Strasbourg, 1 February 2006
Consultative Council of European Judges (CCJE)
Questionnaire on “The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism”: reply submitted by the delegation of Lithuania
"The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism"
Answers by the Lithuanian Association of Judges
16 January 2006
A. Availability of information and documentation on all international legal instruments relevant to judicial activities (point IV (d) of the framework action plan)
A.1. Does your country have schemes to provide judges with initial and in-service training in international and European law? If it does, please provide a list of those schemes, specifying the subjects dealt with over the last year. Please indicate the number of judges concerned by these schemes, distinguishing between initial and in-service training, and the total number of judges in your country.
According to the Article 93 of the Law on Courts of the Republic of Lithuania, training of judges shall be organised, programmes and methodological materials shall be developed by the Judicial Council and the Ministry of Justice. Programmes for training of judges, tests’ rules, annual syllabuses and schedules, types of training, its scope and financing, other teaching-related documents are endorsed by the Minister of Justice subject to the approval of the Judicial Council.
In 2002 the long-term programme for the training of judges was adopted1. Training on the EU law and main tendencies of jurisprudence of European Court of Human Rights is included in every sub programme of the programme mentioned. Issues of international law are not directly listed in the long-term programme, but they are intended to be dealt with under the other topics, such as civil law, criminal law, etc.
International trainings are organized by the Ministry of Justice or superior courts under the bilateral agreements with foreign partners. During the year 2005, the following international trainings were carried out by the Ministry of Justice:
1. Matra project “Implementation of new Code of Civil Procedure – national and international aspects” (72 judges participated);
2. “Independence of judges, their role and mission” (36 judges participated)
3. “Law on asylum and labour” – in collaboration with TAIEX (48 judges participated)
4. “Application of AQUIS in the asylum and refugee law” (25 judges participated)4
Presently, there are 727 judges in Lithuania5.
Law on Courts distinguishes between the initial training and obligatory in-service training of judges. Initial training for newly appointed district court judges according to the Law must last at least a month before the judge assumes the duties of his office. However, initial training does not cover issues of international and EU law – it is more of practical nature intended to familiarize a new judge with the peculiarities of everyday work in court (as in Lithuania there is no special schools for judges). Initial training covers 3 weeks of training in district court, 1 week of training in regional court and 2 days of training in the Ministry of Justice.6 At the same time it should be taken into account that judicial examination, compulsory for every candidate to a judicial position, with the exception of persons having doctors’ of social sciences (law) degree, includes also issues of international and EU law.
Foreign language courses are included in the training programmes for judges. Priority is given to the trainings in English, French and German languages7.
According to the Article 94 of the Law on Courts, training of judges shall be financed by the State. For this purpose, funding under a separate programme shall be provided for the Ministry of Justice for the organisation of training of judges, development and publication of teaching materials and other training-related expenses. It applies also to the training of judges in foreign languages.
Superior courts sometimes organize training in foreign languages separately from the funds allocated to the judicial training in the courts’ budget. According to the Law on Courts, funds shall be earmarked in the estimates of court expenses for the planned training of judges making up at least 1.5 per cent of the allocations for judges' salaries.
Every court in Lithuania has position of interpreter, but his function is mostly related to the translation during the oral court sessions and translation of procedural documents of a court. There is no special translation departments intended to translate relevant materials for judges. In superior courts this function is sometimes carried out by the special departments whose main function is research and generalisation of international and European Union Law and judicial practice of national and international courts. For example, the Constitutional Court has separate Law Department, the Supreme Court of Lithuania – Department on International and European Union Law, and the Supreme Administrative Court – Department on Judicial Practice. Such units are however unknown in the lower courts. Judges of lower courts have to translate relevant material themselves or with the assistance of assistants of judges.
B. Dialogue between national and European judicial institutions (point IV (c) of the framework action plan)
B.1 What means does your country use to enhance dialogue between the national courts and the European courts? Please provide information on training dispensed in this connection over the last year.
