Law Review / Teisės apžvalga

FLEXIBILITY, UNPREDICTABILITY AND CONTROL OF VICTIM STATUS ACCORDING TO ART. 34 ECHR IN RECENT CASES OF THE ECtHR

Dimitris Liakopoulos — Tue, 01 Apr 2025 00:00:00 +0300

The present work has attempted to shed light in a comparative way on some interpretative and other elements that the European Court of Human Rights (ECtHR) obtains through its jurisprudence in cases concerning the status of victim. Each case is different. The arguments presented are different. For this reason, this work makes use of the principles of flexibility, unpredictability and evaluation of the victim status according to the “commands” of the case and of the society in which we live in order to better analyze and interpret the arguments under examination. The rigorous and restrictive interpretations of the past are calculable, but not necessarily used even in today's cases as we examine in the following two cases: M.A. and others v. France and M.A. and others v. Poland. The main result of the present work is that the facts are different but the topics in common remain the status of victim, the protection of human rights, and the right of access to justice as well as the criteria used by the ECtHR itself.

MULTIPLE LEGAL STATUSES IN CRIMINAL PROCEEDINGS: LIMITATIONS AND CONFLICTS

Raimundas Jurka — Tue, 01 Apr 2025 00:00:00 +0300

The article analyses the essence of the possibility of the multiplicity of legal positions (statuses) of a person in criminal proceedings and the essence of limitations (prohibitions), as well as their causality. Using various methods of research, i.e. systematic analysis, comparative analysis, induction, logical-linguistic, content interpretation and other equally important methods, the question is raised whether the provisions of the Criminal Procedure Code of the Republic of Lithuania (hereinafter – CPC), which prohibit certain procedural subjects of the Republic of Lithuania from acquiring and exercising a different status in the same criminal proceedings, are properly interpreted and applied in the judicial practice. It was established that the judicial practice in criminal matters is much more flexible in interpreting the multiplicity of a person's legal position in criminal proceedings. However, this is not just.. In particular, with regard to the impossibility for an expert and a specialist to participate in the proceedings if he or she is, inter alia, a civil plaintiff or a civil defendant in the case (Art. 57(2) of the CPC), the case-law nevertheless finds a niche for an exception to the mentioned prohibition. The author argues that this practice not only distorts the systematic nature of the provisions of the CPC, but is also inconsistent with the principled provisions of criminal procedure law. This distorts the harmony of procedural functions and creates an internal contradiction (conflict) when it comes to reconciling and implementing the interests of the subject of special knowledge and the interests of the civil plaintiff/defendant in a particular criminal proceeding.

The article thus sets out the reasons why the interests (procedural and substantive) of the above-mentioned procedural subjects in the same criminal proceedings cannot be reconciled, the difference between the status of the subject of the special knowledge and that of the plaintiff or the defendant, and the harm that may be caused despite the prohibition in Article 57(2) of the CPC. At the same time, the article points out that the evolving case law on the issue may be due to an inadequate interpretation of legal clarity and legal certainty as constitutional principles of legal regulation. It is very important to understand the harmonisation between the provisions of the CPC and other legal acts, the interpretation of conflicts of norms, and the ways of resolving these conflicts through legal principles. It must be emphasised that in Lithuania, the procedure of criminal proceedings is exclusively governed by the criminal procedure laws in force at the time of the proceedings. Meanwhile, the use of other legal acts in criminal proceedings is only allowed in one case – if it is expressly provided for in the CPC itself.

INCHOATE CRIMES IN THE EUROPEAN UNION: THE PROBLEM OF HARMONISATION

Ugnė Urbšytė-Urbonavičienė — Tue, 01 Apr 2025 00:00:00 +0300

Although while harmonising European Union and national law the changes are usually made by adjusting the articles of the Special part of the criminal code, they also affect the quality of the General part of national criminal codes, including understanding the concept of crime stages. In recent decades, the increasing number of inchoate offenses in the special parts of EU member states’ criminal codes has affected the overall integrity of national criminal law systems. Notably, while some European Union countries establish criminal responsibility not only for attempt, but also for the preparation to commit a criminal act in their general parts of criminal codes, the practice shows that when implementing European Union legislation, they tend to criminalise these preliminary actions as independent offences.

In response to these tendencies, this research aims to determine, mainly using the methods of systematic, linguistic, and scientific literature analysis, whether European Union criminal law provides a clear and unambiguous requirement for Member States to criminalise inchoate actions as an independent criminal offence. The study demonstrates that the distinction between the stages of a crime is of great importance in criminal law, as it reflects the formation of a person's intention, the degree of dangerous behaviour and the corresponding relationship with the harm. Ultimately, the article also concludes that the regulation of EU law does not reveal an unequivocal conclusion as to whether actions that are essentially an unfinished criminal act must be criminalized as an independent crime, therefore further clarification is necessary.

