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Consultative Council of European Judges (CCJE)
Questionnaire for 2008 CCJE Opinion concerning the quality of judicial decisions: reply submitted by the delegation of Latvia
Question 1
Is there a specific model to be followed in drafting judicial decisions?
Can each individual judge choose his own style of drafting his decision?
A judgment shall be drawn up in writing and shall consist of an introductory part, a descriptive part, a reasoned part and an operative part.
In civil matters
The introductory part shall set out that the judgment is made in the name of the State, as well as the date when the judgment was rendered, the name of the court rendering the judgment, the court panel, the participants in the matter and the subject matter of the dispute.
The descriptive partshall set out the claim of the plaintiff, the counterclaim of the defendant, objections, and the substance of the explanations provided by participants in the matter.
The reasoned part shall state the facts established in the matter, the evidence on which the conclusions of the court are based, and the arguments by which such evidence, or other evidence, has been rejected. This part shall also set out the regulatory enactments, which the court has acted pursuant to, and a judicial assessment of the facts determined in the matter, as well as the conclusions of the court regarding the validity or invalidity of the claim.
The operative part shall set out the adjudication of the court regarding the complete or partial allowing of the claim, or the complete or partial dismissal and the substance of the judgment. Furthermore, it shall set out by whom, and to what extent, court costs shall be paid, as well as the procedures and time periods for appeal of the judgment.
In a complicated matter, the court may prepare an abbreviated judgment consisting of an introductory part and an operative part. In such case, the court shall prepare a full judgment within 14 days.
In criminal matters
The introductory part shall set out that the judgment rendered in the name of the State, the date of the announcement of the judgment, the name and the composition of the court that rendered the judgment, the public prosecutor and defense counsel, the given name, surname, and personal identity of the accused, the section, paragraph, and clause of the Criminal Law on the basis of which the person was prosecuted.
The descriptive part of a judgment of acquittal shall indicate the essence of the prosecution.
The reasoned part of a judgment of acquittal shall indicate the circumstances of the event ascertained by the court, the grounds for the acquittal of the accused and the evidence that confirms such acquittal, the reasons why the court rejects the evidence with which the prosecution has been justified.
The operative part of a judgment of acquittal shall indicate a court decision regarding the fact that an accused has been found innocent in the prosecution pursued against him/her and acquitted, regarding the revocation of a security measure, regarding the revocation of means for ensuring the confiscation of property and the consideration of harm, if such consideration have been applied, etc.
The descriptive part of a judgment of conviction shall provide a description and legal qualification of a criminal offence, referring to the time and place of the committing thereof, the manner of committing, the form of guilt and motives of the accused, the consequence of such offence.
The reasoned part of a judgment of conviction shall indicate the evidence on which the conclusions of the court have been based, the reasons why the court reject other evidence, the aggravating and mitigating circumstances of the liability of the accused, the reasons why part of the prosecution has been recognized as unproven, if the court has so recognized, the reasons for the modification of prosecution, if the prosecution was modified in court, the reasons regarding the application of the concrete penalty. If, based on a taken decision, an examination of evidence has not been performed in a court session, a court shall indicate in a judgment that the quilt of the accused has been proven.
The operative part of judgment of conviction shall indicate a court decision regarding the fact that an accused has been found guilty of a criminal offence (referring to the section, paragraph, and clause of the Criminal Law), the type and amount of a penalty applied to an accused regarding each criminal offence, and the final sentence that must be served, the security measure, compensation for injury, ensuring of compensation for injury or a confiscation a property, if such compensation or confiscation has not be previously performed, confiscation or recovery of criminal acquired resources, the procedures and terms for the appeal of the judgment, etc.
A court may prepare a judgment in an abridged form, consisting of an introductory part, a descriptive part, and an operative part. In such case the court shall prepare the full judgment within a term of 14 days, announcing the data of the availability thereof.
In administrative matters
The introductory part of a judgment shall set out that the judgment rendered in the name of State, the date when the judgment was rendered, the name and the composition of the court, participants of the matter and the subject matter of a dispute.
The descriptive part of a judgment shall set out the claims and objections, the essence of explanations from the participants of a dispute.
The reasoned part of a judgment shall set out the facts determined in the matter, the evidence upon which the court conclusions are based and the arguments pursuant to which one or more items of evidence have been rejected, the norms of law on which the court has based itself, legal assessment of the facts determined in matter, references to published court judgments and legal literature, as well as to other special source, which has been used by the court in its reasoning and the court conclusions regarding the validity of the application.
