Obligations and commitments of Lithuania as a member state
Report
Doc. 7896
5 September 1997
Rapporteurs: Mr Andreas Gross, Switzerland, Socialist Group
and Mr João Mota Amaral, Portugal, Group of the European People's Party
Summary
Lithuania joined the Council of Europe in 1993. A monitoring procedure was opened in March 1995. Under the terms of Resolution 1115 (1997), the new Monitoring Committee took over procedures opened under the previous system. The draft recommendation presents an essentially positive assessment of developments in Lithuania in the course of the monitoring process. Lithuania's experience with some difficult issues can be of benefit to other member states.
I. Draft recommendation
1. The Assembly reaffirms its purpose, through the setting-up of a special committee, to strengthen its means of inquiry into the observance by member states of the Council of Europe of "the principles of the rule of law and the enjoyment by all persons within (their) jurisdiction of human rights and fundamental freedoms" (Article 3 of the Statute, Article 1 of the European Convention on Human Rights).
2. Lithuania joined the Council of Europe on 14 May 1993, pursuant to Assembly Opinion No. 168 (11 May 1993) and to Committee of Ministers Resolution (93) 24.
3. In observance of its commitment under paragraph 5 of Assembly Opinion No. 168, Lithuania ratified the European Convention on Human Rights on 20 June 1995, together with Protocols 2, 3, 4, 5, 7, 8 and 11. It has since ratified Protocol 1. Lithuania has also ratified the Council of Europe's conventions on suppression of terrorism and on extradition. With the ratification of these instruments, the legal system of Lithuania is in alignment with international standards.
4. Lithuania has signed Council of Europe conventions for the prevention of torture, for the protection of minorities, on local self-government and on bioethics. The principles are thus established for alignment with international standards of its legislation and policy in these areas.
5. Lithuania recovered independence and the exercise of national sovereignty in 1990. Changes of government following elections in 1992 and 1996 show the stability of the democratic process.
6. Following were the principal issues for dialogue with the Lithuanian authorities under monitoring procedure pursuant to Order No. 508 (1995) and Resolution 1115 (1997), notably with the Lithuanian parliamentary delegation:
7. The Assembly notes that:
8. The Assembly welcomes the progress which has thus been made by Lithuania to consolidate the rule of law, to promote respect for human rights, to bring both law and policy into line with the principles of the Council of Europe, and to establish good relations with neighbouring countries.
9. The Assembly will pursue its dialogue with the Lithuanian authorities under monitoring procedure for the issues referred to in paragraph 7 and those arising from Lithuania's obligations as a member state of the Council of Europe, if further clarification or enhanced co-operation should seem desirable.
10. The Assembly recommends that the Committee of Ministers:
II. Explanatory memorandum by MM. Gross and Mota Amaral
Contents
B. Structure of the draft recommendation
Annexes
1. Assembly Opinion No. 168 (1993)
2. Exchange of views with the Lithuanian Parliamentary Delegation (24 June 1997)
3. Communication of the Lithuanian Ministry of the Interior (June 1997) (FR)
5. Introductory Memorandum of the Committee on Legal Affairs & Human Rights (23 April 1997)
6. List of Council of Europe treaties ratified or signed by Lithuania
7. Council of Europe co-operation and assistance programme for Lithuania 1997
1. The preliminary draft recommendation has been drawn up on the basis of the following elements:
These three documents are in annex. Also in annex are Opinion No. 168 of the Assembly, the list of treaties ratified or signed by Lithuania, the Council of Europe's cooperation and assistance programme, and an undated communication of the Ministry of the Interior (received 25 June 1997) on the new law for the prevention of organized crime.
B. Structure of the draft recommendation
2. The present report on Lithuania and the report on the Czech Republic [Rapporteurs: MM Jurgens & Sinka] are the first to come to the Monitoring Committee for examination and vote under the new approach to monitoring defined by Resolution 1115. Accordingly, in consultation with the Chairman, the Rapporteurs have worked together to develop a style and structure for their Draft Recommendations so that common or comparable elements of information and assessment are presented in the same sequence and in the same or in comparable language.
3. It was agreed that a draft recommendation was a more appropriate form for the Committee's conclusions than a Draft Resolution. One of the purposes of Assembly monitoring is to influence the (confidential) monitoring procedures of the Committee of Ministers. Another purpose is to influence the Organisation's inter-governmental work programme and its special programmes of cooperation and assistance to the new democracies. An Assembly Recommendation is addressed to the Committee of Ministers and requires a Reply. The form of a Draft Recommendation strengthens complementarity and dialogue with the Committee of Ministers as aspects of the Assembly's new approach.
4. The first paragraph of each draft recommendation is identical. At this early stage of the Committee's work, it is appropriate to recall the fundamental value of the Council of Europe from which the conception of "monitoring" is derived. Paragraphs 2 to 5 are historical and general. The point is made that the signing of a Convention is not a neutral formality: it represents a statement of intentions in regard to policy.
5. Paragraph 6 sets forth the issues addressed under monitoring procedure - first, under Order No. 508; then under Resolution 1115. Paragraph 7 grosso modo sets forth the current position on these issues, together with other developments which support the basic assessment in Paragraph 8. Paragraphs 9 and 10 are on follow-up action - first, on the part of the Assembly and its Committees; secondly, by the Committee of Ministers under its own monitoring procedure or its programmes of intergovernmental cooperation.
6. The basic assessment - in paragraph 8 - is positive and will cause no surprise.
7. However, in the course of monitoring procedure, an issue was identified which cannot be considered as resolved, neither for Lithuania nor for other member states of the Council of Europe - the protection of human rights in the fight against organized crime. It is one of the main items proposed for the Action Plan of the Second Summit of Council of Europe Heads of State & Government (Strasbourg, 10-11 October 1997). The issue was addressed in considerable detail by the rapporteurs and the Lithuanian authorities. The latter have responded to criticism by passing a new law. The new law was finalized and adopted following a parliamentary debate under urgent procedure end-June 1997, in order that it should come into force on 1 July 1997 on expiration of the temporary law on preventive detention.
8. There is no question of doubting the intentions of the Lithuanian authorities to have this law administered in conformity with the stipulations of the European Convention on Human Rights. Nonetheless, the co-rapporteurs have not been able to examine the text and would wish to follow carefully its implementation.
9. Hence the formulations of the two concluding paragraphs:
9.1 paragraph 9 reflects the view that dialogue with the Lithuanian authorities should be pursued:
- Resolution 1115 makes clear that "monitoring" is an ongoing process: in implementation of its terms of reference, the Committee decided on 16 May 1997 to address specific issues in its dialogue with a member state under monitoring procedure: it follows that a proposal to continue dialogue with a member state on a specific issue does not carry negative implications;
- neither Lithuania nor other member states of the Council of Europe can claim a "clean bill of health" on the issue of human rights protection in the fight against organized crime: Lithuania's experience with this issue is of great value to the forthcoming Council of Europe "Summit" discussions and the subsequent "Plan of Action": to cease dialogue with Lithuania after highlighting this issue would simply be to give a confused signal;
- equally, it would be anomalous - in respect of an issue in a member state having resonance throughout Europe - to make proposals simultaneously (i) for action by the Committee of Ministers, and (ii) for removal of the question from the Monitoring Committee's agenda.
9.2 paragraph 10 is self-explanatory and is based on the concepts of complementarity and dialogue with the Committee of Ministers as indicated above.
10. To sum up: the rapporteurs consider that the Committee should have the opportunity to resume dialogue with the Lithuanian authorities, notably for the early stages of the implementation of the new law on prevention of organized crime.
Exchange of views with the Lithuanian Parliamentary Delegation (24 June 1997)
...
B. Lithuania
Co-rapporteurs: MM. Gross & Mota Amaral
The Chairman welcomed the Lithuanian Parliamentary Delegation.