There are no centralized means in this respect. Direct contacts with European courts depend mostly on the initiative of a particular national court. Sometimes officials serving in European courts (mostly of Lithuanian nationality) are invited as speakers to the training seminars for judges.
B.2. Does your country hold events bringing together the national courts and the European courts? Who participates in these gatherings? How are their results passed on, so as to enhance their reach?
Such events are not hold in Lithuania.
Superior courts in Lithuania have a membership of several European or International judicial associations, such as Association of the Councils of States and Supreme Administrative Jurisdictions of the European Union, International Association of Supreme Administrative Jurisdictions, etc. and participate in the events of those associations.
C. Application by national courts of the European Convention on Human Rights and the case-law of the European Court of Human Rights, European community law and other international legal instruments (point IV (b) of the framework action plan)
C.1. In your country what rank do the following sources of law enjoy in the hierarchy of law in particular in relation to constitutional provisions and ordinary legislation?
Please cite the relevant constitutional provisions or case-law.
According to the Article 138 of the Constitution of the Republic of Lithuania, International treaties which are ratified by the Seimas of the Republic of Lithuania (parliament) shall be a constituent part of the legal system of the Republic of Lithuania.
In one of its rulings, the Constitutional Court of Lithuania has ruled that „legal system of the Republic of Lithuania is grounded on that any law or other legal act, as well as international treaties of the Republic of Lithuania must not contradict the Constitution, as it is established in Part 1, Article 7 of the Constitution that: "Any law or other statute which contradicts the Constitution shall be invalid". This constitutional provision of itself cannot invalidate a law or an international treaty but it requires that the provisions thereof would not contradict the provisions of the Constitution. Otherwise the Republic of Lithuania would not be able to ensure legal defence of the rights of the parties of international treaties, which arise from those treaties, and this in its turn would hinder from fulfilling obligations according to the concluded international treaties“8. In its Conclusion of 24 January 1995 "On the compliance of Articles 4,5,9,14 as well as Article 2 of Protocol No 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms with the Constitution of the Republic of Lithuania" the Constitutional Court has explained that "constitutional provisions imply that upon its ratification and enforcement the Convention will become the constituent part of the legal system of the Republic of Lithuania and shall be applied in the same way as laws of the Republic of Lithuania". In the mentioned Ruling of 17 October 1995 the Constitutional Court of Lithuania has ruled that not only Convention, but also other ratified international treaties in Lithuanian legal system have the force of law (that is legal act adopted by the Seimas and having the highest rank between the sources of law with the exception of the Constitution).
It should be also noted, that although according to the Constitution international treaties in Lithuania have the same force as laws, national laws of Lithuania provide for the principle of the precedence of international law. According to the Law on Treaties of the Republic of Lithuania, if a ratified treaty of the Republic of Lithuania which has entered into force establishes norms other than those established by the laws, other legal acts of the Republic of Lithuania which are in force at the moment of conclusion of the treaty or which entered into force after the entry into force of the treaty, the provisions of the treaty of the Republic of Lithuania shall prevail. If a law or any other legal act has to be passed for the purpose of implementation of a treaty of the Republic of Lithuania, the Government of the Republic of Lithuania shall submit to the Seimas according to the established procedure a draft of the appropriate law or shall adopt an appropriate resolution of the Government or ensure according to its competence the passing of another legal act. Analogous provision may be found in all the national codes. For example, the Article 1.13 of the Civil Code of the Republic of Lithuania provides that “where the provisions established in the international treaties of the Republic of Lithuania are different from those determined by the Civil Code and other laws of the Republic of Lithuania, the provisions of the international treaties of the Republic of Lithuania shall apply. The international treaties of the Republic of Lithuania shall apply to civil relationships directly, except in cases where an international treaty establishes that a special national legal act is necessary for its application. The provisions of international treaties shall be applied and interpreted in accordance with their international character and the necessity to guarantee a unified interpretation and application thereof”.
