Teisės apžvalga / Law Review

EDITOR NOTE

2024-04-23

HOW DOES THE PUBLIC’S INTEREST IN PARTICIPATING IN THE POLITICAL PROCESS INFLUENCE THE EQUILIBRIUM BETWEEN PRIVACY AND SECURITY IN CYBERSPACE?

Karolis Kubilevičius — 2024-04-23

E-democracy is becoming a prevalent factor in our daily lives. Whether knowingly (through utilising e-voting, e-petition systems, etc.) or unknowingly (by participating in discussion on social networks), citizens are beginning to exploit the advantages of e-democracy. Nevertheless, a comprehensive analysis of e-democracy from a purely legal perspective remains largely untouched. This article seeks to contribute to the ongoing discourse on e-democracy, with the specific focus on the delicate balance between security and privacy in the context of cybersecurity. Furthermore, the author introduces a third element to this intricate discussion – the public’s interest in participating in the political process. Understanding and analysing the interplay between these three elements is crucial for the regulation of e-democracy.

THE ISSUE OF TAXATION IN THE DIGITAL ECONOMY

Karolina Venslovaitytė — 2024-04-23

The world has entered a period of deep transition with rapid and incredible development of innovations. The rise of the digital economy has dramatically changed the global business environment, creating new challenges for the tax system. Newspapers and magazines are being replaced by the Internet, and trade in material goods is being replaced by digital services. The digital economy destroys the barriers of time, space, and distance. The server where the transaction is processed, the location from which the goods or services are supplied, and the place of supply of such goods or services are in different jurisdictions, therefore, the question “where should the transaction be taxed?” is raised. Meanwhile, the digital economy opens unprecedented opportunities to avoid taxes for the international tax rules which still “stuck” in the 20th century business concepts because the companies operating in the digital space do not need factories, stores, or other permanent residences to develop their activities.

The purpose of this article is to evaluate the efforts of the European Union and international standard-setting entities to find a solution for fair taxation of the digital economy.

The first part of the study aims to delve into the concept of the digital economy and essential features with a special emphasis on the role of digital service user which is unique and more complex than the role usually assigned to the customer. This part also distinguishes the differences between digital and traditional business. The advantage of the digital business model compared to the traditional business model is shown based on statistical data. The second part emphasizes the reasons that will lead to the necessity of taxation of the digital economy, discusses the digital services tax applied in certain countries of the European Union and highlights the weakness of the concept of digital establishment in the double taxation agreements concluded by the countries. The final part of the final paper delves into the proposals submitted by the European Commission regarding the introduction of a common consolidated corporate tax base, the inclusion of the concept of virtual permanent establishment in the tax system, and the taxation of user-created value. This part also analyzes the digital economy taxation model proposed by international organizations. Given the absence of such legal regulation, this paper also provides recommendations for the taxation of the digital economy.

SOULBOUND TOKENS: NEW CHALLENGES IN THE LEGAL REGULATION OF CRYPTO RELATIONS

Evaldas Mikalajūnas — 2024-04-23

The article examines the content and legal characterization of Soulbound Tokens (SBT), which is completely new and potentially outside the definition of "crypto-asset" in the European Union Regulation on Crypto-asset Markets amending Directive (EU) 2019/1973 (MiCA). The research focuses on the unique properties of the SBT tokens such as non-transferability and non-asset value, which will potentially pose new challenges to the existing legal regulation related to the European Union (MiCA), money laundering prevention and data protection legislation.

The first part of the article reveals the technological operating principles and main features of the term SBT. The relationship between the SBT and the concept of crypto-assets established in the MiCA regulation is analysed. By means of logical analysis, the coincidence of both terms is assessed. The revealed existing problems are related to the features of non-transferability and value of SBT. Also, this part analyses the possibility to regard SBT as an object of the Law on the Prevention of Money Laundering and Financing of Terrorism. The problem highlighted is related to the financial value and the conditions of execution of operations.

The second part of the article reveals the relationship between the SBT and the General Data Protection Regulation. There are two types of SBT related to the content of the presented data. Finally, an attempt is made to reveal the problematic nature of SBT as a technology representing personal data and its connection with personal data protection and the mandatory legal norms regulating it. Paying most attention to the requirements of the offer and acceptance, as well as the right to be informed about the processing of such data and the possibility of refusing such processing.

DOES THE REGULATION OF THE PROCEDURE OF PREJUDICIAL ADMINISTRATIVE DISPUTES IN SUB-STATUTORY LEGISLATION CORRESPOND WITH THE PRINCIPLE OF LEGAL DEFINITION?

Mindaugas Jakutavičius — 2024-04-23

One of the major characteristics of the state of law is that a person does have the right to apply to the court if he/she believes that his/her rights have been violated. This right is established in the Constitution of the Republic of Lithuania and international legal acts. The State is getting more and more involved in the regulation of social relations; thus, it is not surprising that there are more and more disputes between an individual and the state administrative institutions. The scope of legal cases in administrative courts is rapidly increasing, moreover, we have to bear in mind that court processes are complicated and formalised, and these circumstances could prevent a person from exercising his/her right to defend violated rights in court quickly and efficiently.

