Lithuania Part 2

LITHUANIA

SECOND PART : Draft recommendation of the Council of Europe on the independence, efficiency and responsibilities of judges

Chapter I – General aspects

1. Constitution of the Republic of Lithuania Chapter IX „The Court“ enshrines directly the independence of the judges : „While administering justice, the judge and courts shall be independent“ (Article 109).

In this Chapter are written the general aspects of the independence of the judge and courts : justice shall be administered only by courts ; when considering cases, judges shall obey only the law ; a judge may not hold any other elected or appointed office, may not work in any business, commercial, or other privatae establishments or enterprises ; he may not receive any remuneration other than the remuneration established for the judge and payment for educational or creative activities ; a judge may not participate in the activities of political parties and other political organisations ; interference by institutions of State power and governance, Members of the Seimas and other officials, political parties, political and public organisations, or citizens with the activities of a judge or the court shall be prohibited and shall incur liability provided for by law ; a judge may not be held criminally liable, arrested or have his freedom restricted otherwise without the consent of the Seimas, or, in the period between the sessions of the Seimas, without the consent of the President of the Republic of Lithuania.

2. The Law on Courts of the Republic of Lithuania is the main legal act which defines the general rules about the independence of judges. It regulates such questions as independence of judges and courts, right to judicial remedy, right to have a court hearing within a reasonable time by an independent and impartial court, equality before the law and the court, public hearing, binding character of court judgements, financial and material guarantees for the functioning of courts and others.

Chapter II – External independence

1. There is a special position in the court, a person, responsible for providing information about court‘s activity to the society and mass media. It could be press-officer or the president or vice-president of the court. The president of the court or responsible vice-presidents ussualy meet people at the court according pre-registered schedule.

2. There is quite big interest in activity of courts and in judges in the society and mass media. Sometimes there is big interest in the judge as a private person and judges are not well immuned against it. For example, there are direct telephone number and direct email available in web pages of many courts, so anyone can make a direct contact with the judge. It helps journalists to reach the judge and receive some information directly from him. It can lead to the missaplication of this posibillity. For example, several years ago journalists made a phonecalls to every judge who had biggest financial obligations (information concerning bank loans were available to public in the annual declaration on income and assests). The journalist asked judges certain questions, concerning their independence and financial obligations, answers to which were published in newspaper next to the photos of those judges. The judges were not informed about being published in the newspaper. Nevertheless none institution of judges‘ self-government didn‘t react.

It should be noticed, that several courtes recently decided to remove direct contacts of their judges from their web-sites.

3. Legal regulation, according to which declarations of income and assets of judges are public, causes some problems. Recently every year the list of the richest judges are announced in the web-page www.delfi.lt (which is one of the main information web-sites in Lithuania). Also their assets and obligations are indicated publicly. There could be the question arrised, are those kind of facts in breach with the priciple of independency of judges or not ?

4. The Constitutional Court of Lithuania formed the doctrine about the announcement of court decisions.
The Constitutional Court in it’s decision 16th January 2006, constituted :
“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 published 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 publishing 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 published, 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 publishing and terms are applicable mutatis mutandis not only to the criminal procedure, but also to other types of legal proceedings.”

Prior to the decision, mentioned above, also certain amendments of laws, it was possible for a court to announce the decision without having written decision with all the parts and not giving it to the parties directly after the announcement. There was very popular in all courts to take this possibility, as terms for announcement of the decision were very short. After certain amendments of the laws, in administrative courts decision of the court is available to parties directly after announcing it in a courtroom. Nevertheless terms of announcement of decisions were not changed. They are very short (too short) – 10 days after oral hearing.

Despite amendments of laws, general courts often do not obey the rules, concerning announcement of decisions, sometimes decisions are not written in time.

5. Article 113 of the Constitution defines prohibition for the judge to have another job nor to participate in political activity :
„A judge may not hold any other elected or appointed office, may not work in any business, commercial, or other private establishments or enterprises. Also he may not receive any remuneration other than the remuneration established for the judge and payment for educational or creative activities.
A judge may not participate in the activities of political parties and other political organisations.”
Still the judge can be a member of non-political organisations, not only professional, but also of any other kind.

6. There are two instances for administrative cases in Lithuania : first instance – regional administrative courts (there are five regional administrative courts in Lithuania), instance of appeal – the Supreme Administrative Court. There is no possibility for cassation in administrative cases in Lithuania.

7. Though the possibility for renewal of the process is possible.
Grounds and conditions for this renewal is indicated in the Art. 153 of the Law of Administrative Procedure :
“1. The proceedings, finished with the effective decisions of the court, may be renewed on the grounds and subject to the procedure provided for in this chapter.
2. The proceedings may be renewed where :
1) The European Court of Human Rights recognizes the decision of the court of Lithuania against the Convention of the European Human Rights or it’s protocols ;
2) new relevant circumstances emerge which were unknown and could not be known to the party at the time when the dispute was considered ;
3) an effective court judgement establishes a deliberately false testimony by a witness, deliberately false opinion by an expert, deliberately false translation or forgery of documents or material evidence, which has resulted in an unlawful or unjustified decision ;
4) an effective court judgement establishes that criminal acts were committed by parties, other persons, participating in the process or their representatives, also judges, at the time when the case was considered ;
5) an unlawful or unjustified court decision or judgement is quashed on the basis of which the decision appealed against was adopted ;
6) the party was recognised as legally incapable and was not represented in compliance with the law ;
7) the court made a decision concerning persons, who were not involved in the case, duties and rights ;
8) the decision of the court lacks motivation ;
9) the case was resolved by the courtof illegal composition ;
10) manifest evidence is presented that a material violation of the substantive law was committed which could have resulted in the adoption of an unlawful decision ;
11) a legal act is repealed as unlawful on the basis whereof this decision was adopted ;
12) it is necessary to ensure a uniform practice.”

Chapter III – Internal independence

1. There is computerised system for distribution of cases in almost all courts, but still there are some problems, concerning objective distribution of cases amongs judges. Supreme Administrative Court made an audit in Vilnius Regional Administrative Court in year 2009 and found out that objectivity of distribution of cases is not reached in this court. Considering this conclution, since 2010 computerised system for distribution of cases amongst judges is used in Vilnius Regional Administrative Court.

2. There are diferences in internal organising of the activity of the court. Mostly activities inside the court are centralised, i. e. when the case is ready to the oral hearing, the exact date and time of this hearing is appointed by the administration of the court. Though the judge doesn‘t have absolute freedom to schedule one‘s workload, i. e. to decide, how many case a judge would hear in a certain week, which cases should be heard at what week, to plan the exact time of the hearing or etc.

3. There is doctrine of judicial predecent as source of law formed by the Constitutional Court of Lithuania. This doctrine states an obligation to form unanimous and clear jurisprudence for the courts.

