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Lithuania (2014)

 
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  • INTRODUCTION (History, purpose of the review and classification of administrative acts, definition of an administrative authority)

    • 1. Main dates in the evolution of the review of administrative acts

      For almost ten years following the restoration of independence of Lithuania, the review of decisions and acts of administrative authorities was carried out by the courts of general jurisdiction. There were no specialized chambers for administrative affairs or specialization of judges – administrative disputes were heard by civil courts according to the specific rules of the Code of Civil Procedure (CCP). Proceedings for hearing disputes arising from administrative legal relations were construed by the “enumerative” principle - courts could hear only administrative disputes directly listed in the CCP.

      In May 1999, following the constitutional provision that for the consideration of administrative, labour, family and other categories of cases, specialized courts may be established pursuant to law (1), a system of specialized administrative courts was established. The need for such a reform was explained by the fact that, according to the existing legal regulation, civil courts can hear only a part of administrative disputes, while, due to the gaps in legal regulation, most of administrative disputes fall outside the competence of courts (2). The idea of specialized administrative courts was also supported by the specifics and complexity of administrative disputes and the need for the specialization of judges. According to the Law on Establishment of Administrative Courts, specialised administrative courts were established for considering complaints (applications) against administrative enactments adopted by the entities of public and internal administration and their acts or omission (i.e., neglect to perform their duties).

      During the first period of its existence, the system of administrative courts consisted of 5 regional administrative courts, the Higher Administrative Court and the Administrative Division of the Court of Appeals of Lithuania. In 1999, the system of independent administrative disputes commissions was also established (3).

      In 2001, the system of administrative courts underwent final reforms, which resulted in the creation of the Supreme Administrative Court of Lithuania and full separation of administrative courts from the system of courts of general jurisdiction. Presently, the system of administrative courts of Lithuania consists of 5 regional administrative courts and the Supreme Administrative Court of Lithuania.

      (1) Article 111 of the Constitution.
      (2) Explanatory memorandum to the Draft Law on Establishment of Administrative Courts.
      (3) Law on Administrative Disputes Commissions, adopted on January 14, 1999.

    • 2. Purpose of the review of administrative acts

      In Lithuania, the review by the courts of administrative acts and actions aim to submit administrative authorities to the law and protect individual rights. This position is supported by the available kinds of recourse against administrative acts and actions (see answer to question 16).

      Moreover, the precondition for applying to an administrative court is the legal interest of the claimant - the violation of his/her individual rights (except for the cases of protection of public interest). The Supreme Administrative Court of Lithuania has ruled numerous times that there are no grounds for the annulment of the disputed administrative act if it is determined that this administrative act has not violated the rights and/or legal interests of the claimant.(4)

      (4) See e.g. Ruling of the Supreme Administrative Court of Lithuania of 30 December 2004, administrative case No. A2 – 1049 – 2004; Ruling of the Supreme Administrative Court of Lithuania of 25 March 2005, administrative case No. A2 - 108 – 2005.

    • 3. Definition of an administrative authority

      According to the Law on Public Administration of the Republic of Lithuania, the term “entities of public administration” (or, in other words, “administrative authorities”) means institutions, agencies, services and civil servants (officials) having public administration rights granted to them under laws and implementing in practice the executive power or separate functions thereof.

      Private institutions, which have been granted public administration powers in accordance with the procedure established by law, are also regarded as “entities of public administration”.

    • 4. Classification of administrative acts

      According to the Law on Public Administration of the Republic of Lithuania, administrative acts are classified into:
      - Individual administrative acts (in most cases, this means an act of single application of law directed to a specific person or a definite group of persons);
      - Administrative regulatory enactments (sometimes called normative administrative acts) (means a legal act establishing the rules of conduct and intended for an individually unidentifiable group of persons).

      In Lithuania, there is no legal concept of an administrative contract. All contracts, regardless of which institution is the party thereto, are regarded as civil contracts (this also includes public procurement).
      Administrative acts can also be classified into:
      - Administrative acts adopted by central entities of state administration (4);
      - Administrative acts adopted by territorial entities of state administration (5).

      The distinction between these acts has a jurisdictional significance. According to Article 19 (1) of Law on Administrative Proceedings, individual administrative acts adopted by central entities of state administration are usually reviewed by Vilnius Regional Administrative Court (as part of its so- called Additional Competence), whereas administrative regulatory enactments adopted by the same central entities of state administration is within purview of Supreme Administrative Court of Lithuania (Article 20 (1) (3) of Law on Administrative Proceedings).

      (4) Article 2 (7) of Law on Administrative Proceedings
      (5) Article 2 (8) of Law on Administrative Proceedings

  • I – ORGANIZATION AND ROLE OF THE BODIES, COMPETENT TO REVIEW ADMINISTRATIVE ACTS

    • A. COMPETENT BODIES

      • 5. Non-judicial bodies competent to review administrative acts

        Alongside the establishment of administrative courts, the general procedure of pre-litigation of complaints (applications) contesting the adopted individual administrative acts and acts (or omission) of civil servants and municipality employees in the sphere of public administration was established by the Law on Administrative Disputes Commissions. The law provides for the establishment of municipal public administrative disputes commissions and the Chief Administrative Disputes Commission. For pre-litigation procedure of tax disputes, the Commission on Tax Disputes under the Government of the Republic of Lithuania was established in 1998.

        Application to municipal public administrative disputes commissions or the Commission on Tax Disputes prior to applying to an administrative court is not compulsory, save for the cases provided by laws.

      • 6. Organization of the court system and courts competent to hear disputes concerning acts of administration

        The court system of the Republic of Lithuania consists of courts of general jurisdiction and administrative courts.

        District courts, regional courts, the Court of Appeals of Lithuania and the Supreme Court of Lithuania are courts of general jurisdiction, hearing civil and criminal cases. Courts of general jurisdiction do not hear administrative disputes, save for cases involving administrative offences. Besides, when hearing a civil case, a court of general jurisdiction may also hand down a decision on the lawfulness of an individual administrative act (6).

