Overruling Loskutovs and the law

30. September, 2007

If Corruption Prevention and Combatting Bureau (KNAB) has broken the law, government authorities must investigate it and prevent further offences. However, this objective cannot serve as a reason to deal with inconvenient individuals. Impartiality and objectivity is a basic condition for any investigation, otherwise the results will not be credible. Unfortunately, in the case of Loskutovs, the recent public statements by authorities and politicians, the rush of the investigation and the sloppy legal procedures indicate that finding the truth is not the goal. This article illustrates a few considerations which indicate that the politicians wish to as quickly as possible dispose with an undesirable public official instead of an objective and impartial evaluation.

The rhetoric of Loskutov’s suspension
Regardless of the Prime Minister’s public statements, Loskutovs is not suspended from duty as the Director of KNAB, for the obvious reason that to suspend a public official, another public official should have taken a decision to such effect. Four days after the Prime Ministers initial announcement such a decision was still absent. Instead, there was Kalvitis decree of 24 September addressed to Gunta Veismane, Director of the State Chancellory, requiring her to do three things: arrange for an investigative commission, prepare a Cabinet regulation on the composition of the commission and suspend Loskutovs from his duties. No evidence suggests that Veismane has in fact suspended Loskutovs, and it’s quite understandable – this request places her is a very unenvious position as there is no law granting the Director of State Chancellory such authority. Essentially, the Prime Minister is asking her to perform an unlawful act. He could have, to the same effect, addressed his request to suspend Loskutovs to the President, the Ombudsman or a member of his party – they wouldn’t have any more authority to suspend Loskutovs as did Veismane. According to general rule of law principles, a decree requesting to perform an unlawful act is null and void. Consequently, had Loskutovs followed this decree and not come into the office, Kalvitis would have been able to initiate another disciplinary investigation against him, this time about unjustified absence from work!

No criminal proceedings – no suspension
The Law on KNAB forsees two cases when the Director of KNAB may be temporarily suspended from duty: either he/she is arrested or under criminal investigation. None of these apply in Loskutov’s case. The reason why the law provides only two reasons for suspension is obvious – so that the politicians would not have the freedom to obstruct the Director’s work and suspend him/her for arbitrary rounds. The Law on Public Administration, referred to by Prime Minister’s Chief of Staff on the TV political talk show “Kas Notiek Latvija?”, does not in any way broaden the chances to suspend the Director of KNAB.

Moreover, the Law on KNAB specifies that the Director of KNAB can only be temporarily suspended by the Prosecutor General. This provision was drafted with the very purpose to protect KNAB from ill-motivated interventions in it’s work. Unfortunately, Prime Minister’s public rhetoric in the case of Loskutovs shows that he is apparently ready to seize the authority exclusive to the Prosecutor General.

Labour Law and the head of KNAB
For legal argumentation of the suspension, the Prime Minister’s decree quotes the article of the Labour Law which says that the employer may suspend an employee in the case that absence of such suspension may harm well-grounded interests of the employer or third persons. It would be interesting to learn how Kalvitis has reached the conclusion that he himself or the Director of the State Chancellory is considered Loskutov’s employer, considering that the Director of KNAB is appointed, or dismissed, only by the Parliament. Even more interesting would be to know how exactly Loskutov’s non-suspension would harm the interests of Kalvitis’s as employer, or “third persons”.

Another important issue – what, if anything, does the Director of KNAB have to do with the Labour Law, if he is appointed by the Parliament? Here as well the Prime Minister has a curious solution. He has found an article in the Law on KNAB which provides that “in labour relations with respect to KNAB employees the legal norms governing labour relations are applicable, where the law does not provide otherwise”. This clause is rational and applicable to all employees of KNAB with the exception of the Director of the institution, who doesn’t even have a job contract because – contrary to all other employees – he is appointed by the Parliament. A similar case has been decided by the Supreme Court regarding the Head of the Traffic Police Administration (Case No. SKA-0216-07), when the Court ruled against applying Labour Law if the public official in question does not have a job contract.

