The Council for the Judiciary – development and prospects
Ivars BICKOVICS, the Chairman of the Council for the Judiciary
Report at Latvian Judges’ Conference on 5 September 2014
As the European Network of Councils for the Judiciary pointed out in its Budapest resolution
adopted in 2008: “The Council for the Judiciary reflects development of legal system of each
country, which in its turn is deeply rooted in a historical, cultural and social context (situation)
of the state”. The Council for the Judiciary is a unique formation of development of legal
culture of its state.
Four years ago, in 2010, the Latvian Council for the Judiciary commenced its work.
The way, how it was established, definitely reflects traditions of legal system of our country,
concrete political circumstances of that moment.
The way of its further development to great extent (I would like to stress – to great extent, but
not only) depended of us – members of the Council for the Judiciary.
Taking into account term of office of elected members of the Council for the Judiciary (which is
4 years), today we have reason to look back at important stage in work of the Council for the
Judiciary, namely, to its first “quadrennium”.
I have constructed my report, taking into account:
1) Work of the Council for the Judiciary within this period,
2) Experience and recommendations given by foreign colleagues,
3) Documents elaborated by international institutions, which include guidelines and
principles for organisation of work of the Council for the Judiciary,
4) Answers provided by judges to questions sent by the Council for the Judiciary regarding
the work of the Council. In this relation, I would like to thank judges for their
responsiveness, for time dedicated to answers, for kind words and support, and, of
course, for constructive criticism and recommendations.
Thus, I will not speak on concrete decisions of the Council for the Judiciary, I will not list
works performed, however:
1
1) I will look at the role of the Council for the Judiciary, its goals and tasks, possibilities of
implementation thereof, grounding on effective legal provisions and taking into account
experience acquired in first 4 years,
2) I will offer my vision of opportunities to improve work of the Council for the Judiciary,
so that it really would hold place and role that is its due in legal state, approving equal
existence of three branches of power – the executive power, the judiciary and the
legislative power.
Role and opportunities of the Council for the Judiciary
Role of the Council for the Judiciary arises from the goal of establishment and existence of this
institution.
Goal of establishment of the Council for the Judiciary is to ensure balance of all branches of
power and to protect independence of judges and judicial system in legal state.
Tasks of the Council for the Judiciary are:
1) Promotion of efficiency and quality of judiciary;
2) Ensuring and protection of independence of judges as one of elements of legal state;
3) Strengthening of trust of society to a court system.
Opportunities of the Council for the Judiciary to implement its goals and tasks depend on:
1) Principles of activity of the Council for the Judiciary,
2) Status of the Council for the Judiciary,
3) Authority of the Council for the Judiciary,
4) Capacity of the Council for the Judiciary.
Principles of activity of the Council for the Judiciary
Before I speak on status, authority and capacity of the Council for the Judiciary, I will briefly
outline fundamental principles of activity of any Council for the Judiciary (apart from its
authority), as opportunities of the Council for the Judiciary to achieve goals and execute tasks
are closely related to opportunities to implement principles of its activity.
First, these are clearly determined relations of the Council for the Judiciary with the executive
power and the legislative power.
2
Second, it is constant and mutually respectful institutional cooperation and dialogue between
the Council for the Judiciary, the Minister of Justice and the Parliament (respecting each other’s
independence and authority).
Third, it is separation of functions (in case of Latvia – separation of functions of the Council for
the Judiciary from functions of the Ministry of Justice and the Court Administration).
Fourth, the Council for the Judiciary itself (without intervention of other institutions and
authorities) determines methods of work and themes of discussions of the Council for the
Judiciary.
Fifth, these are clear relations between the Council for the Judiciary and courts (judges).
Sixth, it is initiative and active collaboration of the Council for the Judiciary in all activities
related to judiciary (at all stages).
Seventh, it is transparency and accountability of activity of the Council for the Judiciary.
Implementation of several principles is in our – judges’ – hands, but support of other branches
of power in its turn is necessary for performance of several significant principles. Ensuring of
status of the Council for the Judiciary is also responsibility of the legislator, and the Council for
the Judiciary would gladly give its support within its authority for implementation thereof.
Status of the Council for the Judiciary
First, the status is related to demand and necessity for the Council for the Judiciary to be
independent. Second, the status, to certain extent, is influenced by the composition of the
Council. Third, significant requirement to ensure the status is to envisage the Council for the
Judiciary as independent institution in constitutional legal regulation already. In Latvia, that
would be Satversme (the Constitution).
The Council for the Judiciary must be independent – it is fundamental demand, and activity of
the Counci may not be implemented without ensuring thereof. This demand refers to the
Council for the Judiciary of any authority and composition.
In its turn, to ensure independence of the judiciary from other branches of power and to provide
effective judicial self-government, constitutional status must be granted to the Council for the
Judiciary. The Consultative Council of European Judges recommends strengthening of the
Council for the Judiciary at the constitutional level. In its conclusions, the Venice Commission
pointed out to the states necessity to provide clear constitutinonal basis for Councils.
