Apeliacija Lietuvos administraciniame procese: pagrindinės reformos kryptys

Abstract

Alongside the establishment of administrative courts in Lithuania in 1999, it was necessary to adopt a legal act, regulating proceedings in those courts, very promptly. Naturally it was impossible even to think about the comprehensive code of administrative procedure at that time. Drafting of codified legal would have taken a lot of time; especially taking into account the fact that there was no practice of functioning of administrative courts in Lithuania theretofore. Law on Administrative Proceedings of the Republic of Lithuania was drafted and adopted by the way of transferring provisions of the Code of Civil Procedure, effectual at that moment, modifying some of them in order to adjust to the peculiarities of administrative procedure. The same applies also to the provisions of the Law on Administrative Proceedings regulating the appellate procedure in a court of higher instance.
It stands to reason that transfer and modification of provisions from other legal act, without having a clear concept of certain type of procedure, could only be a temporary solution. Present regulation of appellate procedure in Law on Administrative Proceedings is far not perfect and practical activities of the Supreme Administrative Court of Lithuania have already disclosed a number of shortcomings. In respect that a new Code of Administrative Procedure is presently under preparation, the article aims to overlook main possible directions for the development of legal regulation of appellate procedure in administrative cases.
Limited volume of the article prevents the author from exhaustive analysis of all necessary amendments. Thus the article is practically limited to the analysis of most conceptual issues – nature and principles of appeal.
Formulation of certain provisions regulating the appellate procedure to a great extent depends on how the nature and purpose of appeal is understood – whether it is rehearing of a case (novum judicium) or control of validity and legality of a judgment of the first instance court (revisio prioris instantiae).
Taking into account the peculiarities of national system of administrative courts and functions attributed to the Supreme Administrative Court of Lithuania, conception of appeal as control of validity and legality of a judgment (revisio prioris instantiae) is better solution for the administrative procedure of Lithuania.
Abandonment of the principles tantum devolutum quantum appellatum and non reformatio in peius in the Law on Administrative Proceedings of Lithuania was probably based on the assumption that administrative cases, unlike most of civil cases, are non-dispositional, and therefore neither principles of parties disposition and competition, nor tantum devolutum quantum appellatum and non reformatio in peius principai should apply. The author disagrees with this attitude, and insists that those principles, considering also the necessary exceptions, should be applied in administrative procedure as well.
Existence and limits of the prohibition to present new evidence on appeal largely depend on the conception of role of a judge in administrative proceedings which will be chosen by the drafters of the Code on Administrative Procedure. Although taking into account the nature of administrative procedure this prohibition should not be absolute, Code on Administrative Procedure should contain provisions aimed to preclude possible misuse of procedural rights and causeless transfer of a hearing on the merits to the court of appellate instance.