29 MAY 2002
LATVIA / INFO
The basic principles of prosecutors' work in the Republic of Latvia, as well as guarantees for their independence and immunity are provided for by the Law on Prosecution Office enacted in 1994.
The Law on Judicial Power adopted in 1992 provides for the Latvian judiciary system.
Comparing the contents of the Latvian Law on Prosecution Office now in effect with the principles laid down by the EC in the Recommendation (2000) we may conclude that in many respects our national legislation offers solutions compliant with the said recommendations. Several new amendments and additions due in the nearest future are meant to strengthen the position of the Prosecution Office as an institution of judicial power in the state. These additions are to promote the prosecotor's independence in investigation of cases and ensure the Prosecution Office a more prominent role in the field of international cooperation in criminal matters.
The Latvian Prosecution Office is a uniform centralized three-tier system of institutions administered by the Prosecutor General. Such a system has been created in accordance with the organization principle of the Latvian three-tier judicial system.
The Law on Prosecution stipulates the following structure of the Prosecution Office:
1) District and City Prosecutor's Offices (their number corresponding to that of district and city courts)
2) Prosecutor's Offices of judicial regions (their number corresponding to that of regional courts)
3) Prosecutor General's Office
Every Prosecutor's office as well as any other prosecution structure is administered by a Head Prosecutor. Besides their direct duties, Prosecutor's Offices of judicial regions control the operation of district and city Prosecutor's Offices within the jurisdiction of the former.
The Prosecutor General's Office consists of Departments. Today there exist three such structures: one specializing in criminal law matters, another –in state and civil rights protection, and the third dealing with questions of administration and work analysis. These departments are in charge of their specific lines of activity in the whole state of Latvia. Head prosecutors in charge of their respective departments simultaneously hold the position of deputies to the Prosecutor General and one of them performs Prosecutor General's duties in case of his/her absence.
Prosecutor General is at the top of the hierarchy. He/she conducts and controls the operation of all Prosecutor's Offices, determines their structure and staff as well as directly administering the work of the Prosecutor General's Office.
With such an organization the principle of «the prosecutor's independence» envisaged by the Law becomes of primary importance.
Genuine independence of a prosecutor investigating a specific case presupposes that he or she be secured against any intervening by a senior colleague.
A prosecutor holding a higher position can give instructions to a prosecutor below him/her in rank with regard to assembly of proof for a concrete case, but he cannot instruct the latter in how to qualify the criminal offence, nor how to evaluate the evidence. Prosecutors take independent decisions whether to bring or drop a charge against a person. However, the main principle provided for by the Law is that a senior prosecutor has the right to take into his/her jurisdiction any case, although he/she has no right to instruct any prosecutor to perform actions which are contrary to his/her conviction.
The Law on Prosecution Office even contains a special article on Prosecutor's Independence stipulating that the prosecutor shall be independent in his/her activities from any influences of other public and administrative institutions or officials and shall comply only to law. Judges holding court are also independent and shall comply only to law. This is provided for by the Law on Judicial Power.
The office of a prosecutor is incompatible with any affiliation to any party or other political organizations. The same applies to judges who shall not be members of parties or other political structures.
Affiliation to a party is not the only source of political dependence or the only sign of subjection to influence. A prosecutor investigating a case should not be manipulated by politicians through various parliamentary or governmental structures. To secure this condition the Law on Prosecution Office stipulates that neither the Parliament, nor the Cabinet of Ministers, nor any other public or local government institutions, public or local government officials as well as individuals, have the right to intervene in the work of the Prosecution Office during investigation of cases. An unlimited term of authority for prosecutors serves as another guarantee of their independence.
Prosecutors, however, can to a certain extent influence the state policy making since:
1) Prosecutor General is a member of the Council for Prevention of Crime and Corruption;
2) Performing pre-trial investigation and holding a charge on behalf of the State prosecutors contribute to the development of law enforcement practice and penal policy;
3) Prosecutors take an active part in working out of Criminal and Criminal Procedure laws as well as other instruments linked with combating crime and securing control.