        It should be noted that certain issues, which, in some other countries, are dealt with by the specialized courts, in Lithuania fall under the competence of courts of general jurisdiction. It includes inter alia: - industrial property relations; - public procurement - contractual liability of state and municipal institutions.

        The system of administrative courts of Lithuania consists of 5 regional administrative courts and the Supreme Administrative Court of Lithuania. Those are the courts of special jurisdiction hearing disputes arising from administrative legal relations. There are no specialized courts, competent to hear specific types of administrative disputes in Lithuania. Some specialization exists only at the level of institutions engaged with pre-trial litigation (e.g. the Commission on Tax Disputes).

        The Constitutional Court of the Republic of Lithuania is given a special status. According to the Constitution of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has exclusive competence to decide whether the laws and other legal acts adopted by the Seimas (the Parliament) are in conformity with the Constitution, and whether the acts adopted by the President or the Government of the Republic are in compliance with the Constitution and laws, adopted by the Seimas.

        If there is a ground to believe that the law applicable in a particular case contravenes the Constitution, the administrative court or the court of general jurisdiction is obliged to suspend the hearing of the case and, in view of the competence of the Constitutional Court of the Republic of Lithuania, apply to it with a request to determine whether the aforesaid law or other legal act complies with the Constitution. Having received the ruling of the Constitutional Court, the court resumes the hearing of the case.

        The right to file a petition with the Constitutional Court concerning the constitutionality of a legal act is also vested in the Government, groups consisting of at least 1/5 of all Seimas members, and the President of the Republic.

        (6) Article 12 (3) of Law on Courts.

    • B. RULES GOVERNING THE COMPETENT BODIES

    • C. INTERNAL ORGANIZATION AND COMPOSITION OF THE COMPETENT BODIES

    • D. JUDGES

      • 11. Status of judges who review administrative acts

        Judges who review administrative acts do not belong to a specific category. According to the Law on Establishment of Administrative Courts, the legal position of administrative courts’ judges shall be equal to the legal position of judges of courts of general jurisdiction, i.e., the provisions of the Law on Courts shall be applicable with respect to them.

      • 12. Recruitment of judges in charge of review of administrative acts

        Judges in Lithuania are appointed by the President of the Republic (7), upon the advice of the Judicial Council (the highest self-governance institution of the judiciary). General requirements for the candidates are – nationality of Lithuania, high moral character, university degree in law, certain length of service in the legal profession (depending on the level of the court). A special judicial examination before appointment is made unless a candidate has a doctor’s or habil. doctor’s degree in social sciences (law).

        If there are several candidates seeking to fill in a vacant judicial position, the selection of candidates for the judicial office is made by the special Selection Commission pursuant to the selection regulations, which are subject to the approval of the Judicial Council. When selecting candidates for judicial office, their skills, professional and personal qualities, general competence and priority advantages must be taken into account. The criteria for the assessment of candidates for the judicial office are determined by the Judicial Council.

        (7) With the exception of judges of the Supreme Court of general jurisdiction, who are appointed by the Seimas (Parliament).

      • 13. Professional training of judges

        Training of judges in Lithuania consists of initial training and obligatory in- service training. Initial training is intended for persons who have been appointed judges for the first time, with a view to expanding their knowledge and building professional skills. Obligatory in-service training involves the broadening of special professional knowledge and skill building. There is a special programme for the training of administrative courts’ judges, approved by the Judicial Council.

      • 14. Promotion of judges

        A person seeking judicial office at a court of a higher level is included in the register of persons seeking promotion in judicial office administered by the National Courts Administration.

        A judge of at least four years standing as a judge of a district court or a person holding PhD degree in law and having experience of equivalent duration has a right to be appointed a judge of a regional administrative court. A judge of at least 8 years’ standing as a judge of a regional administrative court or a regional court of general jurisdiction or a person holding PhD degree in law and having experience of equivalent duration has a right to be appointed a judge of the Supreme Administrative Court.

        Selection of persons seeking promotion in judicial office to be appointed to judicial vacancies is held in accordance with the Regulations of Selection of Persons Seeking Promotion in Judicial Office, which is approved by the Judicial Council. When selecting persons seeking promotion in judicial office, the quality of work in judicial office, professional and personal qualities, organisational abilities and priority advantages of each applicant must be assessed. The criteria for the assessment of persons seeking promotion in judicial office are determined by the Judicial Council. The persons seeking promotion in judicial office are selected by the mentioned Selection Commission and appointed following the general appointment procedure.

      • 15. Professional mobility of judges

        Judges are appointed for a life term, i. e. until they retire (current retirement age is set be 65 years). Judges can not be expelled from the office, save for a closed number of instances enshrined in the Article 115 of Constitution. Consent of a judge, as a general rule, is required for his or her transfer to another court of the same instance. Notwithstanding, in cases where the judge of another court of the same instance is unavailable due to ill health, where there is a vacancy at the court or where the judge of this court is no longer able to carry out his or her functions for other reasons, the temporary transfer can take place without a consent of a judge, who is being transferred. Such temporary transfer may not last longer than 1 year and cannot happen more often than once in every three years. Also, if there is an uneven workload in another court of same instance, the consent of a judge for indefinite transfer to such court is not required. The transferred judge retains his or her previous salary, as well as standing or other social guarantees.

        Judges cannot be engaged in other remunerative activities outside sitting on the bench, save for earnings stemming from teaching or honorariums.