The Constitutional Court of Lithuania in it’s decision 24th October 2007 constituted :

“The principle of a state under the rule of law entrenched in the Constitution implies continuity of jurisprudence. The instance system of courts of general jurisdiction established in the Constitution must function so that the preconditions are created to form the uniform (regular, consistent) practice of courts of general jurisdiction, i.e. such, which would be based on the principles of a state under the rule of law, justice, equality of all persons before the law (and other constitutional principles) enshrined in the Constitution, on the maxim inseparably linked with the said principles and arising from them that the same (analogous) cases must be decided in the same way, i.e. they have to be decided not by creating new court precedents, competing with the existing ones, but by taking account of the already consolidated ones. When ensuring the uniformity (regularity, consistency) of the practice of courts of general jurisdiction, which arises from the Constitution, thus, also the continuity of the jurisprudence, the following factors (along with other important factors) are of crucial importance : the courts of general jurisdiction, when adopting decisions in cases of corresponding categories, are bound by their own created precedents—decisions in the analogous cases ; the courts of general jurisdiction of lower instance, when adopting decisions in the cases of corresponding categories, are bound by the decisions of the courts of general jurisdiction of higher instance—precedents in the cases of the same categories ; the courts of general jurisdiction of higher instance, while revising decisions of the courts of general jurisdiction of lower instance, must assess these decisions by always following the same legal criteria ; these criteria must be clear and known ex ante to the subjects of law, inter alia to the courts of general jurisdiction of lower instance (thus, the jurisprudence of courts of general jurisdiction must be predictable). The already existing precedents in cases of corresponding categories, which were created by courts of general jurisdiction of higher instance, not only are binding on the courts of general jurisdiction of lower instance that adopt decisions in analogous cases, but also the courts of general jurisdiction of higher instance that created those precedents (inter alia the Court of Appeal of Lithuania and the Supreme Court of Lithuania). Courts have to follow such concept of the content of corresponding provisions (norms, principles) of law, also of the application of these provisions of law, which was formed and which was followed when applying these provisions (norms, principles) in the previous cases, inter alia when previously deciding analogous cases. Disregarding the maxim that the same (analogous) cases have to be decided in the same way, which arises from the Constitution, would also mean disregarding the provisions of the Constitution on administration of justice, that of the constitutional principles of a state under the rule of law, justice, equality of people before the court and other constitutional principles. The practice of courts of general jurisdiction in cases of corresponding categories has to be corrected and new court precedents in these categories may be created only when it is unavoidably and objectively necessary, when it is constitutionally grounded and justified. Such correction of practice of courts of general jurisdiction (deviation from the previous precedents, which had been binding on courts until then and creation of new precedents) must in all cases be properly (clearly and rationally) argued in corresponding decisions of courts of general jurisdiction. No creation or reasoning of a new court precedent may be determined by accidental (in the aspect of law) factors. It is such correction—only when it is unavoidably and objectively necessary, and when it is properly (clearly and rationally) argued in all cases—of the practice of courts of general jurisdiction (deviation from the previous precedents that had been binding on courts by then and creation of new precedents) that must be respectively ensured by the Court of Appeal of Lithuania and the Supreme Court of Lithuania within their competence. If the said requirements arising from the Constitution are disregarded when the court decisions are adopted, not only the preconditions for the irregularities and inconsistencies to appear in the practice of courts of general jurisdiction and the legal system are created, not only the jurisprudence of courts become less predictable, but also there are grounds for doubts on whether the corresponding courts of general jurisdiction were impartial when adopting the decisions, and whether these decisions were not subjective in other aspects. The instance system of the courts of general jurisdiction arising from the Constitution may not be interpreted 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. The imperatives of the activity of the courts of general jurisdiction and legal regulation of this activity arising from the Constitution and discussed in this Constitutional Court ruling are also to be applied mutatis mutandis to the activity of the specialized courts established under Paragraph 2 of Article 111 of the Constitution and its legal regulation.
In this context it also needs to be mentioned that, as it has been held by the Constitutional Court, the Constitutional Court is bound by the precedents that it itself has created and by the official constitutional doctrine which has been formulated by the Constitutional Court and which substantiates these precedents (Constitutional Court decision of 21 November 2006). The Constitutional Court, while referring to its already formed constitutional doctrine and precedents, must ensure the continuity of the constitutional jurisprudence (its consecution, consistency) and the predictability of its decisions. It may be possible to deviate from the Constitutional Court precedents created while adopting decisions in cases of constitutional justice and new precedents may be created only in the cases when it is unavoidably and objectively necessary, constitutionally grounded and reasoned ; also the official constitutional doctrinal provisions on which the precedents of the Constitutional Court are based may not be reinterpreted so that the official constitutional doctrine would be corrected when it is unavoidably and objectively necessary, constitutionally grounded and reasoned ; any change of the precedents of the Constitutional Court or correction of the official constitutional doctrine may not be determined by accidental (in the aspect of law) factors. The said necessity to reinterpret certain official constitutional doctrinal provisions so that the official constitutional doctrine would be corrected may be determined only by the circumstances as the necessity to increase possibilities for implementing the innate and acquired rights of persons and their legitimate interests, the necessity to better defend and protect the values enshrined in the Constitution, the need to create better conditions in order to reach the aims of the Lithuanian Nation declared in the Constitution on which the Constitution itself is based, the necessity to expand the possibilities of the constitutional control in this country in order to guarantee constitutional justice and to ensure that no legal act (part thereof) which is in conflict with legal acts of greater power, would have the immunity from being removed from the legal system. It is impossible and constitutionally impermissible to reinterpret the official constitutional doctrine so that the official constitutional doctrine would be corrected, if by doing so the system of values entrenched in the Constitution is changed, their compatibility is denied, the protection guarantees of the supremacy of the Constitution in the legal system are reduced, the concept of the Constitution as a single act and harmonious system is denied, the guarantees of rights and freedoms of the person entrenched in the Constitution are reduced and the model of separation of powers enshrined in the Constitution is changed. Every case of such reinterpretation of the official constitutional doctrine when the official constitutional doctrine is corrected has to be properly (clearly and rationally) argued in the corresponding act of the Constitutional Court (Constitutional Court ruling of 28 March 2006 and decisions of 8 August 2006 and 21 November 2006).
Thus, court precedents are sources of law—auctoritate rationis ; the reference to the precedents is a condition for the uniform (regular, consistent) court practice as well as that of implementation of the principle of justice entrenched in the Constitution. Therefore, it is not permitted that court precedents be unreasonably ignored. In order to perform this function properly, the precedents themselves should be clear. Court precedents may not be in conflict with the official constitutional doctrine, either.
9. On the other hand, it is not permitted that the significance of court precedents as sources of law be overestimated, let alone be made absolute. One must refer to court precedents with particular care. It needs to be emphasised that in the course of consideration of cases by courts, only those previous decisions of courts have the power of precedent, which were created in analogous cases, i.e. the precedent is applied only in those cases whose factual circumstances are identical or very similar to the factual circumstances of the case in which the precedent was created, and with regard to which the same law should be applied as in the case in which the precedent was created. In a situation where there is competition of precedents (i.e. when there are several differing court decisions adopted in analogous cases) one must follow the precedent that was created by the court of higher instance (a higher court). Also one is to take account of the time of the creation of the precedent and of other factors of significance, as, for instance : of the fact whether the corresponding precedent reflects the established court practice, or whether it is a single occurrence ; of whether the reasoning of the decision is convincing ; of the composition of the court that adopted the decision (whether the corresponding decision was adopted by a single judge, or by a college of judges, or whether by the enlarged college of judges, or whether by the entire composition of the court (its chamber)) ; whether there were any dissenting opinions of judges expressed because of the previous court decision ; of possible significant (social, economic etc.) changes which took place after the adoption of the corresponding court decision, which has the significance of a precedent, etc. As mentioned, in cases when the correction of court practice is unavoidably and objectively necessary, the courts may deviate from the previous precedents, which had been binding on the courts until then, and create new precedents, however, it must be done by properly (clearly and rationally) arguing it. It needs to be specially emphasised that, when deviating from its previous precedents, the court must not only properly argue the adopted decision itself (i.e. the created precedent itself), but also clearly set forth the reasoning and the arguments substantiating the necessity to deviate from the previous precedent.”

4. Most judges (about 80 per cent), including administrative judges, are members of the Association of judges of the Republic of Lithuania. There is no separate association of administrative judges in Lithuania.

Chapter IV - Councils for the Judiciary

1. In Paragraph 5 of Article 112 of the Constitution of Lithuania it is established : „A special institution of judges provided for by law shall advise the President of the Republic on the appointment, promotion, transfer of judges, or their dismissal from Office“.

2. The Judicial Council is an executive body of the self-governance of courts ensuring the independence of courts and judges.
3. Composition, competence and procedure of the hearings (posedziu tvarka) is regulated in the Law on Courts.