Mr Gross, co-rapporteur, thanked the Lithuanian delegation for their comments on the introductory memorandum. He asked whether there were contradictions between domestic legislation and the Charter of Local Self-Government which could delay ratification. Concerning minorities, it was an issue more of reaffirming cultural rather than national identity. Positive developments were expected in the field of pre-trial and preventive detention. The decision of the Seimas to start discussing a draft resolution on abolition of the death penalty was important, but this should not be linked to the level of crime.
Mr Mota Amaral, co-rapporteur, endorsed Mr Gross' comments. Lithuania was on the right path towards a stable democracy.
Mr Kuzmickas (Conservative), Chairman of the Lithuanian Delegation, appreciated the introductory memorandum and some of the objective criticism. The temporary law on preventive detention, found to be incompatible with the European Convention on Human Rights, would expire at the end of June 1997. Draft legislation to amend other provisions of the code of criminal procedure, criticized also for incompatibility with the Convention, was being prepared. True, barristers should not be appointed by the Minister of Justice; but this was only a means to overcome the current shortage, and a new law under preparation would put an end to the practice. The draft criminal code did not provide for the death penalty. The obstacles to property restitution to religious communities were not legal but economic.
Mr Laurinkus (Conservative) said that the Charter of Local Self-Government would be signed in autumn 1997.
Mr Zingeris (Conservative) said that the rapporteurs' visit to Vilnius in April 1997 had caused the Seimas to start discussing a draft resolution on abolition of the death penalty to offer a legal basis for the current moratorium.
Mr Sole Tura queried whether a lowering of the rate of crime should be a pre-condition for abolition of the death penalty, as stated in the resolution adopted by the Baltic Assembly which was cited in the comments of the Lithuanian delegation.
Mr Sinka said that resolutions of the Baltic Assembly were not binding for the Lithuanian Parliament.
Mr Glotov said that progress was impressive. Nevertheless, the Russian minority felt a degree of discrimination. He asked how many minority members were members of parliament and took part in the decision-making process.
MM Kuzmickas and Laurinkus said that there were three members of Russian and three of Polish ethnic origin in the political parties represented in the Seimas. Other minority parties had failed to reach the 5% threshold.
On a proposal of the Chairman, the Committee authorised the co-rapporteurs to present a preliminary draft resolution or recommendation at its next meeting.
Introductory Memorandum by the Committee on Legal Affairs & Human Rights
(Rapporteur: Mr György FRUNDA, Romania, EPP)
(23 April 1997)
Table of contents
II. Council of Europe conventions
A. Conventions ratified
B. Conventions signed
III. The legal and judicial systems
A. Provisions of the Code of Criminal Procedure regarding detention before conviction
B. The reforms in the administration of justice
IV. Human Rights and Fundamental Freedoms
A. Freedom of the media
B. Freedom of conscience and of worship
C. Minorities
D. The death penalty
E. Police
F. The penitentiary system
A. Local self-government reform
B. Administrative reform and restitution of property issues
1. Lithuania was admitted to the Council of Europe on 14 May 1993. The Committee on Legal Affairs and Human Rights began the process of monitoring the honouring of the obligations and commitments entered into by Lithuania, under Order No. 508 (1995), by authorising me to visit the country from 14 to 16 March 1995. The then Rapporteur for opinion for the Political Affairs Committee, Mr Banks, had not been able to join me.
2. Following my visit, I drafted a preliminary memorandum which was declassified by the Committee on 11 September 1995 and transmitted to the Lithuanian authorities on 27 September 1995. The comments of the Lithuanian authorities were received on 22 December 1995 and declassified on 3 April 1996.
3. A list of questions for further clarification was transmitted to the Lithuanian authorities on 2 July 1996. Replies were received on 22 December 1996 and examined by the Committee on 20 January 1997.
4. Following parliamentary elections in the country last autumn and a change in government, a new visit took place from 8 to 10 April 1997, this time together with the two rapporteurs for opinion: Mr Andréas Gross (Switzerland, SOC) for the Political Affairs Committee and Mrs Anne Brasseur (Luxembourg, LDR) for the Committee on Relations with European Non-Member Countries. The delegation was assisted by Ms Despina Chatzivassiliou, Co-secretary of the Committee on Legal Affairs and Human Rights. The programme of the visit is set out in Appendix No.1. The rapporteurs wish to thank the Lithuanian parliamentary delegation and its secretariat for the excellent organisation of the visit, which enabled them to meet all the people they had wished to see. They also want to thank the delegation for the warm welcome and hospitality they received.
5. On joining the Council of Europe, Lithuania accepted the obligations incumbent upon all member states under Article 3 of the Council of Europe's Statute as regards respect for the rule of law and the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms. It also entered into some specific commitments set out in Parliamentary Assembly Opinion No. 168 (1993) on the application by Lithuania for membership of the Council of Europe (see below, paragraphs 6 and 7).
6. This memorandum, which all three rapporteurs jointly prepared, examines the honouring of the main obligations and commitments entered into by Lithuania according to a thematic approach: ratification of Council of Europe conventions (Section II), the legal and judicial systems (Section III), human rights and fundamental freedoms (Section IV), local self-government (Section V) and closing remarks (Section VI).
II. Council of Europe conventions
7. On joining the Council of Europe, Lithuania made a formal commitment to sign and ratify the European Convention on Human Rights (ECHR) and its additional protocols and to recognise the right of individual petition to the European Commission of Human Rights (Article 25 of the Convention) and the compulsory jurisdiction of the European Court of Human Rights (Article 46) (see Opinion No. 168 (1993), paragraph 5).
8. In the Opinion on Lithuania's accession, the Assembly, after recalling the Council of Europe's attachment to the principles enshrined in the European Charter of Local Self-Government, had expressed the hope that this text would be "accepted soon by the Lithuanian authorities" (Opinion No. 168 (1993), paragraph 6).
9. We are very satisfied that, since its accession, Lithuania has ratified some twenty-five Council of Europe Conventions and protocols and signed another twelve.
A. Conventions ratified
10. Lithuania has honoured its first commitment by duly ratifying the ECHR already on 20 June 1995. It has further ratified its additional Protocols Nos. 1, 2, 3, 4, 5, 7, 8 and 11. The ratification of Protocol No. 1 to the ECHR in May 1996 is particularly important since it could contribute to solutions regarding questions of restitution of property in the country.
11. Lithuania has also recognised the right of individual petition to the European Commission of Human Rights, and the compulsory jurisdiction of the Court.
12. Upon ratification of the ECHR, two reservations were entered. The first one referred to Article 5, paragraph 5, of the ECHR and was due to the fact that under Article 104 of the Code of Criminal Procedure, the right to order the arrest and detention of persons on suspicion of having committed an offence was also vested to the Prosecutor-General.
13. We are particularly satisfied that this reservation ceased to be valid as from 21 June 1996 when the amendment to the Code of Criminal Procedure abolishing the right of the Prosecutor to order arrest and detention (adopted by the Seimas on 28 May 1996) entered into force.
14. In the course of the last two years, Lithuania has ratified a series of Council of Europe conventions and protocols, including the European Convention on Extradition and its additional Protocol, and most recently the European Convention on the Suppression of Terrorism (on 7 February 1997), the European Convention on mutual assistance in criminal matters and its Protocol (on 17 April 1997), as well as the European Convention on the legal status of children born out of wedlock (on 17 April 1997).
B. Conventions signed
i. The European Charter of Local Self-Government
15. The Charter was signed on 27 November 1996 and the procedure for its ratification is well-advanced. Assistance for the preparation of ratification of the Charter has been offered to the Local Government Department of the Ministry of Public Administration Reforms and Local Authorities in the framework of the "Joint Programme between the Commission of the European Communities and the Council of Europe for support to local government and legal system reform" (hereinafter: "Joint Programme").
16. Thus, a working group was formed by the Ministry which prepared proposals on the ratification of separate articles of the Charter. They were submitted to the Seimas Committee on Local Authorities, together with the comments prepared by a Council of Europe expert, Mr Balducci.
