In the beginning of my report on the issue related to the Latvian experience, I would like to provide you with some information which, in my opinion, is of importance and would give a better view on the theme:
- Latvia (territorially and by population) is a comparatively small country which restored its independence only in the early 1990s. Since May 1, 2004, it is a full-fledged EU member state. At the present moment, 364 judges and justices work in Latvia’s three-level court system.
- As provided by our legislation, judges and justices are confirmed by the Parliament (Saeima). The Latvian Constitution (Satversme) states that after being confirmed, the judge or the justice may not be dismissed. A judge or a justice may be involuntarily removed from office by the Parliament only in circumstances set forth by the law and only on the basis of a decision of the judicial disciplinary panel or a court judgment in a criminal case.
- The procedure of appointment, confirmation, and dismissal is provided by two special laws, the law "On Judicial Power" which was adopted as early as in 1992, and the law " Judicial Disciplinary Liability Law " adopted in 1994.
- At this moment, a new draft law "On Judicial System" is being worked out and is under discussion. If passed, it will replace the mentioned law "On Judicial Power".
To establish an impartial and independent judicial power, we need a system which gives predominance to the judges' qualifications, making the proceedings open to everyone, who complies with the requirements stated in the law, and limits political interference. In discussions regarding selection of judicial candidates, the key issue is the creation of a proper balance between the independence of the judiciary and the responsibilities of the judicial power. The independence of the judiciary requires that as an institution, the justiciary is immune from outside political pressure while its responsibility follows the democratic principles and allows the judiciary to react to the changes in public values.
In Latvia, the appointment of judges and justices (for life) ensures the independence of the judiciary; however, the procedure of appointment, confirmation, and dismissal of judges and justices does not sufficiently set forth the judicial responsibilities due to the fact that the standards are vague, and the process is insulated from the professionals in the legal field and the society. In its report on the process of Latvia’s joining the European Union, the Open Society Institute suggested that Latvia should consider "establishing a rational system for the selection and promotion of the judiciary, including clear criteria for the decisions and the transparency of procedures".
The problems related to the procedure of judicial appointments can be, to a great extent, explained by an insufficient level of legislation, a negative attitude towards judicial power in general and a graduated introduction of democratic standards.
As the number of qualified lawyers in our country has increased, slowly but resolutively, the attitude both of the country and the society towards the courts has changed. The justicial position, at least among lawyers, has become more prestigious and desirable and the competition for justicial positions has increased. Thus, there is a possibility and greater necessity to regulate by legislation those processes which are related to the appointment of judiciary by making them more open, understandable and transparent.
The new draft law is also a necessity as it will bring certainty to the development of legislation and certain public relations.
I would like to speak on the following issues:
- selection of judicial candidates;
- appointment of judiciary;
- promotion of judiciary;
and I will try to compare the present procedure with the one offered by the draft law.
Selection of Judicial Candidates
The United Nations has acknowledged the independence of the judiciary as the main feature in a modern society, and has stated that the procedure of selection of justicial candidates should not be based on improper motives, as well as it cannot be discriminating on the grounds of race, colour, sex, religion, political or other views, national or social origin, prosperity, birth or status (except that the candidate shall be a citizen of the respective country). The system of promotion shall be based on impartial factors, including ability, honesty and experience.
Although the present legislation sets forth stable safeguards against any discrimination during the selection process, we lack objective standards for the evaluation of the candidate’s abilities, honesty and experience. The present selection process is not sufficiently open to every qualified candidate. Neither the present practice, nor the law requires public announcements of judicial vacancies, thus qualified candidates may not be aware of the possibility to apply for a specific position.
The draft law offers solutions for the lack of transparency by requiring that the Court Administration shall, at least once a year, announce the solicitation of candidates for judicial positions in an official newspaper, indicating the requirements for the applicants, the time and the place of the examinations, as well as other relevant information. The draft law also sets forth a specific time period for applications which shall not be less than 20 days.
The present law states that the selection of judicial candidates is based on the principle that only the citizens of Latvia who have "high qualifications" and who are "honest" lawyers may hold judicial positions. Currently, the criteria to establish "high qualification" or "honesty" can be found neither in the laws, nor in practice, except that the law contains a list of exceptions that do not allow to apply for judicial positions (e.g., a person who has been convicted in the past, who is under criminal prosecution, who is or has been employed as an official or a supernumerary of the Security Commission of the USSR or the Latvian SSR, the Ministry of Defense of the USSR, the state security service, the army intelligence service, or the counter-intelligence service of Russia or another state, or as an agent, resident or safe house keeper of the aforementioned institutions).
The law already states minimum requirements for applicants to judicial positions:
- having reached the age as stated by the law (30 or 35 years),
- a law degree,
- certain experience working in the legal profession,
- set procedure for in-service training,
- passing the judge's qualification examination,
- irreproachable reputation,
- fluency in the Latvian language at the highest language skill level.
Currently, the Ministry of Justice is responsible for the initial selection of district and regional court judges; however this function is being gradually transferred to the Court Administration. The applicants are invited to a meeting with a Ministry of Justice official and the chairman of the court where the vacancy has opened, the decision is made on the candidate’s suitability for the position, and the time of in-service training is set. The Minister of Justice sets the procedure for the candidate’s in-service training and the qualification examination.
