The Annual Law Review Presented @ Constitutional Court Feb. 22nd - MRU

23 February, 2023
The Annual Law Review Presented @ Constitutional Court Feb. 22nd
Law School

Feb. 22nd, the Annual Law Review, "Lithuanian Law 2022: Essential Changes," prepared at the behest of Mykolas Romeris University's (MRU) School of Law was presented to the public at the Constitutional Court. It presented the most important events of 2022 in the field of Law and provided insights into their impact and forecasts for what to expect in 2023.

"The annual Review of Law aims to draw attention to the need to analyze the changes taking place in the field of law and to discuss them because they affect not only the state, but also the everyday life of Lithuanian residents and business entities. Such an analysis can help to assess the possible consequences of such changes, and sometimes to prepare for their proper implementation on a practical level," said MRU Law School Dean Prof. Dr. Lyra Jakulevičienė.

Minister of Justice Ewelina Dobrowolska pointed out that the Year 2022 was primarily marked by Russia's war against Ukraine. "It shocked Western societies and forced them to take new defensive measures. Lithuania was the first country to turn to the Prosecutor of the International Criminal Court with a request to open an investigation into war crimes and crimes against humanity committed by Russia and Belarus. It was the first time that Lithuania used the Rome Statute. Last year, changes in Lithuania affected the judicial system, where functions not characteristic of courts were abandoned. The amendments to the Civil Code adopted by the Seimas established that part of non-contentious issues will be referred to notaries for decision. At the same time, uncharacteristic functions were abandoned in some areas of notarial activities," said Minister of Justice Ewelina Dobrowolska.

The Minister drew attention to the fact that, with the aim of purposefully reducing discrimination, amendments to the Criminal Code were approved. They create the prerequisites for a more effective fight against certain forms of racism and xenophobia by means of criminal law. At the same time, the institution of temporary detention was restructured, with the aim of making it applicable in exceptional cases. "Finally, the last years marked a new stage in the penitentiary system as well, in which attention is paid to the resocialization of convicts. So from July 1st the independent Lithuanian Probation Service was formed. A month later the Seimas approved the reorganization of the Prisons Department and its subordinate institutions into the Lithuanian Prisons Service", noted the Minister of Justice. For the first time, the heads of the main Lithuanian legal guilds also shared their insights in the annual law review.

The authors of the annual legal review, MRU researchers note that 2022 was not an easy year in Lithuania. Russia's aggression against Ukraine is a clear testimony of what happens when the law, the rule of law, and human rights are not adhered to. After the European Union (EU) imposed unprecedented restrictive measures (sanctions) on Russia, Belarus and Iran in a very short time, Lithuania adjusted the national legal regulation. Although directed against other countries, these restrictive measures have a wide impact in Lithuania, not only on the state level, on the institutions that ensure that Russian financial funds do not enter Lithuania, but in principle on all Lithuanian natural and legal persons who are also responsible for the implementation of the sanctions. They must check all contractors and beneficiaries and determine whether they are exempt from sanctions. In the context of the threat of aggression in the Baltic States, the practice of administrative courts in cases related to the postponement of mandatory initial military service is also relevant, where the courts took a strict position on this issue.

Last year three amendments to the Constitution were adopted. This is one of the biggest interventions in the text of the Constitution in 30 years since its adoption. After the relevant Constitutional amendments came into force, they included the direct elections of municipal mayors. Article 119 established that mayors are elected for a 4-year period based on universal, equal and direct suffrage and secret ballot. Article 74 of the Constitution has also been amended. It establishes that a person who has lost his position, due to impeachment, will be able to apply to the Seimas or other positions for which the oath must be sworn as outlined in the Constitution it must be taken no earlier than ten years, after the decision of the Seimas by which the person was removed from the office he held or his mandate as a member of the Seimas was revoked. So in 2022 the adopted amendment to the Constitution of the Republic of Lithuania regarding the constitutional consequences of impeachment finally completed the implementation of a decision by the European Court of Human Rights in the case of Paksas v. Lithuania, which has been ongoing since 2011. Also, in Article 56 of the Constitution, the limit of the age, at which a person can apply to run for the position of Seimas member, has been reduced. From now on, candidates for the position of Seimas member must be at least 21 years old.

Presenting the main trends of constitutional justice in 2022, the President of the Constitutional Court of the Republic of Lithuania Prof. Dr. Danutė Jočienė emphasized that in 2022, the Constitutional Court made significant decisions on ensuring human rights and freedoms. Prof. Jočienė, reviewing the 2022 court examined cases of constitutional justice, noted that four important areas can be singled out.

"The Constitutional Court at the beginning of 2022, continuing the interpretation of the constitutional right to judicial defense and the lawyer's participation in the court process, which was completed in 2021, after having adopted the December 30th, 2021 ruling on the requirement that a cassation appeal be drawn up by a lawyer, February 10th, 2022, decided on the need to contact a lawyer in order to resume the proceedings in the administrative case. In 2022, the first constitutional justice cases were also examined, in which the constitutionality of the legal regulation established due to the COVID-19 pandemic was assessed. The extremely important April 15th, 2022 Resolution on the dismissal of judges of the highest courts, and on Dec. 29th, 2022, the resolution resolved the issue of transferring the powers of the Seimas inspectors to the newly-established Intelligence Inspector of the Seimas, said Prof. Jočienė.  In addition to these cases, the Constitutional Court also examined other cases, such as those related to the right of an individual to due process in court, the powers of courts to apply certain measures established by law on an individual basis, and the calculation of the retirement years of researchers to receive a state pension, etc.