The precedence of international law was also many times underlined by the superior courts. For example, the Supreme Court of Lithuania has stressed that “According to the Vienna Convention on the Law of Treaties (1969), every treaty in force is binding upon the parties to it and must be performed by them in good faith. A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Coming into effect of an international treaty means that this treaty becomes compulsory for the states – parties, and that their national courts are obliged to apply the provisions of international treaty"9.
a) the European Convention on Human Rights (ECHR)
European Convention on Human Rights was ratified by Lithuania in 1995 and as a ratified international treaty enjoys the rank of law in Lithuanian legal system.
Before the ratification of the European Convention on Human Rights, the Constitutional Court of the Republic of Lithuania was asked to give a conclusion on the compliance of several articles of the Convention with the provisions of the Constitution of Lithuania. The Constitutional Court has ruled that “the European Convention for the Protection of Human Rights and Fundamental Freedoms is a peculiar source of international law, the purpose of which is different from that of many other acts of international law. This purpose is universal, i. e. to strive for universal and effective recognition of the rights declared in the Universal Declaration of Human Rights and to achieve that they were observed while protecting and further implementing human rights and fundamental freedoms. With respect to its purpose, the Convention performs the same function as the constitutional guarantees for human rights, because the Constitution establishes the guarantees in a state and the Convention - on the international scale. […] national authority, while implementing legal protection, must directly apply constitutional norms and realize the provisions of the Convention. The provisions must become the constituent part of the domestic law of a state and must meet no obstacles in their application in courts and other authorities providing legal protection. “10
It should be noted that the European Convention on Human Rights is the international convention which is probably most often directly applied by the national courts of Lithuania, especially the highest courts (the Supreme Court and the Supreme Administrative Court). As many provisions of the Convention are similar to that of the Constitution of Lithuania, the Constitutional Court of Lithuania sometimes use the provisions of the Convention and jurisprudence of the European Court for Human Rights as a source of interpretation of the norms of Constitution. This situation in turn anticipates the legal force of the provisions of the Convention to the legal force of constitutional provisions.
b) EU treaties
Principle of the supremacy of EU law in Lithuania is clearly recognized. It means that EU law in Lithuania obviously enjoys higher rank in the hierarchy of sources of law than national laws do. However, relationship between EU treaties and the Constitution of Lithuania seems a bit more complicated. Following the preceding practice of the Constitutional Court of Lithuania, one could derive a principle that any legal act, including international treaties or the EU law, must not contradict the Constitution, which means that the Constitution remains the highest legal act in the hierarchy of sources of law. On the other hand, a question concerning the relationship between EU treaties, as the primary sources of EU law, and the Constitution of Lithuania has not yet been raised in practice.
c) the case-law of:
Although judicial precedent is traditionally not recognized as primary source of law in Lithuania, in practice jurisprudence of the European Court of Human Rights and the Court of Justice of the European Communities are acknowledged by the national courts as a constituent part of the provisions of the European Convention on Human Rights and EU law respectively. Thus decisions of the European Court of Human Rights or the Court of Justice of the European Communities are quite often cited in the decisions of the national courts of Lithuania, when such decisions are based on the provisions of the European Convention on Human Rights or EU law.
From the date of accession of Lithuania to the European Union, Article 33 of the Law on Courts was amended and now contains the provision that when hearing cases courts shall apply the norms of European Union law and shall apply the judgements of the judicial institutions of the European Union as well as the preliminary rulings pertaining to the interpretation and validity of legal acts of the European Union.
It should be also noted that jurisprudence of the European Court of Human Rights and the Court of Justice of the European Communities is sometimes used by Lithuanian courts as a source of interpretation of national laws, adopted in compliance with the EU law or containing similar guarantees for human rights as the European Convention.
d) international treaties.
As it was already mentioned, ratified international treaties in Lithuania enjoy the rank of law, while the principle of the precedence of international law ensures that in case of contradiction between the national law and international treaty the latter prevails.
