Introduction
Basic Facts about the Country
Basic Facts about the Judiciary
Judicial Governance
Distribution of Responsibility
Challenges
Positive Developments & Achievements
Rankings and Surveys
Expert Recommendations
Compliance with European Courts' Judgements
Further Readings
Lithuania
Basic Facts about the Country
Membership of the European Union
1 May 2004
Membership of the Council of Europe
14 May 1993
Entry into force of the European Convention on Human Rights
20 June 1995
Basic Facts about the Judiciary
Budget per inhabitant
€ 31.63 (2020 data) European Commission for the Efficiency of Justice (CEPEJ)
Overall number of judges
Number of professional judges per 100,000 inhabitants
26.47
Tiers in the ordinary court system
3
District Courts (first instance)
12
Regional Courts (first instance)
5
The Court of Appeal
1
Supreme Court
1
Regional Administrative Courts
2
The Supreme Administrative Court
1
Constitutional Court
Yes
The Constitutional Court consists of nine judges.
Judges serve a single term of nine years, and every three years the judicial panel is replaced by one third by a vote of the Seimas (parliament). The candidates for these positions are proposed by the president, speaker of the Seimas and the president of the Supreme Court, each suggesting one candidate.
Prosecution
The prosecutor general is appointed and dismissed by the president of the republic, upon the assent of the Seimas.
Lower-ranked prosecutors are appointed by the prosecutor general, on the recommendation of Selection Commission.
Judicial Governance
Type of governance system
Judicial Council
- All members of the Judicial Council are judges, some sit in the Judicial Council ex officio (by virtue of holding an office), others are elected by the General Meeting of Judges.
- Ex officio members: presidents of the Supreme Court, Supreme Administrative Court, and Court of Appeal
- Elected members: three from the Supreme Court, the Court of Appeal, the Supreme Administrative Court each, one from every regional court, one from all regional administrative courts, and one from all district courts situated in the activity territory of regional courts
- The number of candidates is not limited.
- A judge whose period of service in judicial office is less than five years or on whom a disciplinary penalty has been imposed may not be elected as a Judicial Council member.
- The term of office for elected members is four years.
- by secret ballot by the Council members from among themselves for two years
- For additional information and this and other bodies of judicial self-governance, see: https://www.teismai.lt/en/self-governance-of-courts/judicial-council/composition/661
Selection Commission of Candidates to Judicial Office
- Composed of seven members and formed for a period of three years by the president of the republic. Three members are judges, and four members are representatives of the society.
- The president of the republic appoints the chairperson of the Selection Commission from among the members of the Commission.
- Members of the Judicial Council cannot simultaneously be members of the Commission.
Examination Commission of Candidates to Judicial Office
- Composed of seven people, and formed for a period of three years by the Judicial Council. At least four members of the Commission must be judges. The Judicial Council president shall nominate two judges and one academic with a law degree to the Commission. The largest judicial organisation and the Minister of Justice shall each nominate one judge and one academic holding a law degree.
- The Judicial Council shall appoint one member from the Commission as its chairperson.
Judicial Ethics and Discipline Commission
- The Commission has seven members, two appointed by the president of the republic, one by the speaker of the Seimas, and four by the Judicial Council
- The Judicial Council will approve the chairperson of the Commission from among the appointed members of the Commission.
Judicial Court of Honor
- The Court has ten members, two appointed by the president, two by the speaker of the Seimas, and six by the Judicial Council. The presidential and parliamentary appointees are representatives of the society.
- The Judicial Council elects one member from each of the Supreme Court, the Court of Appeal, and the Supreme Administrative Court, and three members from the judges of all regional courts, regional administrative courts, and district courts.
General Meeting of Judges
- Consists of all judges in the system
The Permanent Commission for the Assessment of Activities of Judges
- Formed for the term of office of the Judicial Council, and has seven members; three non-judge members are appointed by the president of the republic, and four are judges elected by the Judicial Council
The National Court Administration
Distribution of Responsibility
- Gives informed advice to the president of the republic on the appointment of judges, their promotion, transfer, and removal from office
- Gives informed advice to the president of the republic on the appointment and removal from office of court presidents, their deputies, and presidents of court divisions
- Gives informed advice to the president of the republic on determining or changing the number of judges in courts
- Forms the examination commission of candidates for judicial office and approves its regulations, as well as the programme of the examination
- Approves the procedure of entering the candidates in the list of judicial vacancies at the district court, and the procedure of entering the candidates in the register of persons seeking promotions
- Elects and appoints, by secret ballot, the members of the Judicial Ethics and Discipline Commission (four out of seven), elects its chairperson from among its members, and dismisses them on grounds envisaged by law; approves the regulations of said Commission
- Appoints, by secret ballot, members of the Judicial Court of Honour, and dismisses them on grounds envisaged by law; approves the regulations of the Court
- Hears reports of the Judicial Ethics and Discipline Commission, reports on the activities of the Judicial Court of Honour
- Can propose initiating a disciplinary process against a judge
- Forms the Permanent Commission of Assessment of the Judges’ Activities, and approves its regulations
- Sets the procedure and grounds for establishing judges’ specialisations; approves the regulations of the distribution of cases to judges and the regulations for forming the chambers of judges
- Approves the regulation of administration in courts; resolves other issues of administration of courts.