As provided for by the Law the prosecutor's functions are:
- to supervise the field work of investigation agencies as well as other operational activities of other institutions;
- to organize, conduct and perform pre-trial investigation;
- to initiate and conduct criminal prosecution;
- to prosecute on behalf of the State in all instances of jurisdiction;
- to submit protests
- to exercise oversight over the execution of penalties
- to take part in court hearings related to the change of the imposed sentence term or conditions of imprisonment.
Prosecutors are appointed to their position on the basis of professional and ethical criteria. The same principle applies to the appointment of judges.
The Prosecutor General is appointed by the Latvian Parliament (the Saeima) for the term of five years following the recommendation of the Chairman of the Supreme Court. To be appointed to this position a person shall have not less than three years in-service time at a prosecution Office, or shall have worked as a judge at the Constitutional, Supreme or Regional court for not less than three years.
It is noteworthy that the Law regulates the question of Prosecutor General's resignation or dismissal. This demonstrates whether the Prosecutor General is assessed as a political figure or as a professional. When the Law was adopted it contained a regulation according to which Prosecutor General was to be dismissed if one third of the Parliament members had requested so, and the Parliament had voted in favour of his/her dismissal by the simple majority of voices. Requesting Prosecutor General's dismissal it was not necessary to give reasons for such a move.
However, practice has proved that mechanism to be far from flawless, since it enabled the politicians to really influence the Prosecutor General. Two years ago there were made amendments to the Law providing for a new procedure for the dismissal of the Prosecutor General. In accordance with the new procedure MPs, proposing to dismiss the Prosecutor General shall specify what violations of the law have been permitted by the latter. After that the request by the said MPs shall be examined by a Supreme Court judge specially appointed by the Chairman of the Supreme Court. If the judge carrying out the probe states the fact of violations of the law in the Prosecutor General's activity and the said violations are further stated by the Plenum of the Supreme Court, the Parliament may decide to relieve the Prosecutor General from his/her position. In case the judge conducting the probe does not find any violations of the law in the Prosecutor General's work the question of his dismissal is not further discussed.
In accordance with the Law Head Prosecutors are appointed to their position by the Prosecutor General for a term of five years with the consent of the Attestation Commission. Renewal of the said appointment on the expiry of the five year term is allowed.
Other prosecutors are appointed by the Prosecutor General for an unlimited term of authority.
The Law stipulates the following requirements for a candidate to a prosecutor's position:
- LR citizenship
- higher education in law
- political neutrality
- proficiency in the state language, etc.
After the candidate has passed the qualification examination, undergone the in-service training, and the possibility of his prospective appointment has been considered by the Attestation Commission, the Prosecutor General makes a decision with regard to the candidate's appointment to the prosecutor's position. The Law prescribes the setting up of the Qualification and Attestation Commission which shall administer examinations to the said candidates; take decisions on their compliance with a specific prosecutor's position, on terms of the in-service training and fulfilment of the envisaged program. The Comission is also in charge of examining the most serious breaches of labour discipline. The council of the Prosecutor General annually approves the staff of the Qualification and Attestation Commission as well as the program for the in-service training.
A similar order is envisaged for appointment of judges. However, there are some differences. For example, to be appointed to the position of a judge a person shall have reached the age of 25 and shall have worked in the legal profession for at least 2 years.
Candidates for the position of a prosecutor as well as that of a judge are supposed to undergo the in-service training and pass a qualification examination. Judges for district (city) and regional courts are nominated by the Minister of Justice taking into consideration a resolution of the Qualification Collegium of judges. A candidate for appointment to the position of a Supreme Court judge is nominated by the Chairman of the Supreme Court taking into consideration a resolution of the qualification collegium of judges. The Cabinet of Ministers nominates a candidate for appointment to the position of the Chairman of the Supreme Court.
All judges are appointed to their position by the Parliament. District (city) court judges are appointed for three years and, upon expiry of that term, their appointment can be renewed for two years or they can receive an unlimited term of authority. Judges for the Supreme or a Regional Court are confirmed for the unlimited term of authority. The Chairman of the Supreme Court is confirmed for seven years in office.
