ABSTRACT

1 INTRODUCTION

The right of access to justice can be defined as the ability of persons in criminal proceedings, victims, and the accused (suspects, defendants), to exercise their rights effectively and to be protected from unfair conviction without undue obstacles. Under the Code of Criminal Procedure of the Republic of Lithuania, this is secured by several mechanisms: the right to a lawyer, including at the expense of the state; the right to be heard in court and during the investigation; the right to appeal decisions of the court and the investigator; the right to examine all case materials; the right to compensation for damage (for the victim through a civil claim, and for the accused for unfounded prosecution); and the right to take part in the proceedings in one’s native language at the expense of the state. For the victim, the right to apply for the initiation of a case is also important; for the accused, the presumption of innocence is an essential guarantee.

A conceptual clarification is required at the outset. In the scholarly literature, the elements of the right to a fair trial are commonly grouped into an institutional (organisational) category, access to a court, an independent and impartial tribunal established by law, and a functional (procedural) category, effective defence, equality of arms, adversarial proceedings and a public hearing within a reasonable time. “Access to a court” in the strict sense is an implied but fundamental institutional element of Article 6 of the ECHR.¹ The present article, however, uses “access to justice” in a broader, functional sense: the effective ability of the parties to defend their position within proceedings. Its four proposals map onto the functional elements of the fair-trial guarantee: the automated appointment of counsel and the public defender concern effective defence; the jury concerns the composition of a tribunal established by law and public participation in justice; and the interpreter reforms concern equality of arms and effective participation. The title is to be read in this functional sense, and not as confined to access to a court stricto sensu.

In the World Justice Project’s rule-of-law ranking, Lithuania ranks 18th out of 142, a relatively high position, ahead of France, the USA and Italy.² Even so, there is scope for improvement. The rule of law in the criminal justice sphere is especially important. Given the severity of criminal law, an unlawful decision can seriously violate the accused’s rights. At the same time, a failure to prosecute a real offence leaves the offender unpunished and the victim uncompensated. These factors establish the problem’s relevance for Lithuania and, as section 4 explains, for other jurisdictions facing the same structural tensions.

The Lithuanian Code of Criminal Procedure is a dynamic instrument. In 2021, it was amended to expand remote proceedings.³ Reform proposals have recurred; as early as 2013, Mykolas Romeris University professor Petras Ancelis proposed measures, chiefly to widen the investigator’s autonomy from the prosecutor, which also touched on victims’ access to justice,⁴ some of which were later enacted, including the victim’s right to examine all case materials⁵ even where the initiation of a case is refused.⁶

The proposals of the governmental working group established on 27 July 2023 (order No B-134), published on 18 April 2024, were extensive but attracted criticism.⁷ They included lengthening the time limits for complaints, transferring much of the process to remote conduct, prohibiting the copying of case materials by defendants, and abolishing the possibility of appealing a refusal to initiate a case. According to Remigijus Merkevičius, such measures would make justice less accessible. They would expand the rights of state bodies, not of the prosecution (to which the victim belongs), making justice “more comfortable” for them. This article proceeds from the opposite premise, identifying four measures that would widen, rather than narrow, access to criminal justice.

2 METHODOLOGY

The aim is to identify and formulate specific measures to improve access to justice in criminal proceedings in Lithuania. Four research questions follow: (i) which shortcomings in the current regulation limit the effective exercise of the functional fair-trial guarantees; (ii) which institutional reforms could address them; (iii) what benefits, costs and counter-arguments attach to each; and (iv) to what extent are the proposals transferable beyond Lithuania.

The study employs the formal-legal (doctrinal) method to analyse the applicable rules; the historical method to situate the proposed institutions within the Lithuanian and continental traditions; and the comparative-legal and functional methods to assess how analogous institutions operate elsewhere and whether they achieve their purpose. The comparator jurisdictions were not chosen at random. Germany and Denmark were selected as EU civil-law systems whose criminal procedure is structurally comparable to Lithuania’s and which, like Lithuania, are bound by Article 6 of the ECHR; England and Wales and the United States serve as common-law reference points for the institutions of lay assistance and the jury; Malta and Ireland were chosen specifically to test the “small-state” objection to jury trials, being EU Member States smaller than or comparable to Lithuania in population yet operating juries for serious offences; Argentina illustrates a recent civil-law jury reform; and the Russian Federation is used, with due caution as a low-rule-of-law outlier, solely to isolate the acquittal function of the jury. Comparability rests on the shared fair-trial standard (Article 6 of the ECHR or functionally equivalent guarantees) and, for the civil-law comparators, a common continental procedural structure; the selection criterion for each institution is functional equivalence and the plausibility of transfer to Lithuania’s adversarial-continental model.

The analysis relies on primary materials: the Lithuanian Code of Criminal Procedure, the German Strafprozeßordnung, Article 6 of the ECHR; ECtHR case law (Golder v United Kingdom; Daud v Portugal; Jelcovas v Lithuania); and scholarship, statistical reports, and official sources. To meet the requirement of scholarly balance, the analysis expressly engages the principal opposing positions, in particular the thesis that lay participation is alien to the Lithuanian legal tradition (section 3.3).