- Approves the regulations for organising the training of judges, the training programmes, and the annual plans for improving qualifications
- Approves model structures of district, regional, and regional administrative courts, model lists of positions, and job descriptions
- Considers and approves proposals on draft investment programmes for courts and proposals for the budgets of courts, and submits them to the government
- Hears the reports of the National Courts Administration on its activities
- Convenes the regular and, where necessary, extraordinary General Meetings of Judges
- Cooperates with other institutions and organisations of Lithuania on issues of court autonomy, administration, and other issues relevant for the activities of the courts
- Has the right to receive from state institutions information required to perform the functions of the Judicial Council
- Approves the Rules and Procedures of the Judicial Council
- Decides on other issues related to court activities and relevant legislation
The selection commission helps the president of the republic in selecting the candidates for judicial office. It is in charge of the following processes;
- Selection of candidates for the judicial office at a district court
- Selection of persons seeking judicial promotions, i.e., candidates for judicial offices at regional courts, regional administrative courts, the court of appeal, and the supreme administrative court of the Republic of Lithuania
- Selection of judges seeking judicial promotions at courts of the same level, i.e., candidates for the offices such as those of court presidents or court division presidents
- Selection of judges willing to be transferred to another court of the same level, or a court of the same level but another jurisdiction
- Selection of judges willing to be appointed judge of any lower court, or a court of the lower level but another jurisdiction
- Examinations for candidates for judicial office shall be set at least once every half year, except when there are no candidates to take the exam. Those of high moral character, with a university degree in law and a record of at least five years of work in the legal profession have the right to take the exam.
- The director of the National Courts Administration shall decide whether a person is allowed to take the examination for candidates for judicial office
- The examination shall be set at least once every half year, except cases when there are no candidates to take the examination. The chairperson of the Examination Commission shall set the date, time, and place of the examination of candidates for judicial office, and also the number of people taking the examination.
- Candidates for judicial office shall take a written examination.
- A decision of the Commission about the results of the examination may be appealed to the Judicial Council within ten days of its announcement. If the appeal is successful and the decision of the Commission concerning the examination results was overturned, a person has the right to retake the examination
- Initiates disciplinary proceedings against judges. The instituted action is transferred to the Judicial Court of Honour.
- The Court hears judicial disciplinary cases, and may, on its judgment, dismiss a disciplinary action because of the absence of grounds for disciplinary liability or a lapse of time, or impose a disciplinary sanction (reprimand, for example), or even suggest to the president or the Seimas to dismiss a judge or institute impeachment proceedings.
- Approves the Regulation of the General Meeting of Judges
- Approves the Rules of Ethics for Judges
- Elects and recalls elected members of the Judicial Council
- Hears a report on the activities of the Judicial Council
- Hears a report on the activities of the Judicial Court of Honour
- Considers and takes decisions on other issues related to the activities of courts
- Responsible for assessing the activities of judges – the goal is to analyse their capacity to use theoretical knowledge and skills, establish strengths and weaknesses, and use negative results for the preparation of judicial training and qualification courses
- The goal of assessing the activities of court presidents is to determine their management, organisational, and administrative skills.
- Aims for the effective functioning of the justice system, provides technical services to the bodies of judicial self-governance, including the Selection, Examination and Assessment commissions, and allows them to implement assigned functions
- Helps secure the courts’ organisational autonomy
- Helps facilitate close interrelation among courts and bodies of judicial self-governance
- Organises and ensures a centralised system of material-technical supply to courts
- Ensures the award of judicial retirement pensions
- Organises the implementation of the draft state budget, estimate drafts of the programmes, and investment programmes of courts
- Forms and implements the strategy of the common court information system
- Conducts internal audits in courts
- Organises training for judges.
Challenges
Political (including parliamentary) appointments of (Supreme Court) judges
In its 2023 Rule of Law Report, the European Commission acknowledged positive changes to the system of appointments to the Supreme Court, but called for further efforts to improve its transparency and bring the process in line with the European standards on judicial appointments. While the Lithuanian parliament amended the law to increase the efficiency of the appointment procedures, those legislative amendments did not address a long-standing concern about politicisation of the selection process. The problem lies in the broad discretion of the president or the parliament not to follow the proposal of the Selection Commission of Candidates for Judicial Office (which remains consultative), no obligation for them to state reasons for rejecting a proposed candidate, and no possibility for a candidate judge, who is not appointed, to request judicial review.
On 28 December 2022, the Lithuanian parliament finalised the appointments to the Supreme Court to ensure its full composition. According to the Constitution, the Supreme Court president can only be appointed once all vacant positions are filled. Due to this requirement, there had been a delay in the appointment of the Supreme Court president since September 2019. This meant the outgoing president had to work ad interim. A new president was only appointed in March 2023, once all of the vacant positions were filled. Concerns remain regarding the possible repetition of prolonged delays in the appointment to the Supreme Court in the absence of time limits.
