Regarding evaluation of the Recommendation CM/Rec (2010) 12 to member states on judges : Independence, efficiency and responsibilities there are some possible infringement examples which we have noticed in Latvia.
Selection and career
According to Article 60 of the law „On Judicial Power” judges of a district (city) court shall be appointed to office by the Saeima (Parliament), upon the proposal of the Minister for Justice, for three years.
After a judge of a district (city) court has held office for three years, the Saeima (Parliament), upon the proposal of the Minister for Justice, and on the basis of an opinion of the Judicial Qualifications Board, shall confirm him or her in office, for an unlimited term of office, or shall re-appoint him or her to office for a period of up to two years.
If the work of a Judge is unsatisfactory, the Minister for Justice, in accordance with an opinion of the Judicial Qualification Board, shall not nominate a judge as a candidate for a repeated appointment to or confirmation in office.
It means that the decision on suitability of candidate for judicial appointment or to the position of higher instance is taken by the Minister of Justice which is based on opinion of the Qualifications Board of Judges (consisting of judges). The opinion of the Qualifications Board of Judges practically is based on the opinion of the Judge of higher instance (approved by the Head of higher court), on the opinion of the Head of the court and on the report of the Administration of Courts.
Before final appointment the Parliamental Judicial commission (consisting of parlamentarians) scrutinises the candidate and gives the opinion to the Parliament which usually follows the decision of the Minister of Justice. The final appointment is made by the Parliament. According to case law of the Latvian Supreme court the decision of the Saeima (Parliament) is political decision which is not challenged in the court. Nevertheless in the administrative court can be challenged the decision of the Minister for Justice. The judge which was not re-appointed because of lack of professional competence has challenged negative decision of the Minister of Justice and there is a case in the Court of Appeal.
According to 47 of Recommendation where the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges, an independent and competent authority drawn in substantial part from the judiciary should be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice. In practice there have been some cases when the Minister for Justice, in accordance with an opinion of the Judicial Qualification Board, has taken positive decision to nominate a candidiate for judicial appointment in higher instance or for re-appointment but the Saeima (Parliament) refuses the candidate.
For example, the judge of the Court of Appeal received positive
opinion of the Judicial Qualifications Board and positive decision of
the Minister of Justice for appointing in the Supreme court. Also
Parliamental Judicial commission took positive opinion for appointment
of judge in the Supreme court. But in the final voting in the Parliament
the candidate was refused, by the possible (in mass media spreaded)
reason that a judge in the Court of Appeal has made negative decision
according to a political person with significant influence in the
political party. The only consequences in that case was public criticism
but the judge has not possibility to challenge decision of the
Parliament. Also approximately one year ago the judge of first instance
was not re-appointed in the Parliament nevertheless the Qualifications
Board of Judges and the Minister of Justice advised re-appoint the judge
for 2 years.
The positive tendence is that form 1 January 2013 in the level of law
are approved evaluation criteria which should be taking into account by
preparing opinion before advising on appointment or promotions. In
practice before that significant role in the evalutaion of judge play
statistics relating to reversals on appeal.
Cuts in the remuneration of judges
Latvia facing economic crisis have opted for twice a cut in the
salaries of judges – by 15% from 1 July 2009 and by 27% from 1 January
2010. Regardless of the rationale behind such measures, practically
judicial remuneration was reduced in a greater proportion than that of
public officers because of fact that before reducing salaries of judges
was in the lower level than salaries of the adequate position in the
state institutions because in the time of growing economics the salaries
of state institutions more flexible could fit in line with growing
salaries generally. This decision was challenged in the Constitutional
court and it was reversed because it was not proportionate and adequate
decision. Nevertheless the Parliament adopted the common system of
officials (employees) of the State, including judges in this system and
the salary of judges in this moment is in previous level as before
crisis.
In this moment according to Law On Remuneration remuneration of judges
is included in the common system of officials (employees) of the State
and local government authorities. Remuneration of judge of lower
instance without qualification class is similar to highest possible
level of remuneration of the head of judicial division in the State
institution (LVL 1157). In practice the system of salaries and
allowances in the State institutions are more flexible than system of
salaries and allowances for judges and it means that in the State
institutions following in line with the cost of living overall salary
with included allowances can be higher than salary of judge. For this
reason position of judge is not so attractive and competitive in the
meaning of salary as adequate positions in state institutions.
