Nacionalinis teisinis diskursas dėl administracinio proceso

Abstract

The article is intended for discussing some of the problems, which exist in the present Lithuanian administrative process and for suggesting possible solutions of such problems.
The main attention is paid to the role of the judge as the central figure of the process in which administrative cases are heard. Whereas the applicable Law on Administrative Proceedings of the Republic of Lithuania does not provide an answer to such important questions as the possibility for the judge to overstep the boundaries of the complaint or to base a judgment on circumstances, which had not been indicated by the parties, etc., the Lithuanian judicial practice of solving such problems is discussed. A conclusion based on the practice of the Supreme Administrative Court of Lithuania is made in the article that Lithuanian administrative court judges must take up a more active role in the proceedings and should not restrict themselves solely to the functions of an assessor of the arguments and proof presented to him or her. However, an active role of the judge by no means should constitute his or her duty to raise versions and prove or disprove them in order to determine whether certain additional circumstances, which had not been indicated by the parties, and which might have an impact on the question of the legality of the contested administrative act, exist, if the entirety of the circumstances, which had been indicated, does not presuppose such a possibility.
The reasons predetermining the activeness of the court and the scope of such activeness, the relation between the judge and the parties participating in the case is discussed, as well as the apportionment of their rights and duties.
In the context of the reforms of the administrative procedure, the article raises an idea of the principle of cooperation between the judge and the parties. Possibilities of the manifestation of the said principle are analyzed. Firstly, the duty for the judge not only to examine the evidence, but also to deliberate upon the factual and legal aspects of the case with the parties is discussed. Further, a prohibition of procedural surprises, meaning a prohibition to base a judgment on circumstances, which a party patently did not pay attention to, and which the parties were not given the possibility to comment on, is analyzed. Finally, a possibility of the establishment of the institute of amicable (friendly) agreement in the Lithuanian administrative process, the courses of application of such an institute, as well as the duty of the judge to promote friendly settlements of disputes are discussed in the article. A conclusion is made that the principle of cooperation between the judge and the parties would contribute towards the amplification of the effectiveness of the judicial proceedings, the procedures of public administration, and also towards ensuring less conflict in the society.