Supreme Court appointments were marked by controversies before. In 2020, Lithuanian President Gitanas Nausėda sought to promote the head of the Supreme Court’s Civil Division, Sigita Rudėnaitė, to the position of the president of that Court (She was already acting president at that point). The Seimas’ legal committee subjected the president’s proposal to two different votes – one on the dismissal of Rudėnaitė from her existing role as head of the Supreme Court’s Civil Division, and a separate vote on her appointment as the Supreme Court president. Eventually, they dismissed Rudėnaitė from her position as the head of the Civil Division of the Supreme Court, but refused to appoint her as president of that Court. This meant she became an ordinary judge, with lower pay and status. In its September 2020 ruling, the Constitutional Court declared the actions of the president and the parliament contrary to the Constitutional principles of judicial independence and the separation of powers. The problem was in removing a judge from their position for the purpose of re-appointment, without securing that new position first. The Constitutional Court nullified the decision of the parliament, and reinstated the judge in her original position as the head of the Civil Division of the Supreme Court.
The Constitutional Court’s later jurisprudence (judgement of 15 April 2022, No. KT45-N3/2022, in particular) was also meant to reinforce judicial independence. The Constitutional Court confirmed that both the president and the parliament can initiate the procedure for the dismissal of a judge whose conduct discredits the reputation of judges. In this same decision, the Constitutional Court recalled the impossibility, stemming from the Constitution, of dismissing a judge without the advice of the Judicial Council, as an important guarantee for the independence of judges and courts. Moreover, the Constitutional Court underlined that, after the Judicial Council provides its advice, neither the president nor the parliament has the powers to assess its validity or lawfulness, stressing that if such reassessment would be possible, this would amount to disregarding the constitutional powers of the Judicial Council.
Politicisation of and/or pressure on the Constitutional Court
Candidates for the position of Constitutional Court judge are proposed by the president, the speaker of the Seimas, and the president of the Supreme Court, and subsequently appointed by the Seimas.
The terms of two Constitutional Court judges and its president ended in 2020, but a political deadlock disrupted the process of replacing them, forcing them to stay in their positions beyond the expiry of their mandates to ensure the uninterrupted functioning of the Constitutional Court. In early April 2020, the ruling Peasants and Greens Union (PGU) rejected all three nominated candidates for vacant positions on the Constitutional Court. Constitutional experts argued that the deliberate stalling and manipulations of the Constitutional Court appointments in the ruling party’s display of political dominance highlighted the risks of the politicisation of the Constitutional Court. It was a subject of concern from the perspective of judicial independence that the ruling party refused to support nominees not aligned with the party’s political agenda. While the vacancies have since been filled, the deadlock and political manipulations set a dangerous precedent, showcasing the risks of the politicisation of judicial appointments.
Lithuanian judges and academics have argued that the European Commission’s rule of law report glossed over and did not give sufficient attention to political manipulation and interference that undermined independence of Constitutional Court judges and the Court’s reputation. According to the then president of the Constitutional Court, Dainius Žalimas, the Court came under pressure after it struck down the parliament’s decision to establish a commission to investigate the influence of interest groups on politicians from 2008 to 2018. The academics reported that Žalimas was subject to a smear campaign, arguably in retaliation for that very judgment declaring the temporary parliamentary commission of inquiry unconstitutional in view of its far-reaching powers. The ruling party accused the Constitutional Court president of collusion with the opposition, but failed to provide proof.
The nine-year mandates of three judges expired on 16 March 2023 and, hence, partial renewal of the Constitutional Court was again in order. The replacements were confirmed without delays, unlike the previous partial renewal in 2020. However, the European Commission found it problematic that no amendments have been introduced to improve the rules concerning the appointment of constitutional judges, in particular regarding the terms of presentation of new candidacies in the case that the first submission fails. The selection procedures have triggered discussions among legislators and within the judiciary on the need to regulate “revolving doors” in the Constitutional Court, as currently there are no limitations for political officials to become Constitutional Court judges if they fulfil the requirements set in the Constitution.
Low salaries of judges/court staff/prosecutors
The European Commission highlighted the concerns regarding the level of remuneration for judges, prosecutors and court staff, which has remained largely unchanged since 2008. This meant discrepancies in salaries compared to other public officials, and a material decrease in purchasing power. According to 2023 EU Justice Scoreboard, entry-level salaries for judges and prosecutors in Lithuania, in comparison with annual average gross salary in the country, are among the lowest in the EU.
The Commission’s previous reports took account of the discussions regarding the low salaries of judges and possible negative impact of the situation on judicial independence.
The Judicial Council expressed concern that the situation is making the profession of judge unattractive and, as a result:
- There is a lack of suitable candidates applying for vacant judicial positions
- A growing number of judges are resigning, referring to the insufficient remuneration as the reason
This means a higher workload for the remaining judges and longer court proceedings for the parties in those proceedings. Low levels of remuneration mean that judges are not sufficiently shielded from inducements aimed at influencing their decisions.
Legislation was adopted to address the remuneration of judges and some of non-judicial court staff. Concerns remained, however, since the already adopted legislative amendments did not apply to some categories of court staff. The issue of prosecutors’ remuneration was not addressed either, even though, in June 2023, the president of the republic proposed legislation that would provide for an increase in the salaries of prosecutors as of 1 October 2023. This prompted the Commission to urge Lithuania to “provide adequate resources for the justice system including on the level of remuneration of prosecutors and non-judicial staff, taking into account European standards on resources and remuneration for the justice system.”