Several years ago it was a dispute in Lithuania regarding the status of international treaties for which ratification procedure is not provided for in the Constitution of the Republic of Lithuania or the treaty itself. According to the Law on Treaties of the Republic of Lithuania, such treaties are approved by the resolution of the Government of the Republic of Lithuania. Accordingly, it was argued that the legal status of such treaties is the same as of resolutions of Government, which means that laws passed by Seimas prevail in case of contradiction. However, national courts of Lithuania even in this case tend to apply the principle of the precedence of international law. For example, the Supreme Court of Lithuania has explained that “according to the Point 5 of the Article 42 of the Geneva Convention on the Contract for the International Carriage of Goods by Road (CMR) this convention can be ratified or accessed. Accession means agreement of the states – parties to the Convention to apply it. Therefore refusal by Lithuanian courts to apply provisions of the CMR convention on that score that CMR convention is not ratified by Lithuania, would contradict the principles of international law, in particular the provisions of Vienna Convention on the Law of Treaties (1969), Article 27 of which provides for that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”11.
C.2. Does your country's case-law recognise the value - at least for interpretation purposes - of Council of Europe recommendations and resolutions?
Yes, it does. Courts of higher instance in Lithuania quite often refer to the Council of Europe recommendations, especially when they elaborate the essence of some principles of law. For example, the Supreme Administrative Court of Lithuania has previously based its decisions on the Recommendation of the Committee of Ministers No. R (91) 1 On administrative sanctions12, the Supreme Court of Lithuania – on the Recommendation of the Committee of Ministers No. R (95) 5 Concerning the introduction and improvement of the functioning of appeal systems and procedures in civil and commercial cases13.
D. The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism
D.1. Has your country incorporated the Council of Europe recommendations and resolutions in its legislation or taken special measures to distribute and publicise these instruments?
Legal basis for the regulation of prevention of and fight against terrorism in Lithuania is international conventions, ratified by Lithuania, international treaties on cooperation in fight against terrorism as well national laws, determining various means of fight against terrorism and defining the competence of various state institutions in this field.
It should be mentioned that in Lithuania the highest regard is paid to the terrorism prevention. Till now in Lithuania there are only some manifestations of terrorism. Several coercive acts that happen till now were carried out for criminal or economical reasons, when members of organized crime inflicted vengeance on one another and likewise. Recent political, social-economical and national conditions of Lithuania do not allow the formation of internal wide-raging threatening terrorist formations. It means that the highest threat for Lithuania is international terrorism. International terrorist structures are mostly interested in favourable geographical position of Lithuania. For example, during the period from 2002 to 2003 36 persons were precluded from entering Lithuania on the initiative of the State Security Department. Moreover, 44 persons (35 from among them – citizens of Afghanistan) having connections with terrorist organisations were identified; only 3 of them have entered the territory of Lithuania legally.14
Lithuania has also signed treaties on cooperation in fight against terrorism with Hungary (1997), Turkey (1997), Kazakhstan (2000), Germany (2001), Uzbekistan (2002), Sweden (2002), Poland (2000). In 2003 agreement of cooperation with EUROPOL was signed.
Main national legal acts that should be mentioned are:
1. Law on Prevention of Money Laundering (new wording from 2003);
2. Law on Operational Activities (2002) ;
3. Law on Reconnaissance (2002) ;
4. Law on the Legal Status of Aliens (2004)
5. Rules of making, administration and use of the register of aliens that are forbidden from entering the territory of the Republic of Lithuania, approved by the Resolution of Government (2002).
6. Strategy of National Security (2002)
7. Programme against terrorism, approved by the Resolution of Government (2005)
National legal acts of Lithuania are in compliance with the Guidelines of the Committee of Ministers of the Council of Europe on human rights and the fight against terrorism, adopted by the Committee of Ministers at its 804th meeting (11 July 2002).
No special measures to distribute and publicise the Council of Europe recommendations and resolutions in the field of fight against terrorism were taken.
D.2. Has your country adopted substantive and procedural measures specifically applicable for cases where a suspicion about terrorism exists? Please describe what is the role of the judge in the proceedings in this type of cases and indicate in what way his or her role in this case is different from his or her role in ordinary proceedings.
