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Comments by the Centre for Public Policy PROVIDUS about the draft evaluation report on Latvia (of 27 April 2012)

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To: GRECO evaluation team

Comments by the Centre for Public Policy PROVIDUS about the draft evaluation report on Latvia (of 27 April 2012)

 

The Centre for Public Policy PROVIDUS considers GRECO evaluation process as one of the most effective international mechanisms assisting countries to tackle corruption. GRECO reports are known for a high level of accuracy and well-considered recommendations. Therefore PROVIDUS would like to provide comments on the current draft evaluation report, which covers corruption prevention in respect of Members of Parliament, judges and prosecutors.

Corruption prevention in respect of Members of Parliament

Paragraph 15: After recent changes in the legislation, the Saeima votes openly on the appointment of all officials (secret vote remains in place for the appointment of the President of State and judges of the Constitutional Court because these appointments are governed in the Constitution and it proved impossible to gather the necessary parliamentary majority for constitutional changes).

Paragraph 16: Draft laws are indeed made available on the Saeima’s website on the very day of their first submission, i.e. at the earliest time, which is theoretically possible. Occasionally time for consultations may be lacking if the parliament opts for an extra speedy procedure of adoption but it is never a problem of delayed publication. Meanwhile provision of information regarding who has been consulted in the preparation of a draft law (Section 85, Paragraph 5 of the Saeima Rules of Procedure) remains de facto optional as there is no control mechanism regarding the accuracy and completeness of such information. 

Paragraph 17: The work of parliamentary committees is not covered in the website of the government. The website of the government does cover the work of the State Secretaries’ meetings and meetings of the Committee of the Cabinet but they are not related to the parliament.

Paragraph 23: The Law on the Prevention of Conflicts of Interest in the Activities of Public Officials (hereafter – the CoIL) does not make it mandatory to develop codes of ethics. Section 22 Paragraph 1 obliges public officials to act in conformity with codes of ethics of their sector or profession but it does not imply an obligation to adopt a code where such does not exist.

Paragraph 24: The Rules of Procedure of the Saeima have been amended in 2012 but the part of them, which contains the Code of Ethics, has not been amended since its initial adoption.

Paragraph 29: The Committee of Mandates and Ethics is hardly proactive with regard to breaches of the Code of Ethics. As of the end of August 2011, “only two MPs have been sanctioned in accordance with the code for relatively marginal violations (one of them used an offensive expression in the address of his opponent MPs, another showed an offensive gesture to protesting people outside the parliament building). An oral warning was issued in the former case and a written warning plus respective public announcement in the plenary sitting and publication in the official bulletin in the latter case.” (Source: National Integrity System Assessment[1]). Plus in December 2011 the Committee issued a written warning to an MP who had signed the initiative to introduce the Russian language as the second official language in Latvia.

Paragraphs 33 and 34: In practice Section 21 would not apply to MPs because they do not have any superior authority where to report their conflicts of interest. Paragraph 1 Item 9 of the CoIL states explicitly that the Saeima, its Presidium or the Chairperson of the Saeima shall not be considered the head of the institution, superior official or collegial body vis-a-vis an MP. Hence also most of the provisions of Section 20 of the CoIL would not be relevant for MPs.

Conflict of interest prevention provisions are generally quite weak regarding MPs. A key provision of the CoIL is Section 11 Paragraph 1:

(1) A public official is prohibited, in the performance of the duties of the public official, to prepare or issue administrative acts, perform the supervision, control, inquiry or punitive functions, enter into contracts or perform other activities in which such public officials, their relatives or counterparties are personally or financially interested.

Meanwhile Paragraphs 5 and 6 of the said Section provide almost all-encompassing waivers for MPs:

(5) The restrictions on the issue of administrative acts specified in this Section do not apply to members of the Saeima and the Cabinet in cases when the referred to public officials participate in the issue of the relevant Saeima or Cabinet administrative acts.