Barriers to the Submission of Requests for Preliminary rulings to the Court of Justice of the European Union (CJEU)
Experts have not identified formal obstacles to the use of the preliminary reference procedure. There are, however, factors that affect the capacity of judges to file requests for preliminary rulings. This applies to all courts other than the Supreme Court and the Supreme Administrative Court. The majority (over two-thirds) of all references for preliminary rulings made by Lithuanian courts have been made by these two courts. The administrative courts of first instance, which have a right rather than a duty to refer, have made 12 references so far, and five references have been made by the tax dispute inspectorate. The courts of general competence are least active in this respect, as all of them combined (all courts of first instance, district court sand the court of appeal) have made only seven references since Lithuania became a member of the EU.
Both the Supreme Court and the Supreme Administrative Court are generally the courts of last instance, there are no further remedies against their decisions and, perhaps most importantly, both of these courts employ consultants who specialise in EU law. The circumstances behind this reluctance have not been studied so far. However, a likely reason for this reluctance to refer is excessive workload of these courts, combined with underfunding, as well as lack of ability to access specialised judicial consultants who are adequately trained in EU law issues. Other courts appear not to have such a specialised body of consultants.
The judges complain about their excessive workload, and point out that their general allocated caseload would not be reduced if the judge decided to make a reference for a preliminary ruling, even though it is a complicated procedure; in other words, the judge’s decision to make a reference for a preliminary ruling is not recognised as sufficiently significant that their other workload would be reduced, at least temporarily. The judge is thus expected to find extra time in order to make a reference for a preliminary ruling.
In addition, both the Supreme Court and the Supreme Administrative Court seem to take their duty to refer particularly seriously after the Baltic Master case, in which the European Court of Human Rights (ECtHR) found Lithuania in breach of Article 6 of the European Convention on Human Rights, in which the Supreme Administrative Court had failed to present adequate arguments for its refusal to make a reference for a preliminary ruling. After this decision the the Court reopened the proceedings and agreed to make a reference for a preliminary ruling; despite an interpretation that was favourable to the complainant, however, it decided that there were no legal grounds to change the result of the case, and substantiated its decision on an alternative legal provision, which was not a subject of a reference for a preliminary ruling.
Positive Developments & Achievements
The European Commission took note of the efficient functioning of the justice system. According to the 2023 EU Justice Scoreboard, after increasing in 2020, the disposition time in first instance civil, commercial, and administrative cases decreased again in 2021, making it one of the lowest in the EU.
The system of judicial governance is diffused, with powers distributed among a number of bodies. Several actors participate in electing the members of each of these decision-making bodies. This model has the advantage of avoiding the concentration of powers in a single body, and makes the capture of the judiciary more difficult.
Rankings and Surveys
Expert Recommendations
Overall, concerning the recommendations in the 2023 Rule of Law Report, Lithuania has made:
- Some further progress on continuing the reform of the legal aid system by ensuring
adequate conditions for the participation of legal aid providers, taking into account
European standards on legal aid. - Some further progress on continuing efforts to improve the transparency of the system of
appointments to judicial positions, notably to the Supreme Court, taking into account European standards on judicial appointments. - Significant progress on continuing efforts to provide adequate resources for the justice
system, including on the level of remuneration for prosecutors and non-judicial staff,
taking into account European standards on resources and remuneration for the justice
system.
On this basis, and considering other developments that took place in the period of reference,
it is recommended to Lithuania to:
- Finalise the reform of the legal aid system, in particular by reducing the administrative
burden and ensuring adequate conditions for the participation of legal aid providers,
taking into account European standards on legal aid. - Continue efforts to improve the transparency of the system of appointments to judicial positions, notably to the Supreme Court, taking into account European standards on
judicial appointments. - Continue efforts to provide adequate human and financial resources for the justice
system, taking into account European standards on resources for the justice system.
European Commission, Rule of Law Report, 2024
Key recommendations
- Conduct regular, specialised training sessions on human rights standards for judges,
prosecutors, lawyers, and law enforcement personnel. - Sustain efforts to ensure fair pay for judges, court personnel and prosecutors, while
continually implementing effective measures for equitable workload distribution.
Overall, concerning the recommendations in the 2023 Rule of Law Report, Lithuania has (made):
- Some progress on continuing the reform of the legal aid system, including by ensuring adequate conditions for the participation of legal aid providers, taking into account European standards on legal aid.
- Fully implemented the recommendation to proceed with the appointments to ensure the full composition of the Supreme Court and with the appointment of the President of the Supreme Court.
- Some progress on initiating a process in view of adapting the system of appointments to judicial positions, notably to the Supreme Court, including to improve transparency and taking into account European standards on judicial appointments.
On this basis, and considering other developments that took place in the period of reference, it is recommended to Lithuania to:
- Continue the reform of the legal aid system by ensuring adequate conditions for the participation of legal aid providers, taking into account European standards on legal aid.
- Continue efforts to improve the transparency of the system of appointments to judicial positions, notably to the Supreme Court, taking into account European standards on judicial appointments.