17. The Seimas Committee on Local Affairs started discussing this issue at its meeting on 7 April 1997 and will prepare its own proposals. Its Chairman told us that most of the suggestions of the Council of Europe expert were acceptable. The ratification of several articles of the Charter would be done gradually, in order to ensure the compatibility of domestic legislation regarding local self-government with the articles of the Charter to be ratified.
18. We are particularly satisfied that ratification of the Charter is on the agenda of the Seimas (at plenary level) for autumn 1997 so that it could actually take place before the end of this year. The on-going dialogue between the Lithuanian authorities and the Council of Europe expert in the framework of the Joint Programme guarantees the success of the exercise.
ii. The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
19. Lithuania signed this Convention and its two additional Protocols on 14 September 1995.
20. The Legal Affairs Committee of the Seimas assured us that the ratification of this convention will soon be on the agenda of the Seimas. Lithuania had already ratified the United Nations Convention against Torture. There were no obstacles to the ratification of the relevant Council of Europe Convention, but it was simply a question of time. The reform of the penitentiary system had already started on the basis of "the Lakes/Colliander report" (Report of a Council of Europe co-operation visit to prisons in Lithuania in February-March 1995, see also below, Section IV, E).
iii. The Framework Convention for the Protection of National Minorities
21. Lithuania signed the Framework Convention for the Protection of National Minorities on 1 February 1995. Its ratification is under consideration at governmental level and is discussed between national minorities and the Department for Regional Problems and National Minorities. According to information submitted by the latter, the deadline for its ratification will be fixed after the Council of Europe Committee of Ministers will have agreed on the monitoring mechanism to be established under this Convention.
22. We would encourage the Lithuanian authorities to go ahead with ratification of the Framework Convention since it seems that domestic legislation is compatible with the international instrument and has even constituted one of the sources of inspiration for its drafting.
iv. The European Charter for the Protection of Regional and Minority Languages.
23. The advisability of signing the Charter is currently being considered by the government.
III. The legal and judicial systems
24. We are very satisfied with the continuing efforts in Lithuania to reform legislation of the past. While new Codes of Civil and Criminal Procedure were adopted already in 1995, new Civil and Criminal Codes are now under preparation.
25. Moreover, after three years of implementation of the Outline for the Legal and Judicial Systems Reform, adopted in December 1993, new draft guidelines for the reform of the administartion of justice are being prepared. A meeting would take place on 11 April 1997 with the participation of representatives of the Ministry of Justice, the Judiciary and the Prosecutor's Office to discuss this draft.
26. What follows is a list of provisions of the Code of Criminal Procedure which give rise to concerns (under A) as well as a brief account of the further reforms which are planned in the administration of justice (under B).
A. Provisions of the Code of Criminal Procedure regarding detention before conviction
27. Two kinds of detention before conviction are foreseen in the Lithuanian Code of Criminal Procedure: the so-called "preventive detention" and the detention on remand, that is the detention of a person suspected of having committed an offence ("classic" pre-trial detention, "détention provisoire").
1. "Preventive detention"
28. According to Article 50-I, para. 1, of the Code of Criminal Procedure, a person may be arrested and detained for up to two months if there are sufficient reasons to suspect that he "might commit a serious crime" and "for the purpose of preventing the commission of this act."
29. This measure was introduced in 1993, in an attempt to combat organised crime, by the adoption of a temporary law (which inserted a new Article 50-I to the Code of Criminal Procedure). The validity of the temporary law was to expire by the end of 1995. It was then prolonged until end of 1996 and, since 1st January 1997, it has been prolonged twice for three months. It should thus expire by 30 June 1997.
30. The "preventive detention" foreseen in Article 50-I of the Code of Criminal Procedure is as a whole incompatible with Article 5 of the ECHR, as interpreted by the European Commission and Court of Human Rights, since the person is suspected not for having committed an offence but on the ground that he might commit an offence in the future.
31. Moreover, as regards procedural matters, the following provisions of Article 50-I of the Code of Criminal Procedure are also incompatible with the ECHR, as interpreted by the European Commission and Court of human Rights:
32. According to data given to us by the Ministry of Interior, 338 persons were detained pursuant to these provisions in 1996. Of 154 persons who had by the time of our visit been detained since the beginning of this year, judicial proceedings were initiated against 29 persons. 20 persons were released without charges and for the remaining the two-month period had not yet expired.
33. Almost all our interlocutors, at parliamentary and governmental level and from the judiciary, expressed no doubt that the so-called "preventive detention" was incompatible with the European Convention of Human Rights. Most of them also contested its effectiveness as a measure against organised crime. They thus assured us that 30th of June 1997 would be the last day of its validity. Other measures would be taken to combat organised crime.
34. We can thus hope that "preventive detention" will be abolished as soon as possible and, at the latest, by the end of June 1997.
2. Detention on remand
35. As was said above, the right of the Prosecutor General to order the arrest of persons suspected of having committed a crime was abolished (Law on Amendments to the Code of Criminal Procedure, passed on 28 May 1996 and entered into force on 21 June 1996). A person must in all cases be brought before a judge within 48 hours from his arrest. The judge, after having heard the detainee and the prosecutor, decides on whether or not further detention is warranted on the basis of an exhaustive list of grounds stated in the law. This legislative change was a very positive development we particularly welcome.
36. Nevertheless, there are some provisions of the Code of Criminal Procedure regarding detention on remand which also raise problems of incompatibility with the ECHR, in the light of the case-law of the Commission and the Court. We discussed them during our recent visit with the Legal Affairs Committee of the Seimas and the Chairman of the Supreme Court:
37. As regards Article 106, para. 5, our interlocutors explained to us that there was a problem of bad drafting of the amended provision. In any case and even in the most exceptional circumstances, detention on remand could not last more than 18 months. They were aware of the problem and they would amend the provision in question. As regards Article 372, para. 4, we were also assured that its revision was planned.
38. We are satisfied that the competent bodies of the parliament and the judiciary are looking into these questions and would like to receive up-dated information on the planned amendments.
39. Moreover, we welcome the preparation of a draft law on repaying damages inflicted by illegal actions of inquest, investigation, the Prosecutor's Office and the Court. The Lithuanian Centre of Human Rights informed us that, upon its suggestion, the scope of this law would be expanded so as to cover also the right to compensation for damages inflicted during illegal detention, in accordance with Article 5, paragraph 5 of the ECHR.
40. Finally, the initiative taken by the Lithuanian Centre of Human Rights to distribute 200,000 copies of information-cards (entitled "do you know your rights?") which inform the public about their rights in case of detention is to be praised.
B. The reforms in the administration of justice
i. The courts
41. The independence of judges in Lithuania is guaranteed by the Constitution and exercised in practice.
42. Under the Law on Courts of 1994 (as amended in 1996), a four-tier judicial system is set-up: local district courts, district courts, a Court of Appeal and the Supreme Court.
43. A special training centre for judges has been established.
44. The reform currently planned concerns inter alia:
ii. The Prosecutor's Office
45. Following the resignation of the Prosecutor General in January 1997, a new system for the appointment of the Prosecutor General was adopted. The Prosecutor General is now elected by the Seimas upon the proposal of the Minister of Justice and the Chairman of the Supreme Court. The Prosecutor's Office is part of the judiciary while maintaining its independence.
46. During our recent visit we met the new Prosecutor General who was elected according to the new system. He had taken functions only three days earlier.
47. Currently, the Prosecutor's Office carries out three functions:
48. According to the draft guidelines for the reform of the administration of justice, the Prosecutor's Office should become an institution which only exercises the function of criminal prosecution.
49. Another aim of the reform is to establish a separate institution of pre-trial investigation of crimes. The district pre-trial investigation units of the Prosecutor's Office would then be dissolved. Investigating officers to carry out pre-trial investigation in most serious cases will be set up within the jurisdiction of chief district prosecutors or the General Prosecutor's Office.
50. The relations between the Prosecutor's Office, on the one hand, and the Ministry of Justice and the Supreme Court, on the other, are to be clarified by the new guidelines under consideration.
iii. The Bar
51. In 1994, the Law on the Bar was amended so as to allow the Minister of Justice to add to the list of barristers persons who had not passed the bar exams but fulfilled equivalent criteria. The reason invoked by the authorities for this amendment was the shortage of barristers which created difficulties in the administration of justice and the defence of individuals in courts.
