REPORT ON THE EXCHANGE AND SUMMARY
Instructions:
- The report must be sent to the EJTN () within one month after the exchange.
- Please use the template below to write your report (recommended length: 4 pages).
- Please write in English or French. Should this not be possible, the report can be written in another language but the summary must be in English or French.
- Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report.
- The summary shall contain a synthesis of the most important information of the report.
- Please note that NO NAMES, neither yours nor the ones of the persons you met during your exchange, should appear in the report in order to ensure anonymity[1]. Initials can be used when necessary.
Identification of the participant
Name:
First name:
Nationality: french
Country of exchange: LITHUANIA
Publication
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Publication reference:
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Publication reference:
Identification of the participant
Nationality: french
Functions: Juge de l'application des peines
Length of service: 7 years
Identification of the exchange
Hosting jurisdiction/institution: Vilnius administrative regional court and Kaunas district court
City: Vilnius and Kaunas
Country: Lithuania
Dates of the exchange: 2-13 septembre 2013
Type of exchange:
one to one exchange group exchange
general exchange specialized exchange (please specify: f)
REPORT
I Program of the exchange
09/02/2013 : visit to Vilnius District Court
09/03/2013 : visit to the Prosecutor General's Office of the Republic of Lithuania and visit to the Constitutional Court of the Republic of Lithania
09/04/2013 : visit to National Courts Administration, visit to the Court of Appeal of Lithuania and visit to Vilnius Regional Court
09/05/2013 : visit to the Seimas Ombudsmen's Office of the Republic of Lithuania
09/06/2013 : visit to the Supreme Administrative Court of Lithuania and visit to Lukiskes Remand Prison
09/09/2013-09/13/2013 : week spent in Kaunas, meeting with different judges and public prosecutors and attending hearings
II The hosting institution
Since it was a group exchange, the first week was devoted to the discovery of the lithuanian judicial system. Therefore we visited several courts and institutions. During the second week, I was on a one to one exchange in Kaunas District Court and I will therefore be talking essentially about this institution.
Kaunas District Court is the second district court by the number of judges in the country after Vilnius' District Court. District Courts are the first instance for civil and criminal cases, unless the first instance for these cases is assigned by the law to regional courts, cases of administrative offences and cases relating to the enforcement of judgments and sentences. The instance of appeal is the Regional Court and the Supreme Court of Lithuania is the court of the cassation instance. The Court of Appeal is the instance of appeal for cases involving judgments of Regional Courts when these courts were the first instance court only.
In Lithuania, the public prosecutors are not a part of the court, unlike in France. Article 118 of the Constitution of the Republic of Lithuania provides that a " pre-trial investigation shall be organized and directed, and charges on behalf of the State in criminal cases shall be upheld by the prosecutor". The Prosecutor General and his Deputies are appointed by the President of the Republic upon the assent of the Seimas (the lithuanian Parliament). Others prosecutors are appointed to their posts by the order of the Prosecutor General on the recommandation of the special Selection Commission if they meet the special requirements (experience and education).
To become a judge in Lithuania, a person must have a university degree in law and five years of experience. Then the candidate has to pass an examination to judicial office which consists of two parts : theoretical (a test) and practical (tasks). The knowledge of the candidate shall be assessed in a closed meeting by the Examination Commission, composed of seven persons with at least four judges. If the candidate succeeds, a selection is made between all candidates by the Selection Commission of Candidates to Judicial Office and the final choice is made by the President of The Republic upon the candidates' list established by the Selection Commission.
The Constitution of the Republic of Lithuania establishes that in the administration of justice courts shall be independent from other government institutions, officials, political parties, organisations and other persons. This principle is implemented by the institutions and commissions of self-governance of courts.
III The law of the host country
The state of Lithuania has regained independence in 1990 and adopted its modern Constitution on the 25th of october 1992. During the first years, the largely modified Soviet legal codes were in force. In 2001 came into force the Civil Code of the Republic of Lithuania, which codified civil and commercial law. The Code of Civil Procedure, the Criminal Code and the Code of Criminal Procedure came into force in 2003. European Union law has been an integral part of the Lithuanian legal system since May 2004.
Being a criminal judge, I was particularly interested in the criminal procedure which established that the appearance of the accused is always mandatory. Therefore, if the accused doesn't come, the trial cannot take place and the judge has to do everything he can to enable the presence of the accused. If the judge knows where the accused lives, he must send the police to make him come in person and if the judge knows that the person is in another country, he must deliver a european arrest warrant.
If I can understand such a rule in the aim of ensuring a fair trial, I find this rule particularly harsh for the potential victims, because if the accused does everything to never appear before the court, then there will be no trial before a long time. A difference should be made between the suspected who knows the existence of the trial and decides not to appear and the suspected who doesn't know there is a trial and should therefore be looked for.
IV The comparative law aspect in your exchange
If the approach of criminal law is inquisitorial, like in France, the main difference is that in Lithuania, for all criminal cases even administrative cases, the judgment must be based only on what has been said in the court. Therefore, the judge at the hearing questions all witnesses, police officers and experts. In France, only crimes (offences punished by the law by at least 15 years of prison, like rape and murder) are judged this way, all other offences being judged with only the questionning of the accused and of the victim, if the victim and the accused appear before the court. Witnesses can be heard but it is mainly done on request of the suspected's attorney.
In Lithuania, there are only professional judges, no jury, even for the most serious crimes. The only difference is that crimes are judged by a panel of three judges whereas other offences and administratives cases are judged by only one judge. Personally, I think this is a lot of responsability put on the shoulders of only one person, and does not allow the public to see and understand how their justice work. In France, the existence of jurors to judge, with professionnal judges, the worst crimes allows the public to get a better grasp of the proceedings and stakes of the judicial system.
Concerning inmates, all decisions concerning the allocation in a prison on another one, visits of the family and possible permissions to go out for a few hours or days are made by the penitentiary administration. For inmates sentenced to life, decisions of release on parole are made by the President of the Republic. The judicial system has no say in the matter.
V The european aspect of the exchange
If I didn't attend any hearing with aneuropean aspect, I have noticed that the lithuanian judges and public prosecutors are very interested in the way other european judicial systems are functioning and are very attentive to european decisions.
Concerning european judicial cooperation, I attended to an hearing in which the judge had to check if the criminal decision of a german Court applied to a lithuanian citizen and if the rights of the lithuanian citizen have been respected before saying that the lithuanian citizen had to abide by the german decision. It was really interesting and the judge examined all the facts and postponed the hearing to check the proceedings with the german Court, due to the explanations of the lithuanian man convicted by the german Court.
VI The benefits of the exchange
Exchanging facts and ideas about our respectives judicial systems with lithuanian judges and public prosecutors has allowed me to learn more about a country which has not been part of the European Union for long.
Therefore in the future I will be able to help my colleagues in cases in which Lithuania or lithuanians citizens could be involved.
VII Suggestions
One point can be improved by planning, if possible, the meeting with the National Courts Administration on the first day, because this meeting allows to understand immediately the lithuanian judicial system.
SUMMARY
Judge of sentences' enforcement in a District Court in Mulhouse, France, I participated in an exchange program in Lithuania, during two weeks in September 2013. This exchange, between meetings with lithuanians judges and prosecutors, visits to several institutions and attending hearings, has allowed me to get a better understanding of the lithuanian judicial system and to make contacts with colleagues in case of future needs of european judicial cooperation between France and Lithuania.
[1] To that purpose, the first page of this report will be taken out before any possible publication