- Continue efforts to provide adequate resources for the justice system, including on the level of remuneration for prosecutors and non-judicial staff, taking into account European standards on resources and remuneration for the justice system
Adopted by GRECO at its 83rd Plenary Meeting (Strasbourg, 17-21 June 2019)
Recommendation vii.
- 38. GRECO recommended (i) that the method for appointing the members of the Selection Commission of Candidates to Judicial Offices be reviewed in order to strengthen their independence and that the procedure for appealing against the Commission’s decisions be consolidated, and (ii) that the Judicial Council be given a more important role in the procedure for selecting judges.
- 39. GRECO recalls that this recommendation was not implemented at the time of adoption of the Compliance Report. GRECO took note of a case reported by the authorities in which the Judicial Council gave a negative opinion on the candidate proposed for judicial appointment. It however pointed out that this case occurred on the basis of procedures existing at the time of adoption of the Evaluation Report. It regretted that no steps had been taken to implement either part of the recommendation.
- 40. The authorities report that a working group (comprising representatives of the judiciary, representatives from the Office of the President, the Seimas and the Ministry of Justice) has prepared amendments to the Law on Courts, which are currently being considered by the Committee on Legal Affairs of the Seimas. According to the draft article 551 of the Law on Courts, the Selection Commission of Candidates to Judicial Offices will be formed by seven members, with three members to be appointed by the Judicial Council and four members (who are representatives of society) by the President of the Republic. The Selection Commission of Candidates to Judicial Offices will propose a list of most suitable candidates to the President, who shall address the Judicial Council for advice on the candidate to be appointed (with a motivation to be presented at the session of the Judicial Council on the reasons for the choice of candidate). The President shall furthermore establish rules of procedure for the Commission, after having agreed on them with the Judicial Council, and the criteria for the selection of candidates to judicial offices shall be approved by the Judicial Council (whereas before it was the President who set up the Selection Commission and established rules of procedure for such a Commission). In addition, the draft law will also establish a procedure for appealing against the Selection Commission’s conclusions, which envisages that unsuccessful candidates can appeal decisions by the Selection Commission to the Supreme Court of Lithuania within 10 8 days of the decision having been taken. The authorities note however that the appeal would only deal with procedural aspects of the Selection Commission’s decisions; the evaluation itself would not be subject to review.
- 41. GRECO takes note of the proposed amendments to the Law on Courts. As regards the first part of the recommendation, while it would have preferred that at least half of the members of the Selection Commission would be judges selected by their peers, it accepts that the proposed composition of the Selection Commission is in line with paragraph 47 of Recommendation CM/Rec(2010)12 (bearing in mind that the Judicial Council itself is fully composed of judges). 4 Similarly, while it would have also preferred if the possibility to appeal a decision by a Selection Commission could also be done on other than just procedural grounds, it accepts that this proposal is in line with paragraph 48 of Recommendation CM/Rec(2010)12.5 As regards the second part of the recommendation, it welcomes that the draft amendments envisage a more important role for the Judicial Council in the procedure for selecting judges, in that it will appoint the three judge members of the Selection Commission (which was before done by the President of the Republic), will approve the criteria for the selection of candidates, will agree with the President on the rules of procedure for the Commission and will have to be addressed by the President for advice on the candidate to be appointed. It is not entirely clear if this means that GRECO’s concerns (inter alia that the President may choose to appoint a candidate who is not seen to be the most suitable without giving reasons) will have been fully addressed, but as the draft amendments are still under consideration and may undergo further changes, GRECO can in any case at this point only conclude that the recommendation has not yet been fully implemented.
- 42. GRECO concludes that recommendation vii has been partly implemented.
Corruption prevention in respect of prosecutors
Recommendation x.
- 43. In order to increase the transparency and objectivity of the recruitment and promotion in the prosecution service, GRECO recommended strengthening the decisive influence of the selection commissions, by providing that their recommendations be followed as a rule and that written motivation be given if they are not.
- 44. GRECO recalls that this recommendation had not been implemented at the time of adoption of the Compliance Report. GRECO took note of improvements to the decision-making process by the Prosecutor General, by introducing a time limit and typology for recruitment decisions. It also noted the assurances by the authorities, that in practice the Prosecutor General follows the recommendations of the selection commissions. However, it underlined that safeguards would be needed to ensure that this would be done systematically in the future.
- 45. The authorities report that, following an analysis of the legal framework regulating the selection of prosecutors and chief prosecutors by a working group established for this purpose, the Regulations on the Commissions for the Selection of Prosecutors and Chief Prosecutors were amended (in line with the conclusions of the aforementioned working group) on 22 May 2018. Pursuant to these amendments, 4 Paragraph 47 of Recommendation CM/Rec(2010)12 on judges: independence, efficiency and responsibilities states: “However, where the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges, an independent and competent authority drawn in substantial part from the judiciary (without prejudice to the rules applicable to councils for the judiciary contained in Chapter IV) should be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice”. 5 Paragraph 48 of the abovementioned Recommendation states: “(…) An unsuccessful candidate should have the right to challenge the decision, or at least the procedure under which the decision was made.” 9 the Prosecutor General may only choose from candidates from the list established by the relevant selection commission or call for a new selection procedure (if none of the candidates from the list is appointed to the position or if the selection commission fails to propose any suitable candidates). If the Prosecutor General decides to call for a new selection procedure, the candidates who have taken part in the previous selection procedure can do so again.
