When preparing for the judicial conference, one must again answer the question what is the topical and important what has to be discussed in such a big forum?
Situation in judiciary is changing constantly, it is affected by the pace of development of legislation, competence of courts of different levels, public processes, events, and even the number and composition of judges. It is impossible to judge the judiciary in whole by the same criteria. The judicial conference by its composition is different, as well, although mostly judges participate in it. The common is that all of us develop judiciary what in a lawful country is a significant guarantee of democracy.
How strong is judiciary in our country and what we wish to develop it like? This, in my opinion, is the most important question. Are we, being inside the system, only passive observers, and, for example, regard the annual judicial conference as a compulsory formal event?
Independence of judges is a guarantee and value, authority and respect of a judge is the result of certain work and – value, as well. These values are not everlasting, they have to be protected and renewed, but it cannot be done by waiting and hoping that it will be done by somebody else instead of me.
In this conference, I find it important to speak about three separate issues which form the image and contents of the Latvian judiciary:
1. on violations of human rights and adjudications of the European Court of human Rights unfavourable for Latvia;
2. on development of unified court practice and the role of the Supreme Court in this process;
3. on judicial ethics.
Firstly, human rights. Till March 1, 2007, the European Court of Human Rights in 16 cases against Latvia have found at least one violation of the European Convention of Human Rights and Fundamental Freedoms, and has decided that the State of Latvia has to pay the applicants compensation which in specific cases ranges from three to fifteen thousand euros.
On January 18, 2007, the European Court of Human Rights announced adjudication the case Estrihs vs. Latvia. Till 1994, Vladimirs Estrihs served in the Armed Forces of the USSR in Latvia, during his marriage with a Latvian citizen, they had a baby. After leaving permanently for the Russian Federation, he arrived in Latvia for several times having a visa. Last time – in August 1997, remaining illegally in Latvia after the expiry of the term of his visa.
During that time, Estrihs joined an armed gang which committed robberies. On February 19, 1998, after another attack, all the members of the gang were detained, and on February 20, 1998, Riga City Ziemeļu District Court judge applied security measure – detention. He was charged for banditism, as well as for keeping illegally guns and ammunition.
The pre-trial detention was first applied for a term of two months, afterwards it was prolonged under the court rulings for several times. None of these rulings were appealed by Estrihs in the Riga Regional Court, he only requested repeatedly that the prosecutor allows his communicate in writing with his civil wife and mother. These requests were rejected.
Only after four years – on June 5, 2002 – in the first instance hearing the criminal case in the charges against Estrihs, Riga Regional Court found him guilty for robbery and illegal keeping of gums and ammunition, and convicted him to imprisonment for the term of 4 years and 6 months, imposing also additional punishment – eviction from the country.
Already on September 3, 2001, Estrihs filed a complaint to the ECHR on violation of Article 5, p. 3 (the right to trial within a reasonable time), Article 6, p.1) the right to fair hearing within a reasonable time) and Article 8 (the right to respect for his private life and family life) of the European Convention of Human Rights and Fundamental Freedoms, in relation to him during the pre-trial investigation and trial of the criminal case.
ECHR unanimously ruled that violations of the European Convention on Human Rights and Fundamental Freedoms have been allowed regarding all the Articles indicated in the Estrihs’ application, stating that the term of the pre-trial detention and the length of litigation in the criminal case was unreasonable, the prohibition to meet with his civil wife was ungrounded, as well. According to the ECHR award, Latvia has to pay to Estrihs compensation for moral damage in the amount of 5000 euros.
In my opinion, this adjudication of ECHR reflects typical problems and situation of the Latvian courts, and points to considerable drawbacks of the system.
ECHR rejected the argument by the representative of the Latvian government that Estrihs did not use the possibility to appeal the decision of Ziemeļu District Court on detention and extension of the term of detention, indicating that the possibility to appeal a decision in the Riga Regional Court cannot be regarded effective measure of legal settlement, and it does not provide reasonable prospects to success.
