DRAFT PILLAR REPORT OF THE STUDY „NATIONAL INTEGRITY SYSTEM ASSESSMENT IN LATVIA”, OCTOBER 2011
Pillar III. Judiciary
Table: Indicator Scores
JudiciaryOverall Pillar Score: 78/ 100
Indicator / Law / Practice
Capacity
75/ 100 / Resources / 75 / 75
Independence / 75 / 75
Governance
83/ 100 / Transparency / 100 / 75
Accountability / 100 / 75
Integrity Mechanism / 75 / 75
Role
75/ 100 / Executive Oversight / 75
Corruption Prosecution / 75
Summary
Judicial independence is generally well-respected in Latvia although the role of the executive and legislature in judicial appointments is slightly excessive. Latvian courts operate in a highly transparent environment but access to some judgments can be practically cumbersome. The current regulatory framework covers virtually all aspects of judges’ integrity and there is little direct evidence of corruption in the courts. However, the Latvian judiciary still does not enjoy uniform reputation of integrity. The reasons for this are most likely both evidence of unethical behavior by some judges and lack of understanding in the public about the powers of the judiciary and limitations thereof. Courts are generally prepared to adjudicate corruption cases but their slowness obstructs justice in complicated matters involving large numbers or defendants and/or witnesses.
Structure and organization
Latvia has a three-tier court system. District (city) courts serve as the first instance courts for civil and criminal matters. The administrative district court represents a different system being formally a single court, which operates in five places in Latvia. The next level is regional courts of which there are five regional courts for civil and criminal matters and the administrative regional court. Regional court may serve both as the court of first instance (in complex or voluminous matters) and the court of appeal. The Supreme Court consists of two Chambers (for civil and criminal matters) and the Senate (with separate departments for civil, criminal and administrative matters). The Chambers serve as the court of appeal in matters adjudicated in regional courts as courts of the first instance. The Senate represents the third instance, i.e. the instance of cassation. In addition, the Constitutional Court reviews the conformity of legal acts and certain decisions of state bodies with provisions of higher legal strength.
Assessment
Capacity
3.1.1. Resources (law)
To what extent are there laws seeking to ensure appropriate salaries and working conditions of the judiciary?
Score: 75
In a controversial arrangement, the Law on Remuneration of Officials and Employees of State and Local Government Authorities governs the salaries of judicial officials – judges and public prosecutors. The monthly salary of a district (city) court judge is equal to the maximum amount foreseen for heads of legal units in the state administration (Section 6.1, Paragraph 1). The salaries of other categories of judges are set as the said amount multiplied with coefficients from 1.1 (for example, for a deputy president of the district (city) court) to 2.62 for the President of the Constitutional Court (Section 6.1, Paragraph 2). In addition, judges are guaranteed bonuses expressed as a percentage of their salary depending on their qualification grade (Section 15, Paragraph 4); true, the qualification grades were cancelled on 9 June 2011 (amendments not yet in force) and a new system of evaluation of professional performance of judges is to be introduced starting with 1 January 2013. In turn salaries of public prosecutors are tied to those of judges. The whole system of salaries is to adjust to inflation through a peg to the average monthly salary in Latvia in the year before last according to data of the Central Statistical Bureau.
The current system came about through a major controversy. In 2003 the Law of the Judiciary Authority was amended to include a system for determining and gradually increasing judges’ salaries. Due to the heavy impact of the financial crisis on Latvia’s economy, since November 2008, a series of amendments were made, which limited the growth of and eventually decreased the salaries. A group of judges challenged the amendments in the Constitutional Courtand, on 18 January2010 and 22 June 2010, the court overruled several of these provisions. The current system described above represents a precarious compromise, which was adopted by the legislature in December 2010.In April 2011, a large part of judges and public prosecutors challenged the law yet again in the Constitutional Court.[1] As of August 2011, the case was still in preparation.
In principle the fact that judges’ salaries are determined in accordance with rules set in the law together with the possibility to review legal amendments in the Constitutional Court provide certain guarantees against arbitrary reduction in salaries. However, the recent events show that even then deteriorating economic conditions can lead to a reduction of judges’ income.
The Courts Administration (an executive agency under the Ministry of Justice) prepares the annual budget request for courts except for the Supreme Court and the Constitutional Court. The Ministry of Justice solicits the opinion of the Judiciary Council about the budget request and then forwards the request and the opinion to the Ministry of Finance. The Supreme Court and the Constitutional Court themselves prepare their budget requests. The Supreme Court also submits its request to the Judiciary Council for opinion. The opinion of the Judiciary Council is not binding (the Law on Judicial Authority: Section 50.2) but requests of the Supreme Court and Constitutional Court may not be amended before the annual budget law is submitted to the Cabinet of Ministers. Thus the judiciary does participate in the formation of its budget but it has no veto powers. Moreover there is no set proportion of the national budget earmarked for the judiciary.
