Kvaziteisminių institucijų jurisdikcinė veikla taikant administracines sankcijas ; Юрисдикционная деятельность квазисудебных институций по применению административных санкций ; Jurisdictional Activities Of Quasi-Judicial Institutions In Imposing Administrative Sanctions
Research problem. One of the ways to ensure public order is to impose sanctions for breach of law. Administrative sanctions as a remedy of administrative liability have a special place among the remedies of legal constraint. There is a need of effective and quick reaction to tackle great number of administrative offences and to ensure adequate prevention of administrative offences as well as criminal acts. Although the state responds to offence by implementing the jurisdictional function, which in a state governed under democratic principles is carried out by the court (one of the three constituent elements of governance), social reality testifies that the role of executive institutions in resolving the issues of legal liability for offence is increasing. Under currently effective provisions of the Administrative Code of the Republic of Lithuania authorization to impose sanctions for administrative offence is granted to a few tens of public administration institutions. Does such a situation correspond to the principle of separation of powers and what is the basis of such legal regulation? In fact, Lithuanian, and not only, science of Administrative Law often raises the problem of administrative offence as well as the problem of legitimacy of administrative sanctions which is closely related with the justice implementation function of administrative institutions. Actually, the administrative institution while imposing sanctions for administrative offence becomes a quasi-court involved in jurisdictional activities. This problem roots from the inconsistence of modern public administration system with Article 109 of the Republic of Lithuania Constitution, which reads that justice shall be executed solely by court. Execution of justice means determination of the case circumstances, finding a person guilty and imposing a fair instrument of action. According to the Constitution the right to find a person guilty and to impose a fair instrument of action is vested to the court and the judge. Meanwhile, up to now the executive institutions are empowered to implement these functions of justice. Therefore, public administration institutions, in addition to administration, implement the function of justice and therefore contradict the principle of separation of powers. This idea, expressed by many authors, has been still ignored by legislators not only in Lithuania, but in foreign states as well. Conversely, a tendency to make a social impact by implementing administrative sanctions imposed in a simpler and prompter manner is observed much more frequently and in wider areas of public life. On the other hand, the affer to leave the examination of all cases of administrative offence to courts would be difficult to implement and perhaps unnecessary. Finally, we may see that neither the constitutional jurisprudence nor the European Court of Human Rights requires for that. Nevertheless, the statutory regime necessary for the implementation of administrative sanctions has to be identified and defined. Meanwhile, authoritative entities of judiciary law, basing themselves on the similarities in the nature of administrative and criminal sanctions, categorically maintain that the principles of criminal justice should be applied to administrative justice. Such a requirement is paradoxical though. Presumably, if a person charged with administrative offence is given the same guarantees as a criminal offender and legal proceedings are of the same type as criminal proceedings, the administrative liability as independent type of legal liability and institution of administrative law would lose its identity. Therefore there is a search for compromise in many different legal systems, which shows that principles of criminal jurisdiction, when transferred into the area of administrative sanctions, become inverted from the point of view of subject matter. Considering all this problematic aspects of implementing lawfulness (nullum crimen, nulla poena sine lege), non-retroactivity of law (lex retro non agit) and prohibition to institute a legal action twice for the same cause (non bis in idem) in judicial activities of quasi judiciary institutions shall be resolved . The issue of guilt as a subjective element of administrative punishment remains of great importance. Topicality of the dissertation research. Administrative Code, being the key act of law aimed at regulating legal relationship of administrative liability, was adopted during the soviet times. Obviously, significant changes have taken place in political, social and economic life and these changes are reflected in modified legal regulation. After the protection of human rights became the main objective of the state and the guiding values cardinally shifted from the primacy of state over the citizen towards the primacy of citizen over the state, the legal regulation of administrative liability had to be changed. Attempts to adopt a new law complying with the spirit of democratic states still remain fruitless. We may assume that the legislator has not decided yet which model of administrative liability regulations should be the most acceptable. Such assumption is confirmed by unsuccessful attempts criticized by many authors to automatically translate general provisions of criminal liability to the Administrative Code draft now being worked on. Thus, when legislation problems in the area of administrative liability are being solved the issue of the body executing the liability has remained the most acute. Discussions often reveal an opinion that implementation of sanctions by administrative institutions should be more an exception than a rule while cases of administrative offence should be settled in courts. Unfortunately, this idea is confirmed neither by Lithuanian nor foreign practice; on the contrary, opinions supporting the development and expansion of administrative jurisdiction prevail. In that case the problem of legitimacy of exercising jurisdiction by administrative institutions from the point of view of separation of powers laid down in the Constitution remains unsolved and thus retains its topicality. Finally, the scope of the principles of administrative liability in Lithuania is still unclear and undefined thus leading to incompliance of statutory regulation with legal practice. Dissertation research object. This doctoral thesis focuses on social relationship created in the light of administrative sanctions imposed by quasi-judicial institutions and statutory regulation of such relationship. Dissertation research goal is to analyze in a systematic manner and evaluate the legal basis of jurisdictional activities of quasi-judicial institutions in different countries, the principles applied in jurisdictional activities of these institutions and to propose guidelines for improving the institution of administrative liability in Lithuania. The following objectives were set to this end: 1. Introduce the notion of jurisdictional activity and reveal its relationship with administrative jurisdiction. 2. Disclose the notion of administrative sanction and examine the administrative sanction doctrines in different states pointing out the fundamental features of administrative sanction. 3. Analyze the models of quasi-judicial institutions implementing administrative sanctions and assess their jurisdictional activity from the point of view of constitutional legitimacy. 4. Evaluate statutory regulation of administrative jurisdiction and problems of executing it in Lithuania in 1918-1990. 5. Reveal the basic principles and the scope of jurisdictional activity of quasi-judicial institutions. Scientific novelty and practicality of dissertation research. This thesis is an attempt to have a deeper insight to the problems of statutory regulation and execution of administrative liability. Although sufficient attention is paid to this issue in the science of Lithuanian Law witnessed by scholar discussions on one or another aspect of the problem, the present thesis is the first attempt to give a doctrinal and systematic review of quasi-judicial institutions in exercising the powers of administrative sanctioning and the basis of jurisdictional activity. The thesis analyses in great detail doctrines of administrative sanctions of different democratic states (e.g. France, Germany, Spain, Portugal, Italy etc.) and attempts to determine and distinguish essential features of administrative sanctions with the aim to develop guidelines for modelling the institution of administrative liability in Lithuania. The research work is not limited to a mere analysis of legal norms but gives an assessment of legal regulation exercised through jurisdictional activities of quasi-judicial institution from the point of view of constitutional and administrative jurisprudence, thus enabling to determine the dysfunctions of legal regulation and potential solutions. The novelty of the thesis lies in the attempt to define the basic principles of quasi-judicial institutions' jurisdictional activity by revealing their scope and problems of implementation. As Lithuanian legislators are currently working on the drafts of Administrative Code and legislative act aimed at regulating the administrative proceedings, this research thesis revealing the problems of administrative liability legal regulation and guidelines for potential improvement also has a practical value. Assertions defended in the dissertation. Administrative sanctions implemented by quasi-judicial institutions represent the institute performing a potentially effective role of social regulator and jurisdictional activity carried out by those institutions is acceptable for the legal system of a democratic state from the point of view of constitutional legitimacy. Activities of quasi-judicial institutions executing jurisdictional authorizations are subject to the principles of criminal jurisdiction, however with certain exclusions that w