The Judicial Council shall be composed of 21 members :
1) by virtue of their office – the Chairman of the Supreme Court, the Chairman of the Court of Appeal, the Chairman of the Supreme Administrative Court ;
2) Judges elected by the General Meeting of Judges : three from the Supreme Court, the Court of Appeal, the Supreme Administrative Court each, three from all regional courts, three from all regional administrative courts and three from all district courts. The candidates shall be nominated and elected during the General Meeting of Judges by the representatives of the relevant courts.
A judge whose period of service in judicial office is less than five years or on whom disciplinary penalty has been imposed may not be elected a member of the Judicial Council.
The term in office for the member of the Judicial Council shall be four years.
The Chairman of the Judicial Council, the Deputy Chairman and secretary shall be elected by secret ballot for two years from the Judicial Council members. The first session of the new Judicial Council shall be opened by the judge serving the longest term as the judge. The judge shall organise the election of the Chairman of the Judicial Council.

4. Competence of the Judicial Council :
1) elect by secret ballot the Chairman, Deputy Chairman and the Secretary of the Judicial Council ;
2) approve the Rules of Procedure of the Judicial Council ;
3) give an informed advice to the President of the Republic in respect of the appointment of judges, their promotion, transfer and removal from office ;
4) give an informed advice to the President of the Republic in respect of the appointment and removal from office of Chairmen, Deputy Chairmen, and Chairmen of divisions of courts ;
5) give an informed advice to the President of the Republic in respect of determining or changing of the number of judges in courts ;
6) form the examination commission of candidates to judicial office ; approve the regulations of the examination commission of candidates to judicial office, the programme of the examination ;
7) approve the procedure of entering the candidates in the list of judicial vacancies at the district court and the procedure of entering the candidates in the register of persons seeking judicial promotion ;
8) form permanent and ad hoc commissions and approve their regulations ;
9) elect and appoint by secret ballot members of the Judicial Ethics and Discipline Commission, elect the Chairman of the Commission from all the Commission members and withdraw them on the grounds laid down by this Law ; approve the regulations of the Judicial Ethics and Discipline Commission ;
10) appoint by secret ballot members of the Judicial Court of Honour and withdraw them on the grounds laid down by this Law ;
11) approve the regulations of the Judicial Court of Honour ;
12) hear reports of the Judicial Ethics and Discipline Commission, reports on the activities of the Judicial Court of Honour ;
13) be entitled to propose instituting a disciplinary action against a judge ;
14) approve the description of assessment of the judges’ activities and the regulations of the Permanent commission of assessment of the judges’ activities, consider complaints regarding the results of assessment of the judges’ activities ;
15) form the Permanent Commission for the Assessment of the Judges’ Activities ;
16) set the procedure and grounds for establishing the judges’ specialisation, approve the regulations of the distribution of cases to judges and the regulations for forming the chambers of judges ;
17) approve the regulations of administration in courts, resolve other issues of administration in courts ;
18) approve the regulations of organising the training of judges, the training programmes, the annual plans for improving the qualifications and qualification requirements to the lecturers ;
19) approve model structures of district, regional and regional administrative courts, model lists of positions and job descriptions ;
20) consider and approve proposals on draft investment programmes for courts and proposals for the budgets of courts and submit them to the Government ;
21) hear the reports of the National Courts Administration on its activities ;
22) every year not later than by 31 March publish in the internet web site of the National Courts Administration a review of the court activities in the previous year ;
23) convene the regular and, when necessary, extraordinary General Meetings of Judges ;
24) co-operate with other institutions and organisations of Lithuania on the issues of court self-governance, administration and other issues relevant for the activities of courts ;
25) co-operate with institutions of other countries and international bodies on the issues of court self-governance, administration and other issues relevant for the activities of courts ;
26) have the right to receive from state institutions information required for performing the functions of the Judicial Council ;
27) decide other issues relating to court activities and relevant legislation.

5. The Constitutional Court has held in its ruling of 9 May 2006 :

„26. Taking account of the purpose, the constitutional status and an exclusive role in the procedure of formation of the corps of judges of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution, it needs to be held that certain requirements from the Constitution concerning the activity of this state institution and the organisation of its work.
For instance, before advising the President of the Republic on the appointment, promotion, transfer or dismissal from office of a judge of a certain court of general jurisdiction or the specialised court established under Paragraph 2 of Article 111 of the Constitution, the said special institution of judges has a duty to elucidate and assess all the significant circumstances, inter alia the fact whether the person who is proposed to be appointed as a judge, or a judge proposed to be transferred or promoted meets the requirements established to the judge (as well as to a judge of court of that system of courts or of the same level court), whether he has the qualification necessary for corresponding work, whether he is of impeccable reputation and whether there are no other circumstances due to which a person may not be appointed as a judge, promoted, transferred (or appointed namely as a judge of the court specified by the President of the Republic, or promoted namely to that court, or transferred namely to that court). The legislator has a duty to establish such legal regulation that the said special institution of judges would have powers to receive all the necessary information from state and municipal institutions (officials thereof) which would allow to elucidate and assess all the significant circumstances. The responsibility for the corresponding advice to the President of the Republic falls namely on the said special institution of judges to which the President of the Republic applied for the corresponding advice. The fact that, as it has been held in this Constitutional Court ruling, the President of the Republic, before applying to this special institution of judges for advice, must make use of the possibilities established by laws and elucidate and assess all the significant circumstances, does not relieve the said special institution of judges from this duty and responsibility.
It is clear that the members of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution may elucidate and assess all the significant circumstances, inter alia the fact, whether the person who is proposed to be appointed as a judge, or the judge proposed to be transferred or promoted meets the requirements established to the judge (as well as to a judge of court of that system of courts or of the same level court), whether he has the qualification necessary for corresponding work, whether he is of impeccable reputation and whether there are no other circumstances due to which the person may not be appointed as a judge, promoted, transferred (or appointed namely as a judge of the court specified by the President of the Republic, or promoted namely to that court, or transferred namely to that court) only when they receive in advance all the information necessary in order to consider a corresponding question, have a possibility to investigate it attentively, to demand additional information if necessary, etc. The work of the said special institution of judges may not be organised so that certain information concerning the considered question would be provided not in time and not in advance but only during the meeting of this special institution of judges, as well as that certain information concerning the considered question would be provided not to all members of this special institution of judges but only to some of them (selectively), for example, only to those members of this special institution of judges, who participate in that meeting. In this context, particularly taking account of the fact that, under the Constitution, the President of the Republic must receive an advice namely from the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution, as a collegial state institution, and not from a part of it (i.e. a group of judges) concerning the appointment, promotion, transfer of a judge or his dismissal from office, it is to be noted that, in general, it would not be possible to consider the activity of the said special institution of judges, which, as it has been held in this Constitutional Court ruling, is a state institution provided for in the Constitution and not a derivative working on the public basis, as fully conforming to its constitutional purpose, if quite a number of its members did not participate in the meetings. It is also to be noted that the work of the said special institution of judges must be organised so that voting on every advice to the President of the Republic during the meeting would take place, that after the voting is over, every member of this special institution of judges would know how every other member of this special institution of judges voted, that the results of the voting would not raise any doubts on their reliability. Failure of heeding the said provisions would mean that one in essence deviates from the requirements of the proper legal process, which are binding in the state under the rule of law.
It is to be particularly emphasized that the purpose, the constitutional status, the exclusive role in the procedure of formation of the corps of judges and the requirement of transparency of the activity of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution imply the publicity of the activity of this special institution of judges. The fact that the activity of the said special institution of judges may not be non-public means that, in addition to other things, the society (as well as the legal community) must be informed about all the questions concerning the appointment, promotion, transfer of a judge or his dismissal from office considered in this special institution of judges in advance (it should be publicly announced). It has been held in this Constitutional Court ruling that the advices of the said special institution of judges to the President of the Republic must be rationally argued and the reasons due to which it is advised to appoint a certain person as a judge, to promote, transfer a judge or dismiss him from office or it is advised not to appoint the person as a judge, not to promote, not to transfer and not to dismiss the judge (and if a justice of the Supreme Court or a judge of the Court of Appeal is appointed, promoted, transferred or dismissed from office—to advise to submit his candidature for the Seimas or not to submit it) must be set forth clearly. These arguments and reasons must be set down clearly.
The society must be informed about the adopted decisions (advices to the President of the Republic). It is also to be emphasized that when the President of the Republic applies for advice, each member of the said special institution of judges must declare his position on each question clearly and unambiguously.