    • E. ROLE OF THE COMPETENT BODIES

      • 16. Available kinds of recourse against administrative acts

        Following the given classification, administrative courts in Lithuania carry out full review of administrative acts. According to the Law on Administrative Proceedings, upon hearing the case, the administrative court can:

        1) revoke the contested administrative act (part thereof) or obligate the appropriate entity of administration to remedy the committed violation or carry out other orders of the court;
        2) oblige the appropriate entity of municipal administration to implement the law, a Government resolution or another legal act;
        3) settle the dispute in any other manner provided for by law;
        4) award damages or redress of a moral wrong caused to a natural person or an organisation by the unlawful acts or omission in the sphere of public administration performed by State or municipal institutions, agencies, services and their employees in the discharge of their official functions (extra- contractual liability).

        In the cases relating to omission by an entity of administration, i.e., failure to perform official duties or in the cases regarding the delay in settling the matters, the administrative court may adopt a decision obligating the appropriate entity of administration to make a relevant decision or comply with any other court order within the prescribed time limits.

        It should be noted, however, that administrative courts do not offer assessment of the disputed administrative acts (or omission) from the point of view of political or economic expediency and only establish, whether or not there has been, in a particular case, a violation of a law or any other legal act, whether or not the entity of administration has acted within the limits of its competence, also whether or not the act (action) complies with the objectives and tasks for the purpose whereof the institution has been set up and vested with appropriate powers.

        As there is no concept of administrative contract in Lithuania and all the disputes arising from contracts (including contracts with administrative authorities) fall under the jurisdiction of courts of general jurisdiction, administrative courts do not deal with contractual liability of administrative authorities.

      • 17. Existence of mechanisms for the delivery of a preliminary ruling apart from the procedure under the Article 234 of the EC Treaty

        Mechanisms for the delivery of a preliminary ruling, apart from the procedure under Article 267 of the Treaty on the Functioning of the European Union, do not exist.

      • 18. Advisory functions of the competent bodies

        Administrative courts in Lithuania have only judicial functions and do not have an advisory role vis-à-vis the executive or the legislature.

      • 19. Organization of the judicial and advisory functions of the competent bodies

        ./.

    • F. ALLOCATION OF DUTIES AND RELATIONSHIP BETWEEN THE COMPETENT BODIES

      • 20. Role of the supreme courts in ensuring the uniform application and interpretation of law

        The Supreme Administrative Court of Lithuania is responsible for the development of a uniform practice of administrative courts in the interpretation and application of laws.

        For this purpose the Supreme Administrative Court:

        1) publishes a report on judgements, decisions and rulings rendered by the plenary session of the Court, judgements, decisions and rulings rendered by a chamber of three judges or an extended chamber of five judges, the publication whereof has been approved by the majority of the Court's judges, as well as all judgements on the lawfulness of regulatory administrative acts. Interpretation relating to the application of laws and other legal acts found in the judgements, decisions and rulings which are published in the bulletin of the Supreme Administrative Court must be taken into account by courts, state authorities and other institutions as well as by other entities when applying these laws and other legal acts;

        2) analyses the practice of administrative courts in the application of laws and other legal acts and provides their interpretation in the form of recommendations;

        3) may advise the judges of administrative courts on issues of interpretation and application of laws and other legal acts.

        Recommendations and consultations of the Supreme Administrative Court of Lithuania are not compulsory for the courts, although, in practice, they are obeyed.

        There is no procedure analogous to the French avis contentieux in Lithuania.

  • II – JUDICIAL REVIEW OF ADMINISTRATIVE ACTS

    • A. ACCESS TO JUSTICE

      • 21. Preconditions of access to the courts

        According to Article 25 of the Law on Administrative Proceedings, before applying to the administrative court, individual legal acts adopted by public administration entities, as well as their acts/omission, may be and, in the cases established by law, must be contested by applying to the institution for preliminary extrajudicial investigation of disputes.

        There is no general rule in Lithuania, that administrative acts must be challenged before a higher administrative authority or an independent dispute body before applying to the court. However, in certain kinds of administrative disputes, the internal control of administrative acts/omission is compulsory (e.g. social security disputes, tax disputes). In tax disputes the taxpayer is also granted a right, prior to having recourse to the court, to apply to the independent tax dispute commission (this remedy is not compulsory).

      • 22. Right to bring a case before the court

        According to Article 5 of the Law on Administrative Proceedings, every interested entity shall be entitled to apply to the court, in the manner prescribed by law, for the protection of his/her infringed or contested right or interest protected under law.

        There is no limitation for natural or legal persons to bring a case before an administrative court.

        The court shall also accept the petition for the protection of state or other public interests lodged, in the cases established, by law by the prosecutor, entities of administration, state control officers, other state institutions, agencies, organizations or natural persons.

        Administrative courts also decide cases relating to the disputes between the entities of public administration, which are not subordinate to one another, concerning competence or breaches of laws, except for civil litigation cases assigned to the courts of general jurisdiction.

      • 23. Admissibility conditions

        In Lithuania, every applicant who challenges an administrative act has to demonstrate a particular interest in the annulment of this act. Only an application to an administrative court of an individual in order to protect his/her own infringed or contested right or interest is admissible (Art. 5 of the Law on Administrative Proceedings).

        There is a possibility to bring a complaint in order to protect state or other public interest laid down for the prosecutor, entities of administration, state control officers, other state institutions, agencies, organizations or natural persons, but only in the cases prescribed by law.

        According to the jurisprudence of the Supreme Administrative Court of Lithuania, (7) public entities are not entitled to challenge their own administrative acts in administrative courts (8). If an unlawfulness of an administrative act violates public interest, only the prosecutor or other persons, in the cases prescribed by law, may bring a case before the court.

        (7) Ruling of the Supreme Administrative Court of Lithuania of 30 January 2004, administrative case No. A4-65-2004

        (8)Lithuanian Law on Public Administration doesn’t provide a possibility for the public authorities to overrule their administrative acts by themselves even in those cases when a substantial mistake was made with exception of error rectification procedure.