DOES THE INSTITUTE OF CIVIL ASSET CONFISCATION HAVE THE POTENTIAL TO REPLACE PREVIOUS LEGAL MEASURES THAT IMPLEMENT THE PRINCIPLE OF "CRIME DOES NOT PAY"?

Raminta Sangavičiūtė — Tue, 01 Apr 2025 00:00:00 +0300

There is a widespread belief in society that a person who commits a criminal offence will eventually face the negative consequences of his or her unlawful actions, through the imposition of appropriate penal measures designed to influence the person and prevent him or her from committing further offences. In a legal society, the principle of “crime does not pay” is understood as the notion that the responsibility for breaking the law outweighs the benefits of breaking the law, making it unprofitable to commit criminal acts. Thus, in order to effectively implement this principle and protect the rights of society and citizens, it is necessary to use effective legal measures and instruments that not only deter persons from committing criminal acts, but also cause them appropriate harm that outweighs the benefits derived from committing a crime.

In 2010, the Presidency of the Republic of Lithuania set clear and tough targets for combating crimes from which individuals benefit financially. It was concluded that one of the most effective ways to combat corruption, economic, financial, and other crimes from which individuals benefit is to make them uneconomic and unprofitable. In other words, the State sought to establish a legal framework that would make it disproportionately unprofitable for individuals to commit criminal offences and to implement the principle of “crime does not pay”. In order to make crimes unprofitable, the Lithuanian legal system, based on the guidelines established by the European Union and the practice of foreign countries, introduced the institutes of confiscation of assets, extended confiscation of assets, and article on illicit enrichment, the primary purpose of which was to fight against corruption crimes.

This article examines the legal instruments for implementing the principle “crime does not pay”. The analysis of national and foreign legal literature, the work of legal scholars, and the jurisprudence of the courts has shown that the legal instruments of confiscation of assets, extended confiscation of assets, and the illicit enrichment norm do not work in practice. The paper reveals the reasons why these legal instruments, despite their noble purpose, have not achieved the objectives set by the legislator and the Presidency of the Republic of Lithuania in the fight against crime. One of the main reasons for the ineffectiveness of the legal instruments examined in practice is the excessive complexity of proving the illicit origin of the property to be confiscated and the inability of the law enforcement authorities to link this property to specific criminal offences committed by individuals.

In this regard, new measures have been sought for a long time to achieve this objective, and in 2020 the Law on Civil Asset Forfeiture of the Republic of Lithuania was adopted. The introduction of a new legal instrument in the Lithuanian legal system was expected to fill in the gaps in the previous legal regulation in order to make the confiscation of offenders' assets more effective. It has therefore become important to examine the potential of a relatively new legal institute – the civil confiscation of assets to achieve the objective of principle “crime does not pay”. Following the example of foreign countries, civil confiscation of assets was introduced in Lithuania in order to effectively combat the increasing complexity of criminal offences and the concealment of illegally obtained assets. This article examines the stages of civil asset forfeiture and why this legal instrument is more effective than the previous ones. In order to examine the potential of civil confiscation to replace previous legal instruments, the institute is assessed in the context of the fundamental legal principles – the presumption of innocence, the right to property and the principle of proportionality. The national regulation of civil confiscation of property is compared with the legal regulation of foreign countries – Italy, the United Kingdom, Germany, France and Bulgaria, the similarities and differences between them are sought, and the functioning of the institute in practice is analysed. On the basis of the foreign legislation and the case law of the European Court of Human Rights, the compliance of civil confiscation of property with the aforementioned fundamental principles of law was assessed, and it was concluded that the institute in question does not contradict the presumption of innocence and the principle of the right to own property.

However, although civil confiscation is considered to be a more effective legal instrument than the previous ones for the preventive confiscation of illegally-originating assets, due to the lower standard of proof and the ensuring of public interest, there is a risk that, for the same reasons, the rule of probability of evidence in civil confiscation may be abused by the public authorities, thus violating the principle of proportionality. In other words, civil confiscation may become an end in itself for the authorities. However, it was concluded that, for those countries that apply civil confiscation in their law systems, the introduction of a strict regulation defining clear limits to the powers of the authorities would avoid unjustified confiscation of assets that violates the principle of proportionality and infringes the individual's property rights.

DOES CRIMINAL LIABILITY ESTABLISHED IN ARTICLE 245 OF THE CRIMINAL CODE OF THE REPUBLIC OF LITHUANIA CORRESPOND TO THE PRINCIPLE OF ULTIMA RATIO?