To substantiate this conclusion, ECHR refers to its conclusions drawn in cases Lavents vs. Latvia, Svipsta vs. Latvia, Kornakovs vs. Latvia etc., which were reviewed earlier, where violation of Article 5, p.3, of the Convention was found. In all the mentioned cases, where the appellate court was the Riga Regional Court which when retaining detention for concrete persons based it on formal reasons. ECHR indicates that it is not necessary to demand from an applicant that he makes full use of the legal settlements available on a national level, as the existing practice of the Riga Regional Court shows that they are unsuccessful and insufficient.
We may conclude that ECHR does not consider the Riga Regional Court an effective means of interior judicial protection in complains on decisions adopted by district courts regarding application of security measures. Consequently, all the complaints in the basis of which there are disputes regarding imposed pre-trial detention regardless of whether the decisions were or were not appealed, shall be reviewed to the merits in ECHR, and, most probably, the Court will find violations of the Convention. I think that in such a way ECHR provides categorical and negative assessment of efficiency of protection of human rights in the Riga Regional Court.
The right to fair trial includes the obligation no only to review a case in due time, but also to prepare well-motivated procedural documents. ECHR has found violations in almost all the cases against Latvia also because of insufficient substantiation of different court decisions and judgments. For example, in its adjudication Estrihs vs. Latvia ECHR acknowledges that the fact that the applicant apparently unlawfully stayed in Latvia could serve as grounds for pre-trial detention, however, national courts in their procedural documents did not refer to this circumstance not once.
I consider that the mentioned adjudication of ECHR reflects consequences of certain actions or absence of actions and really activates problems of the Latvian judiciary, dealing with issues on legislation, work organization and judicial qualification.
Being aware of the great number of cases which Latvia has lost in ECHR, and presuming that the number of such adjudications may increase in future, one must ask what the State of Latvia and courts have undertaken to eliminate efficiently and in due time the violations of human rights in court proceedings. Till now, it seems that there has been no adequate and effective activity, or it has been insufficient.
Of course, on each case the representative of the Latvian government prepares a report for the Cabinet of Ministers in which he describes the circumstances of the case and presents the analysis of the adjudication. However, I have an opinion, that there reports are accepted only for information and the only issue which is decided upon is regarding payment of compensations. I think that the weakest stage is elimination of drawbacks of the system, analysis of adjudications and concrete plan of activities.
However, I would not wish to assert that in this situation just an official of the Ministry is to be blamed. The duty of every judge is to study and analyze adjudications of ECHR to eliminate mistakes and drawbacks. The existing situation may not be explained only by complicated work conditions and the great number of cases because weak motivation of court rulings which is one of the main drawbacks in the work of the Latvian courts is the question of professionalism of judges.
Thus, we again face the problems of administration of work in the courts, and there are no grounds to consider that the problems activated in the ECHR adjudications refer only to a certain stage in the past and only regarding criminal cases. Judging from the information on the applications filed in ECHR there are grounds to doubt understanding of fair trial by separate judges of Latvia.
I think that to change drastically the situation and the assessment by ECHR which finds one of the biggest courts in the country as inefficient means of interior legal protection, we need a very serious analysis of the situation, closer cooperation with the office of the representative of the government in ECHR, as well as a focused training program for judges.
The second issue in today’s discussion is development of unified court practice or case-law. The term case-law is comparatively new and till now used not so frequently in communication and court documents. Since April 7, 2004, Article 5 of the Civil Procedure Law contains a regulation which states that when applying law standards, the court takes into account case-law. The respective regulations in relation to case-law are introduced also in Criminal Procedure Law and Administrative Procedure Law. However, it seems that this work is rather strange for many people regarding the essence of its contents.
Case-law means the aggregate of cognitions given in the court rulings on the basis of which the court decides the issues on interpretation of law standards, application in certain actual circumstances, or filling deficiency in law.
Since 2006, the Division of Case-law functions in the Supreme Court as one of the tasks of the Supreme Court is to promote unified and predictable court practice in the country. To reach this goal, the work in the Supreme Court is organized in three main directions:
- development of case-law basis;
- analysis of court practice on topical issues of law;
- organization of seminars for judges of regional and district courts.