52. At the time of the adoption of the amendment, in 1994, only 350 barristers were registered (compared to 410 judges). Since the legislative change, 190 new members were added to the barristers' list, of whom 50 had passed the bar exams and 140 were appointed by the Minister of Justice.
53. During our recent visit, we discussed this issue with the President of the Bar Association and the Minister and Vice-Minister of Justice. The President of the Bar Association criticised severely this legislative change which he saw as an interference with the independence of the Bar. As for the Minister of Justice, he explained that the need for an increasing number of barristers was the only reason for the existence of this provision with which he was not happy either.
54. The provision which was mainly discussed with the Vice-Minister of Justice was sub-paragraph 4 of Article 9 of the Law on the Bar, according to which persons who have been practising law for at least seven years - one year of which under the licence to engage in law practice, issued by the Ministry of Justice, may be placed on the barristers' list, although they do not possess any experience as assistant barristers and have not passed the bar exams. They must have a good reputation and take the barrister's oath.
55. The Vice-Minister of Justice explained that the persons stipulated in this provision were required to have studied law in University and passed law exams to receive their licence by the Ministry of Justice. These exams are often considered to be even more difficult than normal bar exams.
56. In any case, the Law on the Bar is to be modified. A new draft law has been prepared by the Bar Association at the beginning of April 1997. The contents of the draft would be further discussed between the Minister and the President of the Bar Association. According to the Minister, an issue which had to be solved in the new law was the legal status of barristers. Moreover, the possibility for the creation of private law firms should be foreseen. The new law will probably abolish the right of the Minister of Justice to add members to the barristers' list.
IV. Human Rights and Fundamental Freedoms
A. Freedom of the media
i. new legislation
57. Two media laws were passed during 1996: the Law on the Provision of Information to the Public, adopted on 2 July 1996 and amended on 22 August 1996; and the Law on the National Radio and Television of Lithuania. Journalists participated in the drafting of the new laws. Assistance was also offered by foreign experts, including two groups of Council of Europe experts. Moreover, on 25 March 1996, the Code of Ethics of Journalists and Publishers of Lithuania was adopted.
58. The new media legislation provides for a media self-regulation system aiming at preventing any control and interference by the authorities. The following institutions have been set up in accordance with the new legislation:
59. According to the new legislation, the National Radio and Television of Lithuania have acquired public service broadcaster status - losing their status as state broadcaster. They are financed by allocations from the state budget, subscription fees, income received from the sales of radio and television broadcasts, publishing, sponsorship, charity contributions and commercial income. The National Radio and Television are thus the only media which receive funds directly from the state budget (see above about the Fund through which state budget is distributed to all other media). But the new legislation provides that with the increase of income from subscription fees, the financing of the National Radio and Television from the state budget shall be decreased accordingly.
60. As regards private media, according to official information, there are 531 private newspapers and 333 magazines, 5 private televisions and 9 radio stations.
61. Concerning access to information, the new legislation provides that all individuals (and not only journalists) in Lithuania have the right to access to all official documents of the state, local administration, government institutions and other budgetary organisations that are not secret according to other laws. (Article 6 of the new Law). In refusing to provide information to a public information producer, the official must not later than on the next working day inform him of this in writing indicating the reasons for refusal.
62. Moreover, after lengthy discussions, a provision was added according to which media are now allowed to give details about the private lives of state officials or other individuals participating in public and political activities in cases where such information may be relevant to the public (Article 8). The confidentiality of the source of information is protected (Article 7).
63. In the past, there have been many disputes due to the repeated publication of incorrect facts that attacked upon individuals' reputation. According to the new law, the original source of the misinformation will be held responsible - including situations where the media obtained the information from official documents, public meetings, or when the false information was broadcasted live or in special election broadcast etc.
64. During their recent visit to Lithuania, the representatives of media we met confirmed the "dramatic changes" which occurred in this field in the course of 1996. Censorship was not only prohibited by law but also no longer exercised in practice. The Press Control Agency was abolished and no government control was now exercised over the activities of the press and the electronic media. The new system for the granting of licences by an independent body, the Radio and Television Commission, was particularly praised by the media representatives. So were the setting up of the Ethics Commission and the right of individuals to have access to public information (inspired by the Scandinavian model). Of course, the new legislation had only been implemented since last autumn, so that it was difficult to assess its results in practice. But the lack of pressure from political or economic bodies had already been made clear.
65. As regards the Fund for Support of Press, Radio and Television, one of its members whom we met confirmed that it had started functioning. Cultural and educational projects were supported, regarding mainly the press. For this year, a total of 50 different projects, including one in Polish language, received financial support by the Fund which had been allocated 3 million litas (approx. 750,000 US$) from the state budget of 1997. The government could not put conditions upon funding.
66. Incidents of violence against representatives of the media by "organised crime families" had occurred. One journalist of the newspaper "Respublica" had been killed and the cafe of the "Lietuvos Rytas", the newspaper with the widest circulation at national level had been exploded one year and a half ago. Investigation was pending.
ii. media and minorities
67. By the end of 1996, according to figures submitted by the Department of Regional Problems and National Minorities, there were 56 periodicals in the languages of national minorities.< 4 periodicals are published by the German ethnic community in Vilnius Klaipeda and Siauliai. Lithuanian Tatar and Greek ethnic communities issue their publications in Lithuanian or Russian languages with paragraphs in their native languages.
68. As regards electronic media, there is daily an one-hour news coverage in Russian on the Lithuanian Radio. The First Radio programme broadcasts daily a half-an-hour long Polish programme, once a week a half-an-hour long Belorussian programme and twice a month a half-an-hour long programme in Ukrainian. Moreover, there is a private Polish radio station, "Znad Vilni" which broadcasts twenty-four hours a day. The Lithuanian National television daily broadcasts a ten-minute-long news programme in Russian. Once a week, a Russian programme ("Teleartel"), a Polish programme ("Rozmony Vilenskie") and a Ukrainian programme ("Trembita") are broadcasted, while twice a month a ten-minute programme in Belorussian is broadcasted. a programme of the Polish Television is broadcasted ("TV Polonia) as well as Russian Television programmes and programmes of other foreign television stations. Programmes in languages of national minorities are also transmitted by private TV stations (such as "Vilnius TV" and "Baltijos TV").
69. The representative of the Polish radio station "Znad Willi" which broadcasts in Lithuania said that, contrary to what might have been the case two years earlier, there was now, especially after the recent parliamentary elections, no discrimination among different media as regards distribution of information by the authorities. To our questions, he further replied that there were inevitably articles being published which gave a negative picture of national minorities (as was the case also in his county of origin). These articles did not reach the limits of racial hatred. And in any case, there was no state policy in this direction.
70. Some media representatives, as well members of the Jwish community, complained about anti-semitic articles. Fortunately, responses were published in other newspapers.
B. Freedom of conscience and of worship
71. In October 1995, the Law on Religious Communities and Associations was passed. The law mentions nine religious communities as "traditional" and thus eligible for governmental assistance: Latin Rite Catholics, Greek Rite Catholics, Evangelical Lutherans, Evangelical Reformers, Orthodox, Old Believers, Jews, Sunni Muslims, and Karaites. At the same time, there are no restrictions on the activities of other religious communities. The law grants the status of legal persons to religious communities, associations and centres and thus recognises their property rights to prayer houses, homes and other buildings, and permits construction necessary for their activities.
72. Earlier on, in March 1995, the Law on the Procedure for the Restoration of the Rights of Religious Communities to the Existing Real Property had been adopted following consultations with representatives of the religious communities. The law covers all religious communities which functioned in the Republic of Lithuania prior to 21 July 1940 and the property of which was expropriated by the state. A decree was further adopted by the government in September 1995 on the implementation of the above-mentioned law. The decree establishes the procedure for the transfer of property being returned to religious communities in kind and also the procedure for repurchasing of the property which is not being returned to a religious community in kind (either because the community does not claim it or because the requirements of the law for such return are not met).
