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About this book

This volume provides an overview of selected major areas of legal and institutional development in Lithuania since the Restoration of Independence in 1990. The respective chapters discuss changes in fields varying from the constitutional framework to criminal law and procedure. The content highlights four major aspects of the fundamental changes that have affected the entire legal system: the Post-Soviet country’s complex historical heritage; socio-political and other conditions in the process of adopting new (rule of law) standards; international legal influences on the national legal order over the past 30 years; and finally, the search for entirely new national legal models.

Over a period of 30 years since gaining its independence from the Soviet Union, Lithuania has undergone unique social changes. The state restarted its independent journey burdened by the complicated heritage of the Soviet legal system. Some major reforms have taken place swiftly, while others have required years of thorough analysis of societal needs and the search for optimal examples in other states. The legal system is now substantially different, with some elements being entirely new, and others adapted to present needs.

Table of Contents

Frontmatter

Complicated Historical Heritage: Dealing with the Totalitarian Past

Frontmatter

Chapter 1. Transitional Justice Cases Against Lithuania at the European Court of Human Rights

Abstract
This chapter addresses transitional justice in Lithuania by looking at the relevant cases of the European Court of Human Rights. The aim is to highlight specific features of Lithuanian experience of transitional justice in the context of human rights and, specifically, to examine whether Lithuania is still a country in transition in any respect. Transitional justice cases against Lithuania decided at the European Court of Human Rights fall into the following categories according to their subject matter: (1) cases related to the restitution of property rights, (2) cases related to the lustration of collaborators with the totalitarian regime, (3) cases related to the punishment of perpetrators guilty of acting against the Republic of Lithuania, (4) cases related to the freedom of expression with regard to the past. The chapter concludes that the circumstance of transition has lost much of its importance for Lithuania regarding the first two categories of cases because of the progress in building pluralist democracy and successful integration into European structures. It remains, however, relevant for the last two categories of cases, notably where disagreements about the history of the wrongs of the Soviet communist regime arise.
Vygantė Milašiūtė

Chapter 2. The Legal Framework for Administrative Liability in Lithuania: Lifting Legal Barriers to the Efficient Regulation of Administrative Offences

Abstract
In Lithuania, the reform of the legal framework for administrative liability of natural persons was carried out during the period 1990–2017—it took much longer than foreseen. Pending its replacement, many provisions of the Code of Administrative Law Offences, which dated back to 1984 and at the material time established the administrative liability of individuals, had become obsolete or outdated, having regard to new international obligations in the field of human rights protection, development of constitutional imperatives, state policy, and technological advancement. The revision of the legal act, which had been in force for decades, could no longer be a matter of legislative technique or subject to simple recast. Indeed, the continuous reform of administrative liability for administrative offences raised a number of conceptual issues and concerns pertaining to the proposed relationship between substantive and procedural legal provisions, establishment of an effective institutional model, consistency of administrative and criminal liability, and others. The chapter discusses the development of a regulatory framework for administrative offences and the challenges faced in this process. It highlights the key shortcomings of the legislation material at the time of the reform process and the solutions designed to solve it. Having analysed respective cross-cutting problems encountered during the reform of the legal framework for administrative liability, it is concluded that improving the quality and efficiency of the regime of administrative liability must become a continuous and systematic process. The proper functioning of the legal framework for administrative liability entails the need to further improve legal standards in respect of the principle of impartiality and in particular the procedural rights of individuals concerned.
Audronė Gedmintaitė

Chapter 3. Development of Property Protection in Criminal Law During Lithuania’s Independence