In the operative part of a judgment shall set out the judgment of the court regarding the allowing or the dismissal, in full or in part, of the application, and the substance of the judgment.
The court may draw up a judgment in abridged form, consisting of an introductory part and operative part.
Adjudication of a case in a court of appeals
In civil matters
A decision of an appellate instance court by which a matter is adjudged on the merits, shall be rendered by the court in the form of a judgment. A judgment shall be drawn up in accordance with the procedures prescribed by law and in compliance with the features prescribed by law for an appellate instances court judgment.
In the introductory part of a judgment in addition a court shall set out the submitter of the appellate complaint and the court judgment regarding which the complaint is submitted.
In the descriptive part in addition a court shall set out the substance of the judgment of the court of first instance and the substance of the appellate complaint and objections.
In the reasoned part in addition a court shall set out the reasons for its opinion with respect to the judgment of the court of first instance and with respect to the appellate complaint.
In criminal matters
A decision of an appellate instance court shall consist of an introductory part, a descriptive part, reasoned part and an operative part.
The introductory part of a decision shall indicate the time and the place of the acceptance thereof, the name and the composition of the court, the public prosecutor, person who submitted the appellate complaint or protest, and the judgment that was appealed or protested.
The descriptive part of a decision shall indicate the essence of the appealed or protested judgment, and the request expressed in the appellate complaint or protest.
The reasoned part of a decision shall indicate the findings of the court of appeals regarding the validity of the appellate complaint or protest, the circumstances ascertained by the court of appeals, the motives why the court of appeals reject some pieces of evidence, and the laws on the basis of which such court conducts itself.
If the court of appeals determines circumstances of a criminal offence that differ from the circumstances indicated in the judgment of the court of first instance, such court shall provide a new description of the criminal offence. If a court of appeals leaves the judgment of a court of first instance without modifications, such court may not repeat the evidence and findings referred to in the judgment of the court of first instance. If a court of appeals render a judgment that is essentially new, the descriptive part, reasoned part, and operative part thereof shall comply with requirements specified in Criminal Procedural Law for a judgment of a court of first instance.
In administrative matter
A judgment of an appellate instance court shall be drawn up in accordance with procedures prescribed by law and in compliance with the features prescribed by law for an appellate instance court judgment.
In the introductory part of a judgment in addition a court of appeals shall set out the submitter of the appellate complaint and the court judgment regarding which the complaint is submitted.
In the descriptive part of a judgment a court of appeals shall set out the information stipulated in the Administrative Procedural Law, include the essence of the judgment of first instance, the brief description of the appellate complaint (counter complaint) and brief review of submitted objections.
In the reasoned part of a judgment a court of appeals shall set out the information stipulated in the Administrative Procedural Law, and reasons provided for an opinion regarding the judgment of the court of first instance. If the court, when adjudicating the matter, recognizes that justification included in the judgment of the court of first instance is correct and sufficient, it shall indicate in the reasoned part of the judgment that it agrees to the justification of the judgment by the court of first instance.
Adjudication of a case in a court of cassation
In civil matters
A judgment by a cassation court shall consist of an introductory, descriptive part, reasoned part and an operative part. In the introductory part, the court shall set out the name and the composition of the court, the time when the judgment is rendered, the participants in the matter and the subject-matter of the dispute, persons who have submitted the cassation complaint (counter complaint) or have joined in it.
In the descriptive part, the court shall set out a brief description of the circumstances of the matter, the substance of the appellate instance court judgment, the reasons for the cassation complaint, or the substance of the explanations.
In the reasoned part, the court shall set out in dismissing a cassation complaint, arguments due to which the complaint has been dismissed, or in satisfying a cassation complaint – arguments regarding the violation of norms of law allowed by the appellate instance court and the erroneous application thereof or the exceeding of the scope of its competence.
In the operative part, a court shall set out the decision.
In criminal matters
The following shall be indicated in a decision of a court of cassation - the time and place of the taking of the decision, the name and composition of the court, and the public prosecutor and other persons who participated in the adjudication of the case, the persons who submitted the cassation complaint or protest, the contents of the operative part of the appealed decision, the essence of the action expressed in the cassation complaint or protest, the justification for such action, and the essence of the objections and views of the public prosecutor, the decision of the cassation court regarding the complaint or protest.
