Strasbourg, 12 February 2001
CCJE (2001) 9
Consultative Council of European Judges (CCJE)
Questionnaire on the independence of judges, their appointment and careers, and funding of the courts: reply submitted by Lithuania
I. THE INDEPENDENCE OF JUDGES
1. Is the independence of judges guaranteed by the Constitution or by legislation?
The independence of the judiciary is guarantied by Para 2 and 3 of Article 109 of the Constitution of the Republic of Lithuania, as well as by the Law on Courts and other legislation.
2. What institutional safeguards are there with regard to the independence of judges?
The following three groups of safeguards may be conditionally identified among the safeguards guaranteeing the independence of judges: a) those guaranteeing the security of tenure, b) guaranteeing personal immunity of a judge, and c) those securing social (material) guarantees of judges.
3. Is the irremovability of judges recognised?
Yes, it is. A judge who is fulfilling his/her duties conscientiously, is guaranteed by Article 115 of the Constitution that s/he will not be dismissed from the office on the grounds other than specified in this article. The list of grounds given in the Constitution is complete.
4. Can the decisions handed down by judges be reviewed or set aside outside the appeals procedures provided for by law, by institutions other than the courts of appeal or cassation?
5. Can a case be withdrawn from a judge? If so,
i. On what grounds?
In general not. Just in case of judges' illness. It could be done only by the President of the court or by the President of the division.
II. THE APPOINTMENT OF JUDGES AND THEIR CAREERS
1. What qualifications are required and what conditions must be met in order to become a judge?
The Law on Courts sets general requirements for the candidates to a judge's position, such as citizenship, impeccable (irreproachable) reputation, particular level of law studies (master degree at law or lawyer professional degree (one level juridical university education), as well as qualifications of age and prior legal practice.
2. Are judges recruited by competitive examination, on the basis of a professional examination or on the basis of their qualifications?
Judges are recruited on the basis of professional examination, taken prior to the appointment. The examination programs are approved by the Chairperson of the Supreme Court and the Minister of Justice. The following subjects are compulsory for the examination: constitutional, administrative, criminal, civil, labour and financial law of the Republic of Lithuania, law of civil and criminal procedure, international law, EU law.
3. What level of studies is required to become a judge?
Master degree at law or lawyer professional degree (one level juridical university education).
4. Is previous professional experience required?
Yes. The requirements of professional experience vary depending on the level of court.
A person may be appointed as a county court judge if he has worked on probation for 1 year as a candidate to judges.
This requirement is not applicable to:
1. doctors of social sciences and habilitated doctors who have defended doctoral thesis on law,
2. a person who has previously worked as a judge for not less than 1 year,
3. a person who has practised law for not less than 3 years as an assistant of judge of the Supreme Court, the advisor of the president of court or the president of the division of court, prosecutor, advocate, notary or Seimas controller.
4. a person who has practised law for not less than 5 years.
A person may be appointed as a district court judge if he/she has been practising law as a county court judge for not less than 5 years, or as a prosecutor or advocate for not less than 10 years.
A person may be appointed as a judge of Court of Appeal if he has been practising law as a district court judge for not less than 5 years.
Requirements of prior legal practise in order to become a district court judge or judge of the court of Appeal are not applied to doctors of social sciences and habilitated doctors who have defended doctoral thesis on law and have not less than 10 years of pedagogical (scientifical) practice.
A person may be appointed as a judge of the Supreme Court if he has been practising law as a district court judge or judge of the Court of Appeal for not less than 5 years.
Also may be appointed as a judge of the Supreme Court:
1. A prosecutor of the Office of the Prosecutor General, who served in the capacity of a prosecutor for at least ten years.
2. Doctor of social sciences who has defended the thesis on law, who has not less than 10 years of legal practice.
5. Are there any age requirements?
Yes. A person may be designated as a county court judge, if he has at least 25 years of age.
6. Are judges elected?
7. Or are they appointed?
Yes. As provided in the Para 1 of the Article 112 of the Constitution, district and county court judges are appointed by the President, judges of the Court of Appeal - by the President with the content of Seimas (the parliament of Lithuania), and the Supreme Court judges - by Seimas.