Abstract
Legal protection of property is regulated in many branches of law: constitutional, civil, administrative, social security, etc. Criminal law is the last resort (ultima ratio) in defending this legal value. However, no matter how much effort is made to protect property, the extent of crimes against property remains high. To combat this phenomenon, the criminal laws were constantly amended and supplemented, and new forms of dangerous behaviour were criminalized during the period of restoration of Lithuania’s independence. Some of these amendments raise questions not only of their expediency but also of their compatibility with the constitutional provisions, also main principles of criminal law and their compliance with the requirements of legal technique. This chapter, based on the jurisprudence of the Constitutional Court of Lithuania and the Supreme Court of Lithuania, also on the doctrine of the Lithuanian criminal law, deals with the main tendencies of the development of criminal laws relating to criminal acts against property, property rights and property interests in Lithuania during the independence period (1990–2019); analyses certain problematical issues of criminal liability for criminal acts against property, features of aggravated theft and other criminal acts against property; and also evaluates the corpus delicti of criminal acts that have emerged since the new Criminal Code.
Armanas Abramavičius, Gintaras Švedas, Andželika Vosyliūtė

Chapter 4. Some Aspects of Economic Regulation in Lithuanian Constitutional Law: From Planned Economy to the Fourth Industrial Revolution

Abstract
The economic path of the Republic of Lithuania is unique: it transformed from a planned economy system into a market-based democratic system and adopted and developed European business standards. The aim of this chapter is to discuss some aspects of the regulation governing Lithuania’s economy in constitutional law during the 30 years of Lithuania’s independence by analysing the constitutional foundations of Lithuania’s economic system and the jurisprudence of the Constitutional Court of the Republic of Lithuania, in which aspects of the regulation of the economic relationships are reflected. In order to achieve the above-mentioned aim, the following two tasks are raised: to reveal in a brief manner the constitutionalisation process of the Lithuanian economic system and to analyse the constitutional doctrine that was formulated during the three decades of independence and had an influence on the formation of the constitutional foundations of the regulation of economic relationships.
Agnė Juškevičiūtė-Vilienė

Sophisticated Socio-Political and Other Conditions in the Process of Adoption to New (Rule of Law) Standards

Frontmatter

Chapter 5. Development of the Justice System in Lithuania: Revolution, Evolution or Involution?

Abstract
The chapter reviews the restoration and improvement of the independent Lithuanian judicial system and analyses the most important periods of the judicial reform that are frequently considered controversial, certain decisions of various state authorities, their interrelations and the search for their own “place” in the judicial system. This is done not only by analysing the respective legal acts of those periods but also by revealing the social, political and other conditions that existed at the time of adoption and implementation of these legal acts. The chapter focuses on the system of courts of general jurisdiction, which was first restored. The role of the official doctrine of the Constitutional Court in consolidating the independence of the functions of judges and courts and the place and importance of the Supreme Court of Lithuania in the judicial system and, in general, in the legal system of the State are emphasised. The role of the Ministry of Justice in restoring the judicial system is assessed. The success of the constitutional reform of courts—the establishment of a stable court system—was in principle determined by the fact that Lithuania had a sufficient number of qualified lawyers and could implement large-scale systemic legal reforms using its own resources. It is important that, at the beginning of the court reform and during its implementation, the reform was approved and considered as a priority by all branches of government. In Lithuania’s current legal and political reality, one can observe a paradox: while there is an obvious evolution in the development of the court system—the activities of the courts meet the standards of modern democracies governed by the rule of law—the manifestations of involution (regress) can be frequently observed in the attitudes of representatives of other branches of the government and politicians to the judiciary and its obligation and in their legal consciousness and political culture.
Jonas Prapiestis, Darius Prapiestis

Chapter 6. Evolution of the Lithuanian Civil Procedure: Objectives and Reality

Abstract
This chapter deals with the reform of Lithuanian civil procedure. The reform was principally implemented on 28 February 2002, when the Seimas of the Republic of Lithuania adopted the current Code of Civil Procedure. The authors give an overview of the aims of the reform and the sociopolitical and other conditions for the reform, the implementation measures provided for in the Code as well as how the objectives were achieved in practice. The chapter also seeks to present the potential future trends in the evolution of civil procedure.
Vytautas Nekrošius, Vigita Vėbraitė

