3 May, 2007
The Supreme Court considers that adoption of a new Law on Judiciary to replace the present law “On Judicial Power” is not necessary if the draft law is worked out in the wording which was examined by the Saeima (Parliament) in the first reading. Such a conclusion signed by the Chief Justice of the Supreme Court Andris Gulans has been submitted to the Legal Commission of the Saeima.
However, if it is impossible to decline adoption of a new law, it could be possible to adopt the existing law “On Judicial Power” in a new wording, or retain the notion “judicial power” in the title of the law, to call it “On Judicial Power and Judicial System”.
The Supreme Court indicates that without any argumentation and grounds the regulations stated in Article 1 of the current law “On Judicial Power”, and namely, the principle of independence and lawfulness of the judicial power, the warranty of a judge’s independence, the right of a person to a trail of a case in the procedure as stated by the law, have not been included in the draft law. The currently effective law also states explicitly that the judicial power in Latvia belongs to district (town) courts, regional courts, the Supreme Court and the Constitutional Court, and in exceptional cases or during a war period – also the court martial.
The Supreme Court doubts the necessity of such an institution as the Judicial Council mentioned in the draft, as judging by the functions which are entrusted to this council in the draft law, it could not have significant influence on the court system. As it is seen from the text of the draft, the Judicial Council would be an advisory institution which has no powers and responsibility under the draft law. The meetings of it are to be convened irregularly notifying the members on the agenda of the meetings 3 days in advance. The Judicial Council has the right to pass a decision in the composition of 7 members with a simple majority of votes. Taking into account the composition of the Judicial Council – the Chief Justice of the Supreme Court, the Chairman of the Legal Commission of the Saeima, the Chairman of the Constitutional Court etc. – and their work load while performing their direct duties it is doubtful that the members of the council would be able to fulfill their duties fully, for example, to work out and present opinions on the budget requests of the district (town) courts, administrative district court, regional courts, administrative regional court, the Supreme Court.
Several significant standards in the draft law are not intended to ensure administering of justice in an independent and impartial court, and do not comply with the Satversme (Constitution). In comparison with the currently effective law, the draft law does not stipulate anymore specific district (town) courts which administer justice as the first instance courts. The Supreme Court notes that with the draft law coming into effect, the legitimacy of existence of the established district (town) courts will be lost, and it will not comply with the Satversme. The draft law does not state what power and under what procedure will establish the courts in Latvia. The right to re-organize and liquidate district (town) courts is assigned to the Cabinet of Ministers. Besides, the Cabinet of Ministers is assigned the right to determine the number of district courts, place of location, territory of activities, as well as the place of location and territory of activities of regional courts.
It is stipulated that the number of judges in each court is determined by the Minister of Justice, he also appoints in the position the chairmen of the district and regional courts and their deputies. Under the current law “On Judicial Power” these issues are decided by the Saeima. The draft law puts the stress on the dominant of the executive power over the judicial power ignoring the basic principle of division of power, when along with the legislative and executive powers, there exists an independent judicial power.
The Supreme Court finds that at first an agreement has to be reached regarding these conceptually significant issues, and only after that debates should be opened regarding the formulation of specific articles of the law. The opinion is supplied by the summary of suggestions of the structural units of the Supreme Court containing 74 proposals and amendments to specific articles of the draft law.
Information prepared by Division of Communications of the Supreme Court
Author: Rasma Zvejniece, Head of the Division of Communications of the Supreme Court
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