LITHUANIAN QUARTERLY JOURNAL OF ARTS AND SCIENCES
Copyright © 2009 LITUANUS Foundation, Inc.
Volume 55, No.2 - Summer 2009
Editor of this issue: Gražina Slavėnas.
Making the Lithuanian Justice System Worthy of Trust
PATRICIA A. STREETER
Patricia A. Streeter is a practicing civil rights attorney in the USA and the president of the Lithuanian-American Bar Association (LABAS). She is the recipient of the Public Justice Foundation Trial Lawyer of the Year Award for 2008. This article is based on her November 29, 2008 presentation to the 14th World Lithuanian Symposium on Arts and Science in Lemont, Illinois, USA.
Since 1991, Lithuania has become a party to international human rights treaties and reformed its legal institutions. Yet many Lithuanians continue to distrust their own state institutions, and deficiencies in the protection of human rights and the court system continue. The Lithuanian legal system is a closed self-referential system. It could be changed using quality improvement programs that have been adopted for the courts in the Council of Europe and hold promise for Lithuania. Properly implemented, they could help break open Lithuanian insularity and improve its functioning of its system of justice, thereby improving the overall protection of human rights.
The recent and painful history of Lithuania’s fifty-year occupation is well known to members of the Lithuanian-American community. Officials have publicly acknowledged that during Soviet occupation it was the protection of human rights that suffered most.1 The rights we consider human rights are not only the more commonly known individual rights, such as the right to privacy and freedom from discrimination, but also include the right to a fair trial by competent and independent judges, and a court system that will provide an effective remedy for human rights violations.2 Since independence in 1991, Lithuania has become a party to the major international human rights treaties and has reformed its legal institutions in several regards.3 But despite these efforts, many Lithuanians remain distrustful of their own state institutions, including the courts, and a majority of Lithuanians are afraid to speak their minds. They sense injustices abound.
Indeed, a 2008 public opinion poll reported that the lowest levels of public confidence are in the political parties, parliament, government, the courts, and the police.4 An earlier poll showed that 22 percent of those polled believed their rights were violated, but of those, less than 74 percent did not seek to remedy the violations because they had no faith in the effectiveness of state institutions.5 A more recent poll suggests that public confidence in the ability of state institutions to provide an efficient remedy for human rights violations is decreasing.6 The ineffective enforcement of human rights is also seen as a factor in the high levels of migration from Lithuania.7
As social scientists have documented, there is a strong correlation between public confidence and the effectiveness of government,8 and many believe this should be addressed, especially because it is not new. Lack of public trust in the courts is considered by Lithuanians as a legacy of the Soviet era.9 International and Lithuanian organizations have expressed concerns for the protection of human rights in Lithuania, including the court system.10
For example, the European Commission against Racism and Intolerance (ECRI ) has found ongoing discrimination in Lithuania against the Roma in housing and education, and continuing and unpunished incidents of anti-Semitic activities, including anti-Semitic articles in the mainstream press.11 The ECRI found Lithuania’s new Law on Equal Opportunities an improvement, but lamented the failure to apply efforts to counteract racist expression:
But the provisions in force to counter racist expression, including incitement to racial hatred, which has notably targeted the Jewish, Roma and Chechen communities, have not been adequately applied.12
The Lithuanian nongovernmental organization, Human Rights Monitoring Institute (HRMI), has repeatedly documented human rights violations. HRMI’s findings question Lithuania’s conformity with the guarantees of both the European Convention on Human Rights and the International Covenant on Civil and Political Rights, including the court system. Its most recent report, in 2007, notes:
The events of 2006 have shown that courts often violate guarantees to a fair trial. Pretrial investigations in criminal cases are conducted unprofessionally. Yet there has been no political will for fundamental reforms. On the contrary, politicians displayed an old-fashioned approach towards the courts, disrespect for the decisions of international courts, and delayed the implementation of reforms necessary to improve protection of citizens’ rights. The right to a fair trial is believed most vulnerable among civil and political rights and liberties. 13
The report also describes the 2006 scandals in the court system, resulting in the President of Lithuania challenging the competence of the President of the Council of the Courts as the result of the continued disregard of the many substantial problems in the judicial system, including its unprofessional management, antiquated hierarchy and insularity. Although officials acknowledge the need for complex reform,14 a bill on reforming the court system remains tabled.
Why are there such serious deficiencies? Legal academic literature documents that by the mid-1990s, according to observers, the early legal and government reforms had not succeeded, and a deeper level of reform was required.15 Why is it that, despite all of the laws written after independence, in practice they are still not working in the mid-1990s? Several reasons have been given. Early reformers tried, but failed, to combine the inherited communist philosophy of centralized control with the democratic idea of checks and balances, in which power is equally balanced among several institutions. Also, the protection of rights and freedoms was not very high on the list of other priorities, such as economic reform.16 As a result, the early reforms did not adequately address the more fundamental problem of leaders who refused to be ruled by the law and failed to include an active role by the public that would fully transform conceptions of law and justice.17
Those were the evaluations ten years ago. Why then do these problems continue? The answer comes from the field of the social sciences, which shows us that social systems, including legal or political systems, interact with their environment in terms of how they are internally organized. They perceive only those things that enable them to maintain their own organization: ”They act the way they do because they think the way they do; and they think the way they do because they act the way they do.” For this reason, these systems are described as self-referential.18
Can a self-referential social system be changed? It can, with a deliberate effort, by systematically taking in information from its environment and generating information about its own functioning.19 It is a process known and generally understood by social scientists as quality improvement, and it is often applied to human service organizations. In that process, structured “feedback ” is collected and analyzed to determine what concrete steps of correction can then be taken. That feedback can come from many sources: surveys, public opinion polls, organized data collection, and reports from nongovernmental organizations, such as Lithuania’s own Human Rights Monitoring Institute. Unlike many typical government reports, the quality improvement process includes all participants, including those who use the system. In the case of a system of justice, it would include court administrators, judges, attorneys and litigants.