      • 24. Time limits to apply to the courts

        According to Article 33 of the Law on Administrative Proceedings, a complaint/petition may be filed with the administrative court within one month from the day of publication of the contested act or the day of delivery of the individual act to the party concerned or the notification of the party concerned of the act (or omission) or within two months from the day of expiry of the time limit set by a law or any other legal act for the compliance with the demand. If the entity of public or internal administration delays the consideration of a certain issue and fails to resolve it by the due date, a complaint about such failure to act (such delay) may be lodged within two months from the day of expiry of the time limit set by a law or any other legal act for the settlement of the issue. No time limits shall be set for the filing of petitions for the review of the lawfulness of administrative legal acts with the administrative court.

        The decision of an administrative disputes commission or any other institution for preliminary extrajudicial investigation of disputes, adopted after investigating an administrative dispute in accordance with the extrajudicial procedure, may be appealed against to the administrative court within 20 days of the day of receipt of the decision.

        There are also specific time limits depending on the nature of the proceedings (for instance, in election matters - 2, 3 and 5 days).

        If it is recognized that the time limit for filing a complaint has not been observed for a good reason, at the claimant's request, the administrative court may grant extension of such time limit. The petition for the extension of a time limit shall indicate the reasons for failure to observe the time limit and present the evidence confirming the reasons for failure to observe the time limit.

        According to the Law on Public Administration, every administrative decision must specify the procedure for appeal, which also means the obligation to specify the time limits for an appeal.

      • 25. Administrative acts excluded from judicial review

        Administrative courts shall not hear cases assigned to the competence of the Constitutional Court, also cases assigned to the courts of general jurisdiction.

        According to Article 16 of the Law on Administrative Proceedings, investigation of the activities of the President of the Republic, the Seimas, members of the Seimas, the Prime Minister, the Government (as a collegial body), judges of the Constitutional Court, the Supreme Court of Lithuania and the Court of Appeals of Lithuania, procedural actions of judges of other courts, also of prosecutors, investigators, persons conducting an inquiry and court bailiffs, connected with the administration of justice or investigation of a case, as well as the execution of decisions shall be outside the remit of competence of administrative courts.

      • 26. Screening procedures

        There are no special screening procedures before Lithuanian administrative courts. Only the compliance of the complaint with the formal requirements and the time limits for lodging a complaint are verified while deciding whether a complaint is acceptable.

      • 27. Form of application

        Complaints shall be made in writing. Article 23 of the Law on Administrative Proceedings sets prerequisites of the complaint to administrative courts. The complaint needs to include some information about the parties of the administrative dispute (the claimant’s and respondent’s name, surname (name of the institution), personal code number, place of residence (seat) etc.), the particular contested action (omission) or act, date of its performance (adoption), the circumstances upon which the claimant's claim is based, supporting evidence and the claimant's claim. There is no need to give legal grounds of the complaint, only factual circumstances have to be presented.

        There are no specific templates of the complaint at hand and the claimant is free to choose one him- or herself.

      • 28. Possibility of bringing proceedings via information technologies

        The general right to institute proceedings via information technologies is enshrined in Article 371(3) of the Law on Courts and is further specified in respective procedural laws, as well as in decrees adopted by the Minister of Justice. Article 22(5) read in conjunction with Article 23(1) of Law on Administrative Proceedings foresees such right in administrative proceedings.

        Whilst lodging a complaint, the applicant is required to identify him- or herself by using a specific code issued by the court or by using the so- called “E-government gateway”, which is accessible via online banking data, e- signature, personal identity or civil servant cards. Making an effective use of this procedural right to institute proceedings via information technologies leads to significant concessions, such as exemption from the duty to provide the court with additional copies of one’s complaint or a requirement to pay only 75 % of respective stamp duty. Moreover, in the cases prescribed by Law on Administrative Proceedings the subpoena may be also received by electronic means.

      • 29. Court fees

        Except for cases provided for by law, complaints/petitions shall be received and heard by the administrative courts only after the payment of the stamp duty prescribed by the law.

        Every complaint/petition in an administrative case, irrespective of the demands made therein, shall be subject to a stamp duty of the amount of 100 LTL (around 30 EUR). For the appeal stamp duty is halved and reaches the amount of 50 LTL (around 15 EUR). Complaints/petitions relating to the delay by the entities of public administration to perform the actions assigned within the remit of their competence, awarding of pensions or refusal to award them, violations of election laws and the Law on Referendum, petitions by state servants and municipal employees when they concern legal relations in the Office, compensation for damage inflicted upon a natural person or organization by unlawful acts/omission in the sphere of public administration and some other complaints/petitions are exempt from the stamp duty.

      • 30. Compulsory representation

        The assistance of a lawyer is not compulsory in Lithuanian administrative courts. The parties to the proceedings can defend their interests in court themselves or through their representatives. In this regard, there is no difference between the procedure before regional administrative courts and the Supreme Administrative Court.

        According to Article 49 of the Law on Administrative Proceedings, the parties can be represented not only by a lawyer, but also by an another capable person, irrespective of his/her background. However, in practice, as a rule, parties are represented by lawyers.

      • 31. Legal aid

        In Lithuania, legal aid is divided into primary and secondary legal aid. Primary legal aid includes legal information and legal consultations outside the judicial procedure and is accessible to all citizens, EU citizens and foreigners irrespective of their financial resources. Secondary legal aid includes preparation of procedural documents, representation in courts, waiver of the stamp duty and other procedural costs. Access to secondary legal aid depends on the level of estate and income and covers 50 or 100 percent of all procedural costs. Some groups of persons (i.e. recipients of social allowance) can receive legal aid independently of their income.

        Legal aid is granted through the special services, which are accountable to the Ministry of Justice. Refusal to grant legal aid is subject to appeal before administrative courts.

      • 32. Fine for abusive or unjustified applications

        There is no fine for abusive or unjustified applications in the Lithuanian administrative procedure. However, if the complaint/petition is exempt from stamp duty, according to the Law on Administrative Proceedings, the court shall have the right to demand that stamp duty be paid by the persons who abuse the right to legal remedy (i.e. who appeal to the court without a valid reason or more than once a month).

