of lay judges is possible

Lay judges participate in proceedings of the first and appellate instances of general jurisdiction and administrative courts.

Lay judges may be involved in trials of:

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.

Lay judges participate in the oral proceedings.


Article 1016. Lay judges‘ participation in the proceedings

Cases, referred to in Article 1015 are to 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 substitite 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 one thousand litas for the failure to attend the court hearing without any serious reasons.


1017 Disqualification of lay judges
The lay judge must be disqualified and not participate in the proceedings if he is directly or indirectly interested in the outcome of the case or there are other circumstances that raise doubts about the impartiality or ability to perform the duties of the lay judge.
A lay judge must disqualify himself in a proceedings or the participants in the proceedings may challenge the lay judge:
in cases, in which the lay judge is recognised as a person involved in the case or is related with persons involved in the case by the employment, service or other legal relations if these relations may influence the rights or duties of a lay judge;
if the lay judge is related with the parties of the trial or other persons involved in the case, by consanguinity (direct ascending line and direct descending line, real or foster-brothers and foster-sisters, adopters and adoptees) or by the affinity;
if the lay judge is related with the parties of the trial or other persons involved in the case by marriage, guardianship or curatorship;
in cases, in which the lay judge was or is the representative of one of the parties of the trial or of the other person involved in the case;
if the lay judge or his spouse (or partner) or close relatives is directly or indirectly interested in the outcome of the case;
if a person before participating in the trial proceedings of the appropriate case at the lower or higher court as a lay judge, a witness, an expert, a prosecutor, a state or minucipality representative;
if there are another circumstances, that raise doubts about the lay judge impartiality or ability to perform the duties of the lay judge.
If there are circumstances referred to in Paragraph 2 of this Article, the lay judge has a duty to disqualify himself. The participants in the proceedings have a right to challenge the lay judge on such grounds.
The disqualification must be motivated and announced orally or in writing during the court hearing referred to in Paragraph 2 of Article 1014. To challenge the lay judge after the court hearing is allowed only in cases when the person, who is challenging the lay judge become aware of the basis for disqualification later. 
The issue of disqualification of a lay judge shall be resolved by the court hearing the case.
The disqualified lay judge or the lay judge who withdraws himself from the case during the court hearing on the merits of the case shall be replaced by the substitute lay judge and the proceedings shall continue. In cases, when there is no possibility to replace the disqualified lay judge or a lay judge who disqualified himself (because of the fact that the Replacement Judge was not appointed to the case or was disqualified or disqualified himself and etc.) the court hearing shall be countinued with one participating lay judge or without lay judges if both lay judges withdrew from the case or were disqualified and there is no possibility to replace them with Replacement lay judges.


Article 1018. Rights and duties of lay judges
Lay judges are entitled to get access to the material of the case, with the judge granting permission to ask additional questions to the parties, witnesses, experts and other participants in the proceedings. The presiding judge of the hearing, before the proceedings, explains procedural rights and duties to the lay judges.
Lay judges shall be notified of the time and place of court hearing or performance of separate procedural action by summon given by the court, including the consequences of failure to appear. Summon must be served on such terms that lay judge should have enough time to appear in the court on the set time.
Publich judges have a duty:
to notify the National Courst Administration of the circumstances referred to in a Paragraph 1 of Article 1012;
to notify the court about the inability to participate in the proceeding, where the person is appointed as a lay judge;
to participate in the hearing of the case;
to commit to carry out the duties of a lay judge in good faith and to sign an oath attached to the case. The form of the oath is set by the Government of the Republic of Liethuania or the authorized institution;
to follow the hearing procedure and the instructions of the presiding judge;
to notify the court about the attemps to influence him as a lay judge;
to express the opinion on the merits of the case according to the inner conviction.


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 oppossite 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 distric 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.

1019 Guarantees for lay judges
State and municipal institutions and offices, companies, associations, officials and other persons are prohibited to interfere with performing lay judges duties and to seek to influence lay judges. Persons of obstructing to lay judges to perform their duties related to specific cases are prosecuted.
Lay judges are entitled to get reimbursement of expenses 
set by the Government of the Republic of Lithuania or the institution authorised by the Government for the arrival to the court and rental expenses, as well as the remuneration for the performance of lay judges duties. The remuneration in accordance with the salary of a judge of the district courtshall be calculated proportionally to the time, when lay judges were performing their duties. Reimbursement of expenses and the remuneration shall be paid from the special account of the court.
During the time when a person is performing as a lay judge, his main job or position is guaranteed.
The length of service includes the time when the duties of lay judges were performed.
The National Courts Administration organizes lay judges training and the provision of the relevant information to the lay judges about their duties.