A decision shall be reasoned. If the cassation complaint or protest is rejected, the decision shall indicate why the arguments expressed in the cassation complaint or protest has been recognized as unjustified.
In the case of revocation of a decision, a court of cassation shall indicate the law, and the section thereof, that has been violated, and how such violation was made manifest.
In administrative matters
A judgment by a cassation court shall consist of an introductory part, descriptive part, reasoned part and an operative part. In the introductory part, the court shall set out the name and the composition of the court, the time when the judgment is made, the participant in the matter and the subject matter of the dispute, participant submitted the cassation complaint (counter complaint) or have joined it.
In the descriptive part, the court shall set out a brief description of the circumstances of the matter, the substance of the judgment of the court of appeals, the reasons for the cassation complaint, or the substance of the explanations.
In the reasoned part, the court shall set out: in dismissing a cassation complaint – arguments on the basis of which the complaint has been dismissed. In satisfying a cassation complaint – arguments regarding breaches of law allowed by a lower instance court and the erroneous application of the law or the exceeding the scope of its competence.
If the court recognizes that justification included in the judgment of the court of lower instance is correct and sufficient, it shall indicate in the reasoned part of the judgment that it agrees to the justification of the judgment by a lower instance court. In this case, the considerations may not be indicated in the reasoned part of the judgment.
In the operative part, court shall set out the decision.
Question 2
Where the court is composed of more than one member, do judicial decisions have to be taken unanimously or a major decision is equally effective and binding?
In a two or even more member panel, does the president or most senior judge have a second or casting vote?
In rendering judgment, the court shall adopt judgment with a majority vote and the judgment shall be signed by all judges. If a judgment is made collegially, the chairperson of a court session shall express his/her views and vote last.
A judge who has a dissenting opinion shall also sing the judgment. A judge, who has a dissenting opinion shall express such opinion in writing. A dissenting opinion shall be attached to a case in a closed envelope, and only a court of higher instance may become acquainted with such opinion in the case of appeal of such court adjudication. In announcing a judgment, a dissenting opinion shall not be announced.
Question 3
Do judicial decisions have to deal with all points raised by the parties or their lawyers or is a synthesis or concise approach considered sufficient?
In civil matters (first instance)
The court shall make a judgment regarding the subject matter of the action as set out by the plaintiff, and on the basis specified in the action, not exceeding the extent of what is claimed.
In civil matters (appellate instance)
In an appellate complaint, the subject matter or basis of an action my not be amended to include new claims as were not brought in the court of first instance.
In civil matters (cassation procedure)
In adjudicating a matter by way of cassation procedure, a court shall examine the validity of the existing judgment for the appealed part of the matter regarding persons who have appealed the judgment or who have joined in the complaint and regarding arguments which have been mentioned in the cassation complaint.
A court may set aside the entire judgment, even though only a part of it has been appealed from, if it determines that such violations of law exist as have led to an erroneous adjudication of the entire matter.
In criminal matters (first instance)
A first instance court shall justify a judgment with evidence that has been examined in a court session, or with evidence for which, in accordance with Criminal Procedure Law, an examination is not necessary.
In criminal matters (appellate instance)
A court investigation, and court discussions, in a court of appeals shall take place in the amount of, and within the framework of, the requirements expressed in a complaint or protest, which shall not be exceeded, except for cases where a court of appeals has doubts regarding the quilt of, or the circumstances aggravating the liability of, an accused, participants, or joint participants that has been determined by a court of first instance.
In criminal matters (cassation procedure)
An examination of the lawfulness of the adjudication of a court shall take place in the amount of, and within the framework of, the requirements expressed in a cassation complaint or protest. A court of cassation shall be permitted to exceed the amount and framework of requirements expressed in a cassation complaint or protest in the cases where such court determines the violations indicated in Criminal Procedure Law (a violation of the Criminal Law and substantial violations of the Criminal Procedural Law that bring about the revocation of a court adjudication), and such violations have not been indicated in the complaint or protest.
In administrative matters (first instance)
A court shall render a judgment regarding the subject matter of the application as set out by the applicant, not exceeding the limits of the claim.
In administrative matters (appellate instance)
A court of appeals adjudicates a case on the merits according to an appellate complaint and counter appellate complaint, not exceeding the extent of what is claimed. A court of appeals adjudicates only the claims already reviewed in the court of first instance. In administrative matters (cassation procedure)
In adjudication a matter by way of cassation procedure, a court shall examine the legality of the existing judgment in the appealed part thereof in relation to a participant in the administrative proceeding who has appealed the judgment or joined in a cassation complaint, and also the arguments which are referred to in a cassation complaint. If the court establishes violations of law that have lead to wrong adjudication of the entire case, it fully cancels the judgment, although only a part of it is appealed against.
