Contemporary Research on Organization Management and Administration
Vol. 2020, 8 (2)
ISSN (online) 2335-7959
Pages: 6-31

Simona Dementavičienė, Mykolas Romeris University, Lithuania

Status: Published
Full paper link: CROMA_2020_8_2_6-31.pdf

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This article is licensed under a Creative Commons Attribution 4.0 international Licence


This research paper analyses participation of members of the public (public participation) 1 in the administration of justice, focusing on the problematic aspects of constitutional regulation. Constitutional amendments should establish a regulation that allows members of the public to participate in the administration of justice.

The purpose of this paper is to discuss whether the fact that public participation is not established at the constitutional level in other European Union (hereinafter, the EU) countries violates the principles of separation of powers or constitutional rule of law. This paper also aims to discuss why the amendment to the Constitution is necessary for Lithuania, and what the scope of such an amendment should be so that the integrity of the Constitution of the Republic of Lithuania (hereinafter, the Constitution) is maintained and the compliance with the requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter, the Convention) is ensured.

Design/methodology/approach. A qualitative research has been carried out. The following data collection methods were used: questionnaires made up of open-ended questions (the survey was conducted via email) as well as an interview (the interview with Prof. Egidijus Kūris via email), thematic analysis, and document selection. The following data processing methods were used: the data was processed by analysing the contents of the documents and summarising the educational (legal) practice. The following data analysis methods were used: a dogmatic and comparative analysis. The data regarding the level of regulation of public participation was collected remotely from the participants and experts (judges, representatives of courts, scholars, representatives of ministries of justice) from various EU countries. The data was collected, processed, and analysed from spring 2019 until the submission of this paper for publication, i.e. spring 2020. The participants of the study were asked problem questions related to constitutional regulation. Research papers, other literature related to the issue of the study, constitutions of EU countries, and other international and national legislation were analysed. The scope of the study is the legal framework of EU countries and selected from them the EU countries that have lay participation established only at the legislative (ordinary) level instead of the constitutional level. The data for the research was collected from Estonia, Malta, Finland, Sweden, Hungary, and Germany. In addition, Poland, Latvia, Slovenia, Slovakia, and Norway were included in the study with regards to the amendment of Article 112(5) of the Constitution. The participants from Latvia, Slovenia, Slovakia, and Norway agreed to participate in the study but were unable to provide answers before submitting the paper for review.

The findings. For the EU countries that have lay participation established at the legislative (ordinary) instead of the highest (constitutional) level, it is not necessary to amend the Constitution. This is due to the differences among the countries, their systems and mentality, methods and tradition of constitutional interpretation and constitutional identity. However, within the context of the Lithuanian legal system, it is necessary to amend the Constitution. In order to maintain the integrity of the Constitution, and to harmonise constitutional regulation with the requirements of the Convention, four articles of the Constitution should be considered: amending Article 48(4) of the Constitution, supplementing Article 109 of the Constitution with Paragraph 5, supplementing Article 111 of the Constitution with Paragraph 5, and amending Article 112(5) of the Constitution.

Research limitations/implications. Not all EU countries participated in the research, i.e. Ireland, Austria, Greece, Cypress, Luxembourg, and Portugal. Since not all the representatives expressed their consent to their opinions being published, to protect personal data, the identities of such participants or experts have not been given in the paper. Only those who agreed to be quoted with their full name and place of work have been identified in the paper.

Practical implications. Recommendations for further practice so that if the remaining countries decide to introduce public participation to the administration of justice, they can assess whether it is necessary to intervene in the constitution. Meanwhile, countries that have established public participation only at the legislative level may evaluate their constitutional identity with regards to the necessity to amend or supplement their constitutions. There are ongoing discussions in the EU countries about how to select lay judges so that their independence is ensured; therefore, this paper analyses whether lay judges should be introduced to the judiciary system in the same way as professional judges are.

Originality/Value. There is a draft amendment to the Constitution registered at the Seimas of the Republic of Lithuania (hereinafter, the Seimas). The draft amendments to the Constitution No. XIIIP-3273 were considered in the Committee on Legal Affairs during the autumn session of the Seimas. However, the draft amendments received a lot of important observations, especially from scholars, due to which the consideration was postponed. It is currently unclear whether the authors of the draft amendments plan to clarify the document or not. This contributes to the relevance of the topic and the necessity to publicise the extent of the amendments to the Constitution.

Keywords: lay judges, selection of lay judges, constitution, amendments to a constitution, constitutional amendments, the principle of separation of powers, the principle of constitutional rule of law, the principle of integrity.

Research type: research paper.

JEL classification: K100, K400.

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