8. Or are they selected in another way?
9. Which authority is responsible for recruiting judges? Both judicial (Council of judges') and executive (Ministry of Justice).
10. Does any authority independent of the government and the administration take part in the selection or promotion process?
- if so, specify the composition and role of this body?
Yes. As it is set in Paragraph 5 of Article 112 of the Constitution, a special institution of judges provided by law shall submit recommendations to the President concerning the appointment of judges, as well as their promotion, transference, or dismissal from office.
The Council of Judges exists as a legal body established by the Law on Courts. Exclusively members of the judiciary constitute the Council. It consists of 14 members (*5 judges elected by the General Meeting of Judges, *1 judge elected by the Lithuanian Association of Judges, *2 judges appointed by the President, *2 judges appointed by the Minister of Justice, *the Chairperson of the Supreme Court, *chairpersons of divisions of the Supreme Court, *the Chairperson of the Court of Appeal) for a term of six years.
According to the Constitution the importance of Council of Judges is consultative. It has a right to submit recommendations to the President concerning the appointment of judges, as well as their promotion, transference, or dismissal from office.
11. How and by whom are judges promoted?
The legal regulations of the Republic of Lithuania do not include a possibility of promotion through or to “higher” title. Promotion is directly related with regulation of the appointment of judges.
Article 112 of the Constitution of the Republic of Lithuania states that:
Supreme Court judges, as well as the Chairperson of the Supreme Court, who shall be chosen from among them, shall be appointed and dismissed by the Seimas upon the recommendation of the President of the Republic of Lithuania.
Judges of the Court of Appeals, as well as the Chairperson, who shall be chosen from among them, shall be appointed by the President of the Republic of Lithuania upon the approval of the Seimas.
Judges and chairpersons of district courts, local courts, and other specialised courts shall be appointed, and if necessary, transferred to other places of office, by the President of the Republic of Lithuania.
A special institution of judges provided by law shall submit recommendations to the President concerning the appointment of judges, as well as their promotion, transference, or dismissal from office.
The role of the Council of Judges and the chairpersons of courts should be evaluated in the light of provisions of the Law on Courts, which regulate appointment and promotion of the judges.
12. What are the criteria for promoting judges? Are they objectively defined?
Legal provisions to ensure that promotion of judges is based on objective factors, in particular, ability, integrity, and experience do not exist. Till the present time there are no clear legal criteria provided for by law or regulated in other way.
Performance of judges of the district courts is assessed by chairpersons of district courts by the following quantitative criteria: 1) number of criminal cases started to process when a term was violated; 2) number of criminal cases processed; 3) number of verdicts: 3.1. number of verdicts “non-guilty”, 3.2. number of verdicts “guilty”; 4) number of cases completed without verdict; 5. number of civil cases processed; 6. number of administrative cases processed, etc.. All measurements are put into coherent table called a Report on Work of Judges that has to be filled in on a regular basis and submitted to the Department of Courts to the Ministry of Justice that analyses the qualitative and quantitative aspects of performance of judges. The quantitative measure for assessing performance of judges is percentage of lawful decisions of courts (diametrically opposite indicator for the rate of reversals). However, the quantitative criteria of performance of judges, particularly concerning periods of duration, measuring by verdicts "guilty" or "non-guilty" etc., have been strictly criticised by the Lithuanian Association of Judges by arguing that “the case should be heard during the reasonable time” as it is provided in the Article 6 of the Convention on Protection of Human Rights and Fundamental Freedoms.
13. In what cases can a judge be removed from office?
The complete list of grounds for dismissal of judges from the office is given in the Constitution. Judges of the courts of the Republic of Lithuania can be dismissed from office according to the procedure established by law in the following cases:
2) upon the expiry of the term of office or upon attainment of pensionable age established by law;
3) because of illness;
4) in the case of appointment to another post or transfer, with his consent, to another job;
5) when by his behaviour causes damage to the title of a judge;
6) when court judgements convicting them enter into force.
The Seimas may remove from office the Chairperson of the Supreme Court and the judges as well as the Chairperson of the Court of Appeal and judges for the gross violation of the Constitution of the Republic of Lithuania or breach of oath as well as when it is discovered that an offence has been committed, according to the impeachment proceedings.
14. Do you wish to make any comments or mention any practical difficulties with regard to the independence and appointment of judges in your country?