Provisions of the Law of Budget and Financial Management, which govern drafting of the budget forinter alia the Supreme Court and the Constitutional Court, were challenged in the Constitutional Court. The court found that several independent bodies did not have adequate mechanisms to defend their budget requests in the Cabinet of Ministers and the Saeima. On 25 November 2010, it ruled that several provisions of the laws were incompatible with the Constitution as long as these bodies were not guaranteed a chance to defend their budget requests in the Cabinet of Ministers.[2] The Saeima amended the laws accordingly in June/July 2011 granting the Supreme Court and the Constitutional Courtthe right to present its opinion to the Cabinet of Ministers and ensuring that this opinion is forwarded also to the Saeima. Drafting of the state budget for 2012 will show what impact the amended procedure has.
3.1.2 Resources (practice)
To what extent does the judiciary have adequate levels of financial resources, staffing, and infrastructure to operate effectively in practice?
Score: 75
The actual practice of budget making for the judiciary corresponds to the written procedure described above. Controversies about the involvement of the judiciary in the determination of funding arose in 2009 and 2010 when the salary system was reformed. According to Iveta Andžāne, the President of the Latvian Society of Judges and President of Bauska District Court: “The executive is not frank in its communication to the public about consultations with the judiciary. Draft laws were not submitted for deliberation to neither the Latvian Society of Judges nor the Society of Administrative judges; the Judges’ Conference was not convened, which could discuss financial and social guarantees as well as other relevant matters of judges’ work.”[3]
The actual adequacy of judges’ salaries is a disputable issue. The ambiguity shows, for example, again in opinion by Iveta Andžāne in December 2010: “It is hard to say if the foreseen remuneration level for judges is competitive and adequate. It is even more difficult to say what it should be to guarantee judges’ independence. The planned remuneration will motivate judges’ assistants whose current salary is LVL 250 [per month] to run for the position of the judge. But it must be remembered that also lawyers who have worked continuously in various institutions with rather high salaries are among candidates for judges.”[4]
The lack of human resources is a persistent problem in Latvian courts. Based on responses by officials attached to the judiciary authority such as judges, public prosecutors, notaries, sworn lawyers and court bailiffs as well as executive officials such as the Minister of Justice, other officials of the Ministry of Justice and the Courts Administration, a recent piece of research noted that a lack of judges was the most significant problem affecting the whole of the court system. Among the negative consequences are overburdened judges, slow adjudication, and difficulties to ensure in-service education for judges.[5]
The qualification of judges is generally regarded as good even if not excellent as noted in the same research: “In terms of qualification, judges assess themselves overall positively. Problems allegedly occur with new judges but that is mainly due to the lack of experience. [..] Also other respondents assess judges as competent. However, these statements are always followed by reservations mentioning judges whose qualification is inadequate.”[6]Possibilities for in-career training are available particularly at the Latvian Judicial Training Centre. Still both supply and demand for training are not always sufficient. The frequently changing legislation makes it particularly complicated for judges to maintain their knowledge up-to-date. “Respondents attested to that judges quite often apply obsolete provisions of laws, not being aware of the latest amendments and supplements.”[7]
Latvian courts are fully computerized and judges are guaranteed at least a minimum support in terms of assistants and other administrative staff. Still the excessive difference between the salaries of judges and their assistants has been noted. Andris Guļāns, the former President of the Supreme Court and current justice of the Senatenoted: “The current remuneration of assistants does not match their effort and knowledge. It is also disproportionate in relation to the judge’s salary. The proportion should be different in favor of assistants.”[8]Also Jānis Pleps, legal consultant of the Law Office of the Saeima admitted an excessive gap between the salaries of assistants and judges.[9]
Thus the overall resource supply can be regarded as reasonably satisfactory given the Latvian economic context although the insufficient number of judges is often linked to the problem of major backlog in the Latvian court.[10] According to Jānis Pleps another problem is court buildings. Most of them are old and, especially outside Riga, not suited for the needs of the court.[11]
3.1.3Independence (law)
To what extent is the judiciary independent by law?
Score: 75
The Latvian Constitution contains few provisions regarding the judiciary. It sets out the basic structure of the court system – district (city) courts, regional courts, the Supreme Court (Constitution: Section 82) and the Constitutional Court (Section 85). The Constitution states that judges shall be independent and subject only to the law (Constitution: Section 83). Other than that, the principle of judicial independence is guaranteed in Article 6 of the European Convention of Human Rights, which is binding for Latvia. Since the constitutional provisions are so concise, the possibility of amending them so as to limit the judicial independence is theoretical only. The Saeima may amend the Constitution in sittings at which at least two-thirds of the Members of Parliament participate. The amendments shall be passed in three readings by a majority of not less than two-thirds of the members present (Constitution: Section 76).