Regarding evaluation of the Recommendation CM/Rec (2010) 12 to member states on judges : Independence, efficiency and responsibilities there are some possible infringement examples which we have noticed in Latvia.
Selection and career
According to Article 60 of the law „On Judicial Power” judges of a district (city) court shall be appointed to office by the Saeima (Parliament), upon the proposal of the Minister for Justice, for three years.
After a judge of a district (city) court has held office for three years, the Saeima (Parliament), upon the proposal of the Minister for Justice, and on the basis of an opinion of the Judicial Qualifications Board, shall confirm him or her in office, for an unlimited term of office, or shall re-appoint him or her to office for a period of up to two years.
If the work of a Judge is unsatisfactory, the Minister for Justice, in accordance with an opinion of the Judicial Qualification Board, shall not nominate a judge as a candidate for a repeated appointment to or confirmation in office.
It means that the decision on suitability of candidate for judicial appointment or to the position of higher instance is taken by the Minister of Justice which is based on opinion of the Qualifications Board of Judges (consisting of judges). The opinion of the Qualifications Board of Judges practically is based on the opinion of the Judge of higher instance (approved by the Head of higher court), on the opinion of the Head of the court and on the report of the Administration of Courts.
Before final appointment the Parliamental Judicial commission (consisting of parlamentarians) scrutinises the candidate and gives the opinion to the Parliament which usually follows the decision of the Minister of Justice. The final appointment is made by the Parliament. According to case law of the Latvian Supreme court the decision of the Saeima (Parliament) is political decision which is not challenged in the court. Nevertheless in the administrative court can be challenged the decision of the Minister for Justice. The judge which was not re-appointed because of lack of professional competence has challenged negative decision of the Minister of Justice and there is a case in the Court of Appeal.
According to 47 of Recommendation where the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges, an independent and competent authority drawn in substantial part from the judiciary should be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice. In practice there have been some cases when the Minister for Justice, in accordance with an opinion of the Judicial Qualification Board, has taken positive decision to nominate a candidiate for judicial appointment in higher instance or for re-appointment but the Saeima (Parliament) refuses the candidate.
For example, the judge of the Court of Appeal received positive
opinion of the Judicial Qualifications Board and positive decision of
the Minister of Justice for appointing in the Supreme court. Also
Parliamental Judicial commission took positive opinion for appointment
of judge in the Supreme court. But in the final voting in the Parliament
the candidate was refused, by the possible (in mass media spreaded)
reason that a judge in the Court of Appeal has made negative decision
according to a political person with significant influence in the
political party. The only consequences in that case was public criticism
but the judge has not possibility to challenge decision of the
Parliament. Also approximately one year ago the judge of first instance
was not re-appointed in the Parliament nevertheless the Qualifications
Board of Judges and the Minister of Justice advised re-appoint the judge
for 2 years.
The positive tendence is that form 1 January 2013 in the level of law
are approved evaluation criteria which should be taking into account by
preparing opinion before advising on appointment or promotions. In
practice before that significant role in the evalutaion of judge play
statistics relating to reversals on appeal.
Cuts in the remuneration of judges
Latvia facing economic crisis have opted for twice a cut in the
salaries of judges – by 15% from 1 July 2009 and by 27% from 1 January
2010. Regardless of the rationale behind such measures, practically
judicial remuneration was reduced in a greater proportion than that of
public officers because of fact that before reducing salaries of judges
was in the lower level than salaries of the adequate position in the
state institutions because in the time of growing economics the salaries
of state institutions more flexible could fit in line with growing
salaries generally. This decision was challenged in the Constitutional
court and it was reversed because it was not proportionate and adequate
decision. Nevertheless the Parliament adopted the common system of
officials (employees) of the State, including judges in this system and
the salary of judges in this moment is in previous level as before
crisis.
In this moment according to Law On Remuneration remuneration of judges
is included in the common system of officials (employees) of the State
and local government authorities. Remuneration of judge of lower
instance without qualification class is similar to highest possible
level of remuneration of the head of judicial division in the State
institution (LVL 1157). In practice the system of salaries and
allowances in the State institutions are more flexible than system of
salaries and allowances for judges and it means that in the State
institutions following in line with the cost of living overall salary
with included allowances can be higher than salary of judge. For this
reason position of judge is not so attractive and competitive in the
meaning of salary as adequate positions in state institutions.