When it comes to improving human rights in a system with Lithuania’s history, it takes mature political leadership with a convincing and credible vision of the future and the active involvement of the citizenry in political and legal dialogue.20 Neither appears to be present in today’s Lithuania.
There is a promising development
elsewhere in Europe that may help this
situation over time, provided
there is the political will to do it. It
is a quality improvement system for the courts in Europe, based upon
these proven social science methods, adopted by the Council of Europe
in July 2008.21
As described by its Working Committee, it is a system
of data collection, analysis, and proposed concrete solutions for
policy makers and the courts, aimed at remedying dysfunctions in
judicial activity and balancing the obligations of the work of the
courts with the obligation to provide quality justice for its users.
Work of this type holds great promise
for Lithuania’s justice
system and other aspects of government. Properly implemented, a quality
improvement program could help break the insularity of
Lithuania’s system of justice and improve its functioning,
thereby the overall protection of human rights. What is especially good
about this process for Lithuanians is that it already exists elsewhere
in Europe, and can be implemented without placing blame or requiring
anyone to admit they are behaving in “old” ways.
Aromaa, Kauko, ed. Penal Policy, Justice Reform and Social Exclusion. Helsinki, Finland: Hakapaino Oy, 2005.
Brennan, Neil J. “European Integration and Human Rights,” Cultures in Eastern Europe: The EU and Abolition of Capital Punishment in Estonia (1998) 47, University of New Brunswick L J 49.
Carothers, Thomas. ”The Rule of Law Revival” Foreign Affairs, Mar./Apr. 1998, 95-106.
Clement, Cynthia and Peter Murrell. “Assessing the Value of Law in Transition Economies: An Introduction” in Peter Murrell, ed. Assessing the Value of Law in Transition Economies, Ann Arbor: University of Michigan Press, 2000.
EU Accession Monitoring Program. “Monitoring the EU Accession Process: Judicial Independence in Lithuania,” Budapest: Open Society Institute, October 2001. Available at <http://www.eumap.org/reports/2001/judicial/sections/lithuania/judicial_lithuania.pdf> (accessed 13 Nov. 2008)
EU Accession Monitoring Program. ”Monitoring the EU Accession Process: Judicial Capacity in Lithuania,” Budapest: Open Society Institute, 2002. Available at <http://www.eumap.org/reports/2002/judicial/international/sections/lithuania/2002_j_lithuania.pdf> (accessed 13 Nov. 2008).
European Commission Against Racism and Intolerance. ”Third Report on Lithuania,” Strasburg: CRI, No. 2, 2006. Available at <http://conventions.coe.int/Treaty/Commun/ChercheSig.asp? NT=177&CM=8&CL=ENG> (accessed 13 Nov 2008).
Human Rights Monitoring Institute [of Lithuania] (HRMI). Human Rights in Lithuania, 2006 Overview, Vilnius: Human Rights Monitoring Institute, 2007. Available at <http://www.hrmi.lt> (accessed 10 Oct. 2008).
Ludwikowski, Rett R. “Constitutionalization of Human Rights in Post-Soviet States and Latin America: A Comparative Analysis,” Ga J Int’l & Comp L 1 at 47, 33 (2004).
Murrell, Peter, ed. Assessing the Value of Law in Transition Economies. Ann Arbor: University of Michigan Press, 2000.
Newton, Kenneth and Pippa Norris. “Confidence in Public Institutions: Faith, Culture or Performance?”, paper for presentation at the Annual Meeting of the American Political Science Association, Atlanta, Georgia (USA), 1-5 September, 1999 <http://ksghome.harvard.edu/~pnorris/acrobat/newton.pdf> (accessed 13 Nov 2008).
Paulauskas, Artūras, in Human Rights in Lithuania: Situation Assessment, Vilnius, 2002, Project of the Seimas of the Republic of Lithuania ”National Human Rights Action Plan,” supported by United Nations Development Programme, also available at <http://europeandcis.undp.org/files/uploads/HR/Human rights in Lithuania 2002 situation assessment. pdf> (accessed 10 Aug. 2008).
Rauličkytė, A. ”Lithuania’s Courts and the Rule of Law,” Journal of Baltic Studies, Vol XXXII No. 2 (Summer 2001), 182-192 <http://dx.doi.org/10.1080/01629770100000051> (accessed 16 Jan. 2008).
Shelley, Louise, ”Justice Reform in Post-Soviet Successor States: A Comparative Perspective” in Kauko Aromaa, ed. Penal Policy, Justice Reform and Social Exclusion Helsinki, Finland: Hakapaino Oy, 2005.
Tsoukas, Haridimos and Demetrios B Papoulias. “Understanding Social Reforms: A Conceptional Analysis,” J Operational Research Society, No. 47 (1996) 853-863.