Question 4
In general terms, how is a first instance judicial decision drafted? (For example, does the decision state first the factual background, followed by the evidence, its evaluation and finally the application of the legal principles to the accepted facts?)
How in general term is an appeal from a Supreme court decision drafted? Is the appeal in your country by the way of rehearing the case or not?
For this question see answers for the Question Nr. 1.
Question 5
Is there a difference in the way a judgment is drafted according to the subject matter (civil, criminal and administrative)?
For this question see answers for the Question Nr. 1.
Question 6
Could you describe precisely how the decision is transmitted to the parties?
Is the judicial decision binding only on the specific litigants or does it affect the public in general?
Does your country acknowledge a difference in judicial decisions in personam and in rem?
In civil matter
A copy of the judgment shall be sent to the participants in the matter who have not attended the court sitting, not later than three days after the judgment has been pronounced, but where an abbreviated judgment is pronounced – within three days after a full judgment has been drawn up.
If a participant in the matter has been present at the court sitting and the court has pronounced an abbreviated judgment, the court shall send to the participant, pursuant to his/her written request, a copy of the full judgment within three days of the full judgment being drawn up.
In criminal matters
The day of the availability of a judgment is the day when the judgment may be received in the court chancellery, or, for a person in detention, the day when such person is given the opportunity to familiarize with the judgment in a language understood by him/her. If an accused is in detention, a court shall send a copy of full judgment to the accused not later than the next working day after the preparation of the full judgment.
In administrative mattes
A copy of the judgment shall be sent to the participants in the matter not later than three days after a full judgment has been drawn up.
A judicial decision is binding only on the specific litigants.
According to the law only natural or legal person may be a party in matter.
Question 7
How is a judicial decision enforced in your country? Does your country allow for contempt proceedings against a litigant who does not comply with a decision/order of the court?
In civil matter
Court judgments shall be executed after they come into lawful effect, except in cases where pursuant to law or a court judgment they are to be executed immediately.
Adjudications by a court shall be executed by a bailiff. Supervision of bailiff’s activities shall be performed in accordance with the procedures set out in Civil Procedural Law and the Law on Bailiffs.
Requirements and orders by a bailiff, when executing court judgments and other adjudications, are mandatory for all natural or legal persons throughout of the State. If bailiff’s requirements or orders are not executed, the bailiff shall drawn up a statement and submit it to a court to decide the issue regarding liability. The court may impose a fine on persons at fault – for a natural person up to two hundred and fifty lats (about 350 euros), but for an official up to five hundred lats (about 700 euros).
If, in a judgment being executed, resistance is shown, a bailiff shall, in the presence of invited persons, but if it is not possible to invite persons – singly, drawn up a statement in respect of this, and in order to eliminate impedance apply for assistance to the police. The statement shall be submitted to the court for it to decide the issue regarding the liability of those persons who have resisted the execution of the judgment.
If a debtor not comply with procedures set out in laws (for example, does not appear before a bailiff pursuant to a summons, refuses to furnish explanations or does not provide the information prescribed by law) the bailiff may apply to a court for it to decide the issue regarding the liability of such person. The court may take a decision regarding the forced conveyance of the debtor, and impose upon a natural person a fine not exceeding 50 lats (about 70 euro), but upon an official – not exceeding 250 lats (about 350 euro).
If it determined that a debtor has knowingly provided false information, a bailiff shall apply to a court for it to decide the issue regarding the initiation of an administrative violation matter or criminal matter.
In administrative matters
Court judgments shall be executed after they come into lawful effect, except in cases where pursuant to a court judgment they are to be executed immediately.
Question 8
Are judicial decisions handed down/announced in open court? Always or can the public/journalists be excluded – If so on what grounds?
In all courts in the Republic of Latvia, matters shall be adjudicated openly. The adjudication of a matter in a closed sitting of a court shall be permitted only in cases provided for by law, observing all other provisions of judicial proceedings.
Judgments and decisions of a court shall always be pronounced publicly.
In civil matters
Civil matters shall be adjudicated in open court, except for matters regarding – determination of the parentage of children, approval and setting aside adoption, annulment or dissolution of marriage, declaring a person to be lacking capacity to act because of mental illness or mental deficiency.