73. Furthermore, it is worth noting that, in June 1996, the Constitution of Lithuania was amended so as to recognise inter alia to "national entities" the right "to acquire into their ownership non-agricultural land plots required for the construction and operation of buildings and facilities necessary for their direct activities" (new paragraph 2 of Article 47 of the Constitution). According to the Constitutional Law on the Subjects, Procedure and Restrictions of the Acquisition into Ownership of Land Plots Provided for in Article 47, paragraph 2, of the Constitution (adopted on 20 June 1996, together with the above-mentioned constitutional amendment), "national entities" in the sense of the amended Constitution include "state-recognised traditional churches and other religious organisations with the rights of legal persons" which can thus now acquire into ownership land plots.
74. The representatives of religious communities we met during our recent visit to the country told us that restitution of property to the religious communities was taking place. The representative of the Latin Rite Catholic Church said that some problems regarding restitution persisted but they were in good co-operation with the Government (in particular, the competent Ministry) in order to solve them. In any case, the Catholic Church did not wish the automatic return of the entire church property in kind. Many of the buildings previously belonging to the church were currently hosting schools, hospitals, prisons or housing families. The problem was rather the granting of compensation in cases where return of church property in kind was not possible. The actual law did not handle the issue of fair compensation satisfactorily. They were thus currently working on an agreement with the government on this matter, and then other religious organisations could conclude similar agreements. The representatives of the Evangelical Lutherans told us that a church building had been returned to them in Vilnius but people were living in it and they could go to court to ask to stay in. The representatives of the Jewish community, for their part, said that only one Synanogue had been returned to them in Vilnius. The issue concerning the restitution of a second Synagogue in the city had not yet been solved and they expressed hope that the new City Council would solve it. The need to go to court in respect of a specific building implied serious financial difficulties for them as for all religious communities in general. The representative of the Orthodox Church told us that they only faced problems with local authorities and to solve them they often had to ask for help from the central government or the President of the Republic.
75. In order to face some of these problems, a number of deputies had taken the initiative to amend the 1995 Law on the Procedure for the Restoration of the Rights of Religious Communities to the Existing Real Property. The religious communities were being consulted on the amendments and expressed the hope that the new majority in parliament will amend the law taking into account their comments.
76. The Latin Rite Catholic Church is currently working on agreements with the government concerning religious education and the functioning of chapels in hospitals, prisons and military barracks. At present, in public schools, students could choose between a class on religion (catholicism) or ethics. Parents wishing their children to be taught a religion other than catholicism have this right, but they are often confronted with the practical difficulties of finding a teacher for a small group. In Russian-language schools, the Orthodox Rite is taught. Moreover, there is an Orthodox school in Vilnius (school No. 53).
77. As regards governmental assistance, it was initially limited to the Latin Rite Catholic Church. Now all nine "traditional" religious communities can receive such assistance. But the law does not specify any concrete criteria or methods for the granting of such assistance. Discussions are under way to specify the extent of state assistance in support of peculiar schools. The representatives of the Jewish community confirmed that for 1997 they received funding from the state budget, which was very important for them since their community was small.
C. Minorities
78. At present, the largest minorities are the Russian, Polish, Belarussian, Ukrainian and Jewish. Most non-ethnic Lithuanians live in the Eastern or South-Eastern part of the country, as well as in the cities of Vilnius, Klaipeda and Visaginas.
79. Lithuania was the first state in Central and Eastern Europe to adopt, as early as 1989, a Law on National Minorities (often cited as Law on Ethnic Minorities or Law on Ethnic Communities), amended and supplemented in January 1991.
80. According to the Law on National Minorities, the Republic of Lithuania "shall guarantee all its citizens, regardless of their ethnic origin, equal political, economic and social rights and freedoms, shall recognize its citizens' ethnic identity, the continuity of their culture, and shall promote ethnic consciousness and the expression thereof". Protection of the rights and freedoms of national minorities is also guaranteed by various other laws and regulations, such as the Law on State Language and the Law on Education, as well as by the Constitution and international treaties to which Lithuania is a party. Thus, Lithuania has concluded a number of bilateral treaties with Russia, Poland, Belarus, Ukraine etc. which deal also with minority issues. With regard to the relevant Council of Europe conventions reference is made to Section II above.
(a) Citizenship issues
81. The Law on Citizenship of the Lithuanian Socialist Soviet Republic (adopted on 29 November 1989 and valid until 4 November 1991) introduced the so-called zero option for the acquisition of citizenship. The citizenship of the Republic of Lithuania could thus be acquired by almost all permanent residents of the country who so wished, regardless of their ethnic origin. Moreover, all permanent residents of the country were granted equal rights (except for restrictions specified by the law). The Law on Citizenship of the Republic of Lithuania (adopted on 5 December 1991 and amended in 1995) put no emphasis on nationality as a criterion, introducing other criteria and principles as a basis for the acquisition of citizenship. More than 90% of Lithuania's ethnic Russian, Polish, Belorussian and Ukrainian residents received citizenship of the Republic of Lithuania.
(b) State language
82. The Lithuanian language was granted the status of the official state language in 1988. Following restoration of independence, in November 1990, the Supreme Council of Lithuania adopted a Resolution on the Terms of Implementation of the Status of State Language which assigned the government the task of adopting differentiated standards on knowledge of the state language for officials and employees occupying administrative positions and providing services to the public. Such officials and employees, working in regions where non-Lithuanian speakers represented the majority of the population were required, until 1st January 1995, to comply only with minimum requirements for the knowledge of state language.
83. In April 1992, the government adopted the Programme of the State Language Teaching and approved three qualification categories on the knowledge of state language applied to employees at different levels. The de facto implementation of the status of official language thus started. The three qualification categories are the following:
84. The Law on the State Language adopted on 31st January 1995, refers to the qualification categories as established by the 1992 Decision of the government (and set above).
85. According to data from the Lithuanian Language Teaching Centre, until 1st January 1997, some 42,828 Lithuanian citizens took the test of the state language and 40,141 passed it successfully: 13,726 citizens were granted the 1st category qualification; 21, 357 citizens obtained the 2nd category qualification and 5,058 citizens were granted the 3d category of qualification.
86. No fixed deadline is provided by which respective qualification language tests must be passed by non-Lithuanian speaking applicants for a post for which they are required to have a certain knowledge of the state language.
87. Moreover, the above-mentioned qualification categories of knowledge of the state language and the obligation to pass the respective language test do not apply to employees who graduated from Lithuanian schools, to those who, in 1991 or later, graduated from non-Lithuanian secondary education schools or schools with equivalent status and, according to a 1996 decision of the government, to those who studied in Lithuanian groups in colleges and institutions of higher education. Thus, the number of Lithuanian citizens who must pass a language test is gradually and continuously decreasing.
88. The state has taken several measures to promote knowledge of the state language, such as the establishment of the state-funded Lithuanian Language Teaching Centre as early as in 1989. The Department of the Practical Lithuanian Language in the Vilnius University elaborates the methodology of Lithuanian language teaching to those who do not speak the language. Moreover, on 4 December 1995, the government further adopted the Programme of Use and Promotion of the State Language from 1996 to 2,000. The programme creates favourable conditions for the promotion of the state language.
(c) Use of minority languages
89. The Law on State Language of 1995, while regulating the use of state language in public life, its protection and control, does not apply to informal communication and does not impose the language of events of religious communities as well as persons belonging to national minorities.
90. According to amendments adopted to the Law on National Minorities in 1991 upon the proposal of Polish MPs and NGOs, in local institutions and organisations of administrative territorial units with dense population of a particular national minority, the (local) language of that national minority can be used along with the state language. In such administrative territorial units, signs can be in both Lithuanian and a (local) language of a national minority.
