Suchergebnisse

The purpose of this thesis is to investigate the whether the termination of a referendum initiative is valid if based of an unofficial interpretation of the Constitution. The core questions, investigated in this thesis consists of whether the refusal to hold a referendum concerning a legal draft, which potentially does not meet the requirements arising from the Constitution of the Republic of Lithuania constrain the citizens right to a referendum; can the Central Election Commission's and the Parliament's constitutional evaluation towards the citizens provided legal draft can be interpreted as some sort constitutional control. The arisen problem is examined in three parts of this thesis. The first parts presents background to this situation. On 2014 July 11'th the Constitutional Court of Lithuania adopted a resolution which the interpreted the additional powers to the Central Election Commission and the Parliament. This resolution established, that in order to prevent unconstitutional constitutional amendments to the Constitution, the Central Election Commission and the Parliament must be granted the jurisdiction to prevent such a referendum to take place, if it would be non-compliant with the fundamental provisions established in the Constitution or would lead to unconstitutional consequences. These powers themselves created an obligation, both to the Central Election Commission and the Parliament to check the contents of the submitted legal draft and to evaluate its compliance with the Constitution of the Republic of Lithuania. Given the fact that a submitted legal draft is certain for constitutional checks not only in form, but also in terms of content, the question arises, what criteria should the Central Election Commission and the Parliament follow. For this reason, this part analyses what the fundamental constitutional values are enshrined in the Constitution of the Republic of Lithuania, and what kind of the safeguard mechanism is instilled. These criteria will provide a some sort of basis that could be determined in accordance with the legal draft. The second part deals with the situation where the Central Electoral Commission, within its jurisdiction, stated that a citizens' group submitted legal draft law does not comply with the requirements of the Constitution, thus shall not be put to vote in a referendum. For the same reason, the Parliament must refuse to hold a citizens' initiated referendum, even if such an initiative is at a request of 300 thousand citizens. Due to the fact that the requirement to call to provide 300 thousand signatures itself shows that the subject at hand is attributable to the major questions of the country. Parliament's refusal to hold such a referendum would not be an infringement of the sovereign powers held by the people. However, the question arises whether the refusal to call a referendum based on a legal draft, which potentially do not meet the requirements arising from the Constitution disproportionately restricts the right to call a referendum, which should by guaranteed by the Constitution. For this reason, this part will examine what are the real prospects to initiate and to call a referendum in Lithuania on behalf of the citizens, assessing how these perspectives have changed since the Constitutional Court adopted the mentioned resolution. This analysis will reveal possibility of a citizens' initiative and referendum, this analysis will determine whether the existing legal regulation does not create disproportionate difficulties in the implementation of the right to a referendum. The third part deals with the Lithuanian's Constitutional Court's exclusive right to interpret the concept of the Constitution; the analysis of the Central Electoral Commission's and the Parliament's content of powers and the constitutional practices of foreign countries. For this reason, this part will address the Constitutional Court of the Republic of Lithuania's prerogative to interpret the concept of the Constitution and why this exclusive right belongs to the Constitutional Court of Lithuania. This part will analyze whether the Central Electoral Commission and the Parliament right, to analyze the citizens provided legal draft in compliance with the Constitution of the Republic of Lithuania implements functions consisting a degree of constitutional control as well as the implementation of such a practice should be seen in relation to the recommendations of the Venice Commission. This analysis will answer the question of whether the current legal regulation creates preconditions for citizens' groups to be rejected the referendum provided by a bill based on an unofficial interpretation of the Constitution. The analysis revealed that the only authority competent to assess the legal draft submitted for referendum, compliance with the Constitution of the Republic of Lithuania is the Lithuanian Constitutional Court, since only the Constitutional Court has the exclusive right to interpretation of constitutional rules, which can cause legal consequences. Given the fact that the interpretation of the Constitution is the Constitutional Court exclusive right and that only the official interpretation of the Constitution should lead would lead to legal consequences, it must be concluded that the possible non-compliance of the Constitution setting, based on an unofficial interpretation is not sufficient enough to refuse to hold a referendum. The Central Election Commission has not been provided with an opportunity to apply to the Constitutional Court questioning the submitted legal draft; a legal draft law, according to the Legal Code of Administrative Cases, is not subject of interpretation by the Supreme Administrative Court of Lithuania, therefor it also not a subject of interpretation to the Constitutional Court. The Lithuanian Parliament adopted resolutions can possibly be subject of constitutional control, but that depends entirely on the will of the members of the Parliament. Evaluating these circumstances, it must be concluded that the Lithuania's current legal regulation of does not meet the recommendations of the Venice Commission. The absence of a clear possibility for a legal draft to be submitted for interpretation by the Constitutional Court, limits the right to an referendum initiative on behalf of the citizens of the Republic of Lithuania also preventing the referendum in accordance with unofficial interpretation of the Constitution. In accordance with these circumstances, it was found that both of the Parliament and the Central Election Commission's decision to refuse to register a referendum initiative or to hold a referendum on the basis, that the legal draft non-compliant with the Constitution of the Republic of Lithuania is considered an unofficial interpretation of the Constitution that cannot be a sufficient to restrict the citizens constitutional right to a referendum.

An origin, an history of an institute of the court's penal order (hereinafter – penal order) (a form of a simplified criminal process'es model), an influence of the European criminal procedure laws on the criminal code of procedure (hereinafter – the CCP) of the Republic of Lithuania is briefly presented within an introduction of the Master's thesis (hereinafter – Thesis). In addition, some principles of legal regulation and the requirements of legal technique (hereinafter – Requirements) are represented. An hypothesis is then formed that legal regulations of the penal order's issuing process (regulated in the CCP of Lithuania) that violate the principles, Requirements raise problems of applying the institute of the penal order. In order to test the hypothesis, a concept of the penal order's issuing process is represented and the most possibly problematic legal regulations identified in the research. Furthermore, there are ascertained which identified legal regulations conflict with the principles, Requirements; proper legal regulations is then proposed to alter or supplement some provisions of the CCP of Lithuania. The structure of the Thesis includes 2 chapters, 4 paragraphs, conclusions and recommendations for the legislator. In the first chapter (the analysis of the concept of the penal order's issuing process), the penal order issuing process, which is similar in whole jurisdictions, is briefly presented highlighting it's essential features. The second chapter consists of 4 paragraphs that provide the identification of the most possibly problematic legal regulations and statements if and why the legislator violated the principles and Requirements. In the first paragraph, a first problem of the applying of the institute of the penal order is analysed, identifying, that an opportunity to misinterpret the Art. 418 (4), 420 (1) of the CCP exists. Considering the fact that an implied, supplementing and extending the explicit legal regulation, legal regulation is not clear to a law applier (in this case – a prosecutor), because it needs to clarify a legislator's will so that he / she would not send investigating materials and a statement of the completion of the process by the penal order's issuing process to a court before this court examins a victim's complaint to that, there are ascertained violations of the principle of clarity and the Requirement that legal regulation shall prevent misinterpreting legal norms. There has been resumed that, in order to ensure a purpose of this legal regulation (a victim's title to appeal a prosecutor's decision on completing the process by the way of the penal order in a court. Consequently, in case of this appeal's outcomes' appearing in favor of the victim, the decision would be announced as ineffective and the prosecutor would lose the right to send investigating materials and the statement of the completion of the process by the penal order's issuing process to the court), the legislator shall clearly (expressis verbis) supplement into the Art. 418 (3) of the CCP a prosecutor's title to apply to a court for issuing a penal order exclusively after a deadline of possibility to implement a victim's right to appeal a prosecutor's decision of completing process by a penal order and a date of receipt of data about not-receiving the appeal from the court, or, in case of receiving it, upon receipt of a copy of the court's decision on the victim's appeal. In the second paragraph, an issue of possibility of misinterpreting the Art. 423 (1), 420 (1), 234 (2) that enables malpractise of removing substantial violations of the CCP in the same manner as unclear case's circumstances, although they are different in nature, is solved. A conclusion was drawn that the problematic legal regulation violates the clarity principle, Requirements that legal norms shall be understandable to the adressees, formulated clearly, simply, there shall be prevented possibility of interpreting them illegaly, because, in case of substantial violations of the CCP, the law applier sees alternative, but not-fulfilling legislator's will, a not-justified way of applying it. It usually applies the Art of 420 (1(2)) (transferring the process from the simplified into the common criminal procedure's model when a judge detects substantial violations of the CCP within case's materials, although the transferring is executed exclusively in case of unclear case's circumstances (the Art. 423 (1), 420 (1(2))), not substantial violations of the CCP, because unclear case's circumstances might be removed in a court, but substantial violations of the CCP might not), 234 (2) of the CCP (returning case's materials then to a prosecutor so that he / she would remove the substantial violations of the CCP), instead of the implicit Art. 234 (2) of the CCP (directly returning case's materials to the prosecutor, without applying the Art of 420 (1(2)) prior (indirectly)). The third paragraph deals with a problem when it is impossible to serve a penal order on the accused in case of his / her hiding and he / she not-having other actors mentioned in the Art. 422 (1) of the CCP. In such a case, the penal order does not acquire legal force, the risk of reaching limitation period becomes large. It is researched whether: 1) in case of participating of a defense attorney in the process, is it possible to serve the penal order on him / her; 2) in case of his / her not-participation, might legal norms, regulating persons' search, be held as implicit, and the term of a defendant's submitting a demand of trying a case in a court be started to count after he / she has been found and with the penal order served; 3) shall a state's institutions' duty to ensure a defendant's title to pick up the penal order on his / her own initiative be held as a better alternative; 4) is a proposal of the Supreme Court of Lithuania to start the counting from the receipt of data about defendant's hiding justified. The findings show the breach of principles of systematic (the legal norms are inconsistent), effectiveness (the most efficient alternative has not been chosen. As the most efficient one shall be held a state's institutions' duty to ensure a defendant's title to pick up the penal order on his / her own initiative. The court could send it him / her per e-mail, mail or leave in the court)), Requirements that legal regulation shall be easily implemented, unsophisticated. In the fourth paragraph, a problem of prohibiting a prosecutor to submit a demand of trying a case in a court according to the common rules of the criminal procedure is tackled. There was concluded that the legislator violated the principles of effectiveness, systematic, the Requirement that legal norms shall be consistent, because the legal regulation is not constitutionally justified, in accordance with it, a prevention of human (a prosecutor's, a judge's) errors is not carried, there are no other opportunities for these subjects to correct those errors, the principle of equality is violated. As a better alternative shall be held allowing a prosecutor to submit a demand of trying a case in a court. As a result, a content of conclusions drawn in the paragraphs are presented. Furthermore, it is resumed that the hypothesis confirmed fully itself. In the recommendations for the legislator, there is suggested to revise the problematic legal regulations, submitted concrete alterations of the CCP.