3
Balance between independence of courts and self-government must be ensured in activity of the
Council for the Judiciary, on the one hand, and necessary accountability of the judiciary – on
the other hand, to avoid possible or even only ostensible activity in selfish interests. It may be
achieved by balanced selection of members of the Council for the Judiciary.
In respect of composition of the Council for the Judiciary, the majority of demands are ensured
in Latvia:
1) Majority in the Council for the Judiciary are judges;
2) Judges are elected by their peers and they represent different courts;
3) The Council for the Judiciary also includes lawyers representing other fields (ex
officio), who help to the Council for the Judiciary to avoid ostensible selfishness and
apparent operation only in its interests.
However, improvements could be performed in respect of composition of the Council for the
Judiciary, which would directly affect opportunities of the Council for the Judiciary to operate
independently and effectively.
Inter alia, it should be reassessed, if “non-judges” included in composition of the Council for
the Judiciary at present are the best choice, observing functions and goals of establishment of
the Council for the Judiciary.
It should be recollected that composition of the Council for the Judiciary is determined with the
goal to ensure independence of the Council for the Judiciary and its ability to operate
effectively. At present, representatives of the executive power and the legislator work in the
Council for the Judiciary. It is also assumed by international standards, however, it should be
ensured so that the composition would be as unpolitical as possible and directed to achievement
of goals, and so it would act as effectively as possible. The Venice Commission had also
pointed out that politicians, parliamentarians, representatives of the executive power should not
be members of the Council for the Judiciary. Thus, it should be reassessed, if ex officio
members from other branches of power, who are included in the Council by the law at present,
are the best choice.
Authority of the Council for the Judiciary
Observing goal and tasks of the Council for the Judiciary, documents elaborated by
international institutions clearly determine fields [of activity], in which the Council for the
4
Judiciary should involve. I will briefly outline opportunities for Latvian Council for the
Judiciary to operate in these fields qualitatively.
The first field: Appointment of judges to the office and their promotion.
Regulation, which is effective at present, does not provide opportunity to the Council for the
Judiciary to fulfil its tasks in this field in full value. However, I would like to point out both
positive and active work of the Council for the Judiciary and the first case, in which the Council
for the Judiciary worked hand in hand with representatives of other powers to implement
reasoned and qualitative changes in legal regulation regarding appointment of judges to the
office and their further promotion. Moreover, work of the Council for the Judiciary
encompassed all stages – the Council for the Judiciary, despite limited resources, performed
research, on which it grounded its initiative, and actively participated in development of a draft
law to eliminate imperfections of effective regulation regarding judicial career in the most
effective way (cooperating with other powers instead of filing an application to the
Constitutional Court on unconstitutional regulation in force). Elaborated draft law envisages
changes of authority of the Council for the Judiciary, which are aimed at improving of
professional skills of judges, increase of quality of courts’ work and strengthening of
independence of judges.
The second field: Judicial training. It is one of opportunities to ensure independence of judges,
as only a competent judge can be truly independent. The Council for the Judiciary should be
ensured supervisory function in this field. This is the second direction, in which the Council for
the Judiciary involves actively at present, cooperating with the Ministry of Justice both in
elaboration of policy planning document, namely, fundamental guidelines on strengthening of
human resources capacity and development of competencies of employees of judiciary and law
enforcement institutions 2014-2020 – and involving in work team, which provides support to
voluminous project, where funding of the European Union shall be attracted for strengthening
of capacity of courts, inter alia, for judicial training. We hope also to strengthen capacity of the
Council for the Judiciary within framework of this project.
The third field: Participation of the Council for the Judiciary in solving of issues related to
financing of judiciary.
In this respect, I would like to separate two issues clearly – budget of judiciary and budget
necessary for functioning of the Council for the Judiciary. Similar conditions should be applied
5
in respect of both budgets. The Council for the Judiciary should be granted a significant role in
solving of both questions.
The state must ensure adequate financial and administrative resources, which are necessary so
that the Council for the Judiciary could execute its functions properly. In my opinion, it is
important to understand that adequate financing of the Council for the Judiciary, which would
ensure an opportunity to it to work effectively, would be a benefit for everyone – both public
institutions and each individual, who justly expects qualitative and effective work of a court.
Guidelines of development of court system for 2009-2015 clearly determine that one of aspects,
which is significant for implementation of goals of the Council for the Judiciary, is ensuring of
work of the Council for the Judiciary. The abovementioned includes both financial and human
resources.
Regrding budget of courts, the Council for the Judiciary must be granted an authority and
opportunity to discuss and to administer the budget, and to participate in negotiations with the
legislator (if necessary – with the executive power). The Venice Commission had pointed out
importance of sufficient financing and appropriate opportunities of its administration in
innumerable documents. At present, procedure for elaboration and approval of the budget of
judiciary includes consultations with the Council for the Judiciary. Consultations mean real and
respectful cooperation instead of formal forwarding of documents. I would like so that adequate
cooperation of the executive power, the legislator and judiciary, when adopting the budget,
would ground on principle of separation of powers instead of formal legal regulation.
