2. Overview of the Prosecution System in Latvia
This chapter provides an overview of the Prosecution System in Latvia. It outlines the national context, role and institutional position of the prosecution and describes its structure and main actors. It also provides a comparative analysis of structure of prosecution services in the benchmarking countries’ systems, diving deeper into independence, accountability and reporting mechanisms and the application of good governance principles to the prosecution.
The institutional design and status of public prosecution services play a key role in prosecutorial performance. In this context, this chapter provides an introductory approach to the configuration of the prosecution system in Latvia, ranging from its institutional position and roles to a description of the actors involved and its organisational structure. The Chapter also provides an analysis of several aspects of prosecution performance, including the regulation of independence, reporting mechanisms, transparency and the application of good governance principles to the prosecution, among others. In addition, the Chapter integrates comparative analysis of the related practices in the OECD benchmarking countries participating in this study.
The Prosecution Office in Latvia was established soon after the independence of the country and the abolition of the Soviet Union rule, in which the prosecution (prokuratura) had a different function than that of prosecutors in liberal western democracies. On 26 September 1990, the Supreme Council of the Republic of Latvia (Latvijas Republikas Augstākā Padome) passed the Law “On Prosecutor’s supervision in the Republic of Latvia”. This law allowed establishing the first prosecutor general office of the independent Latvia as a new institution. Since 1990, the Prosecution Office is composed of the Prosecutor General’s Office, Prosecution Offices of regions, districts (cities) and the Regional Prosecution Offices. The system of the Prosecution Office institutions includes also specialised Prosecution Offices which are equal to districts (cities) Prosecution Offices.
The current Law on the Prosecution Office was passed on 2 June 1994 and entered into force on the 1 of July of the same year. This Law has been amended a number of times, the last one in 2020. The Prosecution Office has now the exclusive criminal prosecution competence in the country. The current Prosecutor General is the Fourth one since the Latvian statehood restoration and he was appointed by the Parliament in July 2020.
Main actors in the Latvian Criminal Justice System
Apart from the judges, the main responsibilities on criminal justice in Latvia are allocated as follows in this synoptic table:
Prosecutor General
The Prosecutor General is appointed by Parliament through an open vote. The candidate is nominated by senior members of the judiciary. The Law on the Prosecution Office (LPO) (Sections 33, 36-37) specifies the eligibility criteria which include, for example, experience as a judge or prosecutor and a “good reputation”. The Prosecutor General is appointed for five years and can be reappointed by Parliament for one additional term. He/she can be dismissed only if a Supreme Court judge (chosen by the Chairman of the Court) finds grounds for dismissal.
Institutional Position of the Prosecutor’s Office in Latvia
In Latvia, the Prosecutor’s office is part of the judiciary, meaning that they operate independently of the legislative and executive branches. The Saeima (Parliament), Cabinet and President may instruct a Public Prosecutor’s Office to verify facts relating to infringements and receive explanations from the Prosecutor-General’s Office. They may not, however, interfere with the work of the Public Prosecutor’s Office in question. Guarantee of the prosecutors’ independence is established both in the Law on Judicial Power (Law on Judicial Power, Section 106.1) in the Law on Prosecutor’s Office (Law on Prosecutor’s Office, Section 1, 6) and also in the Criminal Procedural Law (Section 459). In particular, Article 6 of the Prosecutors Office Law states that a prosecutor is obliged only by the law. The law explicitly rules that the Parliament, the Cabinet of Ministers, public and local government institutions, public and local government officials, enterprises and organisations of all types as well as individuals shall be prohibited from intervening into the work of the Prosecution Office in the investigation of cases or during the performance of any other functions of the Prosecution Office. A person shall be liable as provided for by law for attempts to exert unlawful influence on the Prosecutor or to intervene into the work of the Prosecution Office. In addition, Letter No. 1/1-11- 72-16 of 1 June 2016 from the Chief Prosecutor of Department of Analysis and Management of the Prosecutor General’s Office reminded all chief prosecutors of the language of Article 5 of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (´Anti-Bribery Convention´) and that prosecutorial discretion is to be exercised on the basis of professional motives and is not to be subject to improper influence by concerns of a political nature. Yet, the Prosecutor’s office is not incorporated into the structural and organisational responsibilities of the judiciary, which generally implies that it is not subordinated to the Judicial Council or the High Judicial Council. Due to its position under the judiciary power, the Ministry of Justice cannot have a say in the affairs of the prosecutorial service. The Constitution does not mention the prosecutorial services. Only the courts have a constitutional standing and regulation in chapter VI (articles 82-86). Prosecutors are also not mentioned within the court system described in the Constitution. It is the Law on the Prosecution Office (article 1) that describes it as an institution of the judicial power, which shall independently exercise supervision over the law compliance within the limits of competence prescribed by this Law.
This arrangement appears to depart from the mainstream models of OECD countries within the civil law tradition, which may have had an impact on how Latvian prosecutorial services have functioned over the years. In most benchmarking countries, the independence and professional autonomy of a prosecutor is guaranteed by the constitution or by the law. Within the benchmarked peers, 40% of prosecution systems are part of the executive branch of government, whereas 30% belong to the judiciary, and the rest are not part of any branch. In countries where the prosecutorial services are part of the executive, this does not necessarily imply that individual prosecutors follow executive instructions concerning their prosecutorial responsibilities. In countries where the prosecutorial service is part of the judiciary, it is primarily managed by the judicial council or by a specific prosecutorial council. For example, France and Italy have the prosecutorial services within the judiciary and governed by the High Judicial Council. Portugal has a specific High Prosecutorial Council in charge of governing the prosecutorial service, along with a Prosecutor General (See Box 2.1).