91. Moreover, according to a 1995 Decision on "Temporary Rules of Audio and Written Information and Other Public Signs of the Commission of the State Language, "when information is given in places with dense (compact) population of a national minority or is related to the activity of national minorities, the language of those minorities may be used along with the state language". How densely the area should be populated by a national minority, thus allowing for bilingual signs, is not determined. The above-mentioned provisions are considered to be special legal provisions as compared with the general legal provisions of the Law on State Language. Therefore, in case of conflict, the former prevail over the latter.
92. Minority representatives informed us that they were granted an interpreter free of charge in both civil and criminal court proceedings, since the procedure should be conducted in the state language.
93. Moreover, members of national minorities told us that they had the right to address local administration in their mother tongue. In cases where local officials refused to accept requests in national minority language, they could file a complaint with a higher authority after which local officials were obliged to accept the request. But in any case, the answer in most cases was given in the state language.
94. Finally, Polish minority representatives complained that they could not spell their name in their mother tongue. The Director of the Department of Regional Problems and National Minorities explained that negotiations were currently undergone between Lithuania and Poland on the spelling of names in the two countries, since the Lithuanian minority in Poland also faced similar or even greater problems. The Prime Minister of Lithuania himself assured us that the Lithuanian authorities showed the maximum flexibility on the issue, within the limits of what was technically possible. Thus, for the spelling of Polish names, letters of the Polish script which did not exist in the Lithuanian language had to be transcripted. But for the rest, members of national minorities had the right to spell their name in their mother tongue.
95. Following a decision of the Seimas in February 1995, a working group was established to prepare draft amendments to the Law on National Minorities. The draft submitted by this group contains a separate chapter on the use of minority languages.
96. The draft amendments to the Law on National Minorities are still under consideration by the Seimas. Last year, the Seimas had failed to reach an agreement in view of diverging views between the then majority and opposition.
(d) Education in minority languages
97. According to legislation, national minorities in Lithuania enjoy the right to be taught their mother tongue and their history.
98. According to figures submitted by the Department of Regional Problems and National Minorities, in the current academic year (1996-97), in ten towns and twenty-three municipalities, there are 236 schools of general education with non-Lithuanian language of instruction, comprising 71,681 pupils (13.5% of the total pupils in the country). Among them, there are 53,315 children of Russian ethnic origin (9.8%), 19,212 children of Polish ethnic origin (3.61%) and 154 children of Belorussian ethnic origin (0.05%).
99. Among the schools with non-Lithuanian language of instruction, 85 schools dispense teaching in Russian, 58 in Polish and 1 in Belorussian. Mixed schools are as follows: 25 dispense teaching in Lithuanian and Russian, 8 in Lithuanian and Polish, 42 in Russian and Polish, 1 in Russian and Belorussian and 16 in Lithuanian, Russian and Polish. Ukrainian classes operate in a secondary school in Vilnius. Moreover, a Jewish school was opened in 1989 in Vilnius and a German school was opened in 1992 in Klaipeda. The Polish, Belorussian, Ukrainian, German, Ukrainian, Jewish, Armenian, Karaite and Tatar minorities have their Sunday schools.
100. As regards private schools, there are at present two private schools with the Russian language of instruction (in Vilnius and Klaipeda). There are Polish and Jewish private pre-school institutions. In 1996, a religious Jewish private school was opened.
101. Students of the national minority schools study from textbooks in their mother tongue which are free of charge. Textbooks are published in Russian and Polish by a special state publishing house. In 1995, 61,500 copies of 28 textbooks were published in the Polish language and 103,000 copies in the Russian language. Textbooks for the national minority schools or classes are purchased from abroad.
102. Representatives of the Russian minority confirmed to us that there were enough schools with Russian as language of instruction, as well as Russian classes in mixed schools, for the needs of ethnic Russian students.
103. Representatives of the Polish minority we met during our recent visit to Lithuania complained about the on-going construction of schools with Lithuanian language of instruction in areas where ethnic Poles represent the majority of the population (such a decision was for instance taken on 25 July 1996). These schools were often better equipped than the schools with Polish language of instruction and thus were likely to attract more students.
104. The authorities replied that the schools with Lithuanian language of instruction were built at the request of parents who wished their children to receive education in the state language even if they belonged to a national minority. Moreover, the opening of Lithuanian-language schools in no way led to the closing of any Polish-language school.
105. Members of the Polish and Russian minorities also complained about the obligation of teachers in minority-language schools to keep records, including class registers, inner information etc., in the state language. In their view, the minority language should be used in such cases.
106. The Director of the Department for Regional Problems and National Minorities confirmed that according to a regulation on the state language issued in 1996 by the Minister of Education, the keeping of records and all other internal bureaucracy in minority language schools could be carried either in the minority or in the state language.
107. Representatives of national minorities further complained about the obligation imposed on minority-language schools to teach history, literature and geography in the Lithuanian language.
108. The Director of the Department on Regional Problems and National Minorities explained that the Law on Education allowed (did not impose) the teaching of history, literature and geography in the Lithuanian language if parents so wished and teachers were available. Consequently, in 10% of non-Lithuanian language schools, history, literature and geography are taught in Lithuanian. In city schools, different classes are formed for students who want to attend these courses in Lithuanian or in a minority language. In villages, in minority language schools, these courses are usually taught in the minority language.
109. The Director observed that the main problem was that ethnic Poles were often unhappy with the content of the history and geography courses. An agreement was thus reached between the Ministers of Education of Poland and Lithuania about the content of these two courses to be taught in the two countries. A first meeting between Polish and Lithuanian authors was held last year and, in implementation of this agreement, to prepare a textbook on the history of Lithuania. This textbook is expected to be ready in 1998.
110. In 1991, the Association of Polish Scientists of Lithuania - founded in 1989 and registered with the Ministry of Justice - raised the idea of setting up a non-governmental school of higher education, that is a Polish University in Vilnius. In 1994, the rector of the Polish University applied for a licence. The authorities refused to issue such a license in view of the non compliance with the minimum requirements of law for the foundation of schools of higher education. Adequate material resources and staff were lacking and less than 200 students were concerned. The founders of the University refused alternative proposals, such as the status of a college and also refused that some subjects would be taught in Lithuanian. In 1996, a new request for registration was filed by the Polish University, but this time even less requirements were met (the number of available professors had allegedly decreased).
111. The Polish University has been functioning all these years, even without being registered, under the auspices of the Association of Polish Scientists of Lithuania. It currently comprises 380 students. Following studies in this University for three years, students obtain their degree in Poland on the bias of an agreement with the University of Poland. Last year, 20 students obtained a master's degree. The University is financed by private funding from the United States, Poland and Lithuania. Students also share part of the expenses.
112. At the same time, a number of Polish classes operate in the Vilnius Pedagogical University and Polish studies are taught in the Vilnius University.
(e) Culture
113. Legislation grants national minorities the right to establish their community and cultural organisations, as well as the right to associate themselves in political organisations and political parties.
114. 19 different nationalities residing in Lithuania have their own community organisations (Russians, Poles, Belarussians, Ukrainians, Jews, Tatars, Latvians, Estonians, Gypsies, Germans, Uzbeks, Moldovans, Armenians, Azerbaijanians, Georgians, Karaites, Greeks, Romanians and Hungarians). There are over 150 community organisations in total. Their cultural programmes are supported by the state. Thus, in the course of 1996, through the bias of the Department on Regional Problems and National Minorities, some 79,000 Litas (approx. 20,000 US$) were distributed to such organisations.
115. Moreover, the state supports cultural activities of national minorities by, inter alia, funding cultural-educational institutions of these minorities (eg. the Lithuanian Russian Drama Theatre, Russian, Jewish, German and other museums etc.)
(f) Electoral system
116. According to the new electoral law which was adopted in June 1996, only political parties that receive more than 5% (or 7% for coalitions) of the total ballots are allowed representation in the parliament. While national minority slates were excepted from this rule in the past, the 1996 law deprived national minorities of such a preferential treatment. Despite the abolition of the exception, ethnic Poles and Russians were elected to the new parliament in the autumn 1996 elections.
117. Representatives of the Polish minority we met complained about the abolition of the exception to the 5% threshold for national minority slates.