Modern Western states declaring the right to fair and speedy trial have faced serious obstacles while implementing it. The judicial procedure is suffering from severe caseload leading to a substantial delay and increasing costs in litigation. The situation resulted in growing public dissatisfaction with the formal court system and a justice as a whole. This encouraged the states to look for new dispute resolution mechanisms which could be alternative to litigation and could overtake certain disputes from courts leaving access to justice more available. In 1950's USA introduced mediation in solving labor disputes. It showed a success and gained the support of legislation and judiciary which led to wide spread of mediation to other areas of dispute resolution: small claims, neighborhood, consumer, landlord-tenant, victim-offender, family, environmental disputes. Mediation can offer a cheaper, faster, less formal procedure compared to litigation. Mediation leaves the ultimate decision making process in the hands of the parties themselves. The third neutral person is only assisting the parties in developing the dialogue and reaching a mutually acceptable settlement of issues in dispute. This voluntarily reached settlement diminishes the friction between adverse parties, helps to maintain further amicable relations between parties and preserve the social peace and harmony. Confidentiality is regarded as a fundamental feature to effective mediation. It encourages candid and free nature of the discussion. Parties are then free to communicate without fear that the facts they disclosed during mediation will be used against them in court if mediation fails. Parties to mediation, the mediator, non-party participants are obliged to keep all the information related to mediation confidential. Parties to dispute can agree to disclose the protected information or a part of it. The mediator doesn't have such authority to decide upon disclosure of protected communications – he has an obligation to keep it confidential. But are there circumstances when mediator is compelled to disclose the confidential information? If so, what are they? Scientific novelty of the thesis The European Union (hereinafter – the EU) has acknowledged the importance of alternative dispute resolution (hereinafter - ADR) and especially mediation in reaching one of its political objectives in securing better access to justice. The EU institutions produced a number of legal instruments promoting the use of ADR: Green Paper on Alternative Dispute Resolution in Civil and Commercial Law presented by the European Commission in April 2002, European Code of Conduct for Mediators passed by the European Commission in 2004 and finally the Directive on certain aspects of mediation in civil and commercial matters enacted by the European Parliament and the Council in May 2008. Lithuania as a Member State has to ensure a proper implementation of the provisions of this Directive through the means of national legislation. The Directive provides for a minimum standards to ensure the protection of confidentiality in mediation but Member States are free to take stricter measures at domestic level. Regardless which approach Lithuania is going to take – softer or stricter - it has to ensure that legislation regulating confidentiality is to be clear, precise, understandable and fair to the users of mediation and especially to mediators. Parties to dispute can agree to disclose certain confidential information in later judicial or arbitration proceedings. Mediator doesn't have such authority – he is obliged to keep information confidential. The obligation of confidentiality for mediator arise from statutes defining mediation, codes of professional conduct or mediation agreements. The duty of confidentiality must be preserved in order to assure that the reasonable expectations of participants regarding the confidentiality are met rather than frustrated. The goal of this thesis is to provide the answer for the legal issue: is the duty of confidentiality placed upon mediators absolute? The proposed hypothesis is that the duty of confidentiality placed upon mediators is not absolute. In order to accomplish the goal of the thesis and to support or deny the hypothesis we take the following steps: 1. to analyze the mediation and to determine what its main features are; 2. to analyze the confidentiality in mediation; 3. to determine what are the legal means for safeguarding the confidentiality in mediation; 4. to determine the role of mediator in preserving the confidentiality in mediation; 5. to determine the scope of confidentiality whether there is exceptions to it. In order to accomplish the tasks set above we analyzed number of legal instruments passed by the institutions of European Union, Lithuanian legislation on mediation, the provisions of confidentiality in Uniform Mediation Act of United States of America. It was important to explore the legal means in safeguarding the confidentiality in mediation in different countries: statutory protection, without prejudice rule, mediation privilege, attorney-client privilege and contractual protection – in order to determine which legal instrument provides the most protection of confidentiality. We looked at the case law of United Kingdom, USA, Australia that emphasized the importance of confidentiality in mediation, also analyzed British case law establishing the exceptions from the confidentiality. After the above mentioned tasks are accomplished we make the following conclusions: 1. Mediation unlike other ADR and unlike judicial procedures, can offer an amicable dispute resolution procedure which is strictly confidential. 2. Confidentiality is one of the most important mediation features distinguishing it from other dispute resolution mechanisms and making it more attractive to the users. Legally protected confidentiality fosters the candid and open communications between parties and mediator increasing the effectiveness of the procedure. Lifting the shield of confidentiality would destroy the public trust in mediation and would discourage its potential users from engaging in mediation. 3. The statutory privilege against disclosure of any mediation communication by parties, the mediator and non-parties participants and ability to block others from disclosure – is the most effective legal instrument preserving the confidentiality in mediation and protecting the mediator from being called as a witness regarding confidential information. 4. The duty of confidentiality placed upon mediator is not absolute as it can be proved by several exceptions created by legislation and by courts. There is certain situations when courts can decide to look at otherwise privileged information when public interest to hear mediator testimony outweighs the interest in protecting the confidentiality and integrity of mediation. There are certain situations when courts are willing to hear the confidential information related to mediation. Absent any statutory protection the mediator may be called as a witness and could be compelled to testify. The mediator testimony may reveal certain information which could be in favor of one party and damaging to the other party this undermines the principle of mediator neutrality and the integrity of the process. All the exceptions to confidentiality must be construed carefully and precisely by statute leaving no ambiguities and providing the legal certainty for participants. The recommendations: In order to ensure the adequate protection of confidentiality in mediation we recommend: 1. to incorporate in the Code of Civil Procedure the provision prohibiting to call the mediator as a witness in civil or commercial proceedings; 2. to incorporate in Civil Dispute Conciliation Mediation Act the exception to confidentiality for information that is sought or offered to prove mediator malpractice claim or complaint; 3. to add an exception in Civil Dispute Conciliation Mediation Act that information about future or ongoing crimes which became known during mediation is not protected and must be disclosed to authorities.