The Executive Model
This model includes those countries where the prosecutorial services fall within the ambit of responsibility of the executive branch of the governments. It does not necessarily mean that the government is entitled to give instructions to prosecutors in specific cases, but there often is a Director or General Prosecutor in whose appointment the executive has a relatively considerable sway. In this model, it is also usual that the prosecutors do not investigate crimes, but supervise the investigations carried out by the police. In some of these countries prosecutors only prosecute serious crimes or crimes related to financial activities or corruption, whereas the police prosecute less serious crimes.
Denmark has district prosecutors embedded in the district police. It means that lower level crimes are prosecuted by the police. Highest levels of prosecutors are independent, even if they are under the umbrella of the Ministry of Justice. Strong specialisation in fraud, organised crime and corruption prevails in either country. They emphasise strategic management of the prosecutorial service through the Director of the Prosecution Service. Finland shows a separation between the investigative police and the prosecutor, but a strong “collaboration” model is currently under construction between police and prosecutors. The Ministry of Justice is the sponsor of prosecutors and Ministry of the Interior is the sponsor of the police. Denmark, Sweden and the Netherlands did a deep reform of the Public Prosecution Service management in mid-1990s and 2000s. The objectives were manifold: to improve the performance and results, especially by introducing the notion of strategic management and prioritisation of resource allocation in certain areas (cross-border criminality, serious crime, management of the prosecutor office, etc.) and adopting diversionary measures to decongest the court and penitentiary systems. In Ireland, it is the police which conduct the investigations and the prosecutor decides only to prosecute or not in more serious crime cases (known as ‘indictable offences’ as opposed to ‘summary offences’ or less serious crimes which are prosecuted by the police). In New Zealand, a country also within the common law tradition, the prosecution service is dispersed among several agencies legally empowered to prosecute and Crown Solicitor offices, but the investigation is reserved either to the police or the prosecuting agency. The police or other prosecuting agency conduct prosecutions of less serious crimes or matters that are not heard before a jury. The Crown Solicitors (prosecutors) are private lawyers warranted by the Governor-General to prosecute serious matters (known as Crown prosecutions, as defined by regulation 4 of the Crown Prosecutions Regulations 2013) under the guidance of the Solicitor-General. They do not investigate but may provide legal advice to the police. Crown prosecutors are lawyers employed at Crown Solicitor firms. All prosecutors must follow the Prosecution Guidelines issued by the Solicitor-General. The Czech Republic, also falls within the executive model. Other OECD countries such as Austria, Australia, Canada, Germany and Spain could also be classified within this category. As can be seen, we have selected a sample of countries responding to various legal traditions. It is our hope that some good lessons can be drawn from those various traditions and experiences.
The Separate Council Model
This model includes a group of OECD countries where the prosecutorial service is part and parcel of the judiciary and is managed by the judicial council or by a specific prosecutorial council. In these countries, prosecutors are generally much more involved in crime investigation in close liaison with the police. In France, the prosecutor service is part of the magistracy. The Judicial council manages aspects of both. However, the Ministry of Justice plays the major role in court and prosecutors management. The prosecutorial service is part of the judiciary but not organisationally separate from the executive. However, the French prosecutors are functionally and generally independent from the Ministry in practice.
In Italy, the Council of the Judiciary manages both the judges and prosecutors. Prosecutors have extensive powers in pre-trial investigation along with the various kinds of police. Most new democracies of central and eastern Europe have embraced this ‘separate council model’ for their judiciary and for their prosecutorial services under recommendations from the Council of Europe (in particular the Venice Commission) and the European Commission in the EU enlargement negotiations, although the effectiveness of the model has varied across countries, depending on the historical and socio-economic factors. In Portugal, the institutionalisation is set up through a High Council of the Prosecutors, integrated into the judicial branch, while being completely independent from the two Judicial councils that exist (judiciary and administrative). It is a two-faced institutional arrangement. It is presided over by a General Prosecutor endowed with large executive powers, but the strategic decisions are taken by the High Council of Prosecutors. The investigative police are the judicial police under the Ministry of Justice, although the police are working autonomously on behalf of the prosecutors and investigating magistrates. Belgium could also be classified within this category as the authority over the prosecutorial services lies in the College of Prosecutors General, which is made up of prosecutors general attached to the courts of appeal. The College decides on all the appropriate steps for the implementation and co-ordination of criminal policy and the functioning and co-ordination of the prosecution service.
Source: Author.
Currently, several considerations could be highlighted with regard to the institutional position of prosecutors in order to identify space for strengthening efficiency and effectiveness of the Latvian prosecution services, including:
In a majority of benchmarked OECD countries, the prosecution is an independent institution pursuant to statutory law passed by parliament, as happens in Latvia.
Note: The following question was asked as part of the ad hoc OECD Questionnaire on Prosecution Service to benchmarking countries: Are prosecutors functionally independent? If so, which is the legal basis for that independence?
Source: Benchmarking country responses to ad hoc OECD Questionnaire on Prosecution Service.
Box 2.2 offers a comparison with other OECD countries when it comes to the institutionalisation and independence1 of prosecutorial services.