    • B. MAIN TRIAL

      • 33. Fundamental principles of the main trial

        The Law on Administrative Proceedings expresis verbis covers only some principles of procedure before the administrative courts: the right to judicial protection, judicial independence, public hearing, public pronouncement of the judgment, equality of arms between the parties, binding effect of the judgment.

        However, other important principles of judicial proceedings follow from the European Convention on Human Rights, Lithuanian Constitution, jurisprudence of the European Court of Human Rights and Lithuanian Constitutional Court, and are applied in Lithuanian administrative courts as well: access to legal aid, adversarial hearing, secrecy of judicial deliberation, obligation to motivate judgments, etc.

        The Supreme Administrative Court of Lithuania often uses procedural principles as a source of law and refers to them in its judgments.

      • 34. Judicial impartiality

        Judicial impartiality is one of the main principles guaranteed by the Lithuanian Constitution and the Law on Administrative Proceedings. This principle is ensured by the prohibition of interference with the activities of the judge or the court by the institutions of the State government and administration, members of the Seimas and other officers, political parties, political or public organizations, or natural persons. Rallies, pickets and other actions held at a lesser than 75-metre distance from the courthouse and inside the courthouse, aimed at influencing the judge or the court, are treated as interference with the activities of the judge or the court, and are prohibited.

        The judge who participated in the hearing of the administrative case and in the rendering of the decision/order/ruling on the merits therein may not participate in the hearing of the case either in the appellate court or in the hearing de novo of the case in the court of first instance. The rule is not applicable when an extended chamber of judges is formed in the Supreme Administrative Court of Lithuania or when the case is referred to the plenary session of the court.

        Judges may not participate in the hearing of the case and must be disqualified if they themselves are directly or indirectly interested in the disposition of the case or there are other circumstances, which give reasons to doubt the impartiality of the judge. The judge may not participate in the hearing of the case if:
        1) he/she participated in the legal proceedings initiated prior to his/her involvement in the case in the capacity of a witness, specialist, expert, interpreter, representative, the prosecutor, the recording clerk of the court hearing;
        2) he/she is in family relationship with the parties, other participants in the proceedings or judges of the chamber;
        3) he/she himself/herself or his/her relatives have a direct or indirect interest in the disposition of the case or if there are circumstances which give reason to doubt his/her impartiality.

      • 35. Possibility to rely on the new legal arguments in the course of proceedings

        In principle, the applicant shall have the right to specify and change the grounds of the complaint at any stage of the investigation of the case before the court retires to the conference room. According to the jurisprudence of the Supreme Administrative Court, changing of the grounds of the complaint, in principle, is not allowed in the appellate instance.

        However, grounds of the complaint cover only factual circumstances of the case. The applicant is free to present new legal arguments in both first and appeal instances. The legal argumentation of the parties involved is not binding to the court and the court may apply a different legal ground to the presented factual circumstances.

      • 36. Persons allowed to intervene during the main hearing

        The third interested persons (i.e. those persons whose rights or duties may be affected by the disposition of the case).

      • 37. Existence and role of the representative of the State (“ministère public”) in administrative cases

        In the cases established by law, the prosecutor, entities of administration, state institutions, agencies, organizations, services or natural persons may apply to the court with a petition for the protection of the public interest or protection of the rights of the state, municipality and persons, as well as the interests protected by laws.

        As a rule, the prosecutor files a suit in an administrative court when protecting the public interest. According to the Law on the Prosecutor’s Office, the prosecutor has a general competence to protect the public interest.

      • 38. Existence of an institution or a person with a role analogous to the French "Commissaire du gouvernement"

        There is no such institution or person in Lithuania.

      • 39. Termination of court proceedings before the final judgment

        The court shall terminate the proceedings:

        1) if the case is not within the competence of administrative courts;

        2) if there is an effective court decision made in relation to the dispute between the same parties, in relation to the same subject matter and on the same grounds or a court order to accept the claimant’s withdrawal of the complaint;

        3) if the claimant has withdrawn his complaint;

        4) if, upon the demise of the claimant, the legal relation of the dispute precludes legal succession;

        5) if, upon the liquidation of a legal person who was the claimant, the legal relation of the dispute precludes legal succession;

        6) if it transpires that the complaint was accepted after the expiry of the time limit set for the filing thereof, while the claimant did not request the extension of a time limit or the court dismissed such a request;

        7) if the claimant failed to comply with the procedure of preliminary extrajudicial hearing of the case prescribed for the cases of the category and the observance of the procedure is no longer possible;

        8) if parties agree to reach settlement of the dispute.

      • 40. Role of the court registry in serving procedural documents

        The fact, which documents are forwarded to the parties depends on the nature and importance of these documents. The president of the court or the judge shall send to the respondent a transcript of the complaint and, as necessary, also the transcripts of the documents attached thereto. If there is enough time before the opening of the hearing, the claimant shall be sent a transcript of the written response received from the respondent. There is no general rule stating that every written application shall be forwarded to the parties.

      • 41. Duty to provide evidence

        The evidence shall be submitted by the parties to the proceedings and other participants in the proceedings. If necessary, the court may advise the said persons to submit additional evidence or upon the request of these persons or on its own initiative compel the production of the required evidences, demand that the officers give explanations.

      • 42. Form of the hearing

        The hearing of cases at administrative courts shall be held in public. The presence in the courtroom of persons who are under the age of 16 shall not be allowed, unless they are parties to the proceedings or witnesses. The court may hold an in camera hearing in order to protect the privacy of personal or family life, also where public hearing of the case may disclose a state, an official, professional or commercial secret. Parties to the proceedings and, where necessary, witnesses, specialists, experts and interpreters may also appear in an in camera hearing of the tribunal.