Chapter 7. Development of Arbitration Law in the Republic of Lithuania After the Restoration of Independence

Abstract
This chapter overviews the inception of modern concepts of arbitration law in Lithuania and their development over the 30 years of state independence. It presents the general analysis of the evolution of the statutory legal framework of arbitration in Lithuania by introducing the Law on Commercial Arbitration and reviewing the main concepts enshrined therein.
Further, by analyzing the current statutory regulation and its interpretation in the case law of the Supreme Court of the Republic of Lithuania, the chapter explores three core doctrines in arbitration, namely the doctrine of arbitrability, the competence-competence doctrine, and the notion of public policy. The analysis of these concepts aims to review the status quo of these doctrines in arbitration theory and practice in Lithuania, as well as to suggest a direction for the rectification of the identified shortcomings of their interpretation in the case law of Lithuanian courts.
Eglė Zemlytė, Guoda Almantė Driukaitė

Chapter 8. Understanding Legal Responses to Technological Change in Lithuania Since 1990: Examples of Assisted Reproduction and Skin Care Procedures Regulation

Abstract
During the last 30 years, Lithuania experienced substantial political, economic, social, technological, and legal changes. Nowadays, technology became an integrated part of our daily life not only by helping us to connect but also in assisting people to stop aging processes or even to create new life. The aim of this chapter is to provide a brief overview, by way of two case-specific examples, of how the Lithuanian law responds to technological progress in the areas of assisted reproduction and skin care procedures regulation. Authors have analyzed the general aspects of the legal response to assisted reproduction technologies in Lithuania since 1990. General aspects of the legal regulation and jurisprudence with respect to recent selected skin care procedures regulation in Lithuania are also discussed. The chapter concludes that, for quite some time now, Lithuania has taken steps and has tried to find a balance between the legal, ethical, and social aspects of scientific achievements. For now, we have the decision with respect to assisted reproduction regulation, but it is not the end of this journey as some remaining questions are still very controversial, for example, the indefinite safekeeping of embryos. It is also up to the regulators to balance the protection of patients’ and consumers’ rights and at the same time guarantee fair market competition in the beauty industry. The question of restrictions and qualification requirements for the performance of certain new beauty procedures (for example, skin care procedures) is also of no less importance in the nearest future.
Justyna Levon, Dovilė Valančienė

Authority of International Legal Sources over a Period of 30 Years

Frontmatter

Chapter 9. Shift in the Role of Lithuanian Courts in the Context of Lithuania’s Membership in International Organizations

Abstract
The chapter covers an analysis of two cooperation procedures where Lithuanian courts participate: cooperation with the European Court of Human Rights in accordance with Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Part 1) and cooperation with the Court of Justice of the European Union under Article 267 (Part 2) of the Treaty of the Functioning of the European Union. The article carries out a survey of the provisions of the Convention, Protocol No. 16, and provisions of the EU legislation, as well as the jurisprudence of the ECHR and CJEU, and the Lithuanian legal acts which regulate the work of Lithuanian courts and establish legal grounds for cooperation between the Lithuanian courts and the ECHR and CEJU. The aim is to establish the most recent changes in the role of the Lithuanian courts related to Lithuania’s membership in the European Union and the status of a contracting party to the Convention. The article touches upon the essential differences between an advisory opinion procedure at the ECHR and a preliminary ruling procedure at the CJEU as much as it is related to the legal grounds of these procedures. The study suggests the following conclusion: as Protocol No. 16 came into force recently, the ECHR case law will show how the advisory opinion procedure will be put into practice and what most serious difficulties the courts of the High Contracting Parties will face in the near future. An analysis of the jurisprudence of the CJEU and the Lithuanian courts proves that Lithuanian courts benefit from the cooperation procedure with the CJEU under the procedure envisaged in Article 267 TFEU with high efficiency and raise new questions on the interpretation and application of the European Union law.
Deimilė Prapiestytė