In terms of comparison, the prosecution service in the Netherlands (Openbaar Ministerie) has a special autonomous position. It is part of the judicial organisation, but not of the judiciary. The prosecution service is separate from the ministry of Justice, but there is a (limited) hierarchical relationship with the minister of Justice. The prosecution service reports and is accountable to the government through the Ministry of Justice. Prosecutors are in theory not independent, as the minister of justice has the power to give instructions to the prosecution service in certain cases, be it under strict conditions. However, in practice the minister has never made use of this power.
The Swedish Prosecution Authority (SPA) is an independent organisation. It is an autonomous agency accountable to the Government and it is independent both from the police and the courts. The autonomy is guaranteed by the Swedish Constitution. The Swedish Prosecution Authority, like all government agencies within the Swedish judicial system, falls within the area of responsibility of the Ministry of Justice. The Government determines the general mandate, guidelines and the allocation of resources for the agencies’ activities. The Government appoints the Prosecutor-General. The Prosecutor-General is the head of the Swedish Prosecution Authority. The Prosecutor-General is also the highest-ranked prosecutor in the country and the only public prosecutor in the Supreme Court.
The Prosecution Service in Denmark is under the responsibility of and subordinated to the Minister of Justice, along with the Police and the Prison Service. The Procedural Code provides in Article 98 that the Minister of Justice may intervene in individual cases and require any of the prosecutors to commence of desist from proceedings. However, any such direct order must be notified to the President of the Parliament together with a statement of reasons. The procedural code does not provide specifically for measures that may be taken by the President of the Parliament, but the Danish judicial system includes a special court for impeachment, which might be addressed in case of an abuse of powers by the Minister of Justice.
In Finland, the independent National Prosecution Authority is a state authority and part of the judicial system. Its task is to ensure the realisation of criminal liability, i.e. that the proper statutory punishment is attached to a criminal act. The National Prosecution Authority operates within the administrative branch of the Ministry of Justice. However, neither the Ministry of Justice, nor any other government body, have authority over the internal matters of the prosecution service, or over individual prosecutions. A prosecutor's independence and autonomy mean that no one can give orders to a prosecutor on how he/she should decide an individual, pending criminal case.
In Italy, the Prosecution Service is an independent institution. Each public prosecutor is also independent. Such an independence is guaranteed by the Constitution. Public prosecutors are magistrati, as they belong – together with judges – to the judiciary. Their independence is safeguarded by the Consiglio Superiore della Magistratura (CSM – the High Council for the Judiciary). The latter has full authority on appointments, transfers, careers and discipline of judges and public prosecutors. The High Council for the Judiciary is mostly composed of magistrati (judges and public prosecutors) who are elected by vote of all the judges and public prosecutors. Their independence is further guaranteed by their non-removability and guarantee of tenure. They can only be removed or suspended from their functions or transferred to another workplace if the CSM so decides and respecting the guarantees of the law.
In Portugal, public prosecutors are judicial officials, who form part of, and are subject to, a hierarchy, and who may not be transferred, suspended, retired or removed from office except in the cases provided for by law. The powers to appoint, assign, discipline, transfer and promote public prosecutors pertain to the High Council of the Public Prosecution Service.
Source: Author.
In Latvia, further to existing guarantees in the law, there appear to be sufficient safeguards for protecting prosecutors’ independence in both the external and internal standpoints. The OECD Report Implementing the OECD Anti-Bribery Convention in Latvia, Phase 3 pointed out that the growing criticism by the Executive power of Latvia’s Prosecutor General’s performance amid a number of high-profile corruption investigations created a risk of actual or perceived political interference (thus, threats to external independence), and country’s non-compliance with Article 5 of the OECD Anti-Bribery Convention. Evolution in this regard must be monitored (OECD, 2019[1]).2 In particular, it noted that:
Management of the [Oligarch] case raised strong disapproval by civil society that were echoed in discussion with representatives from NGOs and media at the Phase 3 on-site visit. This criticism has been accompanied by the government’s repeated and public comments on the Prosecutor’s General’s performance and the PPO’s activities in general. The PPO’s management of the investigation of allegations of corruption and ML of the governor of Latvia’s Central Bank also drew harsh criticism by the Executive. The Minister of Justice has publicly stated that he pushes for the Prosecutor General’s removal. In June 2019, Latvia's Supreme Court opened an inquiry into the Prosecutor General's job performance. The authorities clarify that Minister of Justice’s intervention stems from his general responsibility for ensuring the effective functioning of the judicial system. It follows the publication of the 2018 Annual Report of the Office of the Prosecutor of the Republic of Latvia by the State Audit Office and the suspicion that the Prosecutor General might be in breach to his financial duties under the Office of the Prosecutor Law. This contrasts very much with the information published in the press reporting that the Executive challenges the Prosecutor General’s performance, professionalism and reputation for facts unrelated to the State Audit Office’s report. The lead examiners are of the view that this creates a risk of actual or perceived political interference in the PPO and noncompliance with Article 5 of the Convention. This Article stipulates that foreign bribery investigations and prosecutions must not be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved. Commentary 27 of the Convention further recognises that foreign bribery cases should not be subject to improper influence by concerns of a political nature.
