Taking Counsel: Cassation in administrative courts

  • 2008-07-03
  • By Monika Kriunaite
For several years now Lithuania's parliament has been discussing reform of the country's courts. Though lawmakers agree that reform is essential, different opinions arise as to how to go about the reforms. Each time Parliament debates the issue lawmakers stress the need to increase transparency and publicity of practice of courts, as well as the need to involve society in court activity and foster confidence in the legal system. According to one survey, only 19 percent of respondents rely on courts, and some 42 percent trust the Supreme Court. Unfortunately, politicians are unable to make any decisions that would rectify this dismal situation.

Much attention has been paid to a proposal to bring cassation into administrative courts. This amendment, to the Law on Courts, was proposed by MP Algimantas Matulevicius, who only has a foggy notion that cassation in administrative courts is necessary. The proposal, to be sure, is aimed at improving opportunities to attain justice. However, as Vytautas Nekosius, dean of the faculty of law of Vilnius University, remarks, cassation is not intended for ordinary citizens. There are clear restrictions in the application of cassation because, first of all, the purpose of cassation is to protect public interest and develop homogenous court practice.
It should be pointed out that the Supreme Court does not hear cases anew but only reviews their validity of adjudication. In other words, only matters of law are decided by the Supreme Court. On the other hand, the possibility of mistakes remains even after a case has been heard in the instance of cassation.

Individuals have equal possibilities to seek justice both in ordinary and administrative courts. The functions of cassation that are carried out by the Supreme Court are in some way performed by the Highest Administrative Court. Does the Highest Administrative Court perform these functions well? This is another question entirely.
According to the Law on Courts, the Highest Administrative Court is responsible for developing the homogenous practice of administrative courts while applying and interpreting the law. The same function of the Supreme Court is laid down in the same law. Though an individual is not granted the right to file a complaint against the Highest Administrative Court adjudication to the instance of cassation, the deviation from homogenous practice of administrative courts or substantial breach of material law is basis to renew the process, according to the Law of Administrative proceedings (Art. 153).

Yet while arguing about cassation in administrative courts, Parliament forgets a major problem that the European Commission has pointed out 's the case's duration. Hearing a case in administrative courts nowadays can last close to two years. Obviously, adding an instance of cassation would prolong the case to about three years, or even more. Also, one must wonder whether the quality of Supreme Court's adjudication would not worsen if it had to decide both administrative and ordinary cases.

Thus accepting the suggested amendments and bringing cassation into administrative courts would signify a step back of nearly 10 years. Yet politicians shouldn't forget that 84 percent of respondents in a recent poll approved of the idea of cassation in administrative courts.

MP Julius Sabatauskas stresses that the discussion about bringing cassation into administrative courts comes up every year. But instead of maximizing efforts to reform the court system, which is inherently very sensitive to any kind of reforms, it is essential to solve existing problems. The goals of increasing transparency and publicity will be realized when society itself is able to participate in court activity, when cases are heard expeditiously and impartially, and when homogenous practice of courts is developed.

In conclusion, it is important not to bring new instances but to enable the appropriate conditions for work in every court of every level. Unfortunately, there still is no answer how and when this will be done.

Monika Kriunaite is a lawyer at at Jurevicius, Balciunas & Bartkus, a member of Baltic Legal Solutions, a pan-Baltic integrated legal network of law firms including Glikman & Partnerid in Estonia and Kronbergs & Cukste in Latvia, dedicated to providing a quality "one-stop shop" approach to clients' needs in the Baltics.