27. Only the following powers of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution are explicitly entrenched in the Constitution (Paragraph 5 of Article 112 thereof) : when the President of the Republic applies to it, it must advise him on the appointment, promotion, transfer of judges or their dismissal from office, i.e. (as it was held in the Constitutional Court ruling of 21 December 1999) "concerning all the questions of appointment of judges, those of their professional career, as well as those of their dismissal from office", save (as it was held in the Constitutional Court ruling of 2 June 2005 and this Constitutional Court ruling) the exceptions which stem from the Constitution itself (of which there are very few). It is to be emphasized that no other institution, nor official, nor any other person may implement these powers ; nor may the said powers be transferred to anybody by the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution itself. If it was so and also if the legislator restricted the powers explicitly attributed to such special institution of judges in the Constitution, not only Paragraph 5 of Article 112 of the Constitution, but also Paragraph 2 of Article 5 of the Constitution, under which the scope of power shall be limited by the Constitution, as well as the constitutional principle of a state under the rule of law, would be violated.“

This doctrine of the Constitutional Court has been mentioned here because prior some amendments of the Law on Courts this institution was named as Council of Courts and consisted not only of Judges, but also of other persons (civil servants, politicians). According to the decision of the Constitutional Court 9th May 2006, this institution should consist only of judges.

Chapter V – Independence, efficiency and resources

1. The Constitutional Court of Lithuania formed the doctrine of financial independence of Courts.

In it’s 21st December 1999 decision the Constitutional Court noted that :
“The organisational independence of courts and their self-government are the main guarantees of actual independence of the judiciary. A constitutional duty of the other institutions of power is to respect the independence of courts established in the Constitution. It needs to be noted that the activities of courts are guaranteed by the Constitution, and the laws and other legal acts that are in conformity with the Constitution. A duty of the state is to create proper work conditions to courts. However, this does not mean that in the course of establishing particular powers of the other institutions of power as regards their relations with the judiciary it is permitted to deny the separation of powers established in the Constitution and the essence of the judiciary as all-sufficient power which acts independently from the other powers.
While ensuring the independence of judges and courts, it is of much importance to separate the activity of courts from that of the executive. The Constitution prohibits that the executive interfere with administration of justice, exert any influence on courts or assess the work of courts regarding investigation of cases, let alone give instructions as to how justice must be administered. Supervision of courts and application of disciplinary measures to judges must be organised in such a manner so that the actual independence of judges might not be violated.
Under the Constitution, the activity of courts is not and may not be considered an area of administration ascribed to any institution of the executive. Only the powers designated to create conditions for the work of courts may be granted to institutions of the executive. For their activities the courts are not accountable to any other institutions of power nor any officials. It is only an independent institutional system of courts that may guarantee the organisational independence of courts and procedural independence of judges.
The material basis of the organisational independence of courts is their financial independence of any decisions of the executive. It needs to be noted that the financial independence of courts is ensured by such legal regulation when finances for the system of courts and every court are allocated in the state budget approved by the law. The guarantee of the organizational independence of courts is one of essential conditions to ensure human rights.
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The legal regulation when it is not the Seimas that distributes finances to individual courts by approving the law on state budget but institutions or officials of the executive is not in line with the constitutional principle of the separation of the executive and the judiciary and that of independence and autonomy of these powers, and creates an opportunity for the executive to exert influence on the activity of courts. The Constitutional Court notes that the principle of independence of courts also includes the independent financing of courts from the executive. This principle may be secured by providing in laws that the state budget must provide as to how much finances are to be allocated to every individual court so that proper conditions might be created for administration of justice. In the area of the arrangement for financial supply of courts the powers of the Minister of Justice regarding preparation of a draft state budget and those concerning its discussion in the Seimas may be ascribed to his competence.“

2. Although according the law and the doctrine of the Constitutional Court, financial independence of courts is guaranteed, financial recourses, assignated to the courts are far not enough to ensure efficient work of the courts.

3. Some essential problems, dealing with the efficiency, has to be named further :
too heavy caseload to single judge in the biggest towns ; lack of finances and premises don‘t allow to increase number of judges ;
accual terms of solving the case are longer than the requirements of the law. Although there are specific terms, established in the Law of Administrative Procedure (according Art. 65 of the Law, administrative case should be finished and the decision of the court of first instance should be made within two months from the day the judge decides to appoint the case for oral hearing, if there are no specific rules of law. When there is the necessity, this term could be prolonged for one more month. The court makes a decision on this point. Term, possible for prolonging in cases of legality of acts of law – three months), in practice terms in which cases are solved differs from 4 to 6 months. Court of appellate instance solves cases approx. within 1 year from the day, when the appeal was registered at the Court.
terms, established in the Law, for passing the decision are far too short. Acoording Art. 85 of the Law of Administrative Procedure, ussually the decision of the court has to be written and announced the same day as individual case hearing took place. In cases of the legality of acts of law and other complex cases, the decision of the court could be announced not the same day, but not later than within 10 days after hearing of the case. It should be announced and parties should be informed (also it should be noted in the protocol) when the decision of the court will be announced. While the decision of the court is being prepared, judges are allowed to hear another cases. In cases of postponed announcement of the decision, it could be announced by single judge. Practically 10 days postponed announcement of the decision of the court is a rule, not an exception. All judges take this possibility as it is not possible to deal with such heavy caseload (e. g. a judge of Vilnius Regional Administrative Court has to hear 6-8 cases a week and to announce the same amount of decisions). On the other hand, heavy workload and short terms for finishing cases are big obstacle of the quality of the decisions.
there is no enough financial support in the courts for expertise, specialist, etc. This by all means makes serious obstacle for efficient procedure ;
there is no possibility for alternative (amicable) solving of administrative disputes in administrative courts.

Chapter VI – Status of the judge

Selection and career

In Paragraph 1 of the Article 112 of the Constitution of Lithuania it is determined : „In Lithuania, only citizens of the Republic of Lithuania may be judges.”

Other requirements for candidates to judges also procedure of selection of judges is regulated by the Law on Courts.
According to Art. 66 of the Law on Courts, requirements for a person, seeking judicial office at the Regional Administrative Court or the Regional Court are following :
„A judge entered in the register of persons seeking judicial office, of at least five years standing as a judge of a district court as well as a person having Doctor or Habil. Doctor of Social Sciences (Law) degree and of at least five years’ standing as a university lecturer in law who has submitted a health certificate may be appointed a judge of a regional administrative court or a regional court.“
Requirements of a person seeking judicial office at the Supreme Administrative Court or the Court of Appeal are established in Paragraph of Article 67 :
„1. A judge entered in the register of persons seeking judicial office, of at least four years standing as a judge of a regional administrative court or a regional court as well as a person having Doctor or Habil. Doctor of Social Sciences (Law) degree and of at least ten years’ standing as a university professor of law who has submitted a health certificate may be appointed a judge of the Supreme Administrative Court or the Court of Appeals.“
In Article 69(1) of the Law on Courts is established the selection of persons seeking judicial office :
„1. Selection to judicial vacancies of persons seeking judicial office shall be carried out according to the regulations of selection of persons seeking judicial office approved by the Judicial Council. Selecting the persons seeking judicial office, the quality of work of every candidate to judicial office, subject and personal qualities, organisational capacities and priority giving advantages shall be evaluated. The assessment criteria of persons seeking judicial office shall be established by the Judicial Council.
2. When persons having a degree of Doctor or Habil. Doctor of Social Sciences (Law) seek to become judges of regional administrative court, regional court, judges of Supreme administrative court and judges of Court of Appeal, only their personal qualities and key competencies shall be evaluated.
3. The persons seeking judicial office shall be selected by the Selection Commission specified in paragraph 1 of Article 55(1) of this Law. The requirements set in paragraphs 3 and 4 of Article 55(1) of this Law shall be applied.“
According Article 70 of the Law on Courts a judge of a regional court and of a regional administrative court shall be appointed by the President of the Republic from among the persons entered in the register of persons seeking judicial office. The President of the Republic shall be advised by the Judicial Council in respect of the appointment of a judge of a regional court and of a regional administrative court.”