The fourth field: Maintenance and improvement of image of judiciary.
The Council for the Judiciary should be an institution, which rebuts unreasoned assumptions
about judiciary expressed by media and other powers. The abovementioned field, inter alia,
includes adequate and proper reaction to complaints about court system. Solving of these
questions is performed within supervisory function of the Council for the Judiciary and its goal
is to provide trust of society to courts and judiciary. However, in Latvian situation main
attention, in my opinion, should be paid to preventive actions (increase of authority, openness,
transparency, motivation, etc.), to avoid negative assessment.
In this respect, it is necessary to point out research on reliability of courts and perception of
corruption in work of courts, which was performed by the Sociology Institute upon order of the
Council for the Judiciary. When discussing conclusions and recommendations given in
research, the Council for the Judiciary found it necessary to continue work in this field and
6
elaboration of guidelines on communication of courts with media and society is commenced,
observing also recommendations of the Judicial Ethics Commission.
The fifth field: Providing of opinions and preparation of recommendations in process of
improving of legal provisions. The abovementioned is related to involvement of the Council for
the Judiciary both in process of drafting of legal acts and elaboration of documents on planning
of policy.
It is necessary to ensure an opportunity to the Council for the Judiciary to submit proposals on
each issue, which can influence courts, so that the Council for the Judiciary could execute its
functions in full amount. At present, opportunities are influenced by limited capacity of the
Council for the Judiciary rather than by imperfections or deficiencies of legal regulation.
Guidelines on development of court system for 2009-2015 also point out that the Council for
the Judiciary must be granted initiative right – especially regarding issues, which are important
for work and development of court system.
In respect of obligation of the executive power and the legislator to hear the opinion of the
Council for the Judiciary on issues related to judiciary, which follows from principle of
separation of powers, the situation is different. For effective achievement of result, the opinion
of judiciary should be taken into account, when commencing to solve concrete issue already, so
recommendations of the European Network of Councils for the Judiciary of 2011 envisage that
opinion of the judiciary should be heard, when commencing elaboration of draft law or at least
before public discussion on draft law. Possibly, it could be possible to eliminate problems
established previously by including condition in the law that the Council for the Judiciary
should be involved in legislation procedure timely and in respected manner, at the same time
ensuring corresponding resources for this purpose.
Capacity of the Council for the Judiciary
Speaking about authority of the Council for the Judiciary, namely, on “participation of the
Concil for the Judiciary in solving of issues related to financing of judiciary”, I had already
pointed out significant aspects in relation to financing of the Council for the Judiciary. The
answer to the question of what financing of the Council for the Judiciary should be is quite
simple – sufficient to ensure its appropriate operation, namely, so tha tit could work
independently and autonomously. We do not have to invent anything new, as the Consultative
Council of European Judges has already pointed out clearly that following should be ensured to
the Council for the Judiciary for implementation of its functions:
7
1) Own premises;
2) Secretariat;
3) IT resources;
4) Opportunity and freedom to organise its work independently;
5) Employees of the Council for the Judiciary in accordance with needs.
Budapest resolution adopted by the European Network of Councils for the Judiciary points out:
“Self governance of the judiciary should be realistic, modern and participatory”.
Most probably, ensuring of financing will not resolve all issues related to wholesomeuse of
capacity. Possibly, that is the reason why direct indication that research on strengthening of
capacity of the Council for the Judiciary is necessary is included in guidelines on strengthening
of human resources capacity and development of competencies of employees of judiciary and
law enforcement institutions 2014-2020 upon proposal of the Council for the Judiciary.
Further tasks
 Mid-term (that could be 4 years – cycle of operation of the Council for the Judiciary)
and long-term development strategy of the Council for the Judiciary should be
elaborated. It will provide an opportunity to make work of the Council for the Judiciary
more systemic, to solve problematic issues in prior sequence.
 Respectful cooperation with other branches of power should be strengthened and
developed.
 Cooperation with judges, judges’ associations, the Judicial Disciplinary Committee, the
Disciplinary Court, the Judicial Ethics Commission, the Judicial Qualification
Committee, persons and institutions belonging to court system should be extended.
Answers provided by judges to questions sent by the Council for the Judiciary testify
about judges’ wish to be informed and to involve in solving of issues significant for
judiciary.
 Authority of the Council for the Judiciary should be extended, especially in issues
related to confirmation of judges in the office and their promotion.
 Adequate financing and human resources for the Council for the Judiciary should be
achieved.
Finally, I would like to express gratitude to all members of the first Council for the Judiciary
for their work and to utter assurance that establishment and operation of the first Latvian
Council for the Judiciary had been significant step in strengthening of rule of law and further
development of Latvian court system.
8