Pursuant to a reasoned request by a participant in the matter or at the discretion of the court the court sitting or part thereof may be declared as closed – if it is necessary to protect official secret or commercial secret, if it is necessary to protect private life of persons and confidentiality of correspondence, in the interest of minors, if it is necessary to examine a person who has not reached 15 years of age, or in the interest of court adjudication.
In matters which are adjudicated in a closed court sitting the operative part of the court judgment shall be publicly pronounced. In matters regarding confirmation or revocation of adoption the judgment shall be pronounced in a close court sitting.
In criminal matters
A criminal case shall be tried in an open court session. A criminal case shall be tried in a closed court session, if the protection of a state or adoption secret is necessary. A court may determine a closed court session with a reasoned decision in a criminal case regarding a criminal offence committed by a person who has not reached sixteen years of age, regarding a criminal offence against morals and sexual inviolability, in order to not disclose intimate circumstances of the lives of persons involved in criminal proceedings, to protect a professional secret or commercial secret, to ensure protection of persons involved in criminal proceedings.
A court decisions shall be announced publicly. In a criminal case that has been tried in a closed court session, the introductory part and operative part of the court decisions shall be announced publicly, and the reasoned and descriptive part shall be announced afterwards in a closed session.
Question 9
To what extent do judicial decisions in your country take into account personal data protection legislation (i.e. publication of litigants’ names, other personal details etc.)?
When publishing adjudication of courts, no personal data, except for the initial of a person, are indicated therein.
Question 10
Are judicial decisions available to persons or authorities other than the litigants themselves? If so on what terms and prerequisites?
According to the Law on Judicial Power the adjudication taken by the court in open court session is generally accessible information after the decision is pronounced. If it is not pronounced, from the moment it is taken.
If the judgment is taken in closed court session, unclassified information is operative part of the judgment and beginning of the concluding part if it is publicly pronounced.
Other government or judicial institutions have access to the files if this information is necessary to exercise the functions of those institutions. The receiver of this information shall ensure the protection of that information in accordance with the law.
Question 11
Are judicial decisions published/available on the internet? If so, is all decisions available or only appeal or supreme court cases?
To ensure wider access to judicial decisions, the Court House Agency in co-operation with the information technology enterprise Lursoft IT made up the Database of Court Decisions. The data base contains the largest Internet compilation of Latvia’s court decisions, including complete texts of such decisions. Full text searches can be performed in the data base. Complete texts of the court decisions in the Latvian language are provided as a part of a paid service by Lursoft.
The recent Supreme Court decisions prepared by the Division of Case-law for publication are available on the Supreme Court website, as well as.
PART II: Evaluation of the judicial decision
Question 12
Is a system of evaluation of quality of justice in force in your country?
We have not yet introduced a system of evaluation of quality of justice and of the quality of judicial decisions. In the Court Information System (CIS), all the data related to adjudication of cases are entered. Taking into consideration the data of the CIS, one can analyze performance of justice. The Department of Statistics and Analysis of the Court Administration carries out summarization of statistical indices.
According to the Strategy of Action of the Ministry of Justice for years 2007 – 2009, the following indices of the result of activities related to adjudication of court are established – all adjudication of a court are cancelled or amended in a court of higher instance (%). Indices of stability of work of courts (number of cases) canceled or amended in a court of higher instance.
Question 13
Does this evolution include/envisage the evolution of the quality of judicial decisions?
Question 14
If your country does evaluate the quality of judicial decisions by means of a specific system, could you specify the latter:
- legal basis;
- identification of the agencies that are responsible for the process;
- parameters that are evaluated.
Question 15
What are the advantages and disadvantages discussed in your country as far as evaluation of quality of justice is concerned?
- advantages;
- disadvantages.
Question 16
In the opinion of the judiciary in your State, which factor could help to improve the quality of decisions?
Justices hold, that several factors could improve quality of adjudication of court – process of in-service training and consistency of this process, reduction of workload for justices (especially in large cities), which would provide more time for argumentation of judgments, improvement of legislation – by allowing not to submit a detailed argumentation of judgments that are not appealed against.
Question 17
Is a system of evaluation of quality of each of the following in force in your State:
- professional performance of police? not exist
- professional performance of public prosecution service? exists
- professional performance of lawyers? not exist
- enforcement of ministry of justice service in general? not exist
- quality of legislation? not exist