Honourable President of the Supreme Court,
Honourable members of the Senate,
Honourable Justices,
Colleagues,
I
My today’s address will focus on constitutional institutions defined in the Constitution of the Republic of Latvia, Satversme.
Provisions and principles contained in Satversme require us to focus more on the constitutional landscape. Our Satversme identifies six constitutional institutions: President of Latvia, Saeima, Cabinet of Ministers, Constitutional Court, Supreme Court and State Audit Office. Through my conversations with numerous politicians and lawyers I have realised that the legal nature of constitutional institutions is either little known or insufficiently researched. In other words, Latvia is a legal entity. It is an abstract legal entity, which operates not indirectly, but directly through these six constitutional institutions. Like any association or company, society cannot act directly. It needs a legal status and management structure – managing board, executive board and other departments. Republic of Latvia also acts through its departments. For example, the Supreme Court you all represent adjudicates on behalf of the Republic of Latvia, Saeima adopts laws on behalf of Latvia, President and other constitutional arms also act on behalf of the Republic of Latvia. The role of the constitutional body is what sets these institutions apart from hundreds of other state institutions and bodies.
Distinction between constitutional and other institutions is very important in the context of national law. There are also certain procedural and political implications. For example, budgets of these constitutional institutions are approved directly by the parliament, without putting them through the Ministry of Finance. There is also independent governance which allows these institutions to decide how to run their organisations, what positions they create and make other workflow arrangements. It is all part of the autonomy these constitutional institutions enjoy.
Let me reiterate, it is, therefore, important that these constitutional roles are distinctly understood in the context of constitutional landscape. One of the ways to highlight this distinctive feature was for me to officially meet with all the constitutional bodies. I have already met with Saeima. This morning I visited the Constitutional Court and now, dear colleagues, I am here. At the end of September, I will visit the Cabinet of Ministers and meet with the State Audit Office. Although I have been here for what must be a hundred of times, this is a sort of courtesy visit to introduce myself to you and this institution in my new capacity as the President of Latvia.
II
Dear colleagues,
Let me start with some overall comments about the Senate and the Supreme Court from the perspective of my previous work life. I stopped being a judge of the European Court of Justice only two months ago. Senate of the Supreme Court has built a lively dialogue with Court of Justice through its active requests. Since accession to the EU, Latvia has altogether referred 70 prejudicial questions to Court of Justice. CJEU already knows quite well what kind of preliminary rulings Latvia might request. However, I should also mention that Court of Justice has developed a certain stereotype – when Latvia requests something, it must be serious. Compared to other countries, Latvia’s questions end up in the Grand Chamber more often because they involve very intricate legal details. This is how Latvian Supreme Court has interacted with the Court of Justice in developing a significant share of the European case-law.
This also shows that you, dear colleagues, are very good at distinguishing rather simple nuances that do not need to be referred to the Court of Justice because their meaning has already been expressly explained in law. Whereas in case of missing interpretations in any area of the EU law, you bring the prejudicial question to the Court of Justice. If I remember correctly, Research and Documentation Directorate of the Court of Justice released a statistical analysis of prejudicial questions from member states in 2017. It shows that there is an even distribution between questions pertaining to civil law and criminal law at the member state level. Although criminal law can be considered a more specific field, there has been some notable case-law as well.
Senate chose the reduction of case delays as its 2019 priority. Statistics of 2018 and the first six months of 2019 are neither particularly good, nor bad. I would say that figures are better than in several other countries, including some larger member states, which means that average case processing times in Latvia are adequate and there should be no major concerns about delays. We should also not forget that more complex and complicated cases need extra attention and such focus may require more time. I would say that our statistics are good, but there is always room for improvement. I believe you, Mr President, and all your colleagues are already taking care of that.
The problem is that people usually focus on those ‘outliers’ that take too much time instead of the average case processing times that are really good. These outliers form the general attitude towards the quality and efficiency of our courts. What are the reasons for that?
I think, and I am primarily talking about criminal cases, there are two reasons. There are two issues. First, the Criminal Procedure Law. I should underline that the Criminal Procedure Law, which was, if I am not mistaken, adopted in 2005, follows the fundamental principles of the European criminal law theories for criminal procedure in terms of fair trial and rights of defendants. That is the side of the law that we are not concerned about. I am not sure whether the issue has been addressed through the case-law of the Supreme Court, but there always are these cases. The problem is that with time clients in criminal cases, of criminal courts, get smarter and learn how to use these loopholes, I mean, learn how to use their rights contrary to the purpose of the law. The purpose of the Criminal Procedure Law is to ensure that the verdict is fair. There are two ways in which it must be fair. On the one hand, court must treat the defendant fairly. On the other hand, the judgement must be fair towards the society. Both objectives need to be in balance in any criminal proceeding to avoid one ‘suppressing’ the other. If the defendant uses the purpose of ensuring fair trial contrary to the law, the purpose of ensuring a fair trial to the defendant in some cases may contradict with the purpose of providing a fair trial in the interest of the society. This is one of the major dilemmas faced by many European countries and because of it most of the EU member states have made changes in their criminal procedure laws in recent years. Those changes are actually reinterpreting one of the fundamental principles, which says that rights cannot be abused in a manner contradicting the overarching purpose of the criminal procedure law.