Jurgita Kasinavičiūtė — Tue, 01 Apr 2025 00:00:00 +0300

Criminal law is a measure of last resort, therefore, a person can be prosecuted only in cases where the measures of other branches of law are ineffective. The issue of compliance of various articles of the Criminal Code of the Republic of Lithuania with the principle of ultima ratio has been examined for several years. One of such articles is Article 245 of the Criminal Code of Republic of Lithuania, "Non-execution of a court decision that is not related to punishment". On the one hand, non-execution of court decisions causes damage to individuals, society and the state. On the other hand, criminalization of such acts might not achieve the goal of criminal law to ensure that potential offenders do not commit criminal acts. The wording of Article 245 of the Criminal Code of Republic of Lithuania is quite abstract, and more detailed signs of application are revealed in the practice of the Supreme Court of Lithuania. After analyzing the criminal laws of the member states of the European Union referred to in the article, it was found that they state that a person cannot be found guilty not for non-execution of all court decisions: in some countries, the interests of family members are protected, in others, the interests of the debtor, etc. Meanwhile, in the Republic of Lithuania, in this case, this criminal act is not of a high degree of danger, but it is dangerous in itself, because a person commits such a criminal offense by acting with direct intent. Attention should be drawn to the fact that enforcement measures established in the Civil Procedure Code of the Republic of Lithuania are often sufficient for the execution of a court decision that is not related to punishment. Based on the information presented in the article, it is believed that the composition of Article 245 of the Criminal Code of Republic of Lithuania should be adjusted, including the signs of malice and non-implementation of civil process measures two or more times. Also, taking into account the criminal laws of the discussed European Union member states, it is recommended to indicate which court decisions may lead to criminal liability, for example, those related to children, spouses, parents and persons affected by violence, and to establish criminal liability for criminal acts enshrined in Article 245 of the Criminal Code of Republic of Lithuania also for legal persons.

BRIDGING THE DIGITAL DIVIDE: A LEGAL ANALYSIS OF E-DEMOCRACY IN LITHUANIA

Karolis Kubilevičius — Tue, 01 Apr 2025 00:00:00 +0300

The gap in digital access is steadily increasing. The existing digital divide, observed both in the Republic of Lithuania and across the European Union, underscores the lengthy and intricate nature of integrating new technologies into society. While different sectors face different issues, in relation to introducing technologies into conventional processes, one main issue can be seen throughout the sectors. That is, the growing gap between emerging technologies and the applicable law[3]. Lack of regulations in relation to technologies, used in political processes, such as electronic petitions, electronic voting, etc., creates a situation, where the basic citizens’ rights are not guaranteed. What is more, citizens are not able to utilize these technologies for their intended purpose. Finally, the technologies themselves become inaccessible to those groups of citizens, which would benefit the most from the use of these technologies. If the citizens are precluded from utilising these technologies to exercise their rights to participate in political processes due to insufficient knowledge, lack of accessibility, it can be regarded as an infringement of their rights. What is more, an analogous situation is created, when the very same citizen do end up using these technologies, but there is no rule of law requiring the operators of these technologies to make them safe to use.

Despite the present safety concerns, electronic democracy (hereinafter – or E-democracy) initiatives have already been introduced to the general public. These technologies allow citizens to exercise their rights, such as the right to petition. With the growing threat to democratic processes across the globe, the geopolitical situation of Lithuania makes it extremely vulnerable to the cyberattacks from foreign state operators. Consequently, the current electronic democracy initiatives fall under the guidance of the existing digital review. In this paper, the author has analysed the peculiarities of e-democracy, right to e-democracy and the relevant legislation of Lithuania. The author has come to a conclusion that e-democracy in Lithuania is guaranteed only in part.

Goal of the research – to explore the peculiarities of e-democracy, the right to e-democracy as well as to analyse the current legal regulation of Lithuania, in the context of e-democracy.

To provide more insight regarding the formulation of the goal, it is noteworthy to mention that e-democracy covers rights such as suffrage right (digital versions) as well as e-petition. Essentially, right now, it is unclear whether citizens have the right to exercise e-democracy technology (e-voting and e-petition systems) in Lithuania. Furthermore, even if such rights are being exercised, it is unclear whether the legal environment makes it safe for citizens to exercise these rights. Additional analysis into this topic will provide a clearer picture regarding the regulation of e-democracy and its technology in Lithuania.

Scientific problem – it is not clear whether the right to e-democracy is guaranteed in Lithuania.

Design/methodology/approach – the author will use desk research method. This method will be used to examine the concept of electronic democracy as well as its connection to digital divide or lack thereof. Furthermore, the author will analyse the right to e-democracy, which will allow the author to determine the connection between e-democracy, digital rights, and citizens’ rights (or lack thereof). Finally, the author will analyse the relevant legislation of Lithuania, in order to determine whether the current regulation sufficiently safeguards the main components of e-democracy technology.