Recommendation Rec (2001)9 of the Committee of Ministers to member states on alternatives to litigation between administrative authorities and private parties was adopted in order to accelerate and make it easier for a person to defend his/her violated rights against the decisions taken by the authorities or their actions. This recommendation provided more options for preliminary administrative dispute resolutions that would enable to solve the disputes between an individual and the authorities in the European Union more efficiently. Therefore, the examination of pre-trial administrative disputes has become even more relevant. Quasi-judicial bodies that are designed to resolve disputes between individuals and state institutions have been existing in Europe since the 19th century and are the most appropriate for handling such pre-trial disputes. Quasi-judicial bodies in administrative law are important because they contribute to the protection of human rights. The purpose of the quasi-judicial body is to make the examination of administrative disputes as simple as possible, but at the same time to maintain an impartial examination of the dispute and to ensure a reasonable decision. The purpose of quasi-judicial bodies is the same as that of the court - to defend violated human rights. The possibility of preliminary administrative dispute resolution appeared in Lithuania in 1999 when Lithuanian administrative justice system was undergoing the course of reforms. Pre-trial examination of administrative disputes is encouraged in Lithuania as a means ensuring a person's right to a court and is a part of fair administration system. Lithuanian Administrative Disputes Commission, the Tax Disputes Commission are major institutions of pre-trial administrative disputes regulations, however, the Law on Administrative Cases stipulates that in special categories of public administration, pre-trial administrative disputes can be managed by special legal regulations. This legal provision in certain public administrative categories of the law provides an opportunity to define regulations of pre-trial administrative disputes procedures not only in the law, but also in sub-statutory legal acts. Such regulations create favourable conditions for transferring the procedures of preliminary disputes examination to sub-statutory legal acts. Lithuanian legal scholars assert that only law but not sub-statutory legal acts could regulate pre-trial administrative disputes, their status and functions. Therefore, establishing the procedure for pre-trial administrative disputes in sub-statutory legal acts may contradict the principle of legal certainty.

The first chapter of the article presents analysis of the principle of legal definition, its purpose in the law, how this principle is understood by legal scholars in Lithuania and foreign countries, how it is applied in the EU law, what are the practices of national courts and why this principle is considered as essential in the law. In the second part of this chapter the institution of preliminary pre-trial administrative disputes is researched, describing how it is revealed in scientific articles, what entities can carry out the examination of these disputes, what requirements are applied to them, and how these entities are classified.

The second chapter presents how the EU is promoting pre-trial administrative disputes in national law and why, what legal acts regulate pre-trial administrative dispute resolution in Lithuania, and which entities perform pre-trial administrative disputes. At the moment, there are two basic laws in Lithuania that regulate such dispute resolution. However, these laws contain a provision that the examination of pre-trial administrative disputes in special administrative categories may be determined by other laws. Therefore, it is analysed in what special administrative categories the procedure for examining pre-trial administrative disputes is established in other laws and how this procedure is regulated in these laws. The laws that determine the order in special administrative areas do not have general and clear provisions for defining the order of these disputes, and the regulation is transferred to sub-statutory laws. The second part of this chapter presents, what sub-statutory legal acts regulate mandatory pre-trial administrative disputes. Hence, the tendency is evident that examination of such disputes is formally established in the laws, however, after transferring the regulation to sub-statutory legal acts, it becomes vague. In some cases, such legal norms established by sub-statutory legal acts might contradict the law itself. The Court of Justice of the European Union has formed the criteria that must be followed in pre-trial administrative disputes regulations in institutions, but in Lithuania there is a lack of compliance to the guidance of the criteria suggested by the Court of Justice of the European Union when the procedure itself is regulated in sub-statutory legal acts. Consequently, favourable conditions occur for such dispute resolution regulations to be vague and ambiguous, and it is not clear whether such a procedure really ensures effective resolution of disputes in relation to a person.

The conclusion can be made that procedures of the pre-trial administrative disputes regulated by sub-statutory legal acts allow to make reasonable assumptions about the vague and ambiguous understanding of the procedure that does not provide assurance of legal certainty.

CAN THE ANALOGY BE APPLIED IN CRIMINAL LAW?

Paula Jalinskaitė — 2024-04-23

The research article analyses whether analogy can be applied in criminal law, as it is a controversial issue, with some researchers arguing that analogy should be prohibited on the basis of the principle of legal certainty, according to which criminal law should be clear and predictable, and others arguing that analogy should be allowed as a necessary instrument for filling in the legislation gaps. Furthermore, global modernization and changing social relations make it a challenge for the legislator to keep up with new developments by amending the law, which leads to gaps in legislation, and thus to the need for interpretation by prosecuting authorities, especially the judiciary, to apply the rules of law in a way which requires interpretation.

