20 May, 2023
Address by Aigars STRUPIŠS, the President of the Supreme Court and the Judicial Council, at the Latvian Judges Conference on May 19, 2023
Another year has passed.
Also, this year, I can say that, in general, the justice system works well. Of course, like everyone who acts and not just talks, we also make mistakes, but we analyse them and take measures to prevent them in the future.
What does ‘well’ mean? This should be viewed in context – in the context of this specific moment and of the specific resources available (human resources, time resources, material resources). It is no secret that there are still pronounced problems with human resources in the courts – there is a lack of sufficiently qualified lawyers who would like to become judges at first instance courts, the situation is even worse with assistants to judges. There are problems with material and technical resources, in particular with the e-case system, which still does not work as it should in an efficient court. But we manage to work with it. Not as good as it could be if it weren't for these issues, but we're getting there.
That does not mean that one cannot do better having all these problems, too. And that does not mean that one should not do better. As we know, any dead end has at least two exits. You just have to look for them and move forward. A good example is the European Court of Human Rights, which seeks and finds very reasonable solutions to its problems of real overload caused by a lack of resources.
And that is what today's conversation is about.
The meaning and topic of the Conference
The Judges Conference is a forum which gathers the majority of Latvian judges once a year. This sets a certain bar for the Conference. If we separate the function of forming the self-government of judges, which since the Covid, has already entered an extramural format, while at the same time preserving all opportunities to hear out and question candidates remotely, the annual onsite Conference holds more time for discussing our common current issues. And given that the Conference brings together judges of all specialties and court instances, this is a unique opportunity to talk about issues that really affect each of us, as well as the collective society we all serve. Therefore, in my view, the Judges Conference is not the best place to discuss narrow legal issues, for example, the differences between statute of limitations and preclusion period, etc. Other already existing judicial forums are intended for this purpose, such as regular meetings of judges of different court instances and professional discussions by specialities. The Judges Conference has a higher bar and higher goals. A modern judge has an obligation to be interested and knowledgeable not only in reviewing cases, but also in systemic issues of the judiciary.
Therefore, the topic of today's Conference is inextricably linked with one of the priorities stated by the Judicial Council’s strategy – increasing the efficiency of the courts. In summary, the aim is to look at the judicial system as a whole in such a way as to find the hidden efficiency reserves, which we do not notice on a daily basis. Let us discuss what needs to be done so that the judicial bodies work not as a sum of some digits where each of them is having their own "interests", but as elements of a single mechanism in synergy.
The goal is not simply to talk for the sake of talking, but to have an opportunity to express ourselves, to voice ideas that could then be implemented. I hope that we will all succeed together.
First of all, let's look at the current situation of Latvian courts, and also – from a comparative aspect.
Number of judges
There are 29 judges per 100,000 inhabitants in Latvia, compared to (by rounding numbers)
11 in France, Sweden, Norway
4 in Great Britain
19 in Portugal, Finland
7 in Denmark
18 in Estonia
According to this indicator, Latvia falls behind only to Balkan countries, Bulgaria and Monaco, where the number of judges per population is even higher.
% of the state budget
Latvia – 1.05
Estonia – 0.66
Portugal – 0.72
Germany – 0.78
Denmark – 0.32
Finland – 0.41
Lithuania – 0.62
Ireland – 0.71
Only Romania, Poland and Bulgaria are ahead of Latvia
% of GDP
Latvia – 0.46
Estonia – 0.27
Portugal – 0.35
Germany – 0.40
Denmark – 0.17
Finland – 0.23
Lithuania – 0.23
Ireland – 0.18
Number of cases
Compared to other countries
According to Justice Scoreboard data, in 2020, Latvia had one of the lowest number of cases per 100,000 inhabitants in civil and commercial disputes and administrative disputes. (https://commission.europa.eu/system/files/2022-05/eu_justice_scoreboard_2022.pdf)
Decrease over the years
Overall statistics show that the number of cases per judge has decreased by about 25% over the past four years.
At the same time, the average number of cases handled by a judge has also fallen by approximately the same amount.
However, the length of proceedings has remained at about the same level during this period, the fluctuations are relatively insignificant.
One does not have to be a genius to understand that, when having such indicators, there is no reason to look at extensive development models, to demand more vacant positions and more money. In a situation where the caseload drops significantly, productivity drops in the same way, and the length of proceedings stay the same, I would say there is some sort of balance.
The Judicial Council works to create a unified judicial policy based on objective data, and an efficient, highly professional court.
I have said it more than once that this should have been done 20 years ago. Unfortunately, the organizational and fiscal subordination of the courts to the executive power and the level of political culture so far have not allowed this to be done. I have no doubt that such a model works in some countries with deep democratic traditions and high political culture. This model does not work in Latvia, and all the problems accumulated in the judicial system prove that. I am very sorry that it could not be done sooner, but the work that had not been done 20 years ago cannot be done in a couple of years.