Modern Western states declaring the right to fair and speedy trial have faced serious obstacles while implementing it. The judicial procedure is suffering from severe caseload leading to a substantial delay and increasing costs in litigation. The situation resulted in growing public dissatisfaction with the formal court system and a justice as a whole. This encouraged the states to look for new dispute resolution mechanisms which could be alternative to litigation and could overtake certain disputes from courts leaving access to justice more available. In 1950's USA introduced mediation in solving labor disputes. It showed a success and gained the support of legislation and judiciary which led to wide spread of mediation to other areas of dispute resolution: small claims, neighborhood, consumer, landlord-tenant, victim-offender, family, environmental disputes. Mediation can offer a cheaper, faster, less formal procedure compared to litigation. Mediation leaves the ultimate decision making process in the hands of the parties themselves. The third neutral person is only assisting the parties in developing the dialogue and reaching a mutually acceptable settlement of issues in dispute. This voluntarily reached settlement diminishes the friction between adverse parties, helps to maintain further amicable relations between parties and preserve the social peace and harmony. Confidentiality is regarded as a fundamental feature to effective mediation. It encourages candid and free nature of the discussion. Parties are then free to communicate without fear that the facts they disclosed during mediation will be used against them in court if mediation fails. Parties to mediation, the mediator, non-party participants are obliged to keep all the information related to mediation confidential. Parties to dispute can agree to disclose the protected information or a part of it. The mediator doesn't have such authority to decide upon disclosure of protected communications – he has an obligation to keep it confidential. But are there circumstances when mediator is compelled to disclose the confidential information? If so, what are they? Scientific novelty of the thesis The European Union (hereinafter – the EU) has acknowledged the importance of alternative dispute resolution (hereinafter - ADR) and especially mediation in reaching one of its political objectives in securing better access to justice. The EU institutions produced a number of legal instruments promoting the use of ADR: Green Paper on Alternative Dispute Resolution in Civil and Commercial Law presented by the European Commission in April 2002, European Code of Conduct for Mediators passed by the European Commission in 2004 and finally the Directive on certain aspects of mediation in civil and commercial matters enacted by the European Parliament and the Council in May 2008. Lithuania as a Member State has to ensure a proper implementation of the provisions of this Directive through the means of national legislation. The Directive provides for a minimum standards to ensure the protection of confidentiality in mediation but Member States are free to take stricter measures at domestic level. Regardless which approach Lithuania is going to take – softer or stricter - it has to ensure that legislation regulating confidentiality is to be clear, precise, understandable and fair to the users of mediation and especially to mediators. Parties to dispute can agree to disclose certain confidential information in later judicial or arbitration proceedings. Mediator doesn't have such authority – he is obliged to keep information confidential. The obligation of confidentiality for mediator arise from statutes defining mediation, codes of professional conduct or mediation agreements. The duty of confidentiality must be preserved in order to assure that the reasonable expectations of participants regarding the confidentiality are met rather than frustrated. The goal of this thesis is to provide the answer for the legal issue: is the duty of confidentiality placed upon mediators absolute? The proposed hypothesis is that the duty of confidentiality placed upon mediators is not absolute. In order to accomplish the goal of the thesis and to support or deny the hypothesis we take the following steps: 1. to analyze the mediation and to determine what its main features are; 2. to analyze the confidentiality in mediation; 3. to determine what are the legal means for safeguarding the confidentiality in mediation; 4. to determine the role of mediator in preserving the confidentiality in mediation; 5. to determine the scope of confidentiality whether there is exceptions to it. In order to accomplish the tasks set above we analyzed number of legal instruments passed by the institutions of European Union, Lithuanian legislation on mediation, the provisions of confidentiality in Uniform Mediation Act of United States of America. It was important to explore the legal means in safeguarding the confidentiality in mediation in different countries: statutory protection, without prejudice rule, mediation privilege, attorney-client privilege and contractual protection – in order to determine which legal instrument provides the most protection of confidentiality. We looked at the case law of United Kingdom, USA, Australia that emphasized the importance of confidentiality in mediation, also analyzed British case law establishing the exceptions from the confidentiality. After the above mentioned tasks are accomplished we make the following conclusions: 1. Mediation unlike other ADR and unlike judicial procedures, can offer an amicable dispute resolution procedure which is strictly confidential. 2. Confidentiality is one of the most important mediation features distinguishing it from other dispute resolution mechanisms and making it more attractive to the users. Legally protected confidentiality fosters the candid and open communications between parties and mediator increasing the effectiveness of the procedure. Lifting the shield of confidentiality would destroy the public trust in mediation and would discourage its potential users from engaging in mediation. 3. The statutory privilege against disclosure of any mediation communication by parties, the mediator and non-parties participants and ability to block others from disclosure – is the most effective legal instrument preserving the confidentiality in mediation and protecting the mediator from being called as a witness regarding confidential information. 4. The duty of confidentiality placed upon mediator is not absolute as it can be proved by several exceptions created by legislation and by courts. There is certain situations when courts can decide to look at otherwise privileged information when public interest to hear mediator testimony outweighs the interest in protecting the confidentiality and integrity of mediation. There are certain situations when courts are willing to hear the confidential information related to mediation. Absent any statutory protection the mediator may be called as a witness and could be compelled to testify. The mediator testimony may reveal certain information which could be in favor of one party and damaging to the other party this undermines the principle of mediator neutrality and the integrity of the process. All the exceptions to confidentiality must be construed carefully and precisely by statute leaving no ambiguities and providing the legal certainty for participants. The recommendations: In order to ensure the adequate protection of confidentiality in mediation we recommend: 1. to incorporate in the Code of Civil Procedure the provision prohibiting to call the mediator as a witness in civil or commercial proceedings; 2. to incorporate in Civil Dispute Conciliation Mediation Act the exception to confidentiality for information that is sought or offered to prove mediator malpractice claim or complaint; 3. to add an exception in Civil Dispute Conciliation Mediation Act that information about future or ongoing crimes which became known during mediation is not protected and must be disclosed to authorities.