According these rules of the Law on Courts, the selection of persons seeking judicial office differs depending on the candidates status – a judge or a person having Doctor or Habil. Doctor of Social Sciences (Law) degree. If candidate is a judge, assessment of one‘s activity as a judge is being proceeded, afterwards the selection is proceeded in the Assessment Commission, then – in the Selection Commission. If a candidate is a person having Doctor or Habil. Doctor of Social Sciences (Law) degree, one participates only in the selection in the Selection Commission.

Tenure and irremovability

1. According Article 57 of the Law on Courts (amendment of the 3rd July 2008) a person shall be appointed to a judicial office for a term until he is 65 years of age. When a judge reaches the age of 65, his term of office shall expire. If a judge’s term of office expires during the hearing of a case, he may continue in office to complete the hearing of the case or until the hearing is postponed. The President of the Republic shall be suggested on the extension of the term of office of the judge by the Judicial Council.

According former rule of Art 57 of the Law on Courts, the possibility of prolonging the authority of the judge untill 70 years age was determined. The Constitutional Court held that this possibility is in conflict with the Constitution of Lithuania.
The Constitutional Court in it‘s 9th May 2006 decision stated that :
„It is to be noted that the principle of independence of judges entrenched in the Constitution implies only such legislative regulation of the term of powers of the judge that when appointing a judge, he would know the term of powers (until the time established by law or until he reaches the pensionable age established by law). Thus, the term of powers of the judge may not depend on the future decisions of the state power institutions that have appointed him, which would be grounded on free discretion.
The legal regulation when the possibility to extend the term of powers of judges upon their expiration (irrespective of the term for which the powers of the judge are extended and of the level of court the powers of whose judge are extended) is provided may create preconditions for other persons to try to influence the judge directly or indirectly in order that he, when seeking extension of his powers, would make certain decisions in his investigated cases ; such legal regulation is to be assessed as enabling someone to induce the judge to consider cases and adopt decisions in them not only by obeying the law, as required by the Constitution (Paragraph 3 of Article 109), but also by heeding the fact how the decisions adopted in his considered cases will influence the possibility to extend his powers in the future. In other words, such legal regulation creates preconditions for a judge to adopt the decisions in his investigated cases, which would not correspond not the concept of justice of the judge himself, but the concept of justice of other persons.
Thus, the legal regulation, when the possibility is provided to extend the powers of judges upon expiration of their term, save the exceptions allowed by the Constitution itself, is incompatible with the principle of independence of the judge and courts entrenched in the Constitution, with Paragraph 2 of Article 109 of the Constitution, under which, while administering justice, judges and courts are independent, with Paragraph 3 of this article, in which it is established that while considering cases, judges only obey the law, and the constitutional principle of a state under the rule of law.
It has been held in this Constitutional Court ruling that : the Constitution does not in essence prevent such legal regulation established by law, where a judge, despite the fact that his powers have expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted) ; such exceptional legal regulation would be constitutionally grounded, since, otherwise, i.e. without establishing such legal regulation, the decision of corresponding cases—administration of justice—would slow down and thus preconditions would be created to injure the rights and legitimate interests of persons and certain constitutional values would be violated ; in every case on such extension of the powers of the judge, which is allowed only in the exceptional cases, a corresponding legal act—a decree of the President of the Republic or (if the powers of a justice of the Supreme Court are extended) a Seimas resolution must be passed ; in every such case, the advice of the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution on the extension of powers is necessary ; such advice of the said special institution of judges to extend the powers of the judge also means its advice to dismiss the judge from office as soon as the corresponding legal fact happens—the consideration of corresponding cases is finished ; thus, the powers of the judge must be discontinued under the established procedure, when the corresponding legal fact to which the extension of powers of a judge is related happens—the consideration of corresponding cases is finished ; when this legal fact to which the extension of powers of a judge is related happens, it is not necessary for the President of the Republic to apply to the special institution of judges provided for by law specified in Paragraph 5 of Article 112 of the Constitution regarding the dismissal of the judge from office when his powers have expired or when he has reached pensionable age established by law once again (as the corresponding advice has already been received).“

In the decision 30th June 2010, explaining the decision 9th May 2006, the Constitutional Court stated that :
„ <...> the Constitution does not in essence prevent such legal regulation established by law where the judge, despite the fact that his term of powers has expired or he reached the pensionable age established by law, may still hold his office for a certain period of time until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when the term of powers of that judge expired or when he reached the pensionable age established by law, is finished (final decisions therein will be adopted) ; such exceptional legal regulation would be constitutionally grounded, since, otherwise, i.e. without establishing such legal regulation, the decision of corresponding cases—administration of justice—would slow down and, thus, preconditions could be created to injure the rights and legitimate interests of persons and certain constitutional values would be violated ; such a judge must be dismissed as soon as the corresponding legal fact, to which the extension of powers of the judge is related, happens—the consideration of corresponding cases is finished (Constitutional Court ruling of 9 May 2006). At the time when the consideration of the said cases is not yet finished the said judge is a full-fledged judge : while administering justice (deciding cases), he has the same powers as other judges of the corresponding court, his status as a judge is indivisible, the same restrictions of activity and limitation of remuneration that stem from the Constitution are applied to him, he has the same responsibility and immunities as other judges. Thus, he has to receive the same workload (inter alia because of the fact that in the said court, the position of a judge who must carry out an important constitutional function—to administer justice—is not yet vacant) as other judges of the corresponding court, and he must be paid the same remuneration as other judges of the corresponding court, he also has the same social (material) guarantees which the judges of the corresponding court have” of the second paragraph of Item 12.2 of Chapter IV of the reasoning part of the Constitutional Court ruling of 22 October 2007 inter alia mean that the judge whose powers have been extended may administer justice as a full-fledged judge (inter alia be a judge, a judge-rapporteur, and a member of the college) also in other cases (which are assigned for his consideration after his powers have been extended) but only until the consideration of certain cases, the consideration of which was not finished at the time (on the day) when powers of that judge were extended, is finished.“

2. The grounds for dismissal of judges are determined in Art 115 of the Constitution of Lithuania :
„Judges of courts of the Republic of Lithuania shall be dismissed from office according to the procedure established by law in the following cases :
1) of their own will ;
2) upon expiration of the term of powers or upon reaching the pensionable age established by law ;
3) due to the state of health ;
4) upon the election to another office or upon their transfer, with their consent, to another place of work ;
5) when by their behaviour they discredit the name of the judge ;
6) upon coming into effect of court judgements convicting them.”

According Article 116 of the Constitution of Lithuania for a gross violation of the Constitution, breach of oath, or when it transpires that a crime has been committed, the President and justices of the Supreme Court as well as the President and judges of the Court of Appeal may be removed from office by the Seimas according to the procedure for impeachment proceedings.

Training

The Training Centre of the Ministry of Justice is the State‘s budgetary institution financed from the budget of the State. It‘s main goal is training and refresher training of judges, assistants of judges, Presidents of courts, and advisors of the chairmen of departments of courts.

Judges have a possibility to participate in training, organised in the Training Center several times a year.

There is no possibility to send judges to international training courses due to the lack of financing.