118. Moreover, the OSCE/ODIHR report on the recent parliamentary elections suggested that in future instructions about voting should be written in minority languages in places where a considerable percentage of the population belongs to a minority. We ask the authorities to take into consideration this suggestion for the next elections to be organised in the country.
(g) the Department of Regional Problems and National Minorities
119. Since 1989, a special institution within the Lithuanian government has been dealing with issues of national minorities: the Nationalities' Department, currently denominated "Department of Regional Problems and National Minorities".
120. During our recent visit to Vilnius, we met with the new Director who had been appointed after the parliamentary elections of autumn 1996. An ethnic Pole had obtained the post of Deputy Director.
121. The main function of the Department is the co-ordination of all state institutions working on national minorities. But of course not all spheres can be covered. Thus, a division on national minorities also operates within the Ministry of Education. The problems of Lithuanians living abroad are also dealt with by the department. Moreover, the department works closely with the Seimas Committee on Human and Citizens Rights and on Nationality Affairs and the Seimas Committee on Education.
122. The department receives a great number of claims, complaints etc. It participates in seminars and is consulted on draft legislation related to national minorities. Thus the department actively participates in the discussions before the Seimas on draft amendments to the Law on Education and Sciences and the Law on Local Self-Government.
123. A Council on National Minorities was established within the department as a non-governmental advisory body. National minorities with more than one hundred members are entitled to three representatives to the council; those with more than ten thousand members are entitled to two representatives and those with less than ten thousand members are entitled to one representative. Although the Council had started functioning only very recently, the Director expressed his full satisfaction with its works.
124. In January 1997, the national minorities were asked to draft a project for economic and education activities which would be subject to financial assistance. The Department, together with the Council on National Minorities, established then the priorities according to the budget allocated to it. The size of non-governmental national minority organisations was not relevant to the amount of funding, the only criterion being the interest of the proposed activity.
125. The department administers inter alia the Centre of Ethnic Communities. Each national minority is allocated a certain number of rooms. The Centre carries out also sociological surveys related to national minorities.
126. The Director of the Department underlined - and we fully agreed with him - that the main problem related to national minorities was that their representatives often ignored their rights under domestic legislation or international law. In order to face this problem, the department had published last year two collections, one on "the rights, freedoms and duties of national minorities" and one on international documents related to national minorities".
D. Death penalty
127. Lithuania made no formal commitment to abolish the death penalty or introduce a moratorium on executions upon its accession to the Council of Europe.
128. On 28 June 1996, the Assembly, in its Resolution 1097 (1996) on the abolition of the death penalty, deplored the executions that had been carried out in the country (in the course of 1995) and urged Lithuania to institute a moratorium on executions without delay. Furthermore, all Council of Europe member states which had not yet done so, were invited to sign and ratify Protocol No. 6 to the ECHR.
129. On 26 July 1996, less than a month later, the President of the Republic, Mr Brazauskas, issued a decree suspending executions until the death penalty had been debated by parliament. The President signed the decree "in the light of the principles of humanism and taking into account the fact that a large number of European Governments have eliminated the death sentence, as well as considering the views of the Catholic church on this issue." The President announced as further steps the moratorium on the application of the death penalty by the courts and the ratification of Protocol No 6 to the ECHR
130. At that time, 9 persons were reported to be under sentence of death. At the time of our recent visit to Lithuania, the number was decreased to 8, since the sentence of one person had been commuted to life imprisonment upon appeal. The last executions had taken place in 1995.
131. The presidential decree has led to a de facto moratorium on executions, pending debate of the death penalty by parliament. The Clemency Commission, under his chairmanship, considers all death penalty cases, even if no petition has been submitted by a prisoner. By refusing to be seized of any of the pending files, the President will not allow any executions to take place in future.
132. In January 1997, the Minister of Interior called for discontinuation of the de facto moratorium. The statement of the Minister of Interior was assessed by the Prime Minister as a mistake. President Brazauskas, for his part, urged parliament to debate his decree and called for public discussion of the death penalty. At the same time, the Ministry of Justice is openly advocating the abolition of the death penalty.
133. It is clear that without a parliamentary decision on the question, there can be no de jure suspension of the executions. A draft law on the suspension of executions has been prepared by the Ministry of Justice but not yet debated by parliament. It is on the agenda of two Seimas Committees, the Legal Affairs Committee and the Committee on Human and Citizens Rights and Nationality Affairs. The discussions at committee level should be completed by the end of June this year so that the issue could be submitted to the plenary.
134. At the same time, it is worth noting that the draft Criminal Code, currently under consideration by the Seimas, does not include the death penalty, so that its adoption could lead to the de jure abolition of the death penalty. Discussions on this draft started last year. Comments were received at the beginning of February this year and the draft is now subject to foreign expertise. It will be submitted to parliament for further debate in November or December this year. A deadline for its adoption is difficult to be fixed and we can only hope that it will be adopted next year without any reference to the death penalty.
135. Almost all our interlocutors, at both governmental and parliamentary level, from both the majority and the opposition, expressed their personal conviction in favour of abolition of the death penalty. But they all saw abolition as the final goal of a gradual process given the current public opinion's attitude. And they all stressed the importance of informing and educating people on this issue.
136. In this context, the results of a survey on the problem of death penalty in Lithuania, carried out from 13 to 19 March 1997 by the Lithuanian Centre of Human Rights, are very interesting. Their analysis shows the difference between direct public opinion and informed public opinion about the problem of death penalty in Lithuanian society. At first sight, 90% of the population are in favour of the death penalty, but only 57% are convinced that death penalty is inevitable and a natural measure for the defence of the society against dangerous offenders. There is thus potentially a much greater support for abolition than usual public opinion polls show.
137. In view of the above considerations, we believe that what is most imperative at present is the respect of the moratorium on executions. Providing a legal basis for this moratorium should be the next step. At the same time, signing Protocol No. 6 to the ECHR would demonstrate the willingness of the authorities to abolish the death penalty in principle and could also be seen as an institutionalisation of the moratorium. Abolition of the death penalty - either separately or at the moment of adoption of the new Criminal Code - and subsequent ratification of the sixth Protocol should be the final goals. In the meantime, efforts should concentrate on the information and education of the public opinion by both state authorities and non-governmental organisations, in co-operation with the Council of Europe.
E. Police
138. During our recent visit, we discussed with the Vice-Minister of Interior the problem of reported cases of police brutality. Last year, more than three hundred policemen were dismissed for wrongdoing and 38 officers for criminal activity, while ten policemen were recalled from duty for brutality.
139. In response, the Ministry requested the establishment of an internal affairs group that would be responsible for monitoring police abuses. Individuals claiming to be victims of police abuses could file a complaint either with the hierarchy of the police or with the Prosecutor General. Moreover; an amendment to the Police Force Law was initiated by President Brazauskas, whereby the President would have the power to dismiss the Commissar General, and the police force would be separate from the Ministry of Interior. This separation is currently being prepared.
140. The frequent changes in the personnel of the police force and the low salaries were invoked as some of the reasons for the problem. The Ministry was making efforts to improve the situation including a rise of salaries.
141. Until recently, there has been a quite confusing situation regarding the formation of policemen. Three police schools were operating under the Ministry of Interior parallel to the Police Academy which is an independent body and autonomous. The relation between the schools and the Academy was not so clearly defined. Now the process is under way for transforming the Ministry police schools into faculties of the Police Academy which will thus be exclusively competent for the education of policemen. The Joint Programme provides for a Council of Europe expert mission to Lithuania for the purpose of offering assistance in the field of police training.
142. We hope that recent and further improvements in police training, in co-operation also with the Council of Europe, will contribute to the decrease of cases of police abuses.
F. The penitentiary system
143. A detailed, hundred-page report on the visit to prisons in Lithuania by two Council of Europe experts, MM Lakes and Colliander, in February-March 1995, forms the basis for the reform of the penitentiary system in Lithuania. Moreover, a Nord-Balt prison project was initiated in 1996 by the Council of Europe to assist and advise on the co-ordination of activities between the Nordic and the Baltic States aiming at improving and developing the prison systems in the latter.