Modern Western states declaring the right to fair and speedy trial have faced serious obstacles while implementing it. The judicial procedure is suffering from severe caseload leading to a substantial delay and increasing costs in litigation. The situation resulted in growing public dissatisfaction with the formal court system and a justice as a whole. This encouraged the states to look for new dispute resolution mechanisms which could be alternative to litigation and could overtake certain disputes from courts leaving access to justice more available. In 1950's USA introduced mediation in solving labor disputes. It showed a success and gained the support of legislation and judiciary which led to wide spread of mediation to other areas of dispute resolution: small claims, neighborhood, consumer, landlord-tenant, victim-offender, family, environmental disputes. Mediation can offer a cheaper, faster, less formal procedure compared to litigation. Mediation leaves the ultimate decision making process in the hands of the parties themselves. The third neutral person is only assisting the parties in developing the dialogue and reaching a mutually acceptable settlement of issues in dispute. This voluntarily reached settlement diminishes the friction between adverse parties, helps to maintain further amicable relations between parties and preserve the social peace and harmony. Confidentiality is regarded as a fundamental feature to effective mediation. It encourages candid and free nature of the discussion. Parties are then free to communicate without fear that the facts they disclosed during mediation will be used against them in court if mediation fails. Parties to mediation, the mediator, non-party participants are obliged to keep all the information related to mediation confidential. Parties to dispute can agree to disclose the protected information or a part of it. The mediator doesn't have such authority to decide upon disclosure of protected communications – he has an obligation to keep it confidential. But are there circumstances when mediator is compelled to disclose the confidential information? If so, what are they? Scientific novelty of the thesis The European Union (hereinafter – the EU) has acknowledged the importance of alternative dispute resolution (hereinafter - ADR) and especially mediation in reaching one of its political objectives in securing better access to justice. The EU institutions produced a number of legal instruments promoting the use of ADR: Green Paper on Alternative Dispute Resolution in Civil and Commercial Law presented by the European Commission in April 2002, European Code of Conduct for Mediators passed by the European Commission in 2004 and finally the Directive on certain aspects of mediation in civil and commercial matters enacted by the European Parliament and the Council in May 2008. Lithuania as a Member State has to ensure a proper implementation of the provisions of this Directive through the means of national legislation. The Directive provides for a minimum standards to ensure the protection of confidentiality in mediation but Member States are free to take stricter measures at domestic level. Regardless which approach Lithuania is going to take – softer or stricter - it has to ensure that legislation regulating confidentiality is to be clear, precise, understandable and fair to the users of mediation and especially to mediators. Parties to dispute can agree to disclose certain confidential information in later judicial or arbitration proceedings. Mediator doesn't have such authority – he is obliged to keep information confidential. The obligation of confidentiality for mediator arise from statutes defining mediation, codes of professional conduct or mediation agreements. The duty of confidentiality must be preserved in order to assure that the reasonable expectations of participants regarding the confidentiality are met rather than frustrated. The goal of this thesis is to provide the answer for the legal issue: is the duty of confidentiality placed upon mediators absolute? The proposed hypothesis is that the duty of confidentiality placed upon mediators is not absolute. In order to accomplish the goal of the thesis and to support or deny the hypothesis we take the following steps: 1. to analyze the mediation and to determine what its main features are; 2. to analyze the confidentiality in mediation; 3. to determine what are the legal means for safeguarding the confidentiality in mediation; 4. to determine the role of mediator in preserving the confidentiality in mediation; 5. to determine the scope of confidentiality whether there is exceptions to it. In order to accomplish the tasks set above we analyzed number of legal instruments passed by the institutions of European Union, Lithuanian legislation on mediation, the provisions of confidentiality in Uniform Mediation Act of United States of America. It was important to explore the legal means in safeguarding the confidentiality in mediation in different countries: statutory protection, without prejudice rule, mediation privilege, attorney-client privilege and contractual protection – in order to determine which legal instrument provides the most protection of confidentiality. We looked at the case law of United Kingdom, USA, Australia that emphasized the importance of confidentiality in mediation, also analyzed British case law establishing the exceptions from the confidentiality. After the above mentioned tasks are accomplished we make the following conclusions: 1. Mediation unlike other ADR and unlike judicial procedures, can offer an amicable dispute resolution procedure which is strictly confidential. 2. Confidentiality is one of the most important mediation features distinguishing it from other dispute resolution mechanisms and making it more attractive to the users. Legally protected confidentiality fosters the candid and open communications between parties and mediator increasing the effectiveness of the procedure. Lifting the shield of confidentiality would destroy the public trust in mediation and would discourage its potential users from engaging in mediation. 3. The statutory privilege against disclosure of any mediation communication by parties, the mediator and non-parties participants and ability to block others from disclosure – is the most effective legal instrument preserving the confidentiality in mediation and protecting the mediator from being called as a witness regarding confidential information. 4. The duty of confidentiality placed upon mediator is not absolute as it can be proved by several exceptions created by legislation and by courts. There is certain situations when courts can decide to look at otherwise privileged information when public interest to hear mediator testimony outweighs the interest in protecting the confidentiality and integrity of mediation. There are certain situations when courts are willing to hear the confidential information related to mediation. Absent any statutory protection the mediator may be called as a witness and could be compelled to testify. The mediator testimony may reveal certain information which could be in favor of one party and damaging to the other party this undermines the principle of mediator neutrality and the integrity of the process. All the exceptions to confidentiality must be construed carefully and precisely by statute leaving no ambiguities and providing the legal certainty for participants. The recommendations: In order to ensure the adequate protection of confidentiality in mediation we recommend: 1. to incorporate in the Code of Civil Procedure the provision prohibiting to call the mediator as a witness in civil or commercial proceedings; 2. to incorporate in Civil Dispute Conciliation Mediation Act the exception to confidentiality for information that is sought or offered to prove mediator malpractice claim or complaint; 3. to add an exception in Civil Dispute Conciliation Mediation Act that information about future or ongoing crimes which became known during mediation is not protected and must be disclosed to authorities.

An unambiguous assessment of the results of changes in the post-communist political regime of Ukraine is hardly possible. The political system of this country has experienced both periods of democratic expectations & democratic setbacks during the last fifteen years. For example, in 1990-1994, before the first competitive parliamentary elections, there was a clear fragmentation among the old (communist) political elite in Ukraine; the country's first democratic constitution was adopted in 1996. However, after Leonid Kuchma was elected President in 1994, authoritarian tendencies gradually recrudesced, "oligarchic" clans took hold of the country's political system, & the elections were increasingly blatantly manipulated & rigged to the advantage of the ruling elite. This cycle of political development recurred ten years later. Manipulations of the results of the 2004 presidential election raised a massive protest among the inhabitants of Ukraine, which was symbolically dubbed the "Orange Revolution." A new influx of democratic expectations forced the ruling elite to concede to re-running the second round of Ukraine's presidential election, which was won by the opposition. However, the political crisis which struck the new government in September 2005 & the mutual accusations of corruption raised by the former "revolutionary" comrades-in-arms -- President Viktor Yushchenko & former Prime Minister Yuliya Tymoshenko -- raised new questions regarding the vitality of the democratic processes in Ukraine. The main question examined in this article is therefore whether the vacillation of Ukraine's political regime is not a regular, permanent condition. Having two main aims -- (1) to construct a theory of Ukraine's post-soviet political transformation, & (2) to disclose the possibilities of democracy consolidation in this country -- the article starts with making some "corrections" to the transitologist approach to regime change. Firstly, it is argued that political transformation theories should have a shared concept of democracy, irrespective of the number or type of the stages of democratization distinguished. The experience of post-communist countries shows that formal procedural democratic criteria are insufficient in order to characterize a political system as democratic. Secondly, traditional theories of regime change focus mostly on the analysis of the behavior of the main political actors (the political elite) & their decisions (agreements). The structural conditions (eg., the characteristics of socio-economic development) should be also included into theoretical thinking about regime change. Thirdly, the analysis of elites & their agreements is sufficiently developed to explain how & when the transition to democracy occurs. However, the democratic consolidation stage has remained somewhat mystified by 'transitologists.' The article argues that an assumption should probably be made that the behavior of political elite factions competing in the political system is always rational & self-interested, ie., democracy (or any other form of political regime) becomes "the only game in town" only if & when it is mostly advantageous for the political elite functioning in that system. Taking into account the above mentioned "corrections" to the transitologist approach, in the article, there is produced a model for analyzing post-soviet regime transformations. The model consists of three main explanatory variables: (1) the structure of political elite, (2) the 'rules of game' prevalent in the system, & (3) the strategies of political elite aiming at gaining business and/or mass support. Consequently, various interrelations of these variables may produce four possible ideal-type outcomes of regime change -- (1) democracy, (2) 'democracy with adjectives,' (3) zero-sum game (a very unstable option when political regime may be temporarily democratic but is at a huge risk of downfall), (4) authoritarianism. In post-soviet countries, it is not enough to examine the structure of political elite & the institutions in order to predict the consolidation of one or another form of political regime. 'Building politicians' "alliances" with business & (or) mobilizing mass support may negate any such predictions & produce additional (regressive, in terms of democratization) impulses to further regime change. The very possibilities of the political elite to form "alliances" with business & (or) to mobilize the masses are mostly determined by the structural characteristics of the country. Thus, the analysis of the latter may not also be omitted in examining post-soviet transitions. Political regime in Ukraine, which beginning of 1990s started evolving as a probable liberal democracy or at least 'democracy with adjectives,' after 1998 Verkhovna Rada elections moved to the situation of the zero-sum game. Such transition was conditioned by two factors. First, the changes within political elite structure -- the communist camp, which occupied an important, although not the most important place in the pluralist political elite structure in 1994-1998, became an anti-systemic political force after the adoption of the 1996 Constitution. For these reasons, only two opposing elite factions (oligarchs-"centrists" vs. national democrats) remained in the political system of Ukraine after the 1998 elections, the ideological confrontation of which was constantly increasing & became particularly acute at the outset of the "Orange Revolution" in 2004. Second, the fact that the business class in Ukraine was forming with the "assistance" of politicians allowed the political elite to build an alliance with business community already in 1994-1996 & maintain these tight clientelist relations even after the privatization period was over. When at the end of 2004 the national democrats gathered mass support & became virtually equal or even more influential than the so-called "centrists," who traditionally draw support from business structures, the zero-sum game in Ukraine became especially acute. Such it remains by now, even after the Orange revolution is over. In more than ten years of independence the business community of Ukraine has consolidated its positions in the Verkhovna Rada & accumulated control over almost all national TV channels & other media outlets, as well as separate industrial regions. Therefore even anti-oligarchically disposed government cannot ignore this power. The ruling elite that cares about its survival & political success is forced to co-ordinate its decisions with the interests of various business clans. On the other hand, since Ukraine's business class consists of several competing clans, any government decisions that seek to limit the political influence of business groups immediately affect the interests of competing business clans. The government cannot remain neutral in principal. Any attempts of the supposed "deoligarchisation" will only result in provoking sharper disagreements between business groups because the curtailment of the positions of one clan will open new prospects for the strengthening of the influence of its competitors. It may be argued that for these reasons there will always be at least one (and, most likely, the strongest one) oligarchic political camp supported by an "alliance" with business. In other words, Ukraine's political regime does not have any chance to be consolidated in the liberal democracy perspective. Another structural characteristic of Ukraine is the politically unorganized working class. At least several competing political forces claim to represent the workers' interests -- the Communist Party of Ukraine, the Socialist Party of Ukraine, & the Progressive Socialist Party of Ukraine. The internal competition among the left-wing forces encourages at least one of them (the Communist Party of Ukraine, the Progressive Socialist Party) to take a radical, anti-systemic position in order that potential supporters may distinguish it from other leftist parties. Therefore, it is likely that the political system of Ukraine will preserve a left-wing segment that will not wield much power but will propagate an anti-systemic ideology without "communicating" with other political forces. Due to its anti-systemic nature it will not be able to participate in the government of the state & the votes of the left-wing voters (comprising the basis for mass support) will probably be collected by the national democrats. This circumstance enables predicting that the zero-sum game will remain very intensive in Ukraine in the future as well. Thus, the permanent instability of the state & both -- democracy & authoritarianism -- in Ukraine (a zero-sum game) may actually be considered to be its consolidated political regime form. Adapted from the source document.