The measures applied during the ongoing COVID-19 pandemic, since the 2020s, were evaluated by the Constitutional Court in 2022. It basically justified the restrictive measures applied by the state from the point of view of the Constitution. Some of these measures, after the change in legal regulation, remained unassessed at that time, because the corresponding request to the Constitutional Court was submitted by an entity other than a court or a person. In constitutional jurisprudence, when deciding on pandemic regulation, the importance of human health protection as a constitutionally important goal and the public interest was emphasized. It was stated that in order to prevent the spread of infectious diseases in society, as well as to control the spread of these diseases, which creates a special situation in the state, that threatens the health of many people and life, other constitutional values, the law-making body undertaking the obligation to create legal prerequisites to ensure human health protection, may establish certain restrictions on other human rights and freedoms. But in doing so, must observe the conditions for limiting human rights and freedoms set out in the Constitution," said Prof. Jočienė.

Court Chairman Prof. Jočienė also pointed out that 2022 was exceptional not only because of the examined cases of constitutional jurisprudence, but also because of various events and projects. These commemorated the 30th anniversary of the Constitution of the Republic of Lithuania and which, among other things, aimed to open the Constitutional Court to the public.

Speaking about the reforms to be continued in 2022 in the field of legal regulation of the civil service, the researchers emphasized that the extremely frequent change of legal acts in the field of civil service leads to a chaotic nature of legal regulation (the regulation was changed 135 times).

Last year brought a number of changes in the field of criminal justice and sentencing, although there are many more to come this year. The amendments and additions to the Criminal Code of 2022 were determined by the practice of the Court of Justice of the European Union (CJEU) and the procedures for violation of EU law initiated by the European Commission against Lithuania. It was also the aim to improve the conditions of criminal liability for crimes against the independence, territorial integrity and constitutional order of the State of Lithuania. At the same time, the authors critically evaluated the measures of penal impact and the trends of stricter criminality. Changes in the regulation of temporary detention, that entered into force last year, are associated with the strengthening of the protection of the individual's right to freedom and security. Researchers also mentioned the risks that may lead to the expected ineffectiveness of the changes made to the Criminal Procedure Code and their non-compliance with the intended purpose. The reform of the Lithuanian penal system in 2022, which consolidates the dualistic model of the punishment execution system prevailing in Europe, is expected to ensure the centralization of the Lithuanian penal system, the refinement of functions, strengthen the internal and financial control of both the Lithuanian Probation Service and the Lithuanian Prison Service, ensure more efficient internal administration, and the uniform practice of applying the Penal Code.

A number of changes have occurred in the area of administrative law and procedure. The revised Law on Administrative Cases, as well as the prepared amendments to the system of district administrative courts, which are still under consideration in the Seimas of the Republic of Lithuania, will likely ensure a better quality of the judicial process of administrative cases and more effective protection of defending the rights and freedoms of persons in administrative courts. Amendments to the Code of Administrative Misdemeanors, legal innovations in cases of administrative misdemeanors will have an impact on the recognition of injured individuals and legal entities as victims and compensation of expenses. However, some innovations, such as the institute for the postponement of administrative offense cases, lacked finality.

The law is more and more associated with the sustainable development of the state. Therefore, significant changes in legal regulation have taken place in this area as well, likely creating prerequisites for a more harmonious development of the Lithuanian economy. In order to avoid possible negative consequences (including damage) to the environment and human health, amendments to the Law on Waste Management were adopted. Also those related to the means of ensuring the fulfillment of obligations; in the continuation of the reform of the packaging waste management system, and higher requirements were set for the participants of the waste management system, and the Environmental Protection Agency received new powers.

In many EU countries, the impact of technology in legal and judicial processes is increasing. Two EU regulations that came into force at the end of 2022 - the Digital Services Act and the Digital Market Act - significantly change the digital services market. New additional mandatory obligations are expected for leading digital service providers and the EU creates new supervisory instruments for these leading digital service providers. In addition, the transparency and publicity requirements, established in laws and other legal acts, have recently increasingly become the object of legal debates, when the implementation of these requirements is linked to the public publication of a certain amount of personal data on the Internet. The publication considers the problems arising from combining the right to personal data protection with freedom of information and finding the right balance in the CJEU August 1st, 2022, within the context of the decision in case C-184/20.

Due to the dynamics of business, it was also necessary to make corresponding changes in its legal regulation, especially in the field of regulation of Start-ups. Amendments to the law on joint stock companies will ensure the necessary regulatory liberalization in this area. It is necessary for business development, and at the same time, it is likely to increase legal certainty on some issues. However, some questions will have to be answered by case law or legal regulation will be further developed in the future.