This section outlines the policy recommendations resulting from the OECD analysis that can contribute to ongoing efforts in Latvia to strengthen the criminal prosecution system. They are designed to support the Latvian Prosecution in leveraging the experience of OECD benchmarking countries and international prosecution standards to achieve its strategic objectives.
Performance of the Prosecution Services in Latvia
A Comparative Study
Report
Table of contents
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Assessment and recommendations
Abstract
This Report analyses the current state and recent developments in relation to performance and management of the prosecution system in Latvia. Based on this analysis, this section summaries key policy recommendations that aim to support the ongoing efforts in the country to strengthen the criminal prosecution system, and enable the Latvian Prosecution to take advantage of the experience of other OECD countries and international prosecution standards to achieve its strategic objectives.
Promote transparency and accountability while safeguarding independence of prosecutors
The Prosecutor General’s Office is part of the judiciary in Latvia and is independent from the legislative and executive branches. While this is an essential element to ensure the separation of powers, there is scope to draw clearer lines around the concept of prosecution independence in the line with the Constitutional Court’s understanding of the purpose of independence, which is to prevent the centralisation of power in the hands of one institution or official. Latvia is already taking steps in the direction of promoting transparency and accountability and introduced an obligation for the Prosecutor General to report to Parliament on the performance of the institution during the preceding year. This could strengthen the notions of efficiency and effectiveness of prosecution services, facilitate reform and help the PGO establish robust performance monitoring mechanisms, without undermining the constitutional provisions for independence. To further deepen the orientation towards results, there is scope to clarify the content of the report to Parliament, possibly through amendments to the Law on the Office of the Public Prosecutor. Similarly, there could be scope for strengthening the legal framework to enable larger involvement of the Prosecution in criminal policy making, by providing them with a stronger and more formalised stance in the implementation of criminal law and policy, with a view of driving performance of the overall system. These steps should in no way aim at and lead to jeopardising the independence of prosecutors, including through reporting on and interference in individual cases.
Tighten co‑operation and co‑ordination between prosecutors and investigators
The current legal framework appears to encourage prosecutors to intervene in the pre-trial investigation process only as necessary. This creates a situation where investigators often work autonomously and prosecutors appear detached, especially from the beginning of the investigation, despite having the supervisory authority from the outset. Such authority includes a possibility to rule on the admissibility of evidence and on the need of additional/different investigative actions, which in many creates a co‑ordination and co‑operation challenge and can lead to the loss of time on investigations.
To address this situation, Latvia could review the co‑operation and co‑ordination mechanisms between investigators and prosecutors. For example, an initial encounter between the prosecutor and the responsible investigators could be held to decide on the steps to be carried out for the investigation, which is a usual practice in several benchmarked countries. In addition, there is scope to create venues for robust information sharing, dialogue and common training, as well as to develop common guidelines (e.g. to harmonise evidentiary thresholds) to approach various typologies of criminal investigations. These measures could create a smoother flow of criminal procedures and consequently a more agile criminal justice.
Scale-up performance data collection and analysis in the prosecution
The prosecutors’ services have developed a mature system for data collection on prosecutorial and investigative activities as part of its Information System of the Prosecution Office, primarily focusing on gathering data on an individual or office basis. This system provides the basis for the performance analysis and service improvement over time. Moving forward, the system could benefit from collection of more data sufficient to sustain the design of sound evidence-based management policy. In particular, the prosecutors’ data collection and analysis system could be enhanced to include: (1) nation-wide aggregated data and (2) annual analysis, and to embed them in the elaboration of its strategic plans and legal procedure reform proposals submitted to the Ministry of Justice.
Moreover, Latvia could benefit from increased use of quality indicators to assess progress made in the prosecution. For example, there is scope to strengthen the collection of qualitative information on criminal cases to analyse empirically the practical application of criminal procedure legislation, and to record information on reduction of case backlogs, criminality rates and satisfaction of court users, among others.
Strengthen use of strategic management tools in the system, especially planning, monitoring and evaluation
Efforts in the direction of strategic planning have been made by the Prosecutor General’s Office (PGO) through Strategic Plans, the latest being the Strategy of the Prosecution Office for 2017-2021. Looking ahead and to further strengthen implementation and performance orientation, such plans could benefit from outlining a practical roadmap for bringing about the desired results and for measuring the level of attainment of such results afterwards. In order to introduce more effective strategic management, the PGO could leverage its existing strategic plan as a guiding beacon by introducing a stronger focus on increasing efficiency of work processes and procedures.