Under the law “On Judiciary”, the Supreme Court has begun to develop case-law database. Since June 2006, when the first rulings were entered in it, there are already 53 rulings of the Department of Civil Cases of the Senate, 73 rulings of the Department of Criminal Cases of the Senate and 94 rulings of the Department of Administrative Cases of the Senate. The cognitions which they contain regarding application of law standards is the main value of the case-law database. The purpose of the database is to assist judges in administering justice in similar cases, to reduce time for reviewing cases, as well as to promote unified and stable court practice.
At the present moment the case-law database is accessible only to judges and, as it is seen, it has been rather popular as till the beginning of March it has been used for more than eight thousand times.
Most contribution in the development of the case-law database is provided by the rulings of the Senate, and possibly, it will be the same also in future. But case-law may be developed also by rulings of lower court instances. Therefore I appeal also to judges of other courts not only to make use of the case-law database, but take part in its development. I suggest to keep the Division of Case-law informed regarding cases which have been in your proceedings and the rulings in which contain significant cognitions on application of law standards what may serve for development of case-law.
The most essential changes which have occurred in the field of analysis of the court practice is discussion of materials of court practice and adoption of conclusions in joint sessions of the senators and judges of the Chambers of the Supreme Court. I hope that you have already examined the materials of the court practice relating to servitude rights which were discussed in the joint session of the judges of the Department of Civil Cases of the Senate and the Chamber of Civil Cases.
Court practice in cases on illegal actions with financial instruments and means of payment for now is the result of the other joint session of the Department of Criminal Cases of the Senate and the Chamber of Criminal Cases.
To increase authority of collections of court practice and to strengthen their recommending significance, the Supreme Court plans to continue to discuss the most urgent issues of law and court practice and to offer opinions in joint sessions where the Supreme Court judges of the respective field of law take part.
I hope that it will heighten the quality of these documents and will promote unified court practice.
Unfortunately, we must speak also about the fact that the contributed work is of low efficiency if the suggested recommendations are not taken into account, or, what is even worse, do not reach the judges.
The Supreme Court summarized the court practice on the quality of judgments of the appellate instance court, and the Department of Civil Cases prepared recommendations on argumentation of appeal judgments and their correspondence to respective standards of the Civil Procedure. It turned out that judges from the Riga Regional Court could read it only five months after it was received in the court. It is possible that some of the judges have still not read the collection as the Department of Civil Cases of the Senate recently revoked two judgments of the Riga Regional Court where it ruled opposite to the judgments of the first instance courts, however, unlike the first instance, it had not evaluated evidence; the judgments of the appellate instance court did not contain argumentation and its conclusions were in contradiction with the actual circumstances of the case.
In the opinion of the Chairman of the Department of Civil Cases of the Senate M. Dudelis, motivation and grounds of judgments of the first instance in many cases are better that those of the appellate instance which lack the necessary argumentation and which by the contents does not correspond to the essence of appeal. This, I think, is the latest most significant negative tendency which judges have to eliminate urgently.
Third, the ethics. Much is spoken about judicial ethics lately, probably, in connection with specific events. We have convened an international conference on problems of ethics, we have the Code of Judicial Ethics, hopefully, in the nearest future we will have a council or commission of ethics. Discussion of this theme is included in the agenda of the present conference, as well.
All the mentioned measures have been necessary and useful, however, in my opinion, insufficient, as they still do not reach the necessary target. What is the target?
The target is the authority of the court, rule of law and justice based on incontestable and impeccable actions of judges. Probably, somebody considers discussion of ethics unnecessary and irritating, because precise observance of ethical standards of judges impose special duties, interfere with everyday life or habits.
I think that judicial ethics is an integral part of our profession, basis of conduct and actions which may be forced to be observed by various measures, however, it will be possible to reach the target only when these standards are understood, accepted and voluntarily followed by us. It is a specific way of living for judges.
Finally, I will return again to the question I asked in the beginning: what kind of judiciary we want to develop in Latvia? One which does not respect human rights, does not follow ethical principles, is not able to draw well motivated procedural documents, in similar cases adopt completely different rulings and in general is characterized by rather essential drawbacks in the system?
Most certainly – not. Prestige of judiciary depends on each of us. I call upon everybody to think seriously about it. Because it is not anybody else who raise or undermine the reputation of judiciary. It is we ourselves.