- 46. The authorities additionally emphasise that already according to previous amendments to the regulation, which were adopted after the adoption Evaluation Report, only candidates considered to be most suitable would be put on the list submitted to the Prosecutor General, in alphabetical order without ranking the candidates. The candidates put on the list by the selection commission would thus be considered to be equally suitable for appointment. As indicated above, with the amendments to the regulations of May 2018, it has been further specified that the Prosecutor General may only choose from those candidates (i.e. only the candidates on the list forwarded by the selection commission) or else call for a new selection procedure.
- 47. The authorities furthermore indicate that, in its decision not to appoint a specific person to a position and/or to call for a new selection procedure, the Prosecutor General only takes a procedural decision, which is not an administrative act. For this reason no motivation in writing is being provided. Nevertheless, persons who have participated in the selection procedure can appeal the conclusions of the selection commission to the Prosecutor General and decisions of the Prosecutor General to an administrative court (paragraph 74, Regulations on the Commissions for the Selection of Prosecutors and Chief Prosecutors). In addition, the Collegiate Council of the Prosecution Service considered in its meeting of 6 May 2019 various issues related to the selection procedures of prosecutors and adopted a decision to propose to the Prosecutor General to review the relevant regulations, to specify that all appointment decisions be motivated. The Deputy Prosecutor General has been charged with ensuring the implementation of this decision.
- 48. GRECO takes note the amendments to the regulations on the appointment of prosecutors, establishing that the Prosecutor General is to appoint a person from the list of candidates drawn up by the relevant selection commission. It additionally notes the additional assurances provided by the authorities that candidates on the list drawn up by the selection commission would not be ranked and would be considered to be equally suitable for the position in question. GRECO considers that with these latest amendments the regulations currently in force limit the discretion of the Prosecutor General to making a choice between equally suitable candidates. A written motivation of each appointment decision would further increase the transparency and objectiveness of the procedure, and thus be a welcome complement to the existing provisions, but GRECO considers that with the regulations in place it can be said that the decisive influence of the selection commissions has been strengthened, as required by the recommendation.
- 49. GRECO concludes that recommendation x has been dealt with in a satisfactory manner.
Compliance with European Courts' Judgements
Court of Justice of the European Union (CJEU)
State Performance
0
European Court of Human Rights (ECtHR)
State Performance
Moderate
Implementation record
19
31 %
40
months
Judgements with pending implementation
Selected on relevance to the judiciary / rule of law
Beizaras and Levickas v. Lithuania
This case concerns the refusal of the law enforcement agencies, due to their discriminatory attitudes, to launch an investigation into the applicants’ allegations of having been subjected to serious homophobic online hate speech in 2014, after 31 hateful comments were posted on the first applicant’s Facebook page (violation of Article 14, in conjunction with Article 8). It also concerns the denial of an effective domestic remedy in respect of the applicants’ complaint concerning a breach of their right to private life, on account of the discriminatory attitudes in the application of domestic law (violation of Article 13).
The Lithuanian authorities submitted two detailed action plans, on 13 November 2020 and 31 August 2021 (see DH-DD(2020)1044 and DH-DD(2021)852), and an action report on 30 June 2023 (DH-DD(2023)810).
As regards individual measures, just satisfaction was paid in full and in time. In response to the judgment, the authorities’ initial decision to refuse to start a pre-trial investigation was quashed. On 14 July 2020, a pre-trial investigation was initiated under Article 170 § 2 of the Criminal Code of Lithuania (“Incitement against Any National, Racial, Ethnic, Religious or Other Group of People”) into all 31 comments made by 29 persons. The authorities provided detailed information on the progress and status of this investigation. To date, criminal proceedings have ended in two cases because of the expiry of the statute of limitations; in one case because the parties reconciled; with exemption from liability for bail or minority in five cases, with acquittal in two cases and with convictions in six cases. It has not yet been possible to identify thirteen persons due to the passage of time since the facts at issue. The authorities explain that should their identity be established, investigations could be opened against them as long as criminal prosecution has not been prescribed by that date.
As regards general measures, the authorities underline that the Court did not call the domestic legislation into question but instead underlined as the source of the violations the discriminatory attitudes of the domestic authorities (the prosecutors and the courts) in its application. They have therefore taken measures to change the domestic practices and prevent similar violations of Article 14 in conjunction with both Article 8 and Article 13. These measures included: recommendations adhering to the Court’s case law approved by the Prosecutor General and disseminated to various prosecutors’ offices, review of legislation, allocation of complaints on hate crimes as much as possible to specialised prosecutors, review of prosecutorial decisions to refuse pre-trial investigations into allegations of hate crimes and hate speech, in order to examine whether a bias motivation was an element of criminal acts committed against a person, society or property, or an aggravating circumstances, trainings for law enforcement authorities and awareness raising campaigns.