In accordance with the Law judges, unlike prosecutors, can remain in office till they reach the maximum age of 65 (for district or city court judges) and 70 (for judges of the Supreme Court). However, the judge's term in office may be extended for five more years if both the Minister of Justice and the Chairman of the Supreme Court receive a positive response from the Qualification Collegium of judges.
The Latvian Law allows rotation of personnel within institutions of judicial power. Thus prosecutors have the right to transfer to work as judges while judges have the right to become prosecutors. However, a person cannot simultaneously hold both positions.
Remuneration for the work of prosecutors is stipulated by the law and linked with remuneration for the work of judges (equalling 90%-95% of the latter). It has to be admitted, however, that wages of prosecutors and judges are too low to attract able legal professionals to work for institutions of judicial power. Besides, inadequate remuneration may lead to corruption.
In Latvia there has recently been worked out a new concept for remuneration of judges and other court personnel. This concept presupposes new principles of calculating judges' remuneration and creates the possibility for increase of wages. Since the system of remuneration for judges is linked with that for prosecutors, changes in the former will inevitably affect the latter. That is why new amendments to normative acts are being worked out presently specifying principles of reckoning up wages for prosecutors.
If the Latvian government accepts the said new concept it will become possible in the course of the next two years to introduce positive changes to the remuneration system for prosecutors which will corrrespond to those mentioned in the Recommendation.
Taking into consideration the key principles outlined in the Recommendation (Rec 2000) 19 On the Role of Public Prosecution in the Criminal Justice System the question of necessary amendments to the national legislation is being discussed in the Republic of Latvia at the present moment. There has been established a think tank to work out a new law On Judicial Power. At the same time amendments to the current laws on Judicial Power and Prosecution are being prepared. The said amendments are linked with the social guarantees for prosecutors and judges; the judge's right to take other offices; exemption of the provision on the Continuity of Legal Process from the law On Judicial Power and the Code of Criminal Procedure; logistics for courts.
The EC Recommendation (Rec2000)19 and its explanatory memorandum on the Role of Public Prosecution in the Criminal Justice System stress the importance of securing appropriate working conditions and remuneration for the personnel of prosecution offices. The status of prosecutors and their remuneration should be equal to those of judicial functionaries ( court judges) since both prosecutors and judges secure the rule of Law in the state, and the Prosecution Office according to article 1 of the Latvian Law on Public Prosecution is also an institution of judicial power. That is why the Law on Prosecution envisages the principle of equating prosecutors' wage to that of judges' in terms of persentage.
Besides, the Law on Prosecution and the Law on Long-Service Bonus Pensions for Prosecutors stipulate that prosecutors have the right to receive a pension for long service (effective as of January 1,2000). Long-service bonus pensions for judges are not provided for by the law.
Recommendations (Rec2000) 19 have influenced the work on the new Criminal Procedure law in Latvia. In accordance with the decision by the Cabinet of Ministers of February 2001 there has been established a think tank to prepare the new law on Criminal Procedure. In the draft law there have been introduced changes concerning realization of prosecutors' functions. Prosecutors are given the right to take a decision with regard to a person's guilt at the pre-trial stage. The draft is also expected to envisage the possibility of agreement between the prosecution and the defence as far as the institution of guilt is concerned. At the same time, the rights of both the guilty and the aggrieved parties to have their case considered by trial as well as the right to appeal the prosecutor's decision are not limited.
The Latvian Parliament has accepted the first reading of the draft law providing for a wide range of amendments to the Code of Criminal Procedure, including an absolutely new provision regulating international cooperation in the field of criminal justice. The latter contains general rules of international cooperation specifying its ways, legal grounds, competent institutions, admissibility of evidence obtained as a result of international cooperation, etc. Separate chapters stipulate procedures for specific forms of cooperation, as for example, extradition to and from Latvia envisaging the possibility of a simplified procedure which the prosecutor General is authorised to decide on, etc. The draft law provides for such a new form of international cooperation as Joint Investigation Units. The establishment of the said units is meant for joint activities of authorized officers from the Latvian and other side or sides at the stage of pre-trial investigation within the framework of criminal proceedings in one of the countries concerned.