        The principle of hearing cases publically shall also not be applicable where the law prescribes written proceedings for the hearing of complaints and cases. To hold oral proceedings is a default obligation for courts of first instance, whereas Supreme Administrative Court holds written proceedings, unless the chamber of judges decides otherwise. Parties to the proceedings have a right to ask the court of appellate instance to hold oral proceedings instead of written ones, yet the court is not bound by such motion.

      • 43. Judicial deliberation

        According to the Law on Administrative Proceedings, the decision in a case heard on merits shall be rendered by the administrative court in a conference room by a majority vote of the judges. There is no explicit legal rule declaring who can take part in judicial deliberations in administrative proceedings. However, such a rule exists in civil procedure and, according to the jurisprudence of administrative courts, is applied in administrative courts as well.

        Only the judges who heard the case can participate in judicial deliberations.

        No other persons (e.g. who delivered an opinion, the recording clerk of the court hearing, the specialist, the expert) are allowed to be present in the conference room while making a decision. The secrecy of judicial deliberations is one of the procedural principles in Lithuania, which is in close connection with judicial impartiality. The infringement of this principle could result in the annulment of the judgment in the court of appellate instance.

    • C. JUDGMENT

      • 44. Grounds for the judgment

        It is dependent on the nature of the case and the preferences of judges solving individual cases, how long and detailed grounds for the judgments will be. Article 87 (4) of Law on Administrative Proceedings, for its part, prescribes these essential elements to be stated in a motivational part of the judgment – factual circumstances, evidences in support of court’s final conclusion, arguments as to why court rejects remaining evidences, precise laws which the court applies in a particular case.

        Article 85 (4) of Law on Administrative Proceedings also provides a possibility for the court to write shortened version of grounds for the judgment, if the respondent to the dispute fully acknowledges requests made by the applicant.

      • 45. Applicable national and international legal norms

        In a huge majority of cases only references to national law and jurisprudence of the Supreme Administrative Court are made. However, due to globalisation the necessity to apply international legal norms has increased. References to the acquis communautaire and jurisprudence of the CJEU as well as the general principles of law, the European Convention on Human Rights and jurisprudence of the European Court of Human Rights are becoming more frequent and vital.

        Lithuania belongs to monist states in the context of international law’s relationship to national law. It means that every international treaty which is ratified by Lithuania is automatically incorporated into municipal law and the judge can apply its norms directly.

      • 46. Criteria and methods of judicial review

        The court shall not offer assessment of the disputed administrative acts and acts (or omission) from the point of view of political or economic expediency and shall only establish whether or not there has been in a particular case a violation of a law or any other legal act. Article 89 of the Law on Administrative Proceedings describes grounds for annulment of contested acts (e.g. illegality in essence, i.e., conflicting by its contents with legal acts of superior power, illegality, as it was adopted in violation of the basic procedures, etc.). The contested act (or a part thereof) may also be annulled on other grounds recognized as material by the administrative court.

        The scope of control by administrative courts depends on the nature of the case. There is no clear provision in Lithuania, whether administrative courts are entitled to examine advantages and drawbacks of the administrative decision. However, Lithuanian administrative courts carry out control of compatibility of administrative acts with the principles of subsidiarity, proportionality, objectivity and other principles of public administration, as they are set down in the Lithuanian Law on Public Administration and developed in the jurisprudence of the ECJ. In this respect administrative acts may also be annulled, if, for example, other possible acts to a lesser degree of influence on a person’s rights were possible (10).

        Lithuanian administrative courts recognize areas which are reserved to the exercise of discretionary powers by administrative authorities (e.g. discretionary power of the head of state authority to decide whether a specific need exists to move a state servant from one post to another (11); discretionary power of the municipal authority to set an expiry date of the licence to provide transport services (12); discretionary power of the Communications Regulatory Authority to impose obligations on an operator having significant market power on the relevant market (13) etc.). Judicial control in these areas is limited to objectivity, impartiality and criteria, which had been taken into consideration by an administrative authority while exercising discretionary powers.

        There is no difference between practice of lower courts and the Supreme Administrative Court in this respect.

        (10) Ruling of the Supreme Administrative Court of Lithuania of 20 February 2004, administrative case No. A1-362-2004.

        (11) Ruling of the Supreme Administrative Court of Lithuania of 1 June 2005, administrative case No. A7-433-2005.

        (12) Ruling of the Supreme Administrative Court of Lithuania of 19 November 2004, administrative case No. A5-913-2004.

        (13) Ruling of the Supreme Administrative Court of Lithuania of 20 February 2004, administrative case No. A1-362-2004.

      • 47. Distribution of legal costs

        The prevailing party to the proceedings shall be entitled to recover costs from the nonprevailing adverse party. The Law on Administrative Proceedings specifies what kind of legal costs and to what extent can be recovered: the paid stamp duty, other costs relating to the drawing up and filing of the complaint, costs connected with the investigation of the case, transport costs, representation costs, etc.

        There is no possibility to exempt a party from paying costs to the prevailing party. However, a possibility of limitation of repayable costs exists (e.g. representation costs).

      • 48. Composition of the court (single judge or a panel)

        Cases in regional administrative courts relating to the compensation for material and moral damage inflicted in the sphere of public administration, tax disputes, office-related disputes or disputes related to the execution of settlement agreements reached by the parties shall be heard by one judge, whereas other cases shall be heard by a chamber of three judges. In certain cases a chamber of judges may also be formed for the hearing of cases where the hearing by a single judge is provided.

        At the Supreme Administrative Court of Lithuania cases shall be heard before a chamber of three judges. An expanded chamber of five or seven judges may be formed for hearing complex cases or such a case may be referred to the plenary session of the court.

      • 49. Dissenting opinions

        The judge whose opinion in the case differs from that of the majority of the judges may write his dissenting opinion. The dissenting opinion shall not be announced publicly, but shall be attached to the case file.

        There is no difference between lower and higher jurisdictions in this respect.