(6) The restrictions specified in Paragraphs one and two of this Section shall not apply to:

1) the President, members of the Saeima, members of the Cabinet or self-government council councillors in cases where the referred to public officials participate in the adoption of external regulatory enactments or political decisions; and

2) members of the Saeima, members of the Cabinet or self-government council councillors in cases where the referred to public officials participate in the adoption decisions of the Saeima, Cabinet or self-government council respectively regarding the specification of their own remuneration or the appointment, election or approval of themselves to office.

The above exemptions cover most of the activities of MPs.

Note that MPs are not generally prohibited to hold business interests, e.g. own companies.

Paragraph 41: The CoIL has been amended and the limit concerning the annual turnover of LVL 30 000 does not apply any more. The exemption provided in the Section 7 Paragraph 10 applies also to MPs.

Paragraph 55: Public officials are not required to report their own conflicts of interest to KNAB. They shall notify superior officials (Section 21 of the CoIL), which MPs do not have. In principle, MPs should report conflicts of interest of other MPs to KNAB (Section 21.1 of the CoIL).

Paragraph 62: In general, the system of public officials’ declarations is properly developed and functions well. However, it has a limitation in that it does not require public officials to define their interests.

In the declaration, one can see that, for example, an MP owns a building in Riga. However, this fact alone does not allow a voter to know anything about private interests that could be related to the building, e.g. if it is an object of national heritage, located in a protected nature territory, in a particular area of the city or if it in any other way represents a potential for a conflict of interest should the MP act in a particular sector of legislation. While it would be unreasonable to require public officials to describe every possible aspect of a piece of property, stock, business transaction and the like, there should be a clear requirement for MPs to define their interests, which can affect the discharge of their official functions, on an ad hoc basis. The current provision, which allows public officials to declare any optional information in their declarations (Section 24, Paragraph 1, Item 12 of the CoIL), does not contain any clear obligation and is of little practical relevance.

Paragraph 63: There is no legal requirement to check declarations of all MPs.

Paragraph 75: In current Latvia, it is difficult to see any legitimate grounds for the immunity of MPs against administrative penalties provided in Section 30 of the Constitution. It is hardly possible to recall any cases of the abuse of the administrative liability in order to obstruct discharge of the official functions of MPs.

Corruption prevention in respect of judges

Paragraph 95: Indeed the Saeima has turned down candidates for judicial offices on several occasions against recommendations of the relevant judicial bodies. What follows is a quote from the National Integrity System assessment of 2011:

“As far as concrete situations are concerned, the Saeima failed to approve several candidates for judges’ positions who satisfied all formal requirements and had passed successfully through all of the procedures prior to the final decision. Thus in October 2009 the Saeima failed to appoint a candidate for the Supreme Court. Some claimed that the reason for this decision was the judge’s earlier decision to issue an arrest warrant for Aivars Lembergs – the mayor of the port-city Ventspils and allegedly one of the most influential individuals in Latvian politics.[2]

Another candidate for the Supreme Court (a well-known expert of criminal law working for a non-governmental think tank) failed in the parliament in December 2010.”

It is hoped that such acts of arbitrariness would be prevented in the future because of recent changes in legislation, which foresee open voting on most appointments.

Paragraph 114: The CoIL contains mainly formal restrictions and procedures aimed at preventing conflicts of interest from occurring. There are quite few ethical principles (values, etc.) in the law. The law does contain a reference to codes of ethics but does not determine what such codes shall contain.

Paragraph 115: Parts of the Latvian Judicial Code of Conduct are obsolete. At the time of the adoption of the Code, the conflict of interest framework in Latvia was very limited. Therefore rather detailed conflict of interest rules were included in the Code. Currently several of its provisions contradict the legislation or have lost relevance due to the development of the legal framework. To give an example, the Code requires a judge to suspend his/her work as a judge for a period when he/she is elected in institutions of “state authority, administration or local government” (Canon 5 of the Code). Meanwhile, according to the law, there is no possibility for a judge to suspend his/her activities as a judge and no combination of a judges’ office with an elected official post is allowed.