The authorities noted that the case-law of the domestic courts (including that of the district courts) shows a positive trend in eliminating impunity for discriminatory and homophobic hate comments on the internet. Recent case-law of the Supreme Court shows that hate speech based on sexual orientation is not tolerated and that it no longer refers to “eccentric behaviour” as criticised by the Court.
For example, in a criminal case of 2018, where the perpetrator was convicted for inciting hatred against groups of people on different grounds, including sexual orientation, the Supreme Court referred extensively to the Court’s case-law on hate crimes and underlined the seriousness of discrimination based on sexual orientation. Statistics show that in 2020, eight cases were transferred to courts for examination, the courts examined three cases, three persons were found guilty, one person was acquitted, in 24 cases (out of the 78 cases where the Lithuanian authorities refused to start a pre-trial investigation under Article 170 of the Criminal Code) the decisions to refuse to start the pre-trial investigation were annulled and pre-trial investigations were started. In the period of 2021-1st June 2023, 32 cases were transferred to the courts for examination, 30 persons were found guilty; one person was exempted from criminal liability on bail, one case has not been examined in court yet. In 34 cases (out of the 412 cases where the Lithuanian authorities refused to start a pre-trial investigation under Article 170 of the Criminal Code) the decisions to refuse to start the pre-trial investigation were annulled and pre-trial investigations were started.
The authorities also underline the positive assessment by the European Court in a recent judgment where it noted that the case-law of the Supreme Court of Lithuania demonstrates that an effective domestic remedy for complaints of homophobic discrimination now exists at all levels of jurisdiction (Valaitis v. Lithuania, no. 39375/19, 17 January 2023, § 103).
Rule 9 submissions
On 31 July 2023, the Lithuanian Gay League in cooperation with ILGA Europe, made a submission concerning the general measures in the present case. They mainly underlined that the Lithuanian case law on hate speech is not yet uniform, as the criteria for determining what is a hate speech are not clear; the pre-trial investigations lack a transparent and concise approach; fewer hate speech incidents reach advanced procedural stages and anti-LGBTI bias remains the leading motive in the officially recorded cases concerning the incitement to hate between 2017 and 2021, according to the report of the Ministry of Interior of 2022. Furthermore, the NGOs submit that there is still no comprehensive strategy for eliminating discrimination on grounds of sexual orientation and gender identity in Lithuania.
On 8 August 2023, the Lithuanian authorities replied to these submissions by mainly reiterating the positive assessment of the case-law of the domestic courts by the European Court in Valaitis v. Lithuania and that recent statistics show positive trends in fighting impunity for hate crimes and discrimination based on sexual orientation both at prosecutorial and judicial level. As concerns the strategy on fighting discrimination, the authorities underline that the Action Plan of 2021-2023 includes measures related to the LGBT persons and provides for a complex of measures aiming to prevent hate speech and hate crimes. Last, the authorities note that currently there is no pending case communicated to the Government by the Court in connection with the investigation of hate speech crime on the ground of sexual orientation.
The last examination by the Committee of Ministers (30 November – 2 December 2021) took note of the measures implemented (including the evolution of the case law) and called for further efforts to identify and eliminate challenges in investigating and prosecuting hate crimes, continue with the training and awareness raising of law enforcement officers, prosecutors and judges, possibly drawing on the Council of Europe’s expertise in order to ensure a Convention compliant application of the hate crime legislation, in order to ensure the sustainability of progress achieved so far.
41288/15
14-05-2020
Anzelika Simaitiene v Lithuania,
This case concerns the non-payment of salaries of a former judge during her suspension from duties (from 2006 to 2011) due to criminal proceedings that eventually ended as time-barred in 2012 (violation of Article 1 of Protocol no. 1).
An action plan was submitted on 12 April 2021, which may be summarised as follows:
Individual measures: the sums awarded as just satisfaction were seized partially to repay private debts of the applicant and partially to secure a civil claim in pending criminal proceedings against the applicant (not related to the violation found in this case).
General measures: the authorities submitted that, in order to counteract the lack of foreseeability of the interference into the applicant’s property rights, as the suspension from judicial duties could not entail at the time of the facts the non-payment of salaries, the legal framework had been clarified already in 2013 by legal amendments to the Law on Courts that provide for the non-payment of salaries in case of suspension from judicial duties. The authorities also recall that, in 2016, the Constitutional Court had declared the practice of the criminal courts by which criminal proceedings were terminated by doubts as to the accused’s guilt being left to be in breach of the presumption of innocence. The present judgment was translated into Lithuanian and disseminated.
An updated action plan is awaited.
36093/13
12-10-2023
Marcinkevicius v Lithuania,
This case concerns a decision by the domestic courts in 2020 ordering the applicant, a public figure and influential businessman, to retract a statement he had made in an interview in 2016. The Court found that, in the circumstances of the case, the applicant’s statement did not overstep the limits of acceptable criticism of a public figure and that the domestic courts’ findings were not based on an acceptable assessment of the relevant facts. The Court thus concluded that the order for the applicant to retract that statement cannot be considered necessary in a democratic society (Article 10).
An action plan/report is awaited.
24919/20,
15-02-2023
Tumeliai v Lithuania
These cases concern decisions by the domestic courts ordering the applicants to demolish/alter constructions they had built on the basis of lawful construction permits (violations of Article 1 of Protocol 1).