The new Law on courts has already been drafted. We expect it be adopted in the near future. In this draft there are many provisions strengthening the independence and Self-regulation of the judiciary, eliminating some powers from the ministry of justice and concentrating them within the judiciary itself.
III. THE FUNDING OF THE COURTS
1. How are the courts’ activities funded?
Prior to the Ruling of the Constitutional Court of 21 December 1999, only the Supreme Court of the Republic of Lithuania has had a separate budget line in state budget. Other courts had shared one line, and the assignments of financial assignations to individual courts were made through the Ministry of Justice. The Constitutional Court ruled that principle of independence of courts embraced inter alia financial independence of courts from the executive. Reportedly the principle could be reflected in legal norms by introducing a provision that in order to create appropriate conditions to administer justice financial allocations for each court should be embodied in state budget. The funds had to be assigned to each court directly as opposed to the existed order. Furthermore, the Ministry (Minister) of Justice was declared as not having authority to manage assignations allocated for courts. Therefore, it could not determine any longer how the budgetary funds allocated for courts should be used.
Two days later, i.e. on 23 December 1999, the Seimas approved the budget for the year of 2000, which contained separate budget lines for each specific court.
2. Give a brief description of the rules governing the setting of the budget for the judicial system and the courts.
It was stated in the aforementioned Ruling of the Constitutional Court, that the Ministry of Justice might be empowered in the realm of financial maintenance of courts to draft and submit budget to the Seimas. The Minister of Justice was acknowledged of having the only right to receive information concerning needs of courts from chairpersons of courts in order to ensure that sufficient funds for appropriate functioning of courts are allocated.
Thus in the area of the arrangement for financial supply of courts the powers of the Minister of Justice is to be limited to preparation of a draft state budget and discussion in the Seimas. Since the beginning of the financial year of 2000 each individual court "has a separate line" in the Law on State budget, i.e. direct allocation of state financing.
2. Do judges have any say whatsoever in decisions concerning funding or in managing the budget?
After the Ruling of the Constitutional Court of Lithuania there is some legal vacuum in this sphere. We believe that the provisions in the new Law on courts will be in favour of including judges in managing the budget. Since the year 2000 each individual court receive the direct financial assignations from the State budget.
4. Do judges have adequate support staff and equipment, in particular office automation and data processing facilities, to ensure that they can act efficiently and without undue delay?
The efficient functioning of courts is still hampered by the lack of necessary technical equipment (computers, typewriters, copying machines). Courts suffer from the under-investment: the estimated amount needed for an investment is appr. 32 mln Litas.
The computerisation of courts is gradually progressing, but the installation of a common network as well as creation of complex multidimensional information technologies is in a fairly elementary stage. Lack of computers is clearly noticeable. 85% of courts have email connection introduced while at the beginning of 1999 there were only 20%.
Legal information is not stored in computers. Judges do not control what data is fed into the computer. However, access to legal information is provided to all courts either by installing a legal information system (legislative data bank) called LITLEX or by making the Internet connection available to this legal database.
5. Do judges encounter other material difficulties, which prevent them from acting efficiently?
Although some courthouses were newly built, renovated or reconstructed during last years, some of them, particularly in provinces, remain in very poor condition. The lack of proper court premises sometimes cause delay in hearing cases.
Because of lack of proper financing, judges of some courts had to buy paper, other office suppliers, and cover court mailing expenses by themselves.
6. Are appropriate measures taken to assign non-judicial tasks to other persons?
Although in higher level courts there are assistants of judges, not every judge may have his own assistant (with the exception of the Supreme Court). The situation is the worst in county courts, where are no assistants of judges, when the workload is the biggest.
7. General comments on the funding of the courts
The EU Regular Report of 1999 on Lithuania as one of the areas still needing attention noted the continued reform of the judiciary. However, in Regular Report on Lithuania’s progress towards accession of 2000, the Commission concluded, that there had been limited concrete progress since the last Regular Report. That, in the opinion of the Commission, was partly due to the especially stringent budgetary constraints. The Report pointed to several problems related to judiciary: lack of qualified judges, particularly in district and administrative courts, an inadequate level of judges remuneration, lack of modern working methods and equipment.