The draft law authorizes the Prosecutor General to sign agreements on the establishment of a joint investigation team. Essential changes also concern such a cooperation form as assistance in performance of procedural work. Henceforth Latvia will be able to comply with other states' requests for procedural activities with the help of technical equipment (video- and teleconferences) and will have the opportunity to carry out special investigation procedures, such as control over means of communications, video-surveillance, etc.
The Prosecutor General's Office of the Republic of Latvia is the subject of mutual international assistance in the field of criminal justice. It acts as a moderator through which communication with foreign states is carried out to solve the following questions of pre-trial investigation: mutual assistance in criminal cases; transfer of sentenced persons; money laundering, search, seizure and confiscation of illegal proceeds; extradition and transfer of proceedings in criminal matters.
All the said procedures are regulated in accordance with international conventions and bilateral agreements. The effective Code of Criminal Procedure stipulates that Prosecutor General is the only authorized functionary in the state to take decisions on a person's extradition or transfer of sentenced persons.
In 2000 meeting the demands of growing international cooperation there was established a special Division for International Cooperation in the Prosecutor General's Office. Prosecutors working in the said division specialize in promoting realization of mutual assistance in accordance with principles declared by the European Council and the European Union.
These officers are also responsible for carrying out comparison of the national legislation with the international one as well as promoting harmonization of the former with the EC and EU requirements. They participate in international forums where the above mentioned questions are discussed.
Combating organized crime is hampered by a lot of red tape. Unnecessary outdated regulations slow down the investigation of international criminal cases. Irrespective of the gravity of a crime under investigation the requesting side may wait for a reply from another state for weeks or even months. This is absolutely unacceptable if, for example, there is a need to apprehend dangerous criminals, terrorists or to seize a shipment of smuggled drugs, or to search the premises. There should be created appropriate working conditions, so that prosecutors can promptly take adequate measures carrying out mutual legal assistance. More efforts should be made to simplify exchange of information among prosecutors of European countries enabling an officer who investigates a concrete criminal case to cooperate directly with his/her counterpart or respective agency in a foreign state. This will result in greater efficiency of investigation proceedings and save a lot of money for every country.
It is necessary to agree upon those criminal acts in case of which international cooperation can be refused. Another question to be discussed is the possibility of gradual waiving the requirement that legal assistance can be rendered provided an offence is criminally punishable in both cooperating states. This may be of particular importance when assistance is requested with regard to cases of criminal acts committed in different states (trans-border crimes); crimes linked with financial operations and banks.
If prosecutors could come to an agreement about how to help one another obtain evidence, etc., we would be a greater success in combating organized crime in Europe. We should also favour the decision which would oblige bigger European states to establish several subjects of international cooperation, besides central institutions specified in international agreements. This would simplify filing of direct requests and rendering of mutual legal assistance in urgent cases.
We should not underestimate the growing importance of informal mutual assistance when prosecutors of one state directly contact their counterparts in another country promptly providing necessary additional information. Practice has shown that prosecutors complying with requests for legal assistance may misunderstand the meaning of a specific question in a concrete case which results in an imprecise reply. To avoid such situations and to promote closer personal contacts it would be reasonable, as it seems to us, to organize joint forums, training seminars, etc., for prosecutors from European states.
The Recommendation of the Council of Europe (2000) 19 «On the Role of Public Prosecution in the Criminal Justice System» was translated into Latvian on the initiative of the Latvian Prosecution Office that financed the translation.