The PGO could also consider undertaking functional monitoring of its organisational structures and work processes to detect potential causes for delays. This could include analysing where and why there is lack of prosecution of relevant cases that are investigated for long periods, and stimulating the introduction of measures for improving the speed and the number of prosecutions. Some of the policies that have worked in benchmarked OECD countries to achieve this have been stronger standardisation, training, specialisation and prioritisation, increased use of alternative ways of ending investigations, as permitted by legislation, and investment in sound diversionary measures. These are all discussed below.
Invest in developing world-class human resources management system for prosecutors
Review workforce composition in prosecutorial services and investigative police
While Latvia has a larger number of prosecutors per inhabitant than most European countries, many prosecutors are currently assigned to non-prosecutorial functions, mainly to supporting and managerial tasks. Such distribution of tasks could be detrimental to effective prosecution, especially when it comes to prosecuting high-level corruption, organised crime and corporate financial criminality. The prosecution system should be able to rely on administration professionals for a larger number of tasks, including on assistant prosecutors where required, and to concentrate prosecutor resources on prosecuting cases before the courts. In addition, Latvia could consider reviewing the workforce composition (in terms of numbers and required competencies) of the investigative police, in order to ensure sufficient capacity to deal with serious crimes.
Review the individual performance assessment system in line with international standards
The current individual performance appraisal as set in the existing Prosecutor General Order benefits from strong data collection on individual prosecutors. Transparency of the performance appraisal system could be further strengthened and aligned with international standards by explicitly embedding the criteria used for assessing the data as positive or negative performance. In addition, stakeholder interviews highlighted that the performance appraisal system seems de facto to rely on conviction rates as positive performance, whereas a failure to prosecute is not regarded as negative. This seems to result in very high conviction rates (cited by stakeholders to be about 99%), likely because cases are not brought to court unless there is a near certainty that they will result in a conviction. This is a much higher threshold than that applied in the rest of Europe. Finally, performance appraisals are only carried out at least once every five years, with the majority of OECD countries carrying them out at least annually (for example Denmark, Finland, or the Netherlands) or biennially (as in the Czech Republic). In this context, the PGO could consider strengthening both the individual and the system-wide performance assessment criteria and methodology, as well as integrating them within the strategic management priorities in order to measure progress of the system at all levels.
Enhance training opportunities for the prosecution and police
The Prosecutor General’s Office has set as one of its strategic priorities for 2017-2021 to increase training and knowledge for prosecutors by implementing professional continuing education, creating adequate training plans, and introducing insightful use-cases in the ProIS module “Methodological tools”. While some trainings for prosecutors are currently imparted by senior prosecutors on areas of priority, OECD stakeholder interviews confirmed the need and willingness of prosecutors to receive more training, particularly for complex and new types of crime. In order to strengthen these efforts, Latvia could benefit from practices of the benchmarked OECD countries. A common practice in the benchmarked countries is to institute training as mandatory for prosecutors, police officers and judges both as an induction to the profession and as a continuous training for improving skills and knowledge all along the career. This is a practice that could be considered by the prosecution services in Latvia, where training for prosecutors appears to be primarily dependent on the engagement of an individual prosecutor. This engagement and willingness are necessary, but not always sufficient for good performance. Joint trainings could be especially useful in the case of Latvia to ensure further co‑ordination in the approach to each type of crime and strengthen respective capabilities (while preserving independence of the participating stakeholders at any time). Several benchmarked countries channel this through Judicial Training centres, such as France or Italy; and some organise it through the Prosecutor General’s Office, such as Finland’s “Prosecutor’s Start” programme. In addition, Latvia could consider strengthening investments in training the body of investigators in order to ensure effective prosecutions (which appear to have declined since the liquidation of the Police Academy in 2010 as highlighted by stakeholder interviews).
Enhance specialisation in financial, economic and corruption crimes
The prosecution of financial and economic crimes lies at the district level prosecution offices, which supervise the investigation of these crimes conducted by the relevant police force only within the boundaries of the district territory. At present, there are no special requirements for prosecutors supervising such investigations (e.g. in terms of skills, experience, knowledge or selection procedure), with the expectation that necessary expertise will be acquired through in-service practising. At the same time, it appears to be commonplace in Latvia to signal the lack of capacity of the criminal justice machinery for prosecuting complex, financial, corruption or cybercrimes. As such, focused specialisation of certain groups of prosecutors and associated specialised training for them could serve as a necessary capacity-building exercise in Latvia to enable prosecution in the most effective manner.