Assesment

1. According Article 91(2) of the Law on Courts the types of assessment of the activities of judges shall be as follows :
1) periodical assessment of the activities of judges ;
2) extraordinary assessment of the activities of judges.
The first assessment of the judge’s activities shall be after the lapse of three years following his appointment to judge’s office. Thereafter the activities of the judge shall be assessed periodically every five years.
The extraordinary assessment of the judge’s activities shall be carried out on the request of the judge himself or when the judge’s operational weaknesses have been recurring. The extraordinary assessment of the judge’s activities shall also be carried out when deciding on the promotion of the judge or Chairman of the court or Deputy-chairman of the court, Chairman of the division of the court or of his appointment for a new term of office, except occasions then the last ordinary assessment of the judge’s activities or the extraordinary assessment of the judge’s activities have been carried out less that three years ago.

2. The assessment is held by the Commission for the Assessment of Activities of Judges (it is of permanent nature).
Assessment Commission shall be formed for the term of office of the Judicial Council from seven members : three of them must be not judges. Four members of the Commission shall be elected from the judges by the Judicial Council, three members shall be appointed by the President of the Republic. The Chairman of the Commission from the appointed members shall be elected by the Judicial Council. The activities of the Assessment Commission shall be serviced by the National Courts Administration.

3. Goals of assessing the activities of judges – analyse the capacities of judges to use in practice theoretical knowledge and skills, to establish the strengths and weaknesses of the activities of judges and use the negative results for the preparation of judicial training and qualification courses as well as promote the improvement of the judge’s qualification. The goal of assessing the activities of chairmen, vice chairmen and chairmen of divisions shall be to determine their management, organisational and administrative skills.

Assessment of the activities of judges – procedure performed by the beforehand and clearly established criteria for obtaining information about the quality and efficiency of judicial activities that helps to determine the weaknesses of the professional, organisational and administrative activities of judges, which necessitate judges to improve their qualification and professional level.

The procedure for assessment of the activities of judges shall comply with the principle of legal certainty and efficiency, legitimate expectations and other principles specified in the Law on Courts, provide conditions for all-round and objective assessment of the judges’ professional activities.

Renumeration

1. Judges’ remuneration is established by the Law on Remunaration for Judges 6th November 2008.

Previously salaries of judges were „freezed“ since year 2001, it means they were not raised from year 2001 till year 2008, although salaries in state office were raising the same period. The Constitutional Court 12th July 2001 passed a decision, announcing the rules of the Law of remuneration for politics, judges and state officials, according which salaries for judges were reduced, in conflict wit the Constitution of Lithuania. The situation of „vacuum“ of the regulation occured. Decisions of the Government, regulating salaries of judges till year 2000, were not in fonce anymore, rules of the Law were announced to be in conflic with the Constitution, and new Law was enacted only in year 2008. In this situation the Council of Judges passed the methodology for counting the salaries for judges, under which salaries were grounden on the value, dating 1st January 2001. However in year 1999 salaries for judges were reduced once. Most judges refered their cases to the courts, concerning this reduction. Their claims were based on the violation of the principle of legal expectations and independence of judges. They claimed to the salary, valued in year 1997. First cases were finished only in year 2008 (some of them are not finished yet).

2. As it was mentioned before the Parliament passed the Law on Remuneration for Judges on 6th November 2008. New regulation of the salaries for judges was established. Remuneration for a judge consists of two parts : salary of the position and premium, depending of the quantity of years, served for the State. Salary of the position is based on basic quantity multiplied by the coefficient, determined in the annex of the Law. Basic quantity is established by the Parliament (under the offering of the Government). It is determined that the basic quantity cannot be lesser than the previous year, unless the situation of difficult economic and financial situation of the State arises.

The level of the level of salaries, stated in the Law of the remuneration of Judges, enacted on 6th November 2008, was restored only till 31st December 2008. On 19th December 2008 the Law was amended stating lower level of the basic quantity. In some months 28th April 2009 the Law on the Remunaration of Judges was amended, reducing the coefficient from the 1st May 2009. The third reducement of salaries was in force from 1st August 2009 by amending the Law in 17th July 2009. Since 1st August 2009 salaries of judges remained the same. Comparing to the level of salaries, stated in the Law of the Remunaration of Judges from 6th November 2008, is lower in 25-30 percent.

3. The Constitutional Court formed quite wide doctrine on the question that salaries for cannot be reduced.
In the decision 28th March 2006 the Constitutional Court stated :
„It is to be noted that in case of a difficult economic and financial situation, usually the financing from the budget to all the institutions which implement state powers, as well as the financing of various spheres which are financed from the resources of the budgets of the state and municipalities, should be revised and reduced. If one established a certain legal regulation, whereby in case of considerable deterioration of the economic and financial situation of this country it would not be permitted to reduce the financing of courts only, nor to reduce the remuneration of judges only, it would mean that courts are groundlessly singled out from among other institutions which implement the state power, and the judges—from among other persons, which participate in implementing the powers of corresponding state institutions. Such consolidation of the exceptional situation of courts (judges) would not be in line with the requirements of an open, fair and harmonious civil society and the imperatives of justice.
It is also to be emphasized that it is possible to worsen the financial and material conditions for the functioning of courts and to reduce the remuneration of judges only by law and that it is possible to do so only temporarily, for the period of time when the economic and financial condition of the state is extremely difficult ; by such reduction of the remuneration no conditions should be created for other state power institutions and their officials to violate the independence of courts. Even in the case of the extremely difficult economic and financial situation of the state, neither the financing of courts, nor remuneration of judges may be reduced to the extent that the courts would not be able to implement their constitutional function and obligation - to administer justice - or the possibility of the courts to do that would be restricted.“

Despite the doctrine of the Constitutional Court, salaries and other social securities of judges are reducing. The reduction is being based on the difficult economic and financial situation of the State.

It should be noticed that in May 2010 a group of the Members of Parliament refered the question to the Constitutional Court, corcerning the Law, which establishes lesser basic quantity, being in conflict with the Constitution. The refference is based on the contradiction with the priciple of lawful expectations. The case is pending in the Constitutional Court.

4. Another problematic issue is the calculation of the service of the judge. According the Art. 97 of the Law on Courts, the judge’s record of service shall be calculated from the day of his appointment to any judicial office. For the purpose of calculating additional payment for the judge, duration of his annual leave and the amount of his pension, the record of the judge’s service shall also include his work as a justice of the Constitutional Court of the Republic of Lithuania, a prosecutor, a deputy prosecutor, an investigator of the prosecutor’s office, an officer in charge of preliminary investigations, a state arbitrator, his work in the civil service and for persons having academic degrees of Doctor of Doctor Habil. in Social Sciences (Law), the academic record of service.

According Articles 4 and 5 of the Law of the Remuneration of Judges, for purpose of counting salaries, the premium, depending of the quantity of years, served for the State is calculated. The method for counting this term is established in the Law of Civil Service and the Instruction for counting term in the Civil Service, approved by the Government. According those Acts, work as an advocate doesn‘t count in this term. This rule is relevant for many judges as prior to enacting the Law of the Remunaration of Judges on 6th November 2008, term of work as an advocate was reckoned in the term. There are several cases refered to the Constitutional Court, concerning those rules. They are still pending.

Other social guarantees

1. The Constitutional Court in it‘s 6th December 1995 decision stated that :
“ <…> any attempts to reduce the salary or other social guarantees of judge or cut the budget of the judiciary are interpreted as infringement on the judicial independence.”