All judges are appointed by the legislature. Judges of district (city) courts and regional courts are appointed upon nomination by the Minister of Justice (Law on Judicial Authority: Section 60, Paragraph 1; Section 61). Justices of the Supreme Court are appointed upon nomination by the President of the Supreme Court (Law on Judicial Authority: Section 62). All nominations shall be carried based on opinion of the Judicial Qualification Board (Law on Judicial Authority: Sections 57 and 59). Judges of district (city) courts are first appointed for a period of three years. Upon expiration of this term, the Saeima votes on either appointment for life or additional fixed term of up to two years (Law on Judicial Authority: Section 60, Paragraphs 1 and 2). Judges of regional courts and the Supreme Court are appointed for life right from the beginning (Law on Judicial Authority: Sections 61 and 62).
In law, criteria for candidate judges are scarce and rather represent a set of formal qualifications. Judges shall be citizens of Latvia, highly qualified and honest lawyers (Law on Judicial Authority: Section 51, Paragraph 1). Candidates shall be selected in an open competition (Law on Judicial Authority: Section 51, Paragraph 3). Otherwise, for example, a candidate for a judge’s position in district (city) court must profess the Latvian language at the highest level, be at least 30 years of age, have the second level higher education diploma in law and the qualification of a lawyer recognised by the state, have worked for at least five years in a legal profession (a different wording of the previous two criteria will be in force from 1 January 2012), and have passed the qualification exam (Law on Judicial Authority: Section 52, Paragraph 1). Also a number of disqualifications exist, e.g. criminally punished persons cannot run for a judge’s position.
Two bodies evaluate candidates who are to become judges for the first time (except candidates for the Supreme Court and the Constitutional Court). The first is the selection committee set up by the director of the Courts Administration. Since the Courts Administration is a part of the executive, this part of selection is effectively under control of the executive branch. The selection committee shall consist of a representative of the Ministry of Justice, two representatives of the Courts Administration, representative of the court for which the candidate applies and representative of a higher level court (Cabinet of Ministers Regulations of 3 March 2009 No. 204 “Procedure for the Selection, Traineeship, and Qualification Exam for a Candidate for Judge’s Position”: Articles 10 – 10.4). The evaluations at theselection committee take place in two stages: structured interview and a test and essay. Evaluation criteria are set in regulations in rather high detail. For the best candidate a traineeship period is set and afterwards he/she takes the qualification exam with the second body – the Judicial Qualification Board consisting exclusively of judges from courts of various levels and branches (criminal, civil and administrative)(Law on Judicial Authority: Section 93, Paragraph 2). This examination is oral and much less formalized. All in all detailed professional criteria are set for new judges and an independent judicial body has a possibility to turn down candidates who do not demonstrate sufficient qualifications.
Meanwhile politicians are in a position to turn down any candidate and they have no legal obligation to provide justification for such decision. This sounds like a point of concern but so far no remedies to this problem have been identified and suggested in Latvia (except for the idea that the vote of the legislature should not be required when an already-working judge moves from one level of the court system to another).
Once a judge has been appointed for life, he/she can be removed of precisely specified grounds only – upon own wish, due to his/her election/appointment to another office, due to health reasons that preclude continuing the job, due to reaching the statutory maximum age (65 or 70 years depending on the court level with possible extension by 2 years), if he/she has been convicted and the court judgment has entered into force, based on a decision the Judges Disciplinary Board (for grave disciplinary or ethics violations), and, from 1 January 2013, if a judge has received a repeated negative assessment in the evaluation of professional performance (Law on Judicial Authority: Sections 82 and 83).
The Criminal Law protects judges against interference in adjudication, namely, criminal liability is foreseen for influencing of a judge or lay judge in any manner in order to compromise legal adjudication or reach the adoption and promulgation of an illegal judgment or decision (Criminal Law, Section 295).
All in all the legal framework contains essential safeguards for judicial independence although the role of the executive and legislature in judicial appointments is excessive in some elements.
3.1.4Independence (practice)
To what extent does the judiciary operate without interference from the government or other actors?
Score: 75
There are fewindications of any grave infringement of judiciary independence in the adjudication of cases. However, the dependency of the judiciary on the executive branch of authority is a commonly mentioned concern. The most acute issues are the dependency in the selection of candidate judges and budget creation.[12]Still, as far as the selection is concerned, it is the legislature rather than the executive that has appeared more problematic from the point of view of respecting the judiciary independence.
The fact that the Saeima shall vote about any move of a judge from a lower to higher level court is often viewed by experts as excessive involvement of the legislature. As far as concrete situations are concerned, the Saeima failed to approve several candidates for judges’ positions who satisfied all formal requirements and had passed successfully through all of the procedures prior to the final decision. Thus in October 2009 the Saeima failed to appoint a candidate for the Supreme Court. Some claimed that the reason for this decision was the judge’s earlier decision to issue an arrest warrant for Aivars Lembergs – the mayor of the port-city Ventspils and allegedly one of the most influential individuals in Latvian politics.[13]