At the same time, necessary protection of prosecutors’ independence from external interference must not be construed as a lack of accountability. As stated in the OECD’s Anti-Corruption Network Thematic Study on the Independence of Prosecutors in Eastern Europe, Central Asia and Asia Pacific (OECD, 2020[2]), autonomy of the Prosecution Service and the discretion granted to public prosecutors should be generally counterbalanced by a certain level of accountability towards the political branches of power, the judiciary, the public, or within the service itself. The Consultative Council of European Prosecutors articulated that “accountability does not contradict the concept of independence; on the contrary, the more independence there is, the more accountability is required” (Consultative Council of European Prosecutors, 2018[3]). To this end, in Latvia, the need for accountability must be balanced with what appears to be a broad understanding of prosecutorial independence by the Latvian PGO. Currently, in Latvia understanding of independence of prosecutors seems to extend beyond the principle that the prosecutor should not receive external instructions as to the decision of whether and whom to prosecute and how the prosecution should be conducted. It appears to be primarily understood as removing prosecutorial services from external appraisal or consideration of how the prosecution service conducts or carries on its business.
On the contrary, most of the benchmarked countries have developed robust accountability and transparency mechanisms to ensure high-levels of performance and public value. A well-balanced obligation to general reporting can benefit the perception of efficiency and fairness for the public and the rest of powers. As stated, no form of interference of these powers should be allowed in individual cases and decisions regarding specific proceedings should be left to the Prosecution Service itself; and this is not a deterrent for the establishment of accountability mechanisms. In the benchmarked countries, a majority (40%) of respondent prosecution systems are accountable or report to the Executive power; 20% to the Judiciary; a smaller 10% to Parliament, while the remaining are accountable before the General Prosecutor only (30%) with the prosecutorial powers clearly established in the law. For example, the accounting officer of the Director of Public Prosecution’s office in Ireland (usually the Deputy Director) is answerable to the Public Accounts Committee of Dail Eireann (the lower house of parliament) for its expenditure and for the efficiency of its operations, but not for any prosecutorial decision; the Comptroller and Auditor General report to this Committee on an annual basis. In the Czech Republic the Prosecutor General submits to the Government, through the Ministry of Justice, a report on the activities of the previous calendar year; in Denmark, the Ministry of Justice and the prosecution services, under the auspices of the Prosecutor General, have defined mission and vision statements, which are published in the yearly reports on targets; in Finland, the prosecution service draws up an annual report, and a biannual interim report every six months to assess whether the performance targets that were set have been attained, and if targets have not been attained, the most important reasons for this are evaluated. The most important topics to report on are: Statistics on number and types of cases, evolving caseload and data on ratios between resources employed and results achieved (resource data). Table 2.2 below illustrates the existing accountability and reporting mechanisms envisioned for prosecutors’ offices to be accountable to other institutions on their performance.
Importantly, the Latvian Constitutional Court has consolidated the notion that the principle of separation of powers arising from the concept of a democratic republic included in the Satversme (Constitution) ought not to be understood dogmatically and formally, but rather, as a notion whose purpose is to prevent the centralisation of power in the hands of one institution or official. The Constitutional Court has acknowledged that no constitutional power can be independent in an absolute way. Otherwise, it is not possible to ensure the existence of the principle of separation of powers, which also envisages mutual control and interaction of power. The functions of state power tend to be distributed among several institutions, and almost each of the key institutions of the state participates in the implementation of several functions of a state power in a system with sound checks and balances.
In this context, a balance needs to be stricken to ensure protection of independence of individual prosecutors and the necessary measures of transparency and accountability for general performance. Latvia is already taking steps in this direction, with an amendment to the Prosecutor Law, which entered into force on 11 March 2020 establishing an obligation for the Prosecutor General to report to Parliament, among other matters, on the performance of the institution during the preceding year. In previous years, the Latvian Prosecutor General’s Office had reported annually to Parliament voluntarily since the year 2000, based on the recommendation enshrined in Recommendation Rec(2000)19 of the Committee of Ministers to Member States on the Role of Public Prosecution in the Criminal Justice System. However, in accordance with stakeholder interviews, reporting to other institutions (e.g. Parliament), which is a crucial accountability method in most of the other systems analysed as described above, appears in this case – at least for the moment - to be conceived as an informative action, not for accountability purposes (this topic will be further analysed in Chapter 5). Despite similarities to the OECD benchmarked systems, as noted, the notion of independence seems to be understood in a broader way, such as - for example - to remove prosecution from obligation of accountability or transparency. Such an understanding could also de facto lead to the PGO’s detachment from the mainstream dynamics leading to modernisation and effectiveness of state institutions, including in the Latvian judiciary. In this context, and in order to bring Latvia closer to the international benchmarks, there appears to be significant scope to strengthen accountability of the PGO to other institutions (e.g. Parliament as already established by law), and to establish robust performance monitoring mechanism, without undermining the constitutional provisions for independence.