        Article 155 (3) of Law on Administrative Proceedings also provides that if the case in which the judge has presented his separate opinion has not been heard on appeal or where a dissenting opinion has been expressed by a judge of the court of appeal, after the decision becomes effective the case with the judge’s separate opinion attached shall be referred to the Supreme Administrative Court of Lithuania and the President of the Court shall decide whether to make a recommendation to resume the proceedings.

      • 50. Public pronouncement and notification of the judgment

        The decision is pronounced in public. The general rule prescribed in procedural law is for administrative courts to deliver ex tempore judgment; however, prolongation of 20 days for the pronouncement of the judgment can take place. If serious circumstances exist, the extension of a deadline for delivering judgment by additional 20 days can be granted by the decree of President of the respective court.

        Unless otherwise established by law, the parties to the proceedings and the third parties who did not participate in the court hearing shall be sent transcripts of the administrative court decision within three days of the drawing up of the decision. If so requested in writing, transcripts of the decision shall also be sent to the parties in the proceedings, which participated in the hearing. Under certain circumstances, there is also a possibility to send transcripts of the court via electronic means.

    • D. EFFECTS AND EXECUTION OF JUDGMENT

      • 51. Authority of the judgment. Res judicata, stare decisis

        An effective court decision, ruling or an order has a binding effect on all state institutions, officers and public servants, enterprises, agencies, organisations, other natural and legal persons and must be executed within the entire territory of the Republic of Lithuania (Art. 14 of the Law on Administrative Proceedings). However, this does not deprive any interested persons of the right to apply to the court for the protection of the rights and interests protected under the law, the dispute in respect of which has not been heard and resolved in the court.

        According to Article 96 of the Law on Administrative Proceedings, after a decision of an administrative court has become effective, the parties and other participants in the proceedings, also their legal successors may not file with the court the same claims on the same grounds, nor repeatedly contest in other proceedings the facts and legal relations determined by the court. This basically means that an effective court decision has res judicata authority. Stare decisis authority of decisions is not, therefore, generally recognized.

      • 52. Powers of the court in limiting the effects of judgment in time

        As a general rule, the decisions of the court of first instance which have not been appealed against become effective after the time limit for appeal has elapsed (decisions of regional administrative courts may be appealed against within 14 days of the pronouncement of the decision). A court decision adopted after a case had been heard on appeal becomes effective from the day of the adoption of the new decision (Article 96 of the Law on Administrative Proceedings).

        A regulatory administrative act (or a part thereof) is considered to be annulled and, as a rule, may not be applied from the day of the official announcement of the effective decision of the administrative court declaring it as illegal. However, according to Article 116 of the Law on Administrative Proceedings, having regard to the specific circumstances of the case and having assessed the possibility of the negative legal consequences, the administrative court may establish in its decision annulling a regulatory administrative act (or a part thereof) that it may not be applicable from the day of its adoption or may suspend the validity of the regulatory administrative act (or a part thereof) recognized illegal until the coming into effect of the court decision.

      • 53. Right to the execution of judgment

        According to Article 97 of the Law on Administrative Proceedings, once a court decision meeting the complaint (petition) becomes effective, the transcript of the decision is to be sent for execution to the entity of administration whose actions or omission have been complained about, and to the claimant. If the decision is not executed within fifteen days or within the time limit set by law, the appropriate administrative court shall issue the claimant, at his request, a writ of execution, at the same time ordering the designated bailiff's office to execute the aforementioned writ in accordance with the procedure established by the Code of Civil Procedure (CCP).

        Therefore, a judgment, which obliges a public authority to pass a due administrative act or take appropriate action, is implemented following the procedure laid down in the CCP. If such a decision is not carried out during the provided time period, the court may impose a fine on the person responsible for the execution of the mentioned decision. The fine is levied on behalf of the claimant, while a new time period is fixed for the execution of the decision (Art. 771 of the CCP).

        Respectively, unexecuted court decisions ordering compensation of damage as well as the exaction of sums awarded by the court and of unpaid fines have to be executed in accordance with the procedure established by Article 624 of the CCP. In such cases, after the court decision becomes effective, the claimants are also issued writs of execution.

        Decisions, concerning the lawfulness and annulment of normative legal acts are self-executing. A rule concerning the legal consequences of a court decision recognizing a regulatory administrative act as illegal, established in Article 116 of the Law on Administrative Proceedings, is such: a regulatory administrative act (or a part thereof) is considered to be annulled and, as a rule, may not be applicable from the day of the official announcement of the effective decision of the administrative court declaring it as illegal.

      • 54. Recent efforts to reduce the length of court proceedings

        Efforts to reduce the length of court proceedings are made mainly by various legislative amendments, such as establishing a possibility for the parties to reach settlement agreement or enshrining written procedure for Supreme Administrative Court as a default rule.

        Moreover, it is planned to prescribe Pilot-Judgment Procedure in the procedural laws in the upcoming year.

    • E. REMEDIES

      • 55. Sharing out of competencies between the lower courts and the supreme courts

        The division of competence between the administrative courts is laid down in Articles 18-20 of the Law on Administrative Proceedings. The latter law distinguishes the competence of regional administrative courts in general, additional functions of Vilnius Regional Administrative Court (which comprise the competence of administrative courts of first instance) and also singles out the exclusive competence of the Supreme Administrative Court (the court of appeals).

        As a rule, regional administrative courts hear administrative cases, where the claimant or the respondent is a territorial entity of state administration or an entity of municipal administration.

        The Vilnius Regional Administrative Court has additional competence prescribed to it by law. It hears cases when the claimant or the respondent is an entity of central administration, with the exception of cases on the lawfulness of the regulatory administrative acts adopted by entities of central administration, as well as other specific issues, which are referred to it by the Law on Administrative Proceedings, such as cases subsequent to complaints by aliens about the refusal to issue permits for residence and work in Lithuania or withdrawal of such permits, as well as complaints about the status of the refugee, cases subsequent to complaints requesting to guarantee the implementation of decisions by the Chief Administrative Disputes Commission. It is also the court of first instance for investigating complaints against the decisions of the Chief Administrative Disputes Commission, the Tax Disputes Commission and the decisions taken by other institutions under the procedure of preliminary extrajudicial investigation of disputes.