Every human being living in the State of Nature had equal opportunities. Because of the growth of human race, this state altered and the interests of each individual person began to intersect, especially when talking about property. As a result, the rights and freedoms of each individual person were taken under threat. Therefore people began to organize themselves into societies in order to solve collective issues of society all together. When they had elected the most competent representatives, able to represent the interests of all Nation the best they could, people living in the State of Nature voluntarily waived their rights for handling particular issues in collective manner. The first aim of the representatives was the welfare of people. Thus the fundamental institute of the highest government was born. However, decisions taken in the name of all the people would have no power if they could not be enforced and would not reflect interests of the Nation. Seeking to implement supervision, the executive power was established which took care of the general welfare and the realization of all decisions. Thus, having a different purpose in society, legislature and executive authorities acted solely for their own sphere. Therefore, legislature and executive authorities could represent and work for the people as fair as possible. This is the basic idea of the historical division of powers which, variously modified or pure, as the security of democracy, was adopted by the majority of the most developed states in Western Europe and other states. Thus, the aim of every up-to-date democratic and, in particular, postcommunistic regime state is to establish a framework of powers which would perfectly guarantee the rights and freedoms of ordinary member of society and would not revive undemocratic governance trends, when power is concentrated in the hands of the central government. According to the division of powers doctrine stated in the founding works, the governance of state must be established as three divided powers - legislative, executive and judicial powers. As it was mentioned before, each branch of government has only the powers assigned to it and they can neither delegate nor take over functions from the other branches of government. In no way the one branch of government can be interblended with other. However, separation of powers does not mean that legislative, executive and judicial powers are autonomous - this means that they cooperate in a manner seeking to reach the level of balance that no power has an advantage over the other. This principle has to be continuously carried out in respect of parliamentary control of government. Only this way will properly safeguard the Nation's rights and freedoms. Based on the experience of legal history in Lithuania and other foreign countries there was implemented the principle of division of powers. However, the framework of constitutional division of powers in the Republic of Lithuania has a modified nature. This conclusion can be made on the basis of the Lithuanian Constitutional Court ruling where unreasoned finding was made that the member of Seimas at the same time in accordance with the exception to the principle of division of powers provided in the Constitution of the Republic of Lithuania may be appointed to do duties as a member of the executive branch of government (the Government). In this way, the situation arises where such member of Seimas, taking the parliamentary control and having responsibility to monitor the activities of the executive branch, controls himself. This could result in the abuse of power and dissipation of resources. In this instance, a person being the member of Seimas and also a member of executive branch, shall receive the Constitution set salary for both possitions. Typically, such member of Seimas does not participate in the plenary sittings of Seimas because of the workload in the Government. This problem to be solved is in a competence of Constitutional Court but its power under the doctrine of the division of powers is limited because it would have the opportunity to speak only if called upon by a group of persons referred to in the Constitution. In addition, Constitutional Court has the competence to state only in the limits of the Constitution. As a result, the exceptions stated by Constitutional Court as being established in the Constitution, the principle of division of powers will be implemented in a manner mentioned above. Another possibility to solve this problem is in the prerogative of people or the representatives of people. The Constitution enshrines the opportunity for the members of Seimas to discuss people's concerns and the adoption of the laws limiting the interblending of powers, (whereas the Constitution provides for only the possibility of merger), or to initiate constitutional amendments immediately. If this possibility is not used by the members of Seimas, people can use it by themselves under manner established in the Constitution. The hypothesis (an appointment of the member of Seimas at the same time to do duties as a member of the executive branch contradicts the principle of division of powers estableshed in the Constitution) put forward in this study is denied based on the following considerations: 1. By the consensus of society in the State of Nature it has been decided to delegate own personal rights to the representatives of people. In this way legislature was founded, which meets interests of the people. Enforcement of judgments and accounting of resources have been transmitted for the executive. There was such a framework of governments and balance designed which could ensure the restriction of legislative powers to adopt decisions in excessive waste of the society goods and rapid and qualitative implementation of the rules of executive. Consequently, the merger of governments is not possible. 2. In Lithuania's history of constitutional law, the principle of division of powers in line with the historical principle of the division of powers was implemented in the Constutions of 1922 and 1990. These constitutions have been secured through the implementation of democracy. Constitutions of 1928 and 1938, were drawn in the interest of autocratic regimes. 3. The Constitutional Court decides the constitutionality of acts only according to the limits provided in the Constitution. Since the Constitution of the Republic of Lithuania is a single act, the constitutionality of legislation is addressed not only expletively, but also implicitly. Therefore, the Constitutional Court found an exception from the principle of division of powers, which allows the member of Seimas, being appointed to do duties as a member of the executive branch of goverment, to work two jobs at once. As a consequence, the activity of the member of Seimas in a given position in the Government do not contradict the principle of division of powers stated in the Constitution of the Republic of Lithuania. It is important to notice that the Constitutional Court shall have the right to decide the constitutionality of legislation only upon the request, but not on its own initiative. The exemption established by the Constitutional Court was declared without initial request. However, under the Constitution, this decision is necessarily enforceable. It is important to mention that the nation or its representatives also has the power to initiate amendments to the Constitution. Therefore it can be assumed that such exception could be the primary expression of the will of nation. 4. On the grounds of the competence of legislative branch, the Seimas has a duty to combine the exeption established and the principle of division of powers. Therefore some issues must be solved concerning compulsory participation of the member of Seimas in plenary sittings, workload, quality of the duties performed, salary for the duties performed and parlamentary control. Under these circumstances, the member of Seimas at the same time in the position of a member of the executive branch has the right not to participate in plenary sittings, exceed the competence, get salary for the both positions despite the fact that some duties as being the member of Seimas is not carried out and act without adequate control. This clearly contradicts the priciple of division of powers. In summary this condition is legitimized by the Constitutional Court and the issue raised is whether the principle of division of powers as established in the Constitution of the Republic of Lithuania does not contradict to the historical concept of the principle of separation of powers? The answer can be provided only by the nation or its representatives – the Seimas of the Republic of Lithuania.