The application of good administration principles to the prosecution
Accountability, in substance, has the purpose of understanding the results of public action in the light of the priorities of criminal policy (Consultative Council of European Prosecutors, 2018[3]), on the one hand; and ensuring that the resources put at their disposal are used in an efficient and economic manner, and that a proper control and follow-up mechanisms are in place, on the other (Consultative Council of European prosecutors, 2012[4]). While prosecutorial services in Latvia are not explicitly included in the scope of the 2008 Law on the Structure of Public Administration (section 2), - which urged public bodies to “implement principles of good administration”, in particular those of efficiency and effectiveness in carrying out public duties - there appear to be no significant obstacles in application of these principles and other provisions of this law to institutions outside the hierarchy of the Cabinet of Ministers (executive), such as courts and the prosecutor’s office. This is particularly the case as the legislator seems to have defined the framework for application of the principles of the Law on the Structure of Public Administration also to entities outside the executive. This consideration is especially important, as the 1994 Law on the Prosecutor Office does not provide responsibility or mandate for the Ministry of Justice to ensure the efficient management of courts in their prosecutorial dimension; and it does not compel the Prosecutor General Office to align its activities with the principles of good administration, economy and efficiency, internal control and, in general, good management of public resources. And indeed when assessing the institutional status of the national prosecution service in the jurisprudence of the Constitutional Court, it was recognised that “The Law on the Structure of Public Administration determines the institutional system of public administration subordinated to the Cabinet of Ministers and the basic rules for the operation of public administration. Pursuant to Section 3.3 of the said Law, the principles of public administration and other provisions of this Law shall also be applicable to institutions not subordinated to the Cabinet of Ministers, insofar as the special legal provisions of other laws do not provide otherwise. The activities of the Prosecutor’s Office are regulated by the Law on the Prosecutor’s Office, the Criminal Procedure Law, and other laws and regulations. The provisions of the Law on the Structure of Public Administration and the Administrative Procedure Law regulate the activities of the Prosecutor’s Office or a prosecutor in cases when the prosecution service or its official, namely, a prosecutor performs the functions of public administration, that is, activities not listed in Section 2 of the Law on the Prosecutor’s Office” (Constitutional Court of the Republic of Latvia[5]).
Thus, while principles of public administration and the provisions of the Law on the Structure of Public Administration do not apply to the scope of rights and obligations of prosecutorial officials regulated by special laws and regulations (e.g. the Criminal Procedure Law, the Law on the Prosecutor’s Office, the Law on Operative Activities, etc.), the administrative functions - such as the establishment of the internal control system (including management practices) of a public institution, use of state budget funds (efficiency and effectiveness) and others should, in principle, be performed in accordance with the national standards, such as good governance, internal control, and effectiveness. For example, in relation to the application of the principle of public administration in institutions not subordinated to the Cabinet of Ministers (executive), Latvia’s Supreme Court’s Operational Strategy follows the principles of good governance principles and internal control.
While the survey answer to the benchmarking questionnaire by the Latvian Prosecutor’s office was in the affirmative relating to their obligation to implement good governance and administration principles, it is unclear whether this is interpreted as a legal obligation. Nonetheless, it could speak to the internalised notion that these are values worth furthering, and could pave the way for strengthening performance orientation of the PGO. This further strengthens alignment with the benchmarking countries, where 70% of the participating countries report an obligation for the prosecutorial service to implement sound good administration principles. Therefore, it is recommended to consider strengthening the regulation of the Prosecutor’s Office by making an explicit extension of the principle of good governance and efficiency to the prosecution service and requiring accountability of the Prosecutor General for compliance with the principles of good governance, economy, efficiency and effectiveness, as well as for establishment, monitoring, and improvement of the internal control system.
Transparency in the exercise of the prosecution
In addition, there is an expectation by the public that prosecutors perform their duties “efficiently, competently, fairly and impartially” and should be in a position to inform and explain actions they have taken in the administration of justice, according to the UN Guidelines. In some jurisdictions, the annual report that the prosecution service submits to Parliament is also made available to the general public. In this context, Latvian prosecutors had already taken a positive stance by publishing their annual reports, and continued publication of said reports can increase transparency and trust in the general public. As further analysed in Chapter 4, embedding qualitative analysis of prosecutor’s work in the annual report can also be a positive development to expand public awareness on the impacts of prosecutor’s work. The publication of existing prosecution guidelines can also have a positive effect on transparency, as it enables public scrutiny of the prosecution service by providing information on the roles and responsibilities of prosecutors and the prosecution service. At the individual level, recording reasons for specific decisions is a way to enhance transparency for the general public.
Instructions and possibility to appeal prosecutor’s actions
In Latvia, senior prosecutors can give instructions to lower-ranked ones or take over into his/her proceedings any case. However, he/she cannot instruct any prosecutor to perform actions which are contrary to his/her faith. Upon request of a prosecutor or upon discretion of higher-level Prosecutor the instruction shall be issued in written form. Article 46 of the Law on Criminal Procedure entitles senior prosecutors to be acquainted with all matters affecting cases under his/her jurisdiction, as well as to remove and substitute at will any supervising prosecutor and instruct limitlessly anyone participating in the pre-trial investigation, including investigators and prosecutors. A prosecutor may object on his/her own conscience to prosecute a case. Within the OECD benchmarked countries, half of systems (50%) have enabled higher-ranked prosecutors to affect decisions by younger ones, in a 40% of cases if grounded in law; and the other half prohibit such interference. In addition, in 70% of countries, prosecutors may mandatorily be taken off a case without his or her consent:
Note: The following question was asked as part of the ad hoc OECD Questionnaire on Prosecution Service to benchmarking countries (2020): Can a higher-ranked prosecutor change a decision of a lower-ranked one outside of the appeal system?
Source: Benchmarking country responses to ad hoc 2020 OECD Questionnaire on Prosecution Service.
Note: The following question was asked as part of the ad hoc OECD Questionnaire on Prosecution Service to benchmarking countries (2020): Can a prosecutor be taken off a case without his/her consent?