Action plans were submitted on 9/10/2018 in the Tumeliai case, which may be summarised as follows:
Individual measures:
The just satisfaction awarded by the European Court was paid on time. Furthermore, the applicants availed themselves of the possibility offered by the domestic legislation to ask for the reopening of the contentious civil proceedings. The case is pending before first instance courts.
General measures:
The authorities provided examples of decisions by which domestic courts awarded compensation for errors of administrative authorities in construction matters which indicate that an action for damages against the authorities is a remedy capable of redressing similar situations to that of the applicant Tumeliai. They have added that both these judgments were disseminated to the relevant authorities.
An updated action plan is awaited.
25545/14
09-04-2023
Tarvydas v Lithuania,
This case concerns the failure of the domestic courts to address arguments raised by applicant in decisions of 2018 ordering him to restore an unlawfully demolished house to its former state (violation of Article 6 § 1).
An action plan was submitted on 23 August 2022 which may be summarised as follows:
Individual measures:
The just satisfaction was paid in time.
The applicant availed himself of the right to initiate the re-opening of the proceedings. The Supreme Court of Lithuania granted the applicant’s request by the decision of 9 March 2022 and ordered the re-opening of civil proceedings initiated by the plaintiff the State Inspectorate on Territorial Planning and Construction under the Ministry of the Environment (hereinafter – the Inspectorate) against the applicant. By the decision of 22 April 2022, the Supreme Court of Lithuania decided to refer the case for a fresh examination at the appellate instance by the Klaipėda Regional Court. The proceedings are still pending.
General measures:
Dissemination: an explanatory note regarding the judgment at issue and the translation of the judgment into Lithuanian has been placed on the official internet website of the Government Agent, thus, they are freely accessible to all the interested persons and institutions. The Government Agent separately informed the domestic courts about the judgment in this case by sending explanatory notes together with the translation of the Court’s judgment.
An updated action plan is awaited.
36098/19
23-02-2022
Grazuleviciute v Lithuania,
This case concerns the failure in 2013 to respect res judicata effect of a final court decision annulling the applicant’s suspension from her functions as a clinical researcher (violation of Article 6).
An action plan was submitted on 14 September 2022 which may be summarised as follows:
Individual measures: the just satisfaction awarded by the Court has been paid and the applicant asked for the reopening of proceedings (pending).
General measures: the present judgment was disseminated to the authorities concerned.
An action plan was submitted on 14 September 2022 which may be summarised as follows:
Individual measures: the just satisfaction awarded by the Court has been paid and the applicant asked for the reopening of proceedings (pending).
General measures: the present judgment was disseminated to the authorities concerned.
An updated action plan is awaited.
53176/17
14-03-2023
Mironovas and others v Lithuania
These cases concern the poor conditions of detention in long term detention facilities between 2008 and the date of the judgments (violation of Article 3). The lack of preventive remedies and the amount of the monetary compensation awarded by the domestic courts for non-pecuniary damage which was considered too small compared to the ECHR case law amounted to a separate violation of Article 13 in the Višniakovas case.
The Lithuanian authorities submitted an initial action plan in November 2016 and updated versions in December 2017, March 2018, July 2019, June 2020 and March 2022. The measures were aimed at reducing the prison population,
The Lithuanian authorities submitted an initial action plan in November 2016 and updated versions in December 2017, March 2018, July 2019, June 2020 and March 2022. The measures were aimed at reducing the prison population,
The authorities concluded that these developments in the penal policy significantly contributed to solving the problem of overcrowding in prisons, thus improving the conditions of detention. Further efforts are made to expand the available activities outside the cell as well as ensure appropriate levels of human and social contacts. The Government Agent will keep updating about all the relevant developments in this regard.
Finally, the authorities explain, with respect to the additional violation of Article 8 in the Michno case that a change of legislation in 2017 now allows long term conjugal visits for pre-trial detainees in the same conditions as for convicted persons.
As far as the additional violation of Article 13 in the Visniakovas case is concerned, the authorities submitted that tackling the systemic and structural problem concerning the improper prison conditions shall eliminate also situations under Article 13 of. Since 2018 there is a significant decrease of the arguable claims in relation to prison overcrowding as well as a slight reduction of overall cases concerning improper prison conditions examined by the domestic courts (e.g., in 2015 in total 1334 cases, in 2016- 1081, in 2017 – 808, in 2018 – 1003, in 2019 – 759, in 2020 – 635, and in 2021 – 683).
An updated action plan is awaited.
40828/12,
02-05-2016
D.R. v Lithuania,
Unlawful deprivation of applicant’s liberty for the purposes of assessing her mental health during criminal proceedings against her and involuntary hospitalisation following arbitrary proceedings (violations of Article 5 § 1)
An action plan was submitted on 26/03/2019 which may be summarised as follows:
Individual measures: The authorities indicated that the just satisfaction was paid in time. The applicant did not avail herself of the possibility to ask for the reopening of the proceedings.
General measures: The authorities indicated that they have disseminated the present judgment to the interested institutions. They have also started a discussion on whether further general measures are required.
An updated action plan is awaited.
691/15
26-09-2018