Every human being living in the State of Nature had equal opportunities. Because of the growth of human race, this state altered and the interests of each individual person began to intersect, especially when talking about property. As a result, the rights and freedoms of each individual person were taken under threat. Therefore people began to organize themselves into societies in order to solve collective issues of society all together. When they had elected the most competent representatives, able to represent the interests of all Nation the best they could, people living in the State of Nature voluntarily waived their rights for handling particular issues in collective manner. The first aim of the representatives was the welfare of people. Thus the fundamental institute of the highest government was born. However, decisions taken in the name of all the people would have no power if they could not be enforced and would not reflect interests of the Nation. Seeking to implement supervision, the executive power was established which took care of the general welfare and the realization of all decisions. Thus, having a different purpose in society, legislature and executive authorities acted solely for their own sphere. Therefore, legislature and executive authorities could represent and work for the people as fair as possible. This is the basic idea of the historical division of powers which, variously modified or pure, as the security of democracy, was adopted by the majority of the most developed states in Western Europe and other states. Thus, the aim of every up-to-date democratic and, in particular, postcommunistic regime state is to establish a framework of powers which would perfectly guarantee the rights and freedoms of ordinary member of society and would not revive undemocratic governance trends, when power is concentrated in the hands of the central government. According to the division of powers doctrine stated in the founding works, the governance of state must be established as three divided powers - legislative, executive and judicial powers. As it was mentioned before, each branch of government has only the powers assigned to it and they can neither delegate nor take over functions from the other branches of government. In no way the one branch of government can be interblended with other. However, separation of powers does not mean that legislative, executive and judicial powers are autonomous - this means that they cooperate in a manner seeking to reach the level of balance that no power has an advantage over the other. This principle has to be continuously carried out in respect of parliamentary control of government. Only this way will properly safeguard the Nation's rights and freedoms. Based on the experience of legal history in Lithuania and other foreign countries there was implemented the principle of division of powers. However, the framework of constitutional division of powers in the Republic of Lithuania has a modified nature. This conclusion can be made on the basis of the Lithuanian Constitutional Court ruling where unreasoned finding was made that the member of Seimas at the same time in accordance with the exception to the principle of division of powers provided in the Constitution of the Republic of Lithuania may be appointed to do duties as a member of the executive branch of government (the Government). In this way, the situation arises where such member of Seimas, taking the parliamentary control and having responsibility to monitor the activities of the executive branch, controls himself. This could result in the abuse of power and dissipation of resources. In this instance, a person being the member of Seimas and also a member of executive branch, shall receive the Constitution set salary for both possitions. Typically, such member of Seimas does not participate in the plenary sittings of Seimas because of the workload in the Government. This problem to be solved is in a competence of Constitutional Court but its power under the doctrine of the division of powers is limited because it would have the opportunity to speak only if called upon by a group of persons referred to in the Constitution. In addition, Constitutional Court has the competence to state only in the limits of the Constitution. As a result, the exceptions stated by Constitutional Court as being established in the Constitution, the principle of division of powers will be implemented in a manner mentioned above. Another possibility to solve this problem is in the prerogative of people or the representatives of people. The Constitution enshrines the opportunity for the members of Seimas to discuss people's concerns and the adoption of the laws limiting the interblending of powers, (whereas the Constitution provides for only the possibility of merger), or to initiate constitutional amendments immediately. If this possibility is not used by the members of Seimas, people can use it by themselves under manner established in the Constitution. The hypothesis (an appointment of the member of Seimas at the same time to do duties as a member of the executive branch contradicts the principle of division of powers estableshed in the Constitution) put forward in this study is denied based on the following considerations: 1. By the consensus of society in the State of Nature it has been decided to delegate own personal rights to the representatives of people. In this way legislature was founded, which meets interests of the people. Enforcement of judgments and accounting of resources have been transmitted for the executive. There was such a framework of governments and balance designed which could ensure the restriction of legislative powers to adopt decisions in excessive waste of the society goods and rapid and qualitative implementation of the rules of executive. Consequently, the merger of governments is not possible. 2. In Lithuania's history of constitutional law, the principle of division of powers in line with the historical principle of the division of powers was implemented in the Constutions of 1922 and 1990. These constitutions have been secured through the implementation of democracy. Constitutions of 1928 and 1938, were drawn in the interest of autocratic regimes. 3. The Constitutional Court decides the constitutionality of acts only according to the limits provided in the Constitution. Since the Constitution of the Republic of Lithuania is a single act, the constitutionality of legislation is addressed not only expletively, but also implicitly. Therefore, the Constitutional Court found an exception from the principle of division of powers, which allows the member of Seimas, being appointed to do duties as a member of the executive branch of goverment, to work two jobs at once. As a consequence, the activity of the member of Seimas in a given position in the Government do not contradict the principle of division of powers stated in the Constitution of the Republic of Lithuania. It is important to notice that the Constitutional Court shall have the right to decide the constitutionality of legislation only upon the request, but not on its own initiative. The exemption established by the Constitutional Court was declared without initial request. However, under the Constitution, this decision is necessarily enforceable. It is important to mention that the nation or its representatives also has the power to initiate amendments to the Constitution. Therefore it can be assumed that such exception could be the primary expression of the will of nation. 4. On the grounds of the competence of legislative branch, the Seimas has a duty to combine the exeption established and the principle of division of powers. Therefore some issues must be solved concerning compulsory participation of the member of Seimas in plenary sittings, workload, quality of the duties performed, salary for the duties performed and parlamentary control. Under these circumstances, the member of Seimas at the same time in the position of a member of the executive branch has the right not to participate in plenary sittings, exceed the competence, get salary for the both positions despite the fact that some duties as being the member of Seimas is not carried out and act without adequate control. This clearly contradicts the priciple of division of powers. In summary this condition is legitimized by the Constitutional Court and the issue raised is whether the principle of division of powers as established in the Constitution of the Republic of Lithuania does not contradict to the historical concept of the principle of separation of powers? The answer can be provided only by the nation or its representatives – the Seimas of the Republic of Lithuania.

Every human being living in the State of Nature had equal opportunities. Because of the growth of human race, this state altered and the interests of each individual person began to intersect, especially when talking about property. As a result, the rights and freedoms of each individual person were taken under threat. Therefore people began to organize themselves into societies in order to solve collective issues of society all together. When they had elected the most competent representatives, able to represent the interests of all Nation the best they could, people living in the State of Nature voluntarily waived their rights for handling particular issues in collective manner. The first aim of the representatives was the welfare of people. Thus the fundamental institute of the highest government was born. However, decisions taken in the name of all the people would have no power if they could not be enforced and would not reflect interests of the Nation. Seeking to implement supervision, the executive power was established which took care of the general welfare and the realization of all decisions. Thus, having a different purpose in society, legislature and executive authorities acted solely for their own sphere. Therefore, legislature and executive authorities could represent and work for the people as fair as possible. This is the basic idea of the historical division of powers which, variously modified or pure, as the security of democracy, was adopted by the majority of the most developed states in Western Europe and other states. Thus, the aim of every up-to-date democratic and, in particular, postcommunistic regime state is to establish a framework of powers which would perfectly guarantee the rights and freedoms of ordinary member of society and would not revive undemocratic governance trends, when power is concentrated in the hands of the central government. According to the division of powers doctrine stated in the founding works, the governance of state must be established as three divided powers - legislative, executive and judicial powers. As it was mentioned before, each branch of government has only the powers assigned to it and they can neither delegate nor take over functions from the other branches of government. In no way the one branch of government can be interblended with other. However, separation of powers does not mean that legislative, executive and judicial powers are autonomous - this means that they cooperate in a manner seeking to reach the level of balance that no power has an advantage over the other. This principle has to be continuously carried out in respect of parliamentary control of government. Only this way will properly safeguard the Nation's rights and freedoms. Based on the experience of legal history in Lithuania and other foreign countries there was implemented the principle of division of powers. However, the framework of constitutional division of powers in the Republic of Lithuania has a modified nature. This conclusion can be made on the basis of the Lithuanian Constitutional Court ruling where unreasoned finding was made that the member of Seimas at the same time in accordance with the exception to the principle of division of powers provided in the Constitution of the Republic of Lithuania may be appointed to do duties as a member of the executive branch of government (the Government). In this way, the situation arises where such member of Seimas, taking the parliamentary control and having responsibility to monitor the activities of the executive branch, controls himself. This could result in the abuse of power and dissipation of resources. In this instance, a person being the member of Seimas and also a member of executive branch, shall receive the