Source: Benchmarking country responses to ad hoc 2020 OECD Questionnaire on Prosecution Service.
Prosecutor’s action or decision is appealable in cases and according to the procedure provided by this Law and procedural laws. Complaints on issues which are the sole competence of the Prosecution Office shall be submitted to the Head Prosecutor of the Prosecution Office of the next level, complaints concerning the action or decision of Prosecutor of the Prosecutor General’s Office shall be submitted to the Prosecutor General. Decisions of the said officials shall be final.
The civil immunity of prosecutors is guaranteed by article 7 of the Law. A prosecutor is not financially liable for damages caused to any person due to illegal or unjustified actions or decisions of a prosecutor. In cases provided for by the Law, the damages shall be indemnified by the State. Any person who considers that an action or decision of a prosecutor is allegedly illegal or unjustified, may challenge it according to the procedure provided for by the Law, but such person cannot lodge a claim with the Court against a prosecutor, who has taken such action or decision. Such broad immunity is rare in benchmarked countries, where they are often personally liable if they acted in gross negligence or bad faith, as is the case in New Zealand, Portugal and Finland (30% of benchmarking countries analysed) or the compensation would be due but would be paid by the state, as happens in the Netherlands, Sweden and the Czech Republic (30% of benchmarking countries analysed).
Structure of the Prosecutor’s system in Latvia
The Prosecutor’s Office is a unified, centralised three-level institutional system managed by the Prosecutor General.3 The Office of the Public Prosecutor comprises institutions in the following tiers:
Office of the Prosecutor-General (Ģenerālprokuratūra) (or “PGO”).
Regional public prosecutors’ offices (tiesu apgabalu prokuratūras).
District or city public prosecutors’ offices (rajona vai republikas pilsētu prokuratūras).
Specialised public prosecutors’ offices (specializētas prokuratūras).
If necessary, the Prosecutor-General can establish a specialised sectoral prosecutor’s office having the same status as a district or regional prosecutor’s office. There are currently five specialised public prosecutors’ offices in Latvia:
A specialised public prosecutor’s office for organised crime and other sectors (Organizētās noziedzības un citu nozaru specializētā prokuratūra).
A specialised multi-sectoral public prosecutor’s office (Specializētā vairāku nozaru prokuratūra).
Riga Road Transport Public Prosecutor’s Office (Rīgas autotransporta prokuratūra).
A public prosecutor’s office for investigating financial and economic crime (Finanšu un ekonomisko noziegumu izmeklēšanas prokuratūra).
A public prosecutor’s office for investigating crimes involving the illegal circulation of narcotics (Narkotiku nelegālas aprites noziegumu izmeklēšanas prokuratūra).
Therefore, the prosecution services are organised as a centralised, hierarchical structure with three levels of responsibility: central office of the Prosecutor General, regional offices and district offices. The chief prosecutor of each department at the PGO instructs and supervises the prosecutors of regions and districts. The chief prosecutor of each region does the same regarding district prosecutors. A visual representation is provided in Figure 2.4.
Structure of the Prosecutor General’s Office
The Latvian PGO is organised hierarchically with three departments and two divisions depending directly on the General Prosecutor (Latvia Prosecutor General's Office, 2020[6]):
Department of Criminal Justice: Main functions are the supervision of pre-trial investigations, supervision of criminal cases in court, supervision of especially heinous or serious crimes and several specially empowered prosecutors in matters such as protection of state secrets or criminal intelligence activities.
Department of Analysis and Management: Main functions are the working methods, international co-operation, personnel and professional development, public relations and press communications. They have nine prosecution positions (not all occupied), but do not do prosecutorial tasks. They manage a limited training budget. There is no training centre for prosecutors separate from the Judicial Training Centre, but international co-operation represents a source of training. They manage the “qualification committee” and the “attestation committee” for recruitment and evaluation of prosecutors.
Department of Defence of Persons and State Rights (on civil and administrative cases, as well as whistle-blowers protection).
Division of Administrative Director: Main functions are to take care of the financial and economic activity of the PGO, public procurement and expenditure management; HRM except for prosecutors (job descriptions); personnel administration for all staff; IT; security; vehicles and transport; maintenance. Staff in this Division are employed under labour law contact, not the civil service statute, except the Director and the deputies, who are civil servants recruited through open competition. Many prosecutors are reported to have started their careers as employees of the Administrative Division. The Division employs 325 staffers, of which over 70 are assistant prosecutors. The support staff represent 40% of the total PGO staff, where 60% are prosecutors. The representatives of the Division participate in the Council of the Prosecutor General.
Also directly attached to the General Prosecutor are the following:
The Council of the Prosecutor General, which is an advisory body.
The attestation committee (performance evaluation of prosecutors).
The Prosecutor-General’s Office may also supervise the work of public bodies that, while not themselves acting as prosecutors, do help achieve certain tasks in criminal proceedings that fall within their remit. These bodies are established, reorganised and disbanded by the Prosecutor-General. The Prosecutor-General also determines the structure and number of staff of these bodies in accordance with the amount of funds allocated from the State Budget. Only one such body has been established to date: The Anti-Money-Laundering Service (Noziedzīgi iegūtu līdzekļu legalizācijas novēršanas dienests).
Source: (Latvia’s Prosecutor General Office, 2020[7]).