“Investigation” commission?
The Prime Minister’s initative to establish a commission for the evaluation of Loskutov’s work, composed of the Prosecutor General and five politicians, is also legally arguable. The Law on KNAB forsees an establishment of such a commission but clearly determines that it is possible only in accordance with  the Cabinet of Minister’s procedure (i.e. with special Cabinet regulations). This is a very important provision to guarantee KNAB’s independence, as it stipulates an advance public announcement of the composition of the commission, it’s mandate, decision procedures, the rights and responsibilities with respect to, for example, interrogation of KNAB employees or obtaining documents. The advance announcement of the Cabinet procedure would serve as protection from unobjective decisions by politicians but unfortunately such procedure is absent in this case. This not only casts doubt over whether Loskutovs will be evaluated by the most competent experts and objective criteria using most appropriate procedures, but raises questions whether the politicians might abuse the situation to obtain from KNAB information about certain ongoing investigations. Essentially, there is a risk that the politicians will have acquired an even broader access to investigation documents than provided by the now infamous amendments to the security legislation. Not to mention that in the absence of previously defined strict criteria the fate of the KNAB’s Director will be decided by politicians who might have selfish motives for his dismissal. This concern is evidenced, for example, by recent public statements of Member of Parliament (LPP/LC group) Dzintars Jaundzeikars, a member of the investigation commission and Chair of the Parliamentary Committee on National Security, when he announced on Latvia’s Radio that he would vote in favour of Loskutov’s dismissal.

“Investigative” commisssion No.2?
Meanwhile, with the same decree, Kalvitis has ordered Veismane to establish one more commision, with a less broad mandate to determine whether Loskutovs has committed a disciplinary offence. This commission will be composed of representatives of ministries, chaired by a State Administration Service employee. It is difficult to find rational explanation for having two commissions functioning at the same time – what if the Commission No.1 in one of these days announces that it has decided Loskutovs is not fit for the job? Will the Commission No.2 stop it’s work? If not, what happens in the event the second commission decides a week later that Loskutovs has not committed disciplinary offence? Again, the procedures, mandate and authority to penalise Loskutovs by this Commission No.2 are not clear, at least not from the legal point of view. The Law on KNAB is not applicable in this case because it applies only to internal matters, not in the event a higher authority penalises the Director of KNAB. Loskutovs is not in civil service, therefore the procedures, rights and guarantees of State Civil Service disciplinary liability are not applicable either. Even if the Prime Minister thought to apply the Labour Law, the disciplinary measures provided there can’t be used as there is a clear time limitation – one month from discovering the offence (in Loskutov’s case the alleged offence was discovered 4 months ago). The Law on Public Administration does foresee a possibility for disciplinary punishment, but does not specify the procedures or punishment. In another words, the work of the Investigation Commission No.2 is, too, dependent on ad hoc, or arbitrary criteria.

Lawful administrative procedure
If an employee is temporarily dismissed based on the Labour Law, his salary is suspended for the time of dismissal. This was the Prime Minister’s intention regarding Loskutovs. Unfortunately, Kalvitis had forgotten or was not aware that in public administration there are special considerations regarding decisions which infringe rights of the individual. Namely, before taking the decision, the person in question should be given an opportunity to present his/her arguments and the document should be drafted in a form of an administrative act. In the case in question, the decision should have contained, for example, Loskutov’s opinion, considerations of usefulness about whether the Director of KNAB poses a great risk to the investigation and indication when and where this decision can be appealed. Therefore, even if we allow for a moment that Kalvitis decree to Veismane is binding for Loskutovs, or that the aforementioned article of the Labour Law is applicable, this decree still has important legal shortcomings. The Administrative procedure Law says that administrative acts issued by unauthorised persons have no legal effect, and the subject of the administrative act must know who interferes with his rights – in Loskutovs case, whether he’s suspended by the Prime Minister or by Director of the State Chancellory.

The concern over the legitimacy of Prime Minister’s actions casts doubt over whether Kalvitis ever had the objective to find out what really happened to KNAB’s finances or the responsibility of the Director for this. Kalvitis actions to date have seriously disrupted KNAB’s work because of the confusion within the institution and the public about who’s in charge. Moreover, it is not clear if the documents of investigation undertaken by KNAB are protected from the eyes of those politicians who have selfish interests to learn about their contents and the investigation methods used. Allocating the supervision of KNAB to the Cabinet of Ministers apparently was a mistake. Such institutional mechanism would have its advantages, provided the politicians had integrity, supervision would mean that the Cabinet and the Prime Minister would assume political responsibility for Latvia’s anti-corruption policy. In practice, this should translate into political support for the legislative amendments proposed by KNAB and other tangible actions aimed at strengthening the institution. Unfortunately, Kalvitis recent actions – overruling the law in order to achieve dismissal of the Director of KNAB – indicate the Prime Minister is doing all he can to sabotage anti-corruption activities. raksts

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