Constitution set salary for both possitions. Typically, such member of Seimas does not participate in the plenary sittings of Seimas because of the workload in the Government. This problem to be solved is in a competence of Constitutional Court but its power under the doctrine of the division of powers is limited because it would have the opportunity to speak only if called upon by a group of persons referred to in the Constitution. In addition, Constitutional Court has the competence to state only in the limits of the Constitution. As a result, the exceptions stated by Constitutional Court as being established in the Constitution, the principle of division of powers will be implemented in a manner mentioned above. Another possibility to solve this problem is in the prerogative of people or the representatives of people. The Constitution enshrines the opportunity for the members of Seimas to discuss people's concerns and the adoption of the laws limiting the interblending of powers, (whereas the Constitution provides for only the possibility of merger), or to initiate constitutional amendments immediately. If this possibility is not used by the members of Seimas, people can use it by themselves under manner established in the Constitution. The hypothesis (an appointment of the member of Seimas at the same time to do duties as a member of the executive branch contradicts the principle of division of powers estableshed in the Constitution) put forward in this study is denied based on the following considerations: 1. By the consensus of society in the State of Nature it has been decided to delegate own personal rights to the representatives of people. In this way legislature was founded, which meets interests of the people. Enforcement of judgments and accounting of resources have been transmitted for the executive. There was such a framework of governments and balance designed which could ensure the restriction of legislative powers to adopt decisions in excessive waste of the society goods and rapid and qualitative implementation of the rules of executive. Consequently, the merger of governments is not possible. 2. In Lithuania's history of constitutional law, the principle of division of powers in line with the historical principle of the division of powers was implemented in the Constutions of 1922 and 1990. These constitutions have been secured through the implementation of democracy. Constitutions of 1928 and 1938, were drawn in the interest of autocratic regimes. 3. The Constitutional Court decides the constitutionality of acts only according to the limits provided in the Constitution. Since the Constitution of the Republic of Lithuania is a single act, the constitutionality of legislation is addressed not only expletively, but also implicitly. Therefore, the Constitutional Court found an exception from the principle of division of powers, which allows the member of Seimas, being appointed to do duties as a member of the executive branch of goverment, to work two jobs at once. As a consequence, the activity of the member of Seimas in a given position in the Government do not contradict the principle of division of powers stated in the Constitution of the Republic of Lithuania. It is important to notice that the Constitutional Court shall have the right to decide the constitutionality of legislation only upon the request, but not on its own initiative. The exemption established by the Constitutional Court was declared without initial request. However, under the Constitution, this decision is necessarily enforceable. It is important to mention that the nation or its representatives also has the power to initiate amendments to the Constitution. Therefore it can be assumed that such exception could be the primary expression of the will of nation. 4. On the grounds of the competence of legislative branch, the Seimas has a duty to combine the exeption established and the principle of division of powers. Therefore some issues must be solved concerning compulsory participation of the member of Seimas in plenary sittings, workload, quality of the duties performed, salary for the duties performed and parlamentary control. Under these circumstances, the member of Seimas at the same time in the position of a member of the executive branch has the right not to participate in plenary sittings, exceed the competence, get salary for the both positions despite the fact that some duties as being the member of Seimas is not carried out and act without adequate control. This clearly contradicts the priciple of division of powers. In summary this condition is legitimized by the Constitutional Court and the issue raised is whether the principle of division of powers as established in the Constitution of the Republic of Lithuania does not contradict to the historical concept of the principle of separation of powers? The answer can be provided only by the nation or its representatives – the Seimas of the Republic of Lithuania.

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

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

The problem under study. The problem of efficiency of alternative to imprisonment (non-custodial) sanctions is investigated in the present study. The fundamental advantage of this kind of punishment is the possibility to control offenders' behavior in the community. This idea is based on the personal ability to change, which depends on an offender's will and efforts to change himself and to start solving the problems, which have caused the offending behavior (motivation to change). Therefore, imposed alternative sanctions should affect the changes in offenders' behavior. The individual conditions (obligation and/or restrictions) of the sanction, imposed by a court, should direct an offender's efforts to change. The problem of efficiency of alternative sanctions is discovered, while studying, how the conditions of imposition and execution of these sanctions could affect the criminogenic factors and, therefore, could reduce recidives of crime. Analyzing these aspects we can observe the problem of individualization of punishment, or finding the appropriate sanction, and the problem of coherent application of the sanction. A court, imposing non-custodial sanction, should not only state a term of its application, but also should decide, if the imposed obligations (their amount and character) are sufficient to supervise the offender in the community. The imposition of non-custodial sanctions to a great extend determs the process of execution of it. Particularly, if the conditions of imposed sanction do not determine the offender to change and to solve the problems, related with offending behavior, then the control of their execution cannot affect the recidive of offending. The practical efficiency of these sanctions is determed by selection of the appropriate sanction; by sufficiency and practical useness of requirements, applied to offender in the process of execution; and by evaluation of the execution. The relevance of the study. The Commettee of Ministers of The Council of Europe, solving the problem of overcrowdedness of prisons, recommended to the member-states to deliver the plan to solve this problem, which would be based on the priorities of punishment, the public opinion, and the analysis of present practice of punishment. The program of the Government of the Republic of Lithuania of years 2000 – 2004 contains the intention to modify partially the system of punishment; to state the adequate punishment to the violations of law, to reduce the repressive effect of sanctions, to seek the social integration of the persons, having served the sentence. In this program there was presumed "the principle of economy of punishment" – the least sanction, which would be enough to affect the offender and stimulate him to change; confirmed the intention to apply community service, material sanctions and other non-custodial sanctions rather than penal measures. The legislative directions, contained in these documents, allowed to extend the application of alternative sanctions in the Penal Code, which came into effect on 1 May 2003. These measures were supposed to reduce the number of imprisoned and to become an efficient alternative to custodial sanctions. One of the conditions of efficiency of alternative sanctions is a systematic analysis and evaluation, if its application helps to reach the planned results. After more than five years since new Penal Code came into effect, we have some expirience of application of alternative sanctions, which would need a revision. Observing the functioning of the system of these sanction we can note, that the sanctions are being imposed and executed chaotically. This primary overview determs the relevance of theoretical and practical study of alternative sanctions. The law acts of the Republic of Lithuania forms the need to create an efficient model of probation. The program of the Government of the Respublic of Lithuania of the years 2004 – 2008 foresees to develop the model of probation (suspended sentence, early discharge from punishment), which would be conform to international legal acts and would stimulate offenders not to offend in the future. The activity program of the Government of the year 2009 foresees to extend the efficient probation (including suspended sentence) system, which is oriented towards management of the risk of repeated offending behavior, which would create the conditions for social security, for reducing the recidives of crime, and particularly for reducing the number of imprisoned people. The mentioned program contains the intention to direct the work of correctional inspections toward social aid to convicts, not only toward the control of their behavior. Development of the model for probation is also approved in the Conception of probation system in Lithuania. In order to achieve these aims, it is necessary to explore the problems of the existing system of alternative sanctions and to state practice-based criteria, which the efficiency of the sanctions depends on. The object of the study. In this dissertation study there is investigated theorical and practical aspects of conditions of imposition and execution of community service, limitation of freedom and suspended sentence, in the terms of rational usage of resources and reducing of recidives. The aim of the study. The aim of this dissertation study is to state the shortcomings of application of alternative sanctions and to formulate the criteria of efficiency, on the base of theoretical knowledge and collected practical data. The tasks of the study: 1) To present theorical analysis of the system of alternative sanctions (probation); 2) To analize the criteria, which efficiency of the system of alternative sanctions depends on; 3) To analize, if the existing reglamentation of sanction imposition allows to a court to select the appropriate alternative sanction; 4) To investigate the concept of offender's personality and his dangerness, formed in the Lithuanian penal law; 5) To state, if the structure of evaluation of personality and dangerness ensures elimination of the criminogenic factors; 6) To state the main practical problems of imposition of alternative sanctions; 7) To investigate the process of execution of alternative sanctions, to explore its main shortcomings and to state the criteria of its efficiency. The scientific recency of the study. The legal and social criteria of efficiency of non-custodial sanction have not been yet researched in Lithuania. This dissertation study presents the complex research of the presumptions of efficiency of these sanctions.The study contains analysis of the national system of alternative sanctions, in the context of reglamentation of this system by international legal acts and reglamentation of national systems in such countries, as the United Kingdom, Sweden and others. The area of present research also comprises the examination of scientific substantiation of the national system in the context of concepts of efficiency, approved in these countries. The author of the study argues the significant role of scientific approach, based on practical research, in the formation of the efficient system of alternative sanctions. The study contains the description of the scientific and practical researches, which allowed to comprehend the link between the structured evaluation of offender's personality and the selection of a proper sanction. In the study there are also argued the significant role of proper evaluation of the social factors in realization of alternative sanctions. The analysis comprises not only theoretical conception of efficiency, but also the evaluation of expirience of application of the sanctions in Lithuania. This study presents the new approach to the problems of the discretion of sanction imposition and the evaluation of offender's personality. The significance of the work. One of the significant aspect of the present research is the analysis of some years of the practice in application of alternative sanction in Lithuania. On the basis of complex research we have tried to state the criteria of efficiency of alternative sanctions. These criteria could be used improving the legal acts on the imposition and execution of alternative sanctions. The hypothesis of the study. The existing mechanism of imposition and execution of alternative sanctions is not efficient, since its affection to recidive of crime is not based on the measures, oriented towards elimination or correction of criminogenic factors. The maintained statements of the dissertation study: 1. The possibility to control (supervise) a convict in the community depends on his motivation, which is expressed by his consent (agreement) to fulfil the requirements of imposed obligation. 