Chapter 10. Forensic Examinations in Lithuania: 30 Years of Experience (1990–2020)

Abstract
The chapter presents essential features of forensic science during the period 1990–2020 in Lithuania. Therefore, an overview of the system of forensic science is presented in two directions—overview of the main stages of legal regulation of forensic science, mainly basing on criminal procedure, and presentation of organizational structural changes in the said system. In addition, authors intend to reveal the role of international legal regulation of forensic science in changes at national level and to analyze the main technological achievements of the said system during the period 1990–2020.
Forensic science is exclusive, complex and an applied branch of law science—narrowly applicable but including a very broad sphere of special knowledge and essential for the execution of justice. It is a dynamic and extensive science driven by developments in different spheres of science and achievements in technologies, experience of experts and their intuition. Therefore, the quality of forensic examination depends on several elements: quality of legal regulation and human competencies and technical capacities of institutions or individual persons. The latter should be based on a high scientific-technological level, the implementation of a quality management system, the capacity of law enforcement officers or judges to properly order forensic examination, etc. The authors of the chapter conclude that all these elements are considered (consulted) in the activities of state forensic institutions. The quality of legislation plays an important role. The analysis of the development in legislation revealed that it is very detailed and echoes all international requirements, standards and developments in forensic science.
Gabrielė Juodkaitė-Granskienė, Andrej Gorbatkov

Chapter 11. Execution of Judgments of the European Court of Human Rights: Lithuanian Case

Abstract
The chapter outlines the implementation of general measures in cases brought against Lithuania at the European Court of Human Rights. It sets a ground for further research and more in-depth analysis on the compliance of Lithuania with the obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms. The chapter briefly discusses a rational choice paradigm in the context of execution of ECtHR judgments. It overviews the adjudication of Lithuanian cases at the ECtHR and examines major compliance issues, including cases under the enhanced supervision of the Committee of Ministers.
Donatas Murauskas

The Search for Experimental and/or Entirely New National Legal Models

Frontmatter

Chapter 12. The Development and Prospects of the Lithuanian Constitutional Justice Model

Abstract
Both Lithuanian and foreign constitutional law studies highlight that Chapter VIII of the Constitution of the Republic of Lithuania consolidated a rather minimalist conception of the jurisdiction exercised by the Constitutional Court. It was resolved to take further significant steps in this area only in 2019, after introducing amendments to the Constitution consolidating the individual constitutional complaint, i.e. 26 years after the establishment of the Constitutional Court in Lithuania. Regardless of these important changes, apart from certain rare exceptions, there is little discussion in the Lithuanian legal community, political circles and society in general about the optimality of the Lithuanian constitutional justice model, its development and prospects. Therefore, taking a look at the Lithuanian constitutional justice model as the object under scrutiny, the aim of this contribution is to shed more light on the development and prospects of the Lithuanian constitutional justice model. In order to achieve this, the following tasks are undertaken and dealt with: (1) to overview the circumstances related to the choice of the Lithuanian constitutional justice model in 1992–1993, (2) to discuss the main features of the Lithuanian constitutional justice model and assess the scope of the powers of the Constitutional Court against the context of other European states, (3) to identify mechanisms of the development of this model during 1993–2019 and (4) to analyse further prospects for the development of this model.
Dovilė Pūraitė-Andrikienė

Chapter 13. Constitutional Principles As a Criterion for Declaring Legal Regulation to Be Incompatible with the Constitution of the Republic of Lithuania