3 RESULTS AND DISCUSSION

3.1. An automated system for appointing state-funded defence counsel

Currently, when an accused is entitled to a state-funded lawyer but does not choose one, the state appoints one. In practice, investigators and court secretaries telephone lawyers they know and invite them to join. A comparable practice exists elsewhere.⁸

The drawback is that investigators and courts may choose lawyers convenient to work with or who will not take a firm line or file inconvenient motions,⁹ and who may even persuade the accused to admit guilt, sometimes wrongly. This is especially dangerous at the earliest stages when the accused is under stress. Such a situation can engage the accused’s right to qualified legal assistance, since the ineffective conduct of even a lawfully appointed lawyer may violate Article 6 of the ECHR.¹⁰

The solution is a state-automated system for appointing counsel. Where the accused is entitled to a state-funded lawyer, the investigator or court submits a request within the system; a randomly available lawyer accepts it and enters the case. Neither the investigator nor the court knows in advance which lawyer will join, so counsel is independent of the prosecution. To prevent the investigator from misleading the accused by calling a familiar lawyer and passing them off as system-assigned, the law should require that the accepted request be attached to the case file, on pain of the judgement being overturned. This measure, a randomised, technology-based allocation, is, to the authors’ knowledge, not implemented in most European systems, and constitutes one of the article’s more concrete contributions.

3.2. Reintroducing the institution of the public defender

The term “public defender” is used here differently from Anglo-Saxon usage, where it denotes a state-appointed lawyer for those who cannot afford one.¹¹ Here, it denotes a person without advocate status who performs defence functions alongside a professional attorney, a lawyer without advocate status, a human rights activist, or a relative or friend of the accused. This distinction is decisive for the objection, considered below, that the proposal reintroduces the very arbitrariness the automated system is meant to prevent.

The institution of the public defender (visuomeninis gynėjas) existed under the Soviet-era Code of Criminal Procedure, alongside its mirror image, the public accuser (visuomeninis kaltintojas),¹² but was not retained in the 2003 Code. The most plausible explanation is systemic rather than incidental: the 2003 reform reoriented Lithuanian criminal procedure towards an adversarial, advocate-centred model built on the constitutional guarantee of the right to counsel (Article 31(6) of the Constitution), and in doing so it discarded the Soviet apparatus of organised “public” participation on both sides. Recovering the defence half of that apparatus therefore requires a positive justification, to which we now turn.

The perception of the public defender as a Soviet vestige is understandable but incomplete, because functionally equivalent institutions operate in developed adversarial and continental systems today. In England and Wales, a litigant in person may be assisted by a McKenzie friend, a non-lawyer who provides support, takes notes, and gives quiet advice, a right recognised in McKenzie v McKenzie and extended, in exceptional circumstances, to a limited right of audience in criminal proceedings.¹³ In Germany, a civil-law system structurally close to Lithuania’s, Section 149 of the Code of Criminal Procedure expressly provides for the admission of an assistant (Beistand) to the accused.¹⁴ The proposal is thus better presented as the modernisation of a widely recognised institution rather than the revival of a Soviet one.

The public defender would have the same rights as a professional attorney to attend hearings and investigative actions, file motions, meet the accused in custody, and examine the file, with one difference: whereas an advocate enters without permission, the admission of a public defender would be decided by the investigator or court by a reasoned decision assessing identity, the absence of a conflict of interest, and the person’s suitability. Crucially, this admission decision is not the selection of counsel and does not reintroduce the arbitrariness targeted by section 3.1: the automated system assigns the professional advocate, and the public defender is an additional participant chosen by the defence, whom the authority may admit but not impose or hand-pick. A public defender cannot replace an attorney and must act only with one. These safeguards preserve the right to qualified legal assistance while widening the defence.

It may be objected, as the Soviet symmetry of gynėjas and kaltintojas suggests, that strengthening the defence alone upsets equality of arms, since an inert investigator or prosecutor may equally fail the victim, and the law should not equip the suspect more generously than the victim. We accept the force of this point in part. Two responses are offered. First, a degree of asymmetry in favour of the defence is justified by the coercive power of the State and the presumption of innocence, which are not mirrored on the prosecution side. Second, and to meet the objection directly, the reform could be made symmetrical by admitting a lay representative alongside the prosecutor or in support of the victim, a modern, rights-based counterpart to the former visuomeninis kaltintojas, so that the balance that the Soviet model achieved is preserved without its ideological content. The benefit of the defence-side institution is nonetheless real: a trusted person, sometimes more committed than appointed counsel, can strengthen the defence and, as a public defender, meet the accused in custody without separate authorisation.