        The Supreme Administrative Court of Lithuania acts as an appellate instance for most of the cases heard by regional administrative courts (in certain cases - by district courts), as well as the single and last instance for the cases relating to the lawfulness of regulatory administrative acts adopted by the central entities of state administration as well as for the lawfulness of acts of general character passed by public organisations, communities, political parties, political organisations or associations. It is also the last instance for deciding the issues concerning the assignment of cases to the relevant administrative courts.

        The Supreme Administrative Court of Lithuania is also responsible for the formation of the uniform practice of administrative courts in applying laws.

      • 56. Recourse against judgments

        The answer to this question supplements the answer to question 55. There are two instances of administrative courts in Lithuania. Therefore, a system of appeals does exist.

        Regional administrative courts are the courts of first instance for the vast majority of cases. Decisions of these courts may be appealed against to the Supreme Administrative Court of Lithuania. No leave to appeal is requested.

        Decisions of regional administrative courts may be appealed against to the Supreme Administrative Court of Lithuania within fourteen days from the pronouncement of the decision.

        Appeals are not possible only in cases where the Law on Administrative Proceedings distinguishes the Supreme Administrative Court as a single instance for hearing cases explicitly laid down in Article 20.

        Upon appeal, the Supreme Administrative Court will review the contested ruling in full. It is also not bound by the arguments raised by the parties in the appeal.

    • F.  EMERGENCY AND SUMMARY PROCEEDINGS / APPLICATIONS FOR INTERIM RELIEF

      • 57. Existence of emergency and/or summary proceedings

        In the Law on Administrative Proceedings, interim relief measures are defined as “measures securing the claim”. According to law, the judge (judges) may, upon a motivated petition of the participants in the proceedings or upon his (their) own initiative, take measures with a view to securing a claim. The claim may be secured at any stage of the proceedings if failure to take provisional measures to secure a claim may impede the enforcement of the court decision or render the decision unenforceable.

        The application for interim relief is heard within one day from the receipt thereof, by the same judge (judges), which is (are) dealing with the case in the main proceedings (depending on the fact, whether the main case is heard by a single judge or a collegiate).

        The law does not differentiate between the course of proceedings at the lower courts and at the Supreme Administrative Court of Lithuania.

      • 58. Requests eligible for the emergency and/or summary proceedings

        In Lithuania, petitions for the following interim measures may be filed: an injunction restraining the respondent from certain actions; the stay of execution under the writ of execution; the suspension of the validity of a contested act (Article 71 of the Law on Administrative Proceedings).

        Therefore, the scope of intervention of the judge depends on the circumstances of the case and on the petition filed. However, in all cases, the court order to secure the claim must be executed without delay and in accordance with the procedure established for the execution of court decisions. If the injunctions are not complied with, the court may impose a fine on the guilty persons.

      • 59. Kinds of summary proceedings

        The Law on Administrative Proceedings, which lays down the institute of claims for interim relief, does not establish for specific proceedings that would be dependent on the qualities of the litigants or the field of public action.

  • III – NON-JUDICIAL SETTLEMENT OF ADMINISTRATIVE DISPUTES

    • 60. Role of administrative authorities in the settlement of administrative disputes

      There is no general order established by law for the resolution of disputes by administrative authorities themselves. However, certain laws foresee a relevant possibility.

      For example, the Law on Tax Administration establishes an order according to which every taxpayer has a right to contest any act (or failure to act) of a territorial (local) tax administrator. Disputes arising from such complaints are examined by the central tax administrator, who, within 30 days, adopts its decision (i.e, confirming the decision of the local tax administrator, overriding it, amending it (in part or completely), assigning the local administrator to carry out an inspection repeatedly, etc.). Such a decision of the central tax administrator may then be contested before the Commission on Tax Disputes or in court.

      A similar procedure is laid down in the Law on Real Estate Registers. Articles 30-32 of the mentioned law provide for a possibility to contest (within 30 days) a decision of a territorial register to the central register. A special commission is then set up by the central register to hear such complaints, according to the procedures laid down by the Law on Administrative Proceedings. Once again, the decision of the central register may be appealed. Such an appeal is then heard by an administrative court.

    • 61. Role of independent non-judicial bodies in the settlement of administrative disputes

      The only alternative to administrative dispute resolution provided by the courts are the municipal public administrative disputes commissions and the Chief Administrative Disputes Commission, as well as the Commission on Tax Disputes.

      Application to these commissions is optional and only in specific instances, explicitly laid down in laws, obligatory (i.e., in certain tax disputes, the Commission on Tax Disputes must be applied to prior to addressing the court).

      In all instances, the decisions of such disputes resolution commissions may be appealed against to the administrative courts.

    • 62. Alternative dispute resolution

      Arbitration in administrative matters is not yet a possible alternative. The settlement of an administrative dispute without referring the matter to the court is possible only in concrete cases, where it is explicitly provided for by law. In certain spheres a possibility to reach a friendly agreement exists. For example, according to Article 71 of the Law on Tax Administration, the taxpayer and the tax administrator may sign an agreement concerning the sum of the tax due and the tax rate when neither of the parties has enough proof to base its separate estimates upon. After such an agreement is signed, the taxpayer gives up the right to contest the correctness of the calculation of the tax, and the tax administrator - to set a higher rate than had been agreed.

      Article 52 of Law on Administrative Proceedings foresees a possibility for the parties to end the dispute (or a part thereof) by reaching a settlement agreement. Such settlement agreement should not contravene the law and results in 50% concession of a stamp duty, once successfully accepted by the court.

  • IV – ADMINISTRATION OF JUSTICE AND STATISTIC DATA

 
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