The analysis of the European Court of Human Rights case law leads to the conclusion that the Court, while underlining the practical need to interpret the provisions of the criminal law and adapt them to changing social relations, has established the prohibition of overly broad interpretations of the criminal law against the accused. The European Court of Human Rights has stated that the requirement of foreseeability of the elements of a criminal offence has been established, however, even if a provision of a criminal law is abstract, this requirement is considered to be fulfilled if a person could have foreseen the criminal nature of the offence either from the wording of the crime or from the court's interpretation of the crime. Interpretation of criminal law by analogy is not violative of the Convention for the Protection of Human Rights and Fundamental Freedoms as well as the Charter of Fundamental Rights of the European Union, provided that it is applied within the bounds of the law and that it does not extend the concept of the offence to such the accused is sentenced on the basis of a rule that is not laid down in any legal act.

Furthermore, regulation of the Rome Statute of the International Criminal Court allows the International Criminal Court to interpret legal norms and establish precedents through law and legal analogy, but it is necessary to ensure that the International Criminal Court does not cross the line between the creation of new offences and the interpretation of law. Also, a person may be prosecuted for crimes arising from violations of the general principles of law recognized by civilized nations, i.e. the crime of genocide, crimes against humanity, war crimes and the crime of aggression. Meanwhile, legal analogy may be used to interpret the constituent elements of criminal offences, provided that the principle of foreseeability is guaranteed.

Moreover, the analysis of national case law demonstrates that courts apply the legal analogy for the interpretation of the constituent elements of criminal offences, which overlaps with the systemic, linguistic and analogical methods of legal interpretation. The legal analogy does not violate the general and specific principles of criminal law, does not restrict fundamental human rights and freedoms, and can be applied to eliminate gaps in the Criminal Code of the Republic of Lithuania and to interpret norms, provided that the process is carried out without extending the norms beyond the limits envisaged by the legislator, and that its application does not impose any burden on the accused's procedural position and that the latter is not sentenced to a law of a different (non-criminal) legal purpose. Also, national courts apply the analogy of law, as the Criminal Code of the Republic of Lithuania criminalizes violations of the general principles of law recognized by civilized nations, i.e. crimes against humanity and war crimes.

The analysis of the legal doctrine, the national, international, and European legal acts, and case law has revealed that the analogy can be applied in criminal law if its application: 1) does not violate general principles of law; 2) does not violate conventional, constitutional and procedural rights and freedoms of individuals; 3) does not burden the legal position of the accused and does not result in his/her conviction under a law of a different (non-criminal) nature.

THE QUALIFICATION PROBLEM OF INCITEMENT AGAINST ANY NATION, RACE, ETHNIC, RELIGIOUS OR OTHER GROUP OF PEOPLE IN LITHUANIAN CRIMINAL LAW

Viltė Aleknaitė — 2024-04-23

In Lithuania most pre-trial investigations into incitement to hatred are terminated before reaching the court, and in the courts, a large part of persons who are accused of incitement to hatred are acquitted without identifying the elements of incitement to hatred in their actions. Therefore, this study discusses the issue of the qualification of incitement to hatred in the practice of Lithuanian courts. The purpose of this study is to evaluate the application of criminal responsibility for these crimes in the context of the European Court of Human Rights (ECtHR) jurisprudence and the principle of ultima ratio, after performing a systematic analysis of the criminal act of incitement to hatred.

The conducted research showed that neither in Lithuania nor internationally there is a common definition of incitement to hatred, but it can be described as spreading, promoting, or justifying any form of hatred directed against a person or a group of persons distinguished by a certain characteristic. Incitement to hatred is enshrined in both Lithuanian legal acts and international documents as a criminal act, which must be punished by means of criminal law. In Germany, the United Kingdom, and Denmark, incitement to hatred can be manifested by insulting or humiliating a person, but in Germany, incitement to hatred must also disturb the public order. Meanwhile, in Latvia, incitement to hatred can manifest itself through the restriction of the rights of individuals or the granting of privileges. Similarly, incitement to hatred is assessed in France, where it can manifest itself in the form of discrimination against individuals, but it is necessary to prove that incitement to hatred has caused real dangerous consequences - discrimination, hatred, or even violence. The qualification of incitement to hatred in Lithuania does not fully correspond to the practice of the ECtHR, since in Lithuania, specific and directly inciting statements are considered to be incitement to hatred, while the ECtHR recognizes hate speech as indirect incitement to hatred. Moreover, contrary to the practice of the ECtHR, in Lithuania, in most cases, one hateful comment is not enough for the application of criminal liability, because the application of criminal liability for hate crimes in Lithuania is perceived as an ultima ratio measure, when the danger of acts of hate is justified by their systematicity and a real threat to the values protected by the criminal law.