2. Judges, as any other persons, corresponding certain requirements, are entitled to State social insurance pension. Special guarantee for judges – special pensions for judges. The Constitutional Court in it’s 22nd October 2007 decision stated that :
“The state, while establishing by the law that the persons who meet the conditions established by the law acquire the right to a certain pension established in the law, at the same time undertakes the obligation to grant and pay such pension, thus, it must guarantee the corresponding pensionary maintenance for the specified persons on such grounds and of such sizes which are established in the law, while the persons who meet the conditions established by the law have the right to require that the state implement the obligation undertaken by the law, grant them the corresponding pension and pay the payments of the established size (by taking account of the reservation on the proportionate and temporary reduction of pensions (when it is necessary for the protection of constitutional values) in the event of an extraordinary situation in the state which is specified in the Constitutional Court rulings of 23 April 2002, 25 November 2002, 4 July 2003, 3 December 2003 and 26 September 2007) ; the legislator must establish such legal regulation which would ensure the payment of the corresponding pension to the persons who meet the conditions established by the law. When the pension established by a law, which is not in conflict with the Constitution, is granted and paid, this right and legitimate expectation acquired by the person are also to be linked to the protection of the rights of ownership of this person (the right to require to pay the payments of pensionary maintenance which are established under the Constitution and the laws which are not in conflict with the Constitution stems from Article 52 of the Constitution, while under Article 23 of the Constitution, the proprietary aspects of this right are defended).”
In this ruling the Constitutional Court held that legal regulation under which the judge could not gain special pension for judges while having income from labour relationship, in unconstitutional.

3. Judges, as any other persons, have right to receive maternity or paternity allowances. No special regulation for judges is established.
It should be noticed that from 1st January 2010 maternity and paternity allowances were reduced. They were reduced once more since 1st July 2010. the reduction is valid to every person, including judges. There are some references to the Constitutional Court on the question of this reduction. Cases are still pending.

Chapter VII – Duties and responsibilities

1. In Article 43 of the Law on Courts the duties of the Judge are enumerated :
„1. A judge must abide by the Constitution and other laws of the Republic of Lithuania and comply with the requirements of the Rules of Judicial Conduct.
2. Apart from administration of justice, a judge shall also perform other duties assigned by law to the jurisdiction of the court where he works.
3. A judge must notify in writing the Chairman of the court about judicial proceedings to which the judge himself is a party. The judge must also notify in writing the Chairman of the court about judicial proceedings to which the judge’s spouse, children/adopted children, parents/adoptive parents, brothers, sisters/adoptive brothers, sisters also the children/adopted children, parents/adoptive parents, brothers, sister/adoptive brother, sisters are a party if the court where the judge works has jurisdiction over the case.
4. A judge must continuously improve his professional qualifications.
5. A judge must undergo health examinations, following the procedure established in Article 531 of this Law .
6. A judge shall be held liable in accordance with the procedure defined in this Law for failure to perform his duties as a judge.“

2. In Article 44 of the Law on Courts rights and freedoms of the judge are enumerated :
„1. A judge shall enjoy the rights and freedoms of a citizen of the Republic of Lithuania enshrined in the Constitution and laws of the Republic of Lithuania.
2. The procedural rights of a judge shall be set forth in procedural legislation.
3. Judges shall have the right to freely form professional judicial associations and other non-political organisations protecting the rights of judges, representing their interests and meeting their professional needs.
4. A judge shall have the right to represent in court his own interests, the interests of his under-age children and of the persons whose guardian or curator he is.“

3. Article 110 of the Constitution defines the duty of the judge to refer the question to the Constitutional Court :
„A judge may not apply a law, which is in conflict with the Constitution.
In cases when there are grounds to believe that the law or other legal act which should be applied in a concrete case is in conflict with the Constitution, the judge shall suspend the consideration of the case and shall apply to the Constitutional Court requesting it to decide whether the law or other legal act in question is in compliance with the Constitution.“

4. Article 113 of the Constitution defines prohibition for the judge to have another job nor to participate in political activity :
„A judge may not hold any other elected or appointed office, may not work in any business, commercial, or other private establishments or enterprises. Also he may not receive any remuneration other than the remuneration established for the judge and payment for educational or creative activities.
A judge may not participate in the activities of political parties and other political organisations.”

5. In Article 47 of the Law on Courts is described immunity of the judge :
„1. Criminal proceedings may be instituted against the judge, he may be subject to detention or any other restriction of his freedom only by and with the consent of the Seimas, and during the period when the Seimas is not in session - by and with the consent of the President of the Republic, with the exception of cases.
2. It shall be prohibited to enter the residential or office premises of the judge, to carry out examination, search or seizure therein or in his personal or official car or any other personal vehicle, to carry out his personal examination or body search, examination or seizure of his personal belongings except in the cases established by law.
3. Operational investigation of the criminal activity likely committed by the judge may be opened only by the head of the entity of operational activity on the consent of the Prosecutor General and the pre-trial investigation may be commenced only by the Prosecutor General. The powers of the judge suspected or accused of the commission of criminal act may be suspended by the Seimas and in the period between the sessions of the Seimas by the President of the Republic. The judge shall be suspended from office until the final judgement in the criminal proceedings is adopted. If during the pre-trial investigation the circumstances are disclosed which prove that that the proceedings are impossible or that not enough evidence has been collected to prove the judge’s guilt in committing criminal act or the judge has not been convicted guilty by court decision in a criminal case, the powers of the judge shall be renewed and he shall be paid the salary due to him during the period of his suspension.
4. The judge who commits an administrative offence punishable by a non-custodial penalty shall be held administratively liable according to the general procedure. The officer who recorded the administrative violation committed by the judge shall within 3 days notify thereof the Judicial Council.
5. The judge who commits an administrative violation punishable by a custodial penalty shall be held administratively liable upon receipt of the consent of the Seimas and in the period between the Seimas sessions – of the President of the Republic.
6. The judge detained without any personal documents and brought to any law enforcement institution shall be released immediately after his identity has been established.
7. The judge or the court shall not be liable for the damage caused to a party to the proceedings because of an unlawful or ungrounded decision. The damage shall be compensated by the State in the cases and in accordance with the procedure prescribed by law. Property and moral damage caused to an individual by a criminal act of the judge when administering justice and compensated by the State shall be recovered from the judge by recourse.“