Territorial organisation
The PGO territorial organisation shall match that of the courts (article 26 of the Prosecutors Office Law). In 2018, the judicial map was reformed with the aim to facilitate uniform court practices in reviewing similar cases, to ensure specialisation of judges in specific categories of cases, and to balance workload of judges. At the same time, the prosecution offices territorial distribution has de facto remained unchanged. One of the judicial map reform outcomes was the reduction from 34 to 9 district courts, while there still are 37 prosecutor districts. In this context, in order to facilitate uniform practices in examination of similar cases, ensure the specialisation of prosecutors in specific categories of cases, and balance the workload of prosecutors, the Prosecutor’s Office can consider optimising its territorial structure to further align it with the judicial one.
Across the benchmarked OECD countries, a majority align their territorial organisation of the prosecution offices to that of courts:
Note: The following question was asked as part of the ad hoc OECD Questionnaire on Prosecution Service to benchmarking countries (2020): The territorial organisation of the prosecutorial services matches the territorial organisation of
Source: Benchmarking country responses to ad hoc 2020 OECD Questionnaire on Prosecution Services.
The general adeptness to this model may stem from the fact that a fragmented prosecutorial service in principle may not lead to the most efficient allocation of public resources, as it can lead to increased travel and other operational costs. In addition, fragmentation can make it difficult to distribute prosecutorial workloads among districts evenly and to apply criminal law homogeneously. Thus, in general terms, the legal framework of the Latvian prosecution system dictating a co-ordination between the courts and prosecution districts is in line with the OECD benchmarked countries. There is scope to further implement in practice the alignment of the territorial organisation of the prosecutorial services with the judicial map.
Prosecutorial staff
Latvia has a total number of around 23 prosecutors per 100 000 inhabitants, according to the data presented in 2018 included in the 2020 Report of the Council of Europe European Commission for the Efficiency of Justice (CEPEJ, 2020[8]). Among 47 countries, Latvia ranked the fourth with 23 prosecutors per 100 000 inhabitants:
Source: 2020 CEPEJ Evaluation Report (CEPEJ, 2020[8]), Figure 3.18. Number of public prosecutors per 100 000 inhabitants, 2010 - 2018. CEPEJ data further shows that while most States and entities in Northern, Western, Central and Southern Europe employ very low to average numbers of 2 to 15 prosecutors per 100 000 inhabitants, higher numbers of more than 15 prosecutors per 100 000 inhabitants can be found mainly in more eastern areas including Latvia (and Bulgaria, Hungary, Lithuania, Republic of Moldova, Montenegro, the Russian Federation, the Slovak Republic and Ukraine).
The PGO in its central facilities has 87 prosecutor positions, out of which 11 are chief prosecutors. They are entitled to prosecute anywhere in the country, from the Supreme Court to district courts, but not all of them carry out prosecutorial functions. Some of them focus exclusively on senior prosecution tasks (controlling the work of lower-ranked prosecutors and solving complaints).
The prosecutorial staff are distributed into the following categories: Prosecutor General, chief prosecutor, deputy chief prosecutor, and prosecutor. The prosecutorial service was 499-strong on 31 December 2019, with 40 vacant positions. A decrease in number is observable, as in 2005 the prosecutorial service was 605-strong. Latvia has an average of 23 prosecutors per 100 000 inhabitants, whereas the average in Council of Europe membership was 12 prosecutors per 100 000 inhabitants in 2018. The budget of the PGO is EUR 36.1 million in 2020 (up from the 32.5 million in 2019), which is devoted mainly to personnel compensations (80%). The variable part of the monthly salary (with could reach up to 60%) consists of bonuses for additional work and quality of the work performed (such bonuses are not available to, for example, judges). Those bonuses are generally given to the prosecutors of the General Prosecutor’s Office, that is, senior prosecutors, while this is not a common practice in prosecutor’s offices at other levels (i.e., district and judicial region prosecutor’s offices).
According to the 2020 CEPEJ Report (CEPEJ, 2020[8]), the average spent by States and entities in Council of Europe countries on justice systems was EUR 14 per person. In Latvia, the amount spent is EUR 14.02 or 0.09% of GDP, exactly within the average. In addition, as mentioned above, it was one of the countries that experienced a budget increase in the last couple of years. The budget allocated by European States to prosecution services is around 25% of the judicial system budget on average, and Latvia once again remains exactly in the average numbers, spending around that much on the prosecution. In comparison with other European countries, the prosecutorial service in Latvia does not appear to be under-resourced.
In relation to personnel salaries, according to the 2020 CEPEJ Report data, Latvian prosecutor salaries oscillate between 2.3 and 2.8 times the average national salary, an amount that is average or even high in respect to the rest of Council of Europe countries, in which in many cases prosecutor salaries do not account for twice the average national salary. Despite this, since the Latvian national average annual salary (EUR 12 384) is much lower than in other European countries, in absolute terms the salary of Latvian prosecutors can be considered low. It is reported however that the ratio of the salary of prosecutors at the beginning of the career, as well as of prosecutors at the highest instance to the average salary, has risen significantly between 2016 and 2018 (by more than 25 percentage points) in Latvia, as well as in other benchmarked countries such as the Czech Republic, Denmark, and Portugal:
The Administrative Director Division provides the economic, administrative and housekeeping service to the PGO. It employs the assistant prosecutors, which were 76 according to 2018 data provided. Assistant prosecutors are those who provide technical assistance support to prosecutors through preparing draft documents, keeping records, etc. They are not prosecutors, but rather somewhat specialised administrative assistants for prosecutors. Their function appears to be more than administrative, in view that they occasionally undertake legal document drafting under the supervision of the prosecutors, despite the fact that they are required no specific prior knowledge or qualifications in legal or criminal system. In the benchmarked countries, non-prosecutorial staff are found mostly in the following roles:
Note: The following question was asked as part of the ad hoc OECD Questionnaire on Prosecution Service to benchmarking countries: What is the role of non-prosecutorial staff within the prosecutorial service?