I do not see any alternative to the course taken by the Judicial Council towards increasing judicial independence and efficiency. Society demands a professional, efficient, impartial court, and it has every right to demand it. Whereas, it is the responsibility of all of us, I emphasize – ALL OF US, to ensure it. There should not be an attitude of "I'm just here to examine cases and please leave me all alone". A modern judge must understand his/her place in the structure of the state’s constitutional bodies and be fully aware of his/her obligations to society not only in handling court cases, but also in ensuring the quality, reliability and prestige of the judicial system. This also includes participation in self-government bodies and responsible behaviour towards self-government elections. I have already said it to my colleagues during visits to the courts, and I will now repeat it to everyone – I am disappointed that there are colleagues elected to the self-government bodies who evaluate the work of the courts with 5 points out of 5, as it happened at the last extramural conference of judges. I understand that it is humanly that one wants to be appreciated, patted on the head and praised. But a judge, due to his/her position, status and professionalism, must not succumb to populism and lose the ability to look at things objectively solely for the benefit of personal emotional well-being. I am not saying that the judicial system should be rated by 1, 2 or even 3 points out of 5. But the rating is definitely not 5 out of 5. And I am worried that when a judge enters the self-government body with such an attitude, the functions of this self-government body will not be properly performed, because "everything is completely great", 5 out of 5!
Judges’ participation in an extramural conference’s part when the candidates are heard out is also a cause for concern.
On April 17 of this year, 19 judges followed the hearing of the candidates during the live broadcast, but until today the video recording has been watched a total of 79 times. 450 judges participated in the vote. Could the conclusion be that only 18% of judges are interested in self-government issues?
Strong, active, objective self-governance, adequate selection of judges, training, guidelines for judgement drawing, case review methodology, normal objective statistics – this is the only way to ensure the professionalism of courts that will correspond to public interest in the long term.
I know there are people who are unhappy with these changes, and this is natural for any organization. It is interesting that this frustration is reaching some listening ears outside the courts. But fortunately for Latvian society, these ears are the oppressive minority both in society and in political circles. The vast majority understands that the court must develop in the direction of professionalism and efficiency. And finally, after 30 years, there is also political support for the organizational and fiscal independence of the courts from the executive branch. Of course, we also listen to different opinions and test the validity of our position against them. This is normal mode of discussions. But, colleagues, we cannot lower the bar, because it is necessary for society, it is necessary for our nation, it is necessary for our children to live in a better society. For example, speaking of judges’ selection, the quality of the court in the next 20-30 and even 40 years directly depends on today's selection. These, colleagues, are two generations! I will say it directly, because it is my deepest conviction that if someone does not understand the responsibility of the court, of the self-government of judges and of an individual judge towards society, or deliberately ignores it, he/she is unable to fully understand and fulfil the function of a judge in a modern democratic society.
If I have to summarize in one sentence the direction of the Judicial Council at the moment – it is the path to a highly professional and highly efficient judicial system, which does not depend on political and individual contingencies (change of political power, change of court presidents, etc). It is a strategic and tactically delicate work that cannot be addressed with the method we are so used to apply – patching.
One of the elements of the overall picture is the search for ways to improve efficiency outside the extensive development model. The topic of today's Conference focusses on one of the ways – the effectiveness of the interaction of court instances.
There is an example.
When meeting with judges, in practically all first-instance courts there are criticisms of regional courts stating that some practices of appellate courts degrade the work of first-instance courts and make them ineffective. Two examples are usually given.
First, the cancellation of decisions on leaving the application without consideration in the civil proceedings in cases where incomprehensible and incomplete claims have been received. Judges of first instance courts say that in such cases the position of the regional courts most often is that all applications should be accepted, the case should be initiated and everything should be clarified during the examination. Being aware of the standards for initiating cases in other countries (for example, the application must be such that a default judgment can be made on its basis if necessary), I can say with absolute certainty that such an approach would be recognized as clearly ineffective. Why? Because the judicial machinery is being idled, even though the minimum legal requirements for an application have not been met. Often because of this practice, not only the first instance, but all three instances, are operated completely unjustifiably. And for some reason in these cases it is forgotten that the other party also has the right to a fair trial, including the right to immediately know what the case is about, and not to wait in obscurity for the court hearing, without really even understanding what he/she should defend himself/herself against.
Second example concerns the admissibility of evidence in civil cases before the appellate court. Although the legislator has long ago made amendments which for the sake of judicial efficiency prohibit this practice, except in special cases, it is still practiced. As a result, the opinion still prevails in the society that the first instance court is not serious and that the real litigation begins at the level of the appellate court. First of all, if there are no statutory prerequisites for the admission of evidence, such a practice is illegal. If the judge believes that this norm violates fundamental rights, an application should be submitted to the Constitutional Court, instead of breaking the law, without giving explanation on the acceptance of evidence. Secondly, in this case too, the other party's right to a fair trial is most often violated, when the judge takes the position of the defender of the first party, contrary to what is directly stipulated in the law. Thirdly, it really undermines the authority of the first instance courts and makes the judicial system ineffective, because the first instance courts have actually been working at idle when handling such cases.
Colleagues, one basic aspect must be understood here, namely that the court resource is not our personal resource. It is a public resource. It is taxpayer funds that run the court system. And the court system is expensive. Therefore, we have a responsibility to run it efficiently. And the litigants must also be efficient.
As we can see, in both cases it is most likely a matter of court efficiency problems caused by inadequate interaction of court instances. And these are not the only ones. We can also talk about the limits of the appeal, about the limits of the cassation, about the extent to which the case can be reviewed in the appellate court, whether the review of the case "on its merits" in the appeal means that the full review in the first instance court must be duplicated, whether the cassation instance really does not interfere in the aspects of proof and assessment of evidence, etc.
The streamlining of this interaction is today's topic.
Interaction between court instances exists, that's a fact. The questions are how effective it is, how to make it more productive, instead of making duplicates, how to reduce the resources needed for handling cases, while at the same time raising the quality or, as a minimum, not losing it.
I hope that the today’s discussion participants will provide insight into these issues. If not, then let's all get involved and take the discussion into our own hands.
Thank you, and let us have a creative and fruitful conversation!