Proporcingumo principas administracinėje teisėje (Taikymo praktika Lietuvos teismuose)

Abstract

European law influence Lithuanian domestic law through the application in domestic law of certain principles of administrative law. This influence is one of the most important challenges for Lithuanian administrative justice. The principles which are to be found in the law of the European Convention of Human Rights and in the European Community law have to find the appropriate place in the domestic law and the practice today. This article observes the one of substantive principles, which has the rule of law background, principle of proportionality – which main task is balancing means and ends.
The principle of proportionality is discussed as the principle which ought to guide public authorities, the administrative decision making and against which such a decision making should be evaluated in the courts. This article refers, that the application of the principle of proportionality is an issue for an active role for courts in reviewing administrative measures.
In this article is observed the nature of the proportionality principle in administrative law, and in particular its role in judicial review by the Constitutional Court of the Republic of Lithuania and the Supreme Administrative Court of Lithuania. The article observes several examples of these courts judicial practice.
The author presents the analysis of these courts decisions during the last period of time. The conclusion is that there is no tradition of applying the doctrine of proportionality in the administrative court of Lithuania, but under the pressure of the increasing importance of European Community law and European Court of Human Rights practice this situation has the capacity to be changed.
The last part of the article observes the principle of proportionality as the instrument for realization of administrative discretion. Through lack of practice of Lithuanian courts to scrutinize the exercise of administrative discretion, there is no opportunity for the principle of proportionality to be implemented, too.
The review of legislation also represents the causes of feeble implementation of this principle. The one of the laws in which this principle is mentioned is the Law on Public Administration. This principle is mentioned in the fourth article of this law among the others principles which ough to guide public administration, such as lawfulness, objectivity and impartiality, conformity to statutory aims. But the notion of the principle of proportionality in this law implies only the requirement for the use of means commensurate to the aims to be pursued, but there is no demand for public authorities to avoid unnecessary interference with the rights and interest of private persons.