It is always challenging to determine how the existing ethics provisions really affect the actual professional environment. The following conclusion from corruption risk analysis carried out by PROVIDUS in Riga Regional Court in 2010 could be of interest: “Although the concept of professional ethics should be an integral element in judges’ daily work, discussions of ethics-related issues are seen as somewhat alien and certainly not as characteristic of the usual routine of the Riga Regional Court. The judges lack a common understanding regarding certain standards of professional conduct/ ethics such as whether and how to inform parties of any circumstances that could cast doubt on the impartiality of a judge and whether and how the judge should comment publicly about his/her professional activities. The lack of uniformity and consistency undermines even professionals’ confidence in the court.”[3]

Meanwhile PROVIDUS recommends covering also the role of the Judges Ethics Committee, which has played a significant role in strengthening the judicial ethics in Latvia. Since 2008, the Judges Ethics Committee has been drafting and publishing well-grounded opinions on a variety of important issues of judicial ethics (see in Latvian: http://www.tiesas.lv/index.php?id=3093).

Paragraph 139: Judges are not required to submit a declaration after the duties in public service are terminated (Section 23, Paragraph 1, Item 4; Section 25, Paragraph 5 of the CoIL).

Paragraphs 148 and 150: The process leading to the review of judges’ disciplinary violations can be quite time consuming (often due to delayed action by those who first detect disciplinary violations). Therefore, on a number of occasions, it has not been possible to hold judges accountable for disciplinary violations or administrative violations (mainly traffic violations) due to the statute of limitation.

Also, when it is still possible to sanction judges for administrative violations, in some cases the Judicial Disciplinary Board has been quite lenient and used a provision, which allows it to review a case but not apply any sanction. Such situations may contribute to an image of a judge as someone above the law. Probably adding some members from other legal professions and the academia to the composition of the Judicial Disciplinary Board would limit the occasional impression about the excessive lenience of judges against members of their own profession.

Additional information: Even though it is probably outside the scope of the GRECO evaluation, a few court rulings in corruption matters are worrying. A case, which gives grounds for serious concern, involved three officers of the State Police who planned and jointly carried out activities to cover up a crime of a fourth police officer. The latter officer drove a car while being drunk and hit a person who died in the accident. The other police officers (including the chief of the criminal police of the respective territorial police authority) arranged a possibility for one of the three to test for alcohol instead of the one who caused the accident. The higher officer gave respective orders to the others and used a service vehicle to carry out the plan. Even though there were no disputes regarding the actions of the defendants and evidence, three court instances including the Senate of the Supreme Court[4] opined that the prosecution had not proven with sufficient specificity that the said activities had caused “substantial harm” and acquitted all of the defendants from charges of abuse of office. This case sets a precedent whereby damage to the trust and prestige of a public authority shall not be considered serious harm in criminal matters because these can never be specified to the extent to which material damage can be specified.

Corruption prevention in respect of prosecutors

Paragraph 182: Prosecutors are not required to submit a declaration after the duties in public service are terminated (Section 23, Paragraph 1, Item 4; Section 25, Paragraph 5 of the CoIL).

Paragraph 210: The State Revenue Service does not verify the accuracy of information provided in declarations except for specific cases when they carry out audits. Routinely they check whether declarations are prima facie filled correctly.

[1] See the report here: http://www.transparency.org/whatwedo/pub/national_integrity_system_assessment_latvia

[2] Ločmele, N. WikiLeaks rozīnes (Raisins of WikiLeaks). Ir.lv. 3 September 2011. http://www.ir.lv/blogi/politika/wikileaks-rozines

[3] Austere, L., Kalniņš, V. Ētikas jautājumi un korupcijas riski Rīgas apgabaltiesā (Ethics Issues and Corruption Risks in Riga Regional Court). P.22. /upload_file/Publikacijas/2010/laba_parvaldiba/2010_Etikas%20un%20korupcijas%20riski%20Rigas%20Apgabaltiesa_Kalnins_Austere.pdf

[4] Decision of the Senate of the Supreme Court in the case No. 11110011506, 30 May 2012.

 

Sagatavoja Valts Kalniņš

Atzinums sagatavots projekta "Latvijas nevalstisko organizāciju kapacitātes stiprināšana interešu aizstāvības aktivitātēm" ietvaros.

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