Source: Benchmarking country responses to ad hoc 2020 OECD Questionnaire on Prosecution Services.
This appears to be an initial step in the right direction to more effective prosecutions, since the potential of the non-prosecutorial staff to support prosecutors in carrying out their specialised role is not fully exploited. In most of the benchmarked countries, a large number of non-prosecutorial staff supported the prosecution. In 60% of the cases, this was over 35% of the staff. In Latvia, according to the PGO, 50% of the staff working within the system are not prosecutorial; and despite this high number, many prosecutors are still being assigned to such tasks. It is recommended that this distribution be reviewed, in order to maximise the time prosecutors spend on bringing cases before courts and other prosecutorial tasks.
In sum, the Latvian prosecutorial system seems to be comparable to other benchmarked country systems in its institutional position, structure and budget per citizen, taking into account that the prosecution falls under the judicial branch. A number of differences in respect to its neighbours include employing a much higher number of prosecutors per 100 000 inhabitants than the CEPEJ average, and a salary that is lower in absolute terms than those of many European counterparts, but within regular ranges if weighed against the national average salary (CEPEJ, 2020[8]). Areas for improvement have been identified when nuancing the understanding of independence of the prosecution to also accept higher levels of transparency and accountability in its management of resources and efficiency, in line with OECD benchmarked countries. In addition, a decreased reliance on prosecutors for non-prosecutorial tasks, assigning them instead to assistant prosecutors or other staff of the Administrative director’s office may have a positive impact in the PGO’s efficiency. These aspects will be further analysed in more depth in the following chapters.
References
[8] CEPEJ (2020), “2020 Report of the Council of Europe European Commission for the Efficiency of Justice (CEPEJ), data of 2018.”.
[5] Constitutional Court of the Republic of Latvia (n.d.), “Judgment of the Constitutional Court of the Republic of Latvia on the compliance of Section 1.1, 4.1, 6.3, 22, and 50 of the Law on the Prosecutor’s Office with Sections 1, 58, 82, 86, and 90 of the Constitution of the Republic of Latvia (cons. 14)”, http://://likumi.lv/ta/id/150599-par-prokuraturas-likuma-1-panta-pirmas-dalas-4-panta-pirmas-dalas-6-panta-tresas-dalas-22-panta-un-50-panta-atbilstibu-latvijas-republikas-satversmes-1-58-82-86-un-90-pantam.
[3] Consultative Council of European Prosecutors (2018), “Report of the meeting of the Working group of 8-9 February 2018”, https://rm.coe.int/report-of-the-22nd-meeting-of-the-ccpe-gt-8-9-february-2018-strasbourg/168089ff4f.
[4] Consultative Council of European prosecutors (2012), “Opinion (2012) No.7 on the management of the means of prosecution services”, adopted by the CCPE at its 7th plenary meeting (Strasbourg, 26-27 November 2012), https://rm.coe.int/report-of-the-22nd-meeting-of-the-ccpe-gt-8-9-february-2018-strasbourg/168089ff4f.
[9] Council of Europe (2020), European judicial systems CEPEJ Evaluation Report, https://rm.coe.int/evaluation-report-part-1-english/16809fc058.
[6] Latvia Prosecutor General’s Office (2020), “Website”, http://www.prokuratura.gov.lv/media/struktura_07_2020_EN.pdf.
[7] Latvia’s Prosecutor General Office (2020), http://prokuratura.lv/media/Prok_shema_EN_2020_1.pdf.
[2] OECD (2020), The Independence of Prosecutors in Eastern Europe, Central Asia and Asia Pacific, https://www.oecd.org/corruption/acn/The-Independence-of-Prosecutors-in-Eastern-Europe-Central-Asia-and-Asia-Pacific.pdf (accessed on 15 December 2020).
[1] OECD (2019), “Implementing the OECD Anti-Bribery Convention in Latvia, Phase 3, para. 111”.
Notes
← 1. A conceptual distinction must be made between external and internal independence of the prosecution. External independence refers to autonomy from the influence of politicians and other vested and sometimes intimidating criminal interests, which enables prosecutors to take many important and brave cases to court. Internal independence refers to the internal structure and functioning of the prosecution itself. If the system is configured to have excessive hierarchical verticality, this can sometimes undermine the independence of individual prosecutors. In this section, we will largely be referring to external independence.
← 2. The Phase 3 Report on Latvia by the OECD Working Group on Bribery in International Business Transactions evaluates and makes recommendations on Latvia’s implementation of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the 2009 Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions. It was adopted by the Working Group on Bribery in International Business Transactions on 10 October 2019.
← 3. This structure is described in relation to its organisation when this Report is written, as of the fourth quarter of 2020. Reforms and re-structuring approved by the Prosecutor General in the future or to come into force after the Report’s publication may alter this composition.