Members of the Latvian Parliament (the Saeima) had an opportunity to acquaint themselves not only with the final text of the Recommendation, but also with its draft. At repeated joint sessions with representatives of the Prosecution Office, MPs, especially members of the Legal commission and commissions on Security and Internal Affairs, thoroughly analysed and evaluated the content of the Recommendation comparing it with provisions on the role and place of the Prosecution Office in the national legislation. The Prosecutor General of the Republic of Latvia, Janis Maizitis in his numerous interviews in mass media while speaking on the role and place of the Prosecution Office in the state referred to and cited the Recommendation 19. Head Prosecutor of the Analysis and Administration Department of the Prosecutor General's Office, Rudite Abolina in her speech on the radio as well as in a newspaper interview also expressed her opinion on how the Recommendation had influencced the national legislation. When interviewed by the press the Latvian Ex- Prosecutor General and consultant to the think tank working out the new Law on Criminal Procedure, Janis Skrastins also referred to the Recommendation substantiating the necessity for a new Law on Criminal Procedure. The Recommendation was also evaluated by the Latvian Ministry of Justice, The Chairman of the Supreme Court, his deputy and other judges. The discussion of the said document proved extremely topical for Latvia in 2000 when there had to take place change of Prosecutors General and legislators were tempted to assume functions of the judicial power.
Relations between the Prosecution Office and the Parliament (Saeima)
In accordance with article 1. of the Law on Prosecution, the Prosecution Office is an independent institution of judicial power. Its subordination to the Parliament is realized in the following:
1) The structural organization and functions of the Prosecution Office are stipulated by the laws passed by the Parliament (the Saeima), and it is the Parliament that appoints the Prosecutor General.
2) The Parliament through the Law on the State Budget determines financing of the Prosecution Office.
3) The Parliament, as well as the President of the state has the right to entrust the Prosecution Office with the task to examine the fact concerning the breach of the law.
The Prosecutor General is obliged to inform the Parliament (the Saeima) about the disclosure of the most serious violations of law which pose threat to the state. Besides, the Prosecutor General has the right to participate in the work of parliamentary sessions and by consent of the Parliament he/she may express his/her opinion on the problems directly linked with the prosecutors' activity.
Presently the question of vesting the Prosecutor General with the right to a legislative initiative is being considered.
Relations with the executive power.
The Prosecution Office has the right to supervise compliance with the normative acts passed by the Cabinet of Ministers. At the same time the executive power controls within its competence the work of the Prosecution Office (for example, compliance with financial discipline, observance of fire-prevention rules, etc.).
The Cabinet of Ministers has the right to entrust the Prosecution Office with the task to examine the facts of the breach of the law.
The Prosecutor General has the right to take part in sessions of the Cabinet of Ministers and express his/her opinion on questions under cosideration. The same rights are also granted to the three Head Prosecutors administering departments of the Prosecutor's General Office.
When stating the antinomy between the normative acts and the Constitution (Satversme) and/or the respective laws the Prosecutor General is authorized to apply to the Constitutional Court.
The essential difference between the executive power and the Prosecution Office lies in the fact that unlike government members, prosecutors, including the Prosecutor General cannot be affiliated with any political party.
Relations with the Police.
Division of powers between the Prosecution Office and the Police is relatively well-balanced in Latvia. At the stage of pre-trial investigation the Police are responsible for the disclosure of a crime, while the task of the Prosecution is to bring an accusation against a guilty person and to submit a case to the court. Since the Prosecution is responsible for the pre-trial investigation process in general (that is its lawfulness and effectiveness), it is also authorized to supervise compliance with the law by the Police.
Article 2. of the Law on Prosecution stipulates that the prosecutor is the only person who upon receipt of all documents from the police evaluates sufficiency (admissibility ) of evidence existing in the case for the initiation of criminal prosecution of a person.
It is noteworthy, however, that the police and prosecutors closely cooperate in procedural matters. Prosecutors supervise activities of the police, and instructions by the former are obligatory for the latter. At the stage of criminal prosecution the police are to perfom the tasks given to them by prosecutors concerning specific procedural activities.
In June 17, 1998 the Council of the Prosecutor General approved The Code of Ethics of Prosecutors of Latvia that stipulates the basic principles of their behaviour. The Law on Prosecution, in its turn, provides for disciplinary liability in case of non-observance of norms determined by the Code of Ethics. Thus, within the period from 2000-2001 six prosecutors were subjects to disciplinary actions for violations of the Code of Ethics.
The Prosecutor General's Office annually publishes reports on the results of performed activities in the official periodical issued in the Republic of Latvia.