We have not settled that clearly enough yet. One can still find ways to bypass the purpose of the criminal procedure law and abuse their rights to the point where the proceeding is unreasonably delayed. Defendants will always pursue their own interests, that is how it should be, but these interests should not prevail over public’s interests. No doubt, smart and skilful lawyers see and use these opportunities, but people start to think that the whole judiciary system is stalling. I believe it is time Latvia also made changes in its Criminal Procedure Law to ensure the legitimate balance of these two interests.
I know that a version of the proposed amendments was handed to the parliament already in 2010 and 2011. I think that the time has come for the government, which marches under ‘the flag of the rule of law’, to consider this and propose the amendments that are technically rather straight forward. Those working with the Criminal Procedure Law know exactly which provisions I am talking about. Saeima could either limit or even abolish such provisions to ensure that such obviously distorted understanding of the efficiency of judiciary is avoided as much as possible.
I have raised and will continue to reiterate this issue with the Minister for Justice. Saeima Legal Affairs Committee also firmly supports the view that these amendments need to be prepared by the Ministry of Justice, which is responsible for such legislative initiatives, and discussed with courts and the Supreme Court which are also on the working group.
There is also another kind of issue with unacceptably long proceedings in some cases. Issue that stems from existing legal provisions that do not necessarily need to be amended. In some cases, judges are not in charge of the proceedings and are rather ‘going with the flow’. That way judges are failing to meet their obligation to manage the trial. And I would like to specifically underline ‘lead’. What does it mean to lead the proceeding? It requires several skills. First, a judge needs to be self-confident, and this is not just about self-confidence as a human being, it is a self-confidence of one as a judge. In some cases, judges lack such professional self-confidence. What are the indications? One indication is, for example, last year’s survey about self-assessment of independence of judiciary. If we take the actual situation, judiciary or judges are fully independent in their practices, and there are no real cases of anyone being pressured, no phone calls or instructions on how to adjudicate one or another case. This is more about the self-confidence. Overwhelming majority of colleagues feel that they are not completely independent and there is or may be potential pressure. It is about the self-confidence as a judge or the fear of possible potential pressure. Formally judges should feel safe about their job, i.e. their title or job cannot be taken away from them under no circumstance. They should not be bothered by what the newspapers or members of the society say. They have to serve justice to the best of their abilities and intentions, no matter what their friends or acquaintances think. Dear colleagues, it is all about self-confidence. I think that self-confidence is crucial, and it can be boosted externally, it can be strengthened and developed through training.
It was mentioned just now that in recent years Latvian Judicial Training Centre has been offering a one-day trial management course. Dear colleagues, I think trial management in scope of the existing legislation is a competency and skill that most of you have learned as you go. However, Judicial Training Centre should also offer formal trial management training to those who need it.
I would also like to touch upon another aspect of trial management. A rule of thumb. Maybe in some countries it has been formalised. I would like to talk about what we call ‘a hint’ in English, or ‘a remark’, a point of reference. You can give parties to the case a hint as to whether they are arguing and exploring arguments that may contradict their interests. There is a whole host of issues that need to be considered in ensuring good trial management. Judicial Training Centre should, therefore, develop a formal course that would help ensure that these delayed trials and all other cases are successfully resolved.
Let me also briefly mention acting in good faith on the part of parties to the case. Although this does not apply directly to what I just said about criminal proceedings, for example, in civil and administrative cases claimants may use their legitimate rights contrary to the nature and meaning of such rights. In case of administrative proceeding, it is, in fact, about how legal provisions are interpreted from a global legal perspective. Legal provisions provide rights, but these rights are rooted in a set of underlying principles. And there always are theoretical and practical implications. Constitutional court has developed these notions in its case-law, underlining that legal provisions should not be construed in isolation. Provisions should always be interpreted based on the context. Context rooted in legal principles and the overall legal system. Sometimes we see that judges overlook the context and make judgements based solely on legal provisions. And this raises questions about fair and proper trial. We also talk about the qualities of a good judgement. We all agree that a good judgement does not blindly follow the letter of the law without considering the circumstances. I hope that Supreme Court monitors the cases to eliminate such problems and rulings, yet I still encourage you to continue keeping a close focus on these issues.
III
Dear colleagues,
I am delighted to have been invited here today because I have spent most of my professional life working in the same field as you. It has been 25 years already. This hall, people and environment are most familiar to me. I feel like home here. That is why I believe I can be frank and direct with you, because the issues that I raised are ones that we have to tackle together.
Let me wish the Supreme Court, its Senate, justices and staff good luck and success in your future work. Always remember your special constitutional role!