In Lithuania there are no specific proceedings with the involvement of a judge specifically applicable for cases where a suspicion about terrorism exists. According to the Law on Operational Activities of the Republic of Lithuania, an operational investigation shall be conducted, when characteristics of a criminal act have not been established, but information is available about a particularly serious or serious crime being prepared, being committed or having been committed, also when information is available about the acts positing a threat to the constitutional system of the State, independence and economic security thereof, ensuring of the defence power of the State or other interests of importance to national security.
Criminal Code of the Republic of Lithuania provides for the criminal responsibility for the act of terror (Article 250), taking of hostages (Article 252), hijack of a plane, ship or seizure of a fixed platform located on the continental shelf (Article 251). Following the amendment of the Criminal Code of 2004, criminal responsibility for the provocation of terrorism (article 250-1 of the Criminal Code) was also introduced. However, the role of a judge, or pre-trial investigation judge, when hearing such kind of criminal cases is the same as in every case of serious or serious crime (most of the mentioned crimes are classified as particularly serious or serious according to the Criminal Code).
The new Law on the Legal Status of Aliens of the Republic of Lithuania has tightened the order of entrance, staying in the territory of Lithuania, as well as conditions for the application of refugee status. According to the mentioned law, decision regarding the expulsion of an alien from the Republic of Lithuania must be implemented without delay, unless there are circumstances which allow for the postponement of the implementation of the decision. The decision on the expulsion of an alien on the ground that the alien’s stay in the Republic of Lithuania constitutes a threat to public security or public policy shall be taken by the Vilnius regional administrative court, while the said decisions shall be implemented by the State Border Protection Service or the police. In this case, appeal to the higher court does not suspend the expulsion.
Law on Administrative Proceedings of the Republic of Lithuania does not provide for any specific procedures for the hearing of such type of cases. Law on the Legal Status of Aliens of the Republic of Lithuania however provides for the shorter time-limits. In such type of cases, information constituting the state secret (classified information) is used very often.
D.3 What means does your country use to reconcile the demands of security and of the protection of human rights in cases where suspicion about terrorism exists? Please indicate the measures taken, in particular in the fields of criminal law, administrative law, admission, exclusion and deportation of aliens, and preventive actions.
Can you quote some specific cases where the question about such reconciliation was raised?
As it was already mentioned, were almost no criminal cases related to terrorism in Lithuania till now and the procedure applicable in this type of criminal cases is similar to that of any other cases concerning crimes of the same category.
Regarding the admission, exclusion and deportation of aliens, new Law on the Legal Status of Aliens of the Republic of Lithuania was passed quite recently. This law implements the set of directives and resolutions, in particular Council Directive of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, Council Directive of 18 May 1972 extending to workers exercising the right to remain in the territory of a Member State after having been employed in that State the scope of the Directive of 25 February 1964 on coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, Council Resolution of 20 June 1995 on minimum guarantees for asylum procedures, Council Resolution of 25 September 1995 on burden- sharing with regard to the admission and residence of displaced persons on a temporary basis, Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals, Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, etc.
One of the novelties of the new law is that decision on the expulsion of an alien on the ground that the alien’s stay in the Republic of Lithuania constitutes a threat to public security or public policy (as it is executed without delay) now must be adopted by the Vilnius regional administrative court, and not by the Migration Department.
When making a decision to expel an alien from the Republic of Lithuania account shall be taken of:
1) the period of his lawful stay in the Republic of Lithuania;
2) his family relationship with persons resident in the Republic of Lithuania;
3) his social, economic and other connections in the Republic of Lithuania;
4) type and extent of dangerousness of the committed violation of law.
The Law on the Legal Status of Aliens also provides for additional guarantees in case of detention of an alien or granting him measures alternative to detention. According to the law, an alien may be detained by the police or any other law enforcement institution officer for a period not exceeding 48 hours. For a period of over 48 hours an alien can be detained at the Foreigners’ Registration Centre only on the court order. An alien below the age of 18 years may be detained only in an extreme case when the alien’s best interests are the main consideration.