Abstract
When evaluating compliance of a disputed piece of legislation with the Lithuanian Constitution, the Constitutional Court of the Republic of Lithuania often finds it to be in conflict not only with specific provisions of the Constitution but also with the constitutional principles of law. For the first time, the Constitutional Court did that in the 23 February 2000 ruling, where a contested regulation passed by the executive was found to be incompatible with both the constitutional provisions as well as the principle of the rule of law. That ruling was a point of reference, after which the constitutional principles evolved into a criterion of utmost importance in constitutional justice proceedings, a kind of a constitutional litmus test to evaluate contested legislation. An analysis of the case law of the Constitutional Court reveals that, since the above-mentioned ruling, constitutional justice cases where legal regulation is declared to be in conflict with the legal principles enshrined in the Constitution have been increasingly frequent. The official constitutional doctrine has gradually expanded the list of constitutional principles employed to examine the constitutionality of a piece of legislation and referenced, inter alia, in the operative part of the Court’s final acts.
The author identified in the case law of the Constitutional Court and described the principles of constitutional law that served as a criterion for declaring the legal regulation as incompatible with the Constitution and specified in the operative parts of the Constitutional Court’s rulings adopted from 23 February 2000 to 31 August 2019. Namely, the principles of the rule of law, justice, sound governance, separation of powers, primacy of the Constitution and protection of legitimate expectations.
Haroldas Šinkūnas

Chapter 14. Administrative Liability in Lithuania: The Model of Corporate Administrative Liability

Abstract
In Lithuania, administrative liability tends to be inflicted upon business entities quite often. The State constantly expands the scope of administrative liability with a view to strengthening the protection of social and economic interests. Hence, administrative liability can lead to effects that are more severe for business entities than the criminal prosecution itself. This indubitably means that the model of administrative liability of business entities constitutes a significant part of Lithuanian public law that calls for a more profound exploration.
It is worth noting that provisions regulating administrative liability is scattered throughout various laws within the Lithuanian legal framework: natural persons are primarily subject to the Code of Administrative Offenses, whereas legal entities have to account for administrative liability provisions stipulated by the Law on Public Administration (LPA) as well as by almost 30 legi speciali. However, the number of 58 authorities that are tasked with supervisory functions of business in accordance with pertinent laws regulating their activities should be mentioned.
The model of administrative liability of business entities presented in this chapter will encompass the hallmarks of the notion of such liability, its formative years and stages of development, as well as its application while highlighting pertinent institutional aspects—the setup of public bodies entrusted with sanctioning powers and adjudicatory bodies, among other things—as well as procedural aspects—foremost among them, the procedural safeguards for business entities.
Jurgita Paužaitė-Kulvinskienė

Chapter 15. Collective Labour Law in Lithuania: Search for a National Model

Abstract
The chapter analyses the formation of the legal regulation of industrial relations in the restored Lithuania. The restoration of Lithuania’s independence has inevitably entailed the need for a reform of its legal system, including labour relations. With regard to the development of Lithuanian collective labour law, it is particularly important to take into account that there was no comprehensive regulation of collective labour relations in Lithuania until 11 March 1990 and that the political and legal preconditions for the formation of civil society arose only after the restoration of Lithuania’s independence. The reform of Lithuanian labour law was rather spontaneous, but the process was unavoidable. The chapter describes the essential conditions and features of the process, also the various social, political and economic factors under the influence of which the contemporary Lithuanian collective labour law system was created are discussed.
Summarising the research presented in the chapter, it is stated that the legal provisions governing social partnership and industrial relations in Lithuania appear to be sufficiently democratic, expressing the fundamental principles and values of a modern social market economy. However, a closer and more detailed analysis both of the legal reality and the practical situation of those issues clearly shows that good intentions and declarative statements, unfortunately, do not mean that the social democracy model common in Western countries is implemented in Lithuania.
Daiva Petrylaitė

Chapter 16. Tendencies and Problematical Aspects of Criminal Liability of a Legal Person in Lithuania

Abstract
This chapter deals with the tendencies of criminal liability of a legal person in Lithuania during the independence period (2002–2019) and certain problematical issues of criminal liability of a legal person related to the conditions of criminal liability, the release from criminal liability and sentencing rules. The analysis is based on the jurisprudence of the Constitutional Court of Lithuania and the Supreme Court of Lithuania, as well as on the doctrine of Lithuanian criminal law.
Gintaras Švedas, Armanas Abramavičius
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