Article 3. Proposal to the Government and other institutions
The Government and other authorities shall enact the necessary legislation to implement the Law before the day this law enters into force.
After two years of the entry of this aw into force, the Government shall evaluate the effectiveness of the law and shall submit proposals to the Seimas of the Republic of Lithuania on the further development of the institute of lay judges.

Article 4. 
Entry into Force
This law, exept the Paragraph 1 of Arcticle 3, shall enter into force on 1 January 2014.
I promulgate this Law passed by the Seimas of the Republic of Lithuania
PRESIDENT OF THE REPUBLIC OF LITHUANIA
The Netherlands

Portugal

Romania

Slovenia
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.)

We do have lay judges in Slovenia, but not in the administrative justice.

In what kind of courts? Which instances?

In district criminal and civil courts, also in juvenile court – first instance and in labor and social courts – first instance

How are the lay judges nominated? Politically or in other ways?

District lay judges:

Lay judges are nominated by the president of the higher court (court of appeal).

Candidates for district courts are proposed by local authorities or ngo, except political parties, which can not directly propose a candidate. In the regions where Italian and Hungarian minority live, a certain number of lay judges must actively speak Italian or Hungarian language

Juvenile criminal court – lay judges from professor, teachers, childcare worker

Labor and social lay judges:

are elected by the parliament form members of employees and employers as well as insured persons and trade unions

How many lay judges serve in the same bench?

2 or 3; depends on the number of professional the judges in the panel

What is the purpose with the lay judges? (To represent the public, to possess local knowledge, to have special competence, other?)

To present the public or people; no special knowledge or competence is needed.

Citizen of the Republic of Slovenia, at least 30 years old, who was not convicted for the criminal act, prosecuted ex officio and is healthy and personally appropriate for participating at adjudication and actively speaks Slovenian language, can be a lay judge.Automatic word wrap
The mandate is for 5 years and can be repeated.

Do they swear an oath?

Yes they do.

Do they have an individual vote?

Yes they have.

Can they overrule the professional judge?

Yes they can.

Is there any discussion going on in your country concerning the role of the lay judges?

Not at the moment.

What is your personal experience of working with lay judges?

Do not have any.

Do you have others, besides the professional judges, who may take part in the adjudication process, like experts in different fields?

Yes, court can nominate an expert in cases where judges do not poses a certain expert knowledge and this expertise is important for the adjudication.


Sweden
The Swedish representatives gave in summary the following answers to the discussed questions. 
Do you have lay judges in your countries? Yes. A legal regime for lay judges is established in Sweden.

In what kind of courts? Which instances? The Lay judges serve in the General Courts, (District Courts (first instance), Courts of Appeal (second instance) and the General Administrative Courts (Administrative Courts (first instance), Administrative Courts of Appeal (second instance). The Lay judges does not serve in the Supreme Court or The Supreme Administrative Court.

How are lay judges nominated? Politically or in other ways? The Lay judges are nominated in a politically way. (The Lay judge is first nominated by a political party to the municipal council or the county council. The Lay judge is thereafter elected by one of the last mentioned authorities.)

How many lay judges serve in the same bench? Three lay judges serve in the first instance. In the second instance serve two lay judges.

What is the purpose with lay judges? To represent the public: to make sure that the public may gain insight into the judiciary and its judicial/administrative operations. The lay judge shall also complement the judge with local knowledge and in some cases special competence.

Do they swear an oath? Yes.

Do they have an individual vote? Yes. Since 1983 Swedish lay judges have an individual vote. A lay judge’s vote has the same weight as a professional judge’s vote.

Can they overrule the professional judge? Yes.

Is there any discussion going on in your country concerning the role of the lay judges? Yes, it is an ongoing debate concerning the role of the lay judges. The Government has also recently decided that the system shall be reviewed. The commission shall be completed June 28, 2013. It shall, among other things, be investigated whether it is possible and reasonable to reduce the lay judges participation in trials at first and second instance.

What is your personal experience of working with lay judges? The lay judge’s participation in the adjudication process can be valuable but not always. The lay judge´s experience may be a good complement in connection with assessment issues for example for evaluation of evidence and reasonability issues. In other questions regarding for example legal questions or procedural questions, the lay judge’s participation is once in a while valuable. In tax cases the lay judge´s participation can strongly be questioned.

Do you have others, besides the professional judges, who may take part in the adjudication process, like experts in different fields? Yes, in cases including a review of the legality of certain decisions from the municipal council, all under the Government Act and also in cases concerning assessment of tax on property.