The thought process behind the selection of methodology is that the topic of e-democracy, especially in the context of law, is seldom analysed. The main concepts, their interrelation as well as the general status quo of the legislation are relatively alien. Conversely, there does exist literature, which focuses on e-democracy and its peculiarities, even if outside of legal context. That is why the author aims to gather and systemize this information, with an attempt to apply it to the legal context. The analysis of these key topics (e-democracy and the right to e-democracy) is also crucial to introduce the readers to the final part of this article. Without knowing what e-democracy is, or how (or if) the right to e-democracy should be guaranteed, analysing the current legal regulation of Lithuania also becomes moot. Thus, desk research will be used to analyse scientific literature related to e-democracy, right to e-democracy, and finally to assess the relevant legal regulation of Lithuania.

Research limitations/implications – in this article the author focused on two citizens’ rights associated with e-democracy – suffrage right and e-petition. The author mainly analysed the regulation of Lithuania. While discussed, the EU or other states’ law were not the focus of this article. The author did not analyse whether the current legal regulation provides sufficient guidelines for citizens to exercise e-democracy technology, especially targeted at less digitally literate citizens. While references were made, the author did not analyse historical or political context. Author’s research is limited to the status quo of contemporary legal situation, which directly relates to the exercisability of abovementioned citizen rights as well as e-democracy technology in general. The author did not formulate recommendations or solution to the issue, related to guaranteeing citizens’ rights. Rather, with this article, the author sought to initiate a discussion regarding digital divide and impact, that lack of proper e-democracy related laws can have on inviolability of citizens’ rights. In addition, the results presented in this article brought clarity to this field, allowing researchers to narrow down the area of research.

Admittedly, each sub-topic analysed could be an independent research on its own. But taking into account the applicable character limitation and the relevance of these sub-topics to the main topic, the author chose to discuss only the main aspects of each sub-topic.

Originality/Value – this paper contributes to the broader discourse concerning the implementation of electronic democracy technology. The central issue is that the domain of electronic democracy and its legal implications are scarcely discussed. Current legislation was not specifically designed to regulate the use of electronic democracy technology and fails to assess the potential risk of infringing upon citizens’ rights. Consequently, the findings of this paper contribute to the discourse on how current policy should be amended to facilitate a seamless and secure implementation of e-democracy technology, while also ensuring that citizens’ rights, which are exercised virtually through the use of this technology, remain inviolable. Furthermore, by guaranteeing proper implementation and usage of e-democracy technology, it could enable states to bridge the existing digital divide.

APPLICATION OF COPYRIGHT EXCEPTION TO DIGITAL EDUCATION IN LITHUANIA FOR TEACHING AND SCIENTIFIC RESEARCH PURPOSES

Sandra Idkinaitė — Tue, 01 Apr 2025 00:00:00 +0300

This paper examines the transformation of copyright limitations on the free use of works for educational and research purposes in the context of distance learning. As technology advances, educational institutions increasingly use digital learning tools which include copyrighted material. The European Union has continuously tried to harmonise copyright laws across the Member States by adopting directives, such as the Information Society Directive, and providing exceptions for using works for educational purposes. However, national legislators have been given a great deal of freedom, resulting in divergent implementation in the Member States. Lithuania, in line with the EU law, included an exception to the copyright law to allow the use of small parts of works for educational and scientific research purposes. However, the law did not explicitly address digital use and cross-border education, which caused difficulties during the COVID-19 pandemic. To meet the challenges of the digital age, in 2019, the EU adopted the Digital Market Directive, which entered into force in May 2022 and provided for a mandatory copyright exception for educational purposes. This directive aimed to modernise copyright law by facilitating the use of works in digital and cross-border education. Despite the updates to the copyright exceptions, several problematic aspects remained. The Directive restricts the digitization of a whole textbook or the use of whole works for educational purposes. The updated legal framework is considered modern, but it has only partially addressed the challenges posed by technological advances. The article therefore stresses the need for continuous assessment of the digitization and hosting of distance learning materials and copyright infringement.

EDITOR NOTE

Tue, 01 Apr 2025 00:00:00 +0300

EDITORIAL BOARD

Tue, 01 Apr 2025 00:00:00 +0300

ENSURING THE CONFIDENTIALITY OF COMMUNICATION BETWEEN A LAWYER AND THEIR CLIENT

Ieva Vyšniauskaitė — Tue, 01 Apr 2025 00:00:00 +0300

The commentary, based on relevant legal acts, the European Union Directive, and other significant legal sources, analyzes the issue of confidentiality in attorney-client communication within the context of criminal proceedings. While the principle of confidentiality itself is not new, its implementation throughout the course of criminal proceedings presents specific challenges, particularly concerning the actions of law enforcement authorities and their ability to restrict this right.