Enhance attractiveness of the prosecution and investigation as a profession
Another priority issue is the importance of attracting and retaining the right human talent to the profession. The prosecutor career as an employment of choice is generally considered to be less attractive than private practice, an issue that was only partly remedied by the recent salary increases for prosecutors.
Similarly, it emerged during the interviews that salaries of assistant prosecutors and investigators are low with respect to the national average, generating a high turnover rate, reducing the numbers of qualified applicants significantly, and delaying investigations due to new employees having to learn investigation techniques and case background from scratch. Good training, international exchanges, prospective integration into EU police and prosecutorial task forces, knowledge management techniques and appropriate remuneration could be the additional motivation drivers to attract talent to the investigative and prosecutorial services. Creating a more attractive promotion strategy for prosecutors by enhancing the appearance of transparency could also foster a merit culture that would improve prosecutor performance and help draw more human talent to the profession.
Maximise the use of current opportunities in the legal framework to drive performance
Increase the use of simplified procedures available in the criminal law framework
The criminal justice legal framework in Latvia offers a broad spectrum of procedural choices that can be used by prosecutors. The police and prosecutorial services should fully avail themselves of the opportunities the Latvian legal framework offers to treat small cases differently than more complex and sophisticated ones. In practice, innovative choices on the way simpler cases could be closed could be achieved by exploring alternatives to court and diversionary measures. Insofar as some elements of the opportunity principle are applicable in the Latvian system, they could provide avenues to adequately address the most simple cases or archive dead-end supervisions of investigations swiftly, thus reducing the workload of prosecutors, so that they may focus on addressing the most complex crimes.
For example, currently, the Criminal Procedure Law allows for simplified criminal proceedings such as the prosecutor’s penal order without court approval for less serious crimes (article 420) or urgent procedures for flagrant crimes (article 424). These allow a prioritisation of resources, as opposed to the longer ordinary procedure, which is largely used in practice. Likewise, the Law provides for summary procedures for investigations if completed within ten days and if the perpetrator is identified (article 428); and enables an investigator, with authorisation of the supervising prosecutor, to terminate criminal proceedings for minor offences if suspects cannot be identified. Plea bargaining concluded by the prosecutor and approved by the court is also admitted by article 433 of the Latvian Criminal Procedural Law. The Prosecutor General’s Office has taken an important step in this regard by awarding positive assessment points to offices for making use of simplified procedures, and could keep supporting the proactivity of prosecutors to promote a more generalised awareness and use of these legal opportunities. In addition, new options to simplify proceedings will enter into force on January 2021.
Foster prioritisation of relevant cases through the opportunity principle and standardise prosecutorial work
Prosecutors in Latvia currently have high workloads that could benefit from further streamlining to ensure proportional resources are allocated to the most pressing types of crime. For this purpose, there is scope to strengthen prioritisation, which could become part of the standard prosecutorial work procedure. Whereas the principle of legality is enshrined in the legal framework of Latvia, the principle of opportunity is not alien to the system either. For example, articles 373 and 379 of the Criminal Procedural Law allow for taking certain discretionary decisions of the investigating police in co‑ordination with the supervising prosecutor concerning the refusal to initiate criminal proceedings or to stop an already ongoing investigation if the harm caused by the criminal offense is not serious. To this end, and in line with the practices in several of the benchmarking countries, Latvia is encouraged to consider further strengthening prioritisation of cases that would be submitted for prosecution.
In parallel, Latvia could consider institutionalising the standardisation of some aspects of prosecutorial work, in line with the practice in several benchmarked countries. Standardisation and diversionary mechanisms are key to reduce the courts’ workload and the pressure over the criminal justice system of a country, including the penitentiary sub-system. Harmonisation of the understanding of evidentiary thresholds between the prosecution and investigators is highly recommended to enable faster processing of similar cases.
Develop a whole-of-justice-chain approach to the improvement of prosecution performance
Overall effectiveness of the criminal justice system and ability to address serious crimes depend on the performance of the entire justice chain. Relevant justice actors all play a