3.3. Introducing trial by jury

This is the most far-reaching proposal. Analogues of the jury existed in antiquity, faded in medieval continental Europe, and were revived in England, whence they spread to the United States.¹⁵ In the 19th century, juries emerged in continental Europe, including the Russian Empire, which then included Lithuania, and were discussed in interwar Lithuania in the 1930s,¹⁶ but were not introduced; lay assessors existed until 1995.¹⁷ On 25 June 1998, the Seimas resolved to analyse the feasibility of a jury; nothing came of it. This article proposes juries of at least six persons for especially serious (and preferably serious) offences, convened only at the defendant’s request, with an unappealable acquittal, as in the USA.¹⁸

Professional judges, as civil servants, may lean towards state interests and treat the prosecution as colleagues, whereas jurors are independent and decide on common sense and life experience rather than law. Empirically, jurors acquit more readily than judges.¹⁹ Russia is instructive: professional judges acquit in approximately 0.15 per cent of cases, but juries acquit in roughly 25 per cent.²⁰ If the jury is sufficiently impartial in Russia, it should be more effective in an EU democracy.

The most serious scholarly objection in the Lithuanian context is Dementavičienė’s: based on a six-year study, she concludes that the participation of lay representatives is, historically, a “foreign body” (svetimkūnis) in the Lithuanian legal tradition, the Soviet period being the sole, imposed exception, so that Lithuanian justice has always been tied to professionalism rather than to “the voice of the people”, and that foreign lay participation models are costly, slow and prone to decisions driven by preconception rather than legal argument. This objection must be met, not passed over. We offer three answers. First, the “alien tradition” thesis is historically contestable: juries did operate on Lithuanian territory under the 19th-century Russian Empire. They were seriously discussed in the interwar Republic, so the tradition is not uniformly professional. Second, even if lay participation is not indigenous, novelty calls for careful design and public debate, not exclusion; many now-entrenched institutions were once transplants. Third, and most importantly, the objection does not touch the core functional argument: the jury’s markedly higher acquittal rate operates as a structural safeguard against wrongful conviction that a professional bench, however competent, does not provide. The cost and delay concerns are real but, for the narrow category of especially serious offences and only at the defendant’s request, are outweighed by that safeguard.

A country’s small size is no bar: Malta²¹ and Ireland,²² both EU states smaller than or comparable to Lithuania, operate juries for serious offences with a high level of rule of law. Legal awareness is a subjective criterion that juries tend to raise, and jurors need common sense and a sense of justice rather than legal expertise. Regarding cost, the social benefit of a fair trial for the gravest offences outweighs the cost; the high salaries of Lithuanian judges show how highly the State values justice.²³

3.4. Strengthening the interpreter’s role in criminal proceedings

Article 8 of the Lithuanian Code establishes the right to an interpreter for a person who does not speak Lithuanian; non-professional participants may address the court and file petitions in a language they speak and may examine the materials presented to them in that language, with the remaining materials translated only with the court’s permission. In this respect, Lithuanian law is arguably more generous than, for example, German law, under which only the indictment, the detention decision, the judgement, and interim decisions are subject to mandatory written translation, with partial or oral translation otherwise permitted if it secures the accused’s procedural rights.²⁴

Nonetheless, the right should be expanded. First, communication with the investigator and the prosecutor, not only with the lawyer, should take place only through an interpreter, so that only interpreted oral instructions have legal force; many investigative actions (searches, identification parades, investigative experiments) turn on oral exchange, and misstatements can harm the participant’s interests. Second, all documents presented to the accused should be translated into the participant’s language and signed, not merely translated orally, so that a distorted “explanation” cannot later go unchallenged; absent a translated copy in the file, the evidence should be inadmissible. Third, consider translating not merely part but all materials available under Article 218(3), given the paradox that a participant cannot justify the need to translate a document whose content they do not understand.

A compromise, and a distinctly modern one, is to give participants, including those in custody, the means to translate documents themselves using information technology, which requires amending Article 218(3) to oblige the prosecutor to issue the file in electronic form. This measure is especially important given the growing number of Lithuanian residents who do not speak Lithuanian, many of them displaced by war or repression; strengthening native language guarantees would optimise their access to criminal justice whether they are victims or defendants.

4 CONCLUSIONS AND RECOMMENDATIONS

First, the Lithuanian Code already provides numerous guarantees of access to criminal justice, reinforced by Article 6 of the ECHR. Second, notwithstanding Lithuania’s high rule-of-law ranking, the functional dimension of the fair-trial guarantee can be strengthened through four measures: an automated system for appointing state-funded counsel; the reintroduction, in modernised form, of the public defender; the introduction of trial by jury; and the strengthening of interpreters’ role and native language rights.

Third, the obstacles to these reforms are either neutralised by accompanying safeguards or outweighed by the interests of justice, and the principal scholarly objections, the equality of arms concern, and the “alien tradition” thesis have been addressed on their merits rather than avoided.

The article’s contribution lies not in restating the familiar danger of prosecution-influenced defence, which is well known in comparative practice, but in assembling a coherent and transferable package: a randomised, technology-based assignment of counsel; the digital delivery and self-service translation of the full case file for non-speakers; and a modernised, analogue-grounded reframing of lay assistance and jury participation, each tested against its strongest counter-argument. It is recommended that the corresponding amendments to the Code be put before the legislator. As neither the automated appointment system nor the public defender has been implemented in most European countries, and as jury trials have elsewhere been replaced by lay-assessor courts (Germany, Sweden, Norway) or by exclusively professional adjudication (the Netherlands, Estonia, Iceland), these proposals are of largely universal application.

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