Organising the protection of the public interest

The public interest – the interest of the state, the public or part of the public – is defended in courts by the Prosecution Service of the Republic of Lithuania and, in some cases provided for by law, by another 21 public institutions. In all other cases, if public  institutions find possible violations of the public interest, they have to inform the Prosecution Service accordingly. Having regard to the importance of defending the public interest, the National Audit Office conducted an audit to assess how the defence of the public interest is organised in Lithuania.

“The audit found differences in the assessment by institutions of whether or not the public interest was violated in a specific case, it is not always clear to the institutions when it is for them to defend the public interest rather than go to the Prosecution Service,” said Auditor General Švedienė. “Moreover, the Prosecution Service does not have data on whether the measures applied by prosecutors to defend the public interest did reach the target, i.e. whether the public interest was really defended. Therefore, we have to conclude that the process of defending the public interest needs to be improved.”

None of the laws provides a clear definition of what the public interest is, so public institutions which are supposed to identify violations of the public interest within their area of activity have a responsibility to decide whether the public interest was violated in a particular case or not. A survey conducted by the National Audit Office demonstrated that as many as one third of 135 institutions had difficulties in deciding whether the law infringements identified thereby could be treated as violations of the public interest. In this situation, a number of public interest violations may remain unidentified or identified inappropriately.

Inappropriate identification of public interest violations results in extra work for the Prosecution Service. Every year prosecutors refuse to go to the court concerning approximately 50 per cent of the received applications in relation to possible violation of the public interest. The prosecutor spends about a week to prepare a decision to refuse to apply public interest defence measures. If legislation clearly defined what exactly constitutes the public interest, public institutions would save both their time and public resources and would work more efficiently.

The auditors found that public institutions which have the power to go directly to court in order to defend the public interest but, however, prefer to apply to the Prosecution Service instead of the court are inefficiently using human resources for protecting the public interest. As a result, this increases the duration of the public interest defence process. There are situations where institutions do not know which of them should go to court to defend the public interest and so get involved in a dispute.

The auditors also pointed out that the Prosecution Service does not evaluate whether or not prosecutors’ actions helped to defend the public interest, i.e. whether law infringements have been eliminated. For example, if the court finds that the public interest has been violated, it satisfies the prosecutor’s claim. In order to defend the public interest, the court’s judgment (such as to recover the money awarded to the state, to register public ownership of the land, etc.) has to be executed. However, legislation does not charge prosecutors with taking part in the law enforcement process and checking whether the decisions taken by institutions did eliminate the violations.

The audit revealed that the public institutions authorised to represent the state in the enforcement of court orders have been failing to always meet these functions in a proper manner. For example, the State Tax Inspectorate, which is obliged by law to take an active interest in how bailiffs recover the money awarded to the state, has not been properly performing this duty, meanwhile the National Land Service has not always been promptly implementing court decisions to register state-owned land.

The National Audit Office provided recommendations to the Government, the Prosecutor General and other public institutions to help ensure more efficient organisation of public interest defence.
 

Executive summary of the public audit report: Organising the protection of the public interest