6. The Constitutional Court set the doctrine of administrative liability of judges in it’s 17th December decision. According overpast rules of the Law on Courts, judges could not be held liable for administrative violations. In case of such violation, made by judge, material of the event had been referred to the Ethical and Disciplinary Commission of Judges. In the above-mentioned decision the Constitutional Court constituted that a judge could be held liable under administrative liability :
“… the provision of Paragraph 4 (wording of 24 January 2002) of Article 47 (wording of 3 April 2003) of the Law on Courts that administrative procedure may not be instituted against a judge is not grounded constitutionally.
4.1. This provision should be construed while taking account of the other provisions of this paragraph, specifically, the provision that if a judge commits an administrative law violation, the material shall be referred to the Ethical and Disciplinary Commission of Judges, also Paragraph 1 of Article 84 (wording of 24 January 2002) of this law, whereby a disciplinary case may be instituted against a judge immediately upon emerging of at least one of the offences stipulated in Paragraph 2 of Article 83 of this law (but not later than within three months of the day, on which the Ethical and Disciplinary Commission of Judges entitled to institute the case found out about this offence), while under Item 2 of Paragraph 2 of Article 83 (wording of 24 January 2002) a judge may be held liable under disciplinary procedure for committing an administrative law violation ; under Paragraph 5 of Article 84 (wording of 24 January 2002) of the Law on Courts this commission shall be entitled to institute administrative cases, which, according to Paragraph 6 of this article, shall be referred to the Judicial Court of Honour, however, the latter, according to the competence established under Article 86 (wording of 24 January 2002) of the Law on Courts, has no authorisations to hold a judge, who has committed an administrative law violation, administratively liable. Thus, such a judge evades administrative liability for his commission of the administrative law violation (also when, under Paragraph 2 of Article 86 (wording of 24 January 2002) of the Law on Courts, by its decision the Judicial Court of Honour proposes to the President of the Republic or to the Seimas to appoint that judge as a judge of a lower level court, to dismiss him from office or start the impeachment proceedings against that judge).
4.2. Such legal regulation established in Paragraph 4 (wording of 24 January 2002) of Article 47 (wording of 3 April 2003) of the Law on Courts is not in line with Paragraph 2 of Article 114 of the Constitution, whereby a judge may not be held criminally liable, arrested or have his freedom restricted otherwise without the consent of the Seimas, or, in the period between the sessions of the Seimas, without the consent of the President of the Republic. The immunity from administrative liability of a judge, as well as a member of the Seimas and of the Government who are also officials implementing their functions of the state authority execution, is not established in the Constitution, except the cases when administrative liability is related with the restriction of the freedom of a judge ; whereas the President of the Republic has the immunity explicitly consolidated in the Constitution not only from criminal, but also from administrative liability : while in office, he may neither be arrested nor held criminally or administratively liable (Paragraph 1 of Article 86 of the Constitution).
4.3. On the other hand, by the provision of Paragraph 4 (wording of 24 January 2002) of Article 47 (wording of 3 April 2003) of the Law on Courts that a judge may not be held administratively liable, an attempt is made to secure the independence of a judge consolidated in the Constitution, when he administers justice, inter alia to implement the provision of Paragraph 1 of Article 114 of the Constitution that interference by institutions of state power and governance, Members of the Seimas and other officials, political parties, political and public organisations, or citizens with the activities of a judge or the court shall be prohibited and shall incur liability provided for by law. It is obvious that an ungrounded attempt to bring a judge to administrative liability in certain circumstances may actually mean an interference with his activities with an attempt to make an impact on the decisions of the judge, or revenge for decisions already made by the judge.
Thus an obligation arises from the Constitution for the legislator to establish the procedure for bringing a judge to administrative liability, which could provide the maximum protection to the judge from unreasonable attempts to bring him to administrative liability.
Alongside, it is to be noted that in securing the independence of a judge in the administration of justice, one should heed the fact that, according to the Constitution, judges have no immunity from administrative liability (with the exception of the cases when administrative liability is related with the restriction of freedom of the judge). A fair balance should be found for the purpose of implementation of the provisions of Paragraphs 1 and 2 of Article 114 of the Constitution.
For instance, a rule would generally comply with the Constitution (also from the viewpoint de lege ferenda) that in order to bring a judge to administrative liability a consent (permission) should be obtained from a certain institution of the judiciary (a respective court, a higher court of the respective courts system) or a self-government institution of the judiciary (the special institution of judges which is provided for in Paragraph 5 of Article 112 of the Constitution and which is established by law, other self-government institutions of the judiciary).
It is to be emphasised that the purpose of such consent (permission) is the securing that no impact on the activities of the judge is made, which is prohibited by the Constitution (Paragraph 1 of Article 114 of the Constitution), however, it is not creation of preconditions for the judge who committed an administrative violation to evade administrative liability.
4.4. Taking account of the arguments set forth, one is to draw a conclusion that the provision of Paragraph 4 (wording of 24 January 2002) of Article 47 (wording of 3 April 2003) of the Law on Courts that a judge may not be held administratively liable is in conflict with Paragraph 2 of Article 114 of the Constitution.”

7. In Article 83 of the Law on Courts disciplinary Liability of Judges is established :
“1. A disciplinary action shall be brought against a judge by the Judicial Court of Honour.
2. A disciplinary action may be brought against a judge
1) for an action demeaning the judicial office ;
2) for violation of other requirements of the Code of Ethics of Judges ;
3) for non-compliance with the limitations on the work and political activities of judges provided by law.
3. An act demeaning the judicial office shall be an act incompatible with the judge’s honour and in conflict with the requirements of the Code of Ethics of Judges whereby the office of the judge is discredited and the authority of the court is undermined. Any misconduct in office - negligent performance of any specific duty of a judge or omission to act without a good cause shall also be regarded an act demeaning the office of a judge.”

8. In Paragraph 4 of Article 84 of the Law on Courts the subjects, which has the right to make a motion for instituting a disciplinary action, are enumerated :
“The Judicial Council, the Judicial Ethics and Discipline Commission and the Chairman of the court where a judge is employed or the Chairman of any court of a higher level or any person knowledgeable of the action provided for in paragraph 2 of Article 83 of this law shall have the right to make a motion for instituting a disciplinary action. The party having the right to make a motion for instituting a disciplinary action shall submit a reasoned petition for bringing a disciplinary action against the judge to the Judicial Ethics and Discipline Commission”.

This provision gives an instrument for everyone to initiate a disciplinary action to a judge. In certain cases it could be dangerous for the independence of the judge. For example, there were cases in practice, when the disciplinary action against the judge was initiated by the group of the members of Parliament, who did not agree with the decision, made by this judge.

Chapter VIII – Ethics of judges

1. Code of ethics of the judges of the Republic of Lithuania, adopted by a General meeting of the Lithuanian judges on June 28, 2006, determines basic principles of conduct of judges : respect for human ; respect and loyalty for the State ; justice and impartiality ; independence ; confidentiality ; transparency and publicity ; honesty and selflessness ; decency ; exemplarity ; dutifulness ; solidarity.

2. The Judicial Ethics and Discipline Commission is an institution of self-governance of courts deciding the issues of instituting disciplinary actions against judges.

The Judicial Ethics and Discipline Commission shall be composed of seven members. Two members of the Commission shall be appointed by the President of the Republic, one candidate to the commission shall be appointed by the Speaker of the Seimas, four candidates – by the Judicial Council. The President of the Republic and the Speaker of the Seimas shall appoint members of the public to members of the Commission. The Judicial Council shall approve the Chairman of the Commission from the appointed members of the Judicial Ethics and Discipline Commission.

3. A disciplinary action may be instituted against a judge immediately after at least one of the violations specified in Article 83, paragraph 2 of the Law on Courts comes to light but not later than within three months from the day when this violation came to the notice of the Judicial Ethics and Discipline Commission which has the right to institute a disciplinary action. Excluded from this time period shall be the time when the judge was absent from work due to ill health or a vacation.

4. A disciplinary action may be brought against a judge :
1) for an action demeaning the judicial office ;
2) for violation of other requirements of the Code of Ethics of the Judges ;
3) for non-compliance with the limitations on the work and political activities of judges provided by law.

5. Paragraph 4 of Article 84 of the Law on Courts establishes that the Judicial Council, the Judicial Ethics and Discipline Commission and the Chairman of the court where a judge is employed or the Chairman of any court of a higher level or any person knowledgeable of the action provided for in paragraph 2 of Article 83 of this law shall have the right to make a motion for instituting a disciplinary action. The party having the right to make a motion for instituting a disciplinary action shall submit a reasoned petition for bringing a disciplinary action against the judge to the Judicial Ethics and Discipline Commission.

6. A disciplinary action may not be instituted after a lapse of more than three years from the moment of commission of the violation.

7. The instituted disciplinary action shall be transferred to the Judicial Court of Honour.

8. The Judicial Court of Honour is an institution of self-governance of courts hearing disciplinary cases of judges and petitions of judges against defamation.

The Judicial Court of Honour shall be formed for four years and shall consist of nine members. The Supreme Court, the Court of Appeals and the Supreme Administrative Court shall each appoint two members to the Judicial Court of Honour. Three members shall be elected by the Judicial Council to the Judicial Court of Honour from all regional administrative courts, regional courts and district courts. Members of the Judicial Court of Honour shall elect the Chairman and Deputy Chairman of the Judicial Court of Honour.

9. After review of a disciplinary action the Judicial Court of Honour may, by its judgement :
1) dismiss a disciplinary action because of the absence of grounds for disciplinary liability ;
2) dismiss a disciplinary action because of lapse of time ;
3) limit itself to the review of a disciplinary action ;
4) impose a disciplinary sanction.

The Judicial Court of Honour may impose one of the following disciplinary sanctions :
1) censure ;
2) reprimand ;
3) severe reprimand.

The Judicial Court of Honour may, by its judgement :
1) suggest the President of the Republic or the Seimas to dismiss the judge from office according to the procedure established by law ;
2) suggest to the President of the Republic to apply to the Seimas to institute impeachment proceedings against the judge.