Such interviews have no uniform criteria according to which the candidates are evaluated, and there are grounds to suspect subjectivity or bias.
The new draft law calls for the replacement of this defect by establishing a commission for the selection and testing of judicial candidates based on equality and pursuant to certain and known criteria. The applicant to a judicial position will be provided not only with in-service training, but also with a certain training to prepare him or her for the examination. If the applicant passes the examination, he or she will become a judicial candidate.
The preference to apply to judicial vacancies is given to those judges or justice who already hold a judicial position and who have the higher qualification; in the event there are no such applicants to the position, the offer is extended to all qualified applicants. The judicial qualifications panel, a self-governance body, evaluates the applicants, selects one or more qualified candidates and recommends them for advancement to confirmation.
The applicants to positions of the Supreme Court justices are selected by the Chief Justice of the Supreme Court in accordance with the recommendation of the judicial qualifications panel. The applicant must have at least 15 years of service in the judiciary or in another legal field.
Appointment of Judiciary
According to our legislation, judges of district and regional courts are confirmed to their positions by the Parliament, based on a recommendation the Minister of Justice. The Supreme Court justices are confirmed to their positions by the Parliament, based on a recommendation by the Chief Justice. The regional court judges and the justices of regional courts and the Supreme Court justices are confirmed for life, but the district court judges are initially confirmed for a specified periods of time. Based on the recommendation by the Minster of Justice, the district court judges initially are appointed for a three-year term. After the three-year term and if recommended by the Minister of Justice and the judicial qualifications panel, the Parliament confirms the judge in the position for life-time.
If a judge’s or justice's work is unsatisfactory as determined by the judicial qualifications panel, the Ministry of Justice may not recommend such judge or justice for a repeated appointment or confirmation.
The current procedure pursuant to which the initial appointment of a district court judge in essence amounts to a probational period, may be regarded as a threat to the independence of the judiciary especially as such judge’s confirmation to the position to a great extent is dependant on the executive branch, namely, the Ministry of Justice. Although this system has been in place for several years and even has a certain sense, the drawback is that there are no sufficiently clear criteria and provisions under which the Ministry of Justice and the judicial qualifications panel evaluates the judges and the justices.
Such a peculiarity of the legislation regarding the district court judges may be explained by the fact that initially, there was no noticeable competition to the positions of district court judges, and the training and the selection were insufficient, thereby making it necessary to put in place a system that would allow to remove from office persons who do not fit for the position.
Unfortunately, this system of confirmation of the district court judges has been retained in the new draft law, although the term of probation has been shortened from 3 to 2 years. In addition, before making the final decision, the judicial qualifications panel has to prepare an opinion on the suitability of the respective judge or justice and submit it to the Judicial Council. Based on that opinion, the Judicial Council decides on whether to advance the judge or the justice for confirmation.
I believe we should abolish this procedure in the future as, in my opinion, it is in contradiction with the independence of the judiciary. To avoid confirmation of unqualified or unsuitable applicants to judicial positions, greater attention should be paid to the process of selection and evaluation of applicants during their training, in-service and examinations.
Promotion in the position of administrative management
Under the current system, the chief judges of district courts and their deputies are appointed by the Ministry of Justice from among the judges, based on the recommendation by the judicial qualifications panel. The term of office is five years (See the Law "On Judicial Power", Article 33(1)). Although the judicial qualifications panel is responsible for submitting recommendations to the chief judges of district and regional courts regarding the applicants, there are no clearly set criteria for the evaluation of their management abilities (See the Law "On Judicial Power", Articles 33(1), 40(1) ).
Chief judges of regional courts are appointed by the Parliament from among the judges, based on a joint recommendation by the Ministry of Justice and the Chief Justice of the Supreme Court, following a favorable opinion of the judicial qualifications panel. The deputy chief judges of regional courts are appointed by the Ministry of Justice, based on the recommendation by the judicial qualifications panel.
The Chief Justice of the Supreme Court is appointed to the position by the Parliament from among the justices of the Supreme Court, for a term of seven years after a proposal of the general meeting of the Supreme Court justices. The Deputy Chief Justice of the Supreme Court and the chairs of the Supreme Court departments and chambers are elected by the general meeting of the justices.
The new draft law offers to eliminate the role of the Ministry of Justice in the procedure of appointment of chief judges and the Chief Justice by transferring that role to the Court Administration and the Judicial Council. In the future, the Judicial Council will be appointing the chief judges of district and regional courts and will have the right to nominate the candidates to the position of the Chief Justice of the Supreme Court.
In my opinion, to make the procedure sufficiently transparent and understandable, the following is necessary:
- The commission selecting the applicants should issue a list which includes only the applicants with the best qualifications;
- The final list of selected applicants should be made public, and the public should be invited to comment on it;
- The institution or body that is authorized to confirm candidates to judicial positions, considers only candidates from this list; and
No more than five and no less than two candidates are advanced to a vacant judicial position.