An alien may be detained on the following grounds:
1) in order to prevent the alien from entering into the Republic of Lithuania without a permit:
2) if the alien has illegally entered into or stays in the Republic of Lithuania;
3) when it is attempted to return the alien to the country from whence he has come if the alien has been refused entry into the Republic of Lithuania;
4) when the alien is suspected of using forged documents;
5) if a decision on the expulsion of the alien from the Republic of Lithuania has been taken;
6) in order to stop the spread of dangerous and especially dangerous communicable diseases;
7) when the alien’s stay in the Republic of Lithuania constitutes a threat to public security, public policy or public health.
In view of the fact that the alien’s identity has been established, he constitutes no threat to public security and public policy, provides assistance to the court in determining the alien’s legal status in the Republic of Lithuania as well as other circumstances, the court may take a decision not to detain the alien and to grant him a measure alternative to detention. Measures alternative to detention are as follows:
1) requiring that the alien regularly at the fixed time report at the appropriate territorial police agency;
2) requiring that the alien communicate his whereabouts at the fixed time by communication means to the appropriate territorial police agency;
3) entrusting the care of an unaccompanied minor alien to a relevant social agency;
4) entrusting the care of the alien, pending the resolution of the issue of his detention, to a citizen of the Republic of Lithuania or an alien legally resident in the Republic of Lithuania who is related to the alien, provided that the person undertakes to take care of and to support the alien;
5) accommodating the alien at the Foreigners’ Registration Centre without subjecting him to restriction of freedom of movement.
If there are grounds for detaining an alien established by the Law, an officer of the police or any other law enforcement institution must apply to the district court of the location of the alien’s stay with a motion to detain the alien for a period of over 48 hours or to grant the alien a measure alternative to detention within 48 hours from the moment of detention of the alien. The alien’s presence at the court hearing is mandatory. During the court hearing of the motion for detention of the alien or for granting him a measure alternative to detention the alien is entitled legal assistance guaranteed by the State of Lithuania. The court’s decision to detain the alien or to grant him a measure alternative to detention must be forthwith announced in a language which the alien understands, indicating the reasons of his detention or of granting of measures alternative to detention. The court’s decision to detain the alien or to grant him a measure alternative to detention becomes effective from the moment of its announcement.
An alien is entitled to appeal on the decision to the Supreme Administrative Court of Lithuania, according to the procedure established by the Law on Administrative Proceedings. The Supreme Administrative Court of Lithuania is obliged to pass a decision within 10 days from the date of acceptance of the appeal.
The problem which remains under discussion in Lithuania is use of classified information during the court proceedings. Law on Administrative Proceedings in principle allows the use of classified information in administrative cases. In cases related to expulsion, classified information is in practice used very widely and sometimes is the only evidence. Thus applicant (and sometimes even his/her lawyer) is not entitled to familiarize with this information.
There were several applications of aliens against Lithuania to the Court of Human Rights, concerning violations of their rights during the procedure of expulsion (application of Adjara AHMADI, Amirdjan SABERDJAN and Omar Khan SABERDJAN, application No. 47701/99, application of BATALOV, application No. 30789/04, application of KAMBANGU, application No. 59619/00), but they were declared fully or partially inadmissible for various reasons.
8 Ruling of the Constitutional Court of the Republic of Lithuania “On the compliance of Part 4, Article 7 and Article 2 of the Law of the Republic of Lithuania "On International Treaties of the Republic of Lithuania" with the Constitution of the Republic of Lithuania“, 17 October 1995
10 Conclusion of the Constitutional Court of the Republic of Lithuania “On the compliance of Articles 4, 5, 9, 14 as well as Article 2 of Protocol No 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms with the Constitution of the Republic of Lithuania“, 24 January 1995
12 See e.g. Ruling of the Supreme Administrative Court of Lithuania, administrative case No. A15-626-2005