2. The rules of imposition of alternative sanctions should be oriented to the certain groups of offenders (for example, substances addicted persons). 3. Since a court has extensive discretion in selection of the type of alternative sanction, the main reason for the selection is evaluation of information about an offender. 4. Subjectivity in evaluation of personality of offender and his dangerness determs eclecticism in the practice of imposition of alternative sanctions. 5. Imposition and execution of alternative sanctions should be oriented to change offender's social behavior and to eliminate criminogenic factors (substance addictment, alcohol drinking, etc.), which have been resulted in offence. 6. If substance addictment was a significant factor in making an offence, imposed to the offender alternative sanction should also contain the obligation to undergo treatment course. 7. The present reglamentation of application of alternative sanctions doesn't contribute to offenders' social progress and to their rehabilitation. 8. The present reglamentation determs only nominal approach to execution of obligation by convicts and to assessment of that execution. 9. The obligation to undergo the treatment course should

The problem under study. The problem of efficiency of alternative to imprisonment (non-custodial) sanctions is investigated in the present study. The fundamental advantage of this kind of punishment is the possibility to control offenders' behavior in the community. This idea is based on the personal ability to change, which depends on an offender's will and efforts to change himself and to start solving the problems, which have caused the offending behavior (motivation to change). Therefore, imposed alternative sanctions should affect the changes in offenders' behavior. The individual conditions (obligation and/or restrictions) of the sanction, imposed by a court, should direct an offender's efforts to change. The problem of efficiency of alternative sanctions is discovered, while studying, how the conditions of imposition and execution of these sanctions could affect the criminogenic factors and, therefore, could reduce recidives of crime. Analyzing these aspects we can observe the problem of individualization of punishment, or finding the appropriate sanction, and the problem of coherent application of the sanction. A court, imposing non-custodial sanction, should not only state a term of its application, but also should decide, if the imposed obligations (their amount and character) are sufficient to supervise the offender in the community. The imposition of non-custodial sanctions to a great extend determs the process of execution of it. Particularly, if the conditions of imposed sanction do not determine the offender to change and to solve the problems, related with offending behavior, then the control of their execution cannot affect the recidive of offending. The practical efficiency of these sanctions is determed by selection of the appropriate sanction; by sufficiency and practical useness of requirements, applied to offender in the process of execution; and by evaluation of the execution. The relevance of the study. The Commettee of Ministers of The Council of Europe, solving the problem of overcrowdedness of prisons, recommended to the member-states to deliver the plan to solve this problem, which would be based on the priorities of punishment, the public opinion, and the analysis of present practice of punishment. The program of the Government of the Republic of Lithuania of years 2000 – 2004 contains the intention to modify partially the system of punishment; to state the adequate punishment to the violations of law, to reduce the repressive effect of sanctions, to seek the social integration of the persons, having served the sentence. In this program there was presumed "the principle of economy of punishment" – the least sanction, which would be enough to affect the offender and stimulate him to change; confirmed the intention to apply community service, material sanctions and other non-custodial sanctions rather than penal measures. The legislative directions, contained in these documents, allowed to extend the application of alternative sanctions in the Penal Code, which came into effect on 1 May 2003. These measures were supposed to reduce the number of imprisoned and to become an efficient alternative to custodial sanctions. One of the conditions of efficiency of alternative sanctions is a systematic analysis and evaluation, if its application helps to reach the planned results. After more than five years since new Penal Code came into effect, we have some expirience of application of alternative sanctions, which would need a revision. Observing the functioning of the system of these sanction we can note, that the sanctions are being imposed and executed chaotically. This primary overview determs the relevance of theoretical and practical study of alternative sanctions. The law acts of the Republic of Lithuania forms the need to create an efficient model of probation. The program of the Government of the Respublic of Lithuania of the years 2004 – 2008 foresees to develop the model of probation (suspended sentence, early discharge from punishment), which would be conform to international legal acts and would stimulate offenders not to offend in the future. The activity program of the Government of the year 2009 foresees to extend the efficient probation (including suspended sentence) system, which is oriented towards management of the risk of repeated offending behavior, which would create the conditions for social security, for reducing the recidives of crime, and particularly for reducing the number of imprisoned people. The mentioned program contains the intention to direct the work of correctional inspections toward social aid to convicts, not only toward the control of their behavior. Development of the model for probation is also approved in the Conception of probation system in Lithuania. In order to achieve these aims, it is necessary to explore the problems of the existing system of alternative sanctions and to state practice-based criteria, which the efficiency of the sanctions depends on. The object of the study. In this dissertation study there is investigated theorical and practical aspects of conditions of imposition and execution of community service, limitation of freedom and suspended sentence, in the terms of rational usage of resources and reducing of recidives. The aim of the study. The aim of this dissertation study is to state the shortcomings of application of alternative sanctions and to formulate the criteria of efficiency, on the base of theoretical knowledge and collected practical data. The tasks of the study: 1) To present theorical analysis of the system of alternative sanctions (probation); 2) To analize the criteria, which efficiency of the system of alternative sanctions depends on; 3) To analize, if the existing reglamentation of sanction imposition allows to a court to select the appropriate alternative sanction; 4) To investigate the concept of offender's personality and his dangerness, formed in the Lithuanian penal law; 5) To state, if the structure of evaluation of personality and dangerness ensures elimination of the criminogenic factors; 6) To state the main practical problems of imposition of alternative sanctions; 7) To investigate the process of execution of alternative sanctions, to explore its main shortcomings and to state the criteria of its efficiency. The scientific recency of the study. The legal and social criteria of efficiency of non-custodial sanction have not been yet researched in Lithuania. This dissertation study presents the complex research of the presumptions of efficiency of these sanctions.The study contains analysis of the national system of alternative sanctions, in the context of reglamentation of this system by international legal acts and reglamentation of national systems in such countries, as the United Kingdom, Sweden and others. The area of present research also comprises the examination of scientific substantiation of the national system in the context of concepts of efficiency, approved in these countries. The author of the study argues the significant role of scientific approach, based on practical research, in the formation of the efficient system of alternative sanctions. The study contains the description of the scientific and practical researches, which allowed to comprehend the link between the structured evaluation of offender's personality and the selection of a proper sanction. In the study there are also argued the significant role of proper evaluation of the social factors in realization of alternative sanctions. The analysis comprises not only theoretical conception of efficiency, but also the evaluation of expirience of application of the sanctions in Lithuania. This study presents the new approach to the problems of the discretion of sanction imposition and the evaluation of offender's personality. The significance of the work. One of the significant aspect of the present research is the analysis of some years of the practice in application of alternative sanction in Lithuania. On the basis of complex research we have tried to state the criteria of efficiency of alternative sanctions. These criteria could be used improving the legal acts on the imposition and execution of alternative sanctions. The hypothesis of the study. The existing mechanism of imposition and execution of alternative sanctions is not efficient, since its affection to recidive of crime is not based on the measures, oriented towards elimination or correction of criminogenic factors. The maintained statements of the dissertation study: 1. The possibility to control (supervise) a convict in the community depends on his motivation, which is expressed by his consent (agreement) to fulfil the requirements of imposed obligation. 2. The rules of imposition of alternative sanctions should be oriented to the certain groups of offenders (for example, substances addicted persons). 3. Since a court has extensive discretion in selection of the type of alternative sanction, the main reason for the selection is evaluation of information about an offender. 4. Subjectivity in evaluation of personality of offender and his dangerness determs eclecticism in the practice of imposition of alternative sanctions. 5. Imposition and execution of alternative sanctions should be oriented to change offender's social behavior and to eliminate criminogenic factors (substance addictment, alcohol drinking, etc.), which have been resulted in offence. 6. If substance addictment was a significant factor in making an offence, imposed to the offender alternative sanction should also contain the obligation to undergo treatment course. 7. The present reglamentation of application of alternative sanctions doesn't contribute to offenders' social progress and to their rehabilitation. 8. The present reglamentation determs only nominal approach to execution of obligation by convicts and to assessment of that execution. 9. The obligation to undergo the treatment course should