144. The reform of the Lithuanian penitentiary has in fact already started.
145. Since 1995, the penitentiary system is jointly administered by both the Ministry of Interior and the Ministry of Justice until its transfer to the Ministry of Justice will be completed.
146. A new remand institution was built especially for juveniles outside Kaunas. The transfer of juveniles remand prisoners to the new institution should take place in the course of this year.
147. Moreover, the wing of those sentenced to death and the wing of life-timers have been moved to another part of the Vilnius prison, in which the prisoners are placed in a refurnished department, in cells with day-light and good ventilation. Both these groups of prisoners as well as those in detention on remand and in preventive detention are allowed to one-hour exercise in the open air every day (see Law on Pre-Trial detention, entered into force on 1 February 1996).
148. During our recent visit to Vilnius, we visited the Central Prison, including the death row, the section of life-timers, the section of remand juveniles and the section of persons in preventive detention.
149. We were thus able to observe ourselves the improvements in the death row section. We also visited the old death row section which is now renovated and used only for disciplinary punishment purposes. The cells of the juveniles in detention on remand worried us mostly since they had no day-light and bad ventilation. We were assured that these juveniles will soon be transferred to the new building outside Kaunas.
150. From our discussion with the Minister and Vice-Minister of Justice we learned that the next step in the reform of the penitentiary would be the differentiation of detainees according to the category of crimes they had committed. A programme for this purpose was being prepared by the Ministry of Justice in co-operation with the Swedish Ministry of Justice and should be submitted in two months. The overall reform would last a couple of years.
151. A draft Punishment Enforcement Code, including prison rules, is currently being discussed in parliament. But since it is linked to the draft Criminal Code, it will only be adopted together with the latter. The law on the implementation of the new code will also foresee the complete transfer of responsibility over the penitentiary system to the Ministry of Justice.
A. Local-self-government reform
152. Local elections were held in the country in March 1997. At present, the country is divided into 56 municipalities (elected municipal councils) and 10 regions or counties (appointed governors).
153. Major efforts have recently been made by the government for the purpose of reforming local self-government in Lithuania, in accordance also with the European Charter for Local Self-Government. The Ministry of Public Administration Reform and Local Affairs is very active in the field and, as it was confirmed to us by the Prime Minister himself, the reform of local self-government is one of the main priorities of the new government.
154. The impossibility for municipalities to own land, according to the Constitution, had been criticised in the past by the Congress of Local and Regional Authorities of Europe (CLARE). This issue has now been solved: an amendment passed to Article 47 of the Constitution in June 1996 allows municipalities to acquire into their ownership non-agricultural land plots required for the construction and operation of buildings and facilities necessary for their direct activities.
155. Amendments to the Law on Local Self-Government, passed in February 1997, provide inter alia for financial autonomy and opportunities for increased revenue for the municipalities - the absence of which had also been criticised in the past. The municipal budgets shall be formed from the income received from the disposal of property owned by the municipality, from the taxes paid by enterprises etc. operating on the territory of the municipality and other sources.
156. The amended Law on Local Self-Government also widens the competences of municipalities by giving them powers previously in the hands of the county (region) governors.
157. Furthermore, a draft Law on the Management, Use and Disposition of State and Municipal Property has passed two readings and is scheduled to be adopted before the end of May 1997. The Council of Europe expert, Mr Balducci, has prepared some preliminary comments thereupon to be discussed during the Conference to be held in Vilnius on 24 April 1997 on "Municipal Property and Land Ownership Question".
B. Administrative reform and restitution of property issues
158. In 1995, the Lithuanian government decided to expand the boundaries of the capital city (Vilnius) as well as of those of all other large towns, taken into account the requests of city councils and resort towns councils.The regions adjacent to the city of Vilnius are inhabited mainly by non-Lithuanians, especially ethnic Poles, while the regions adjacent to the second largest city, Kaunas, are of Lithuanian ethnic origin. In both cases, the municipalities councils in the regions adjacent to the cities in question, opposed the expansion on the basis of the argument of the incomplete restitution of land.
159. Difficulties in the restitution of property to people residing in the adjacent regions - including ethnic Poles in respect of the regions surrounding Vilnius - and raised from the change of boundaries of the major cities were (at least partly) addressed when in May 1995 amendments were adopted to the 1991 Law on the Conditions and Procedure for the Restoration of the Citizens' Ownership Right to the Remaining Immovable Property according to which the procedure established by this law was also applied in respect of property rights to land which was included in the administrative boundaries of larger cities and towns after the entry into force of this law. Following these amendments, the entire previously owned land can be returned, and not only a part as prior to the amendments.
160. The inclusion of the Polish populated regions adjacent to the Vilnius city within the boundaries of this city implied difficulties in the agricultural use of returned land since less favourable conditions for such use are provided within rather than outside the borders of the city (mainly higher taxes etc.).
161. Additional problems concerning the restitution of land are faced by the inhabitants of the Vilnius region in view of the specific pre-war history of the region. In particular, after the adoption of the above-mentioned 1991 law, the institutions responsible for the restitution rejected documents issued by the Polish administration during the pre-war period, on the argument that such administration was, in Lithuanian view, unlawful in Vilnius and its region. In May 1993, the government broadened the range of documents certifying property rights to the remaining immovable property in this region and allowed people who no longer retained such documents to prove their ownership in court.
162. We are particularly satisfied with the continuing progress in Lithuania over the last years as regards the respect of rule of law and the protection of fundamental human rights, including minority rights. Progress in these fields goes along with steady development of a market economy. Following parliamentary elections last autumn, the new government has embarked in further reforms in the field of administration of justice and local self-government.
163. More specifically, we congratulate the Lithuanian authorities for:
164. At the same time, there are still areas where further improvement is needed and where changes are expected to occur in the near future. This concerns mainly:
165. In view of all the above considerations, we propose to the Committee to endorse our positive assessment of the current situation in Lithuania as regards the honouring of its obligations and commitments.
166. In view of the changes in the monitoring system of the Parliamentary Assembly and the taking over as from 25 April 1997 of the new Monitoring Committee, we propose that the Committee of Legal Affairs and Human Rights transmit this memorandum to the Monitoring Committee.
Reporting Committee: Committee on the Honouring of Obligations and Commitments by Member States (Monitoring Committee)
Budgetary implications for the Assembly: none.
Reference to committee: Order No. 508 (1995) and Resolution 1115 (1997)
Draft recommendation: unanimously adopted by the committee on 3 September 1997.
Members of the committee: MM. de Marco (Chairman), Sole Tura, Mrs Gelderblom-Lankhout, MM. Glotov (Vice-Chairpersons), Akselsen, Atkinson, Mrs Aytaman, MM. Berceanu, Bindig, Bogár, Brunetti, Bühler, Columberg, Dagys, Davis, Domljan, Mrs Durrieu, Mr Eltz, Mrs Err, MM. Fico, Figel, Mrs Fleetwood, MM. Gabrielescu, Gjellerod, Gross, Gürel, Mrs Holand, MM. Jansson, Jaskiernia, Lord Russell-Johnston, Mr Jurgens, Mrs Karamitro, Mrs Kautto, MM. Kelam, Kostytsky, Koulouris, Laurinkus, Leoni, van der Linden, Mrs Lundholt, MM. Magnusson, Marmazov, Martelli, Melcák, Mota Amaral, Muehlemann, Németh, Ramirez Pery, Mrs Ringstad, MM. Sceberras Trigona, Schwimmer, Mrs Severinsen, MM. Shishlov, Sinka, Steolea, Mrs Stoyanova, Mrs Suchocka, MM. Tahiri, Urbain, Valkeniers, Mrs Wohlwend, Mr Yavorivsky, ex officio: MM. Barsony, Hagard.
NB: The names of those who took part in the meeting are in italics.
Secretaries to the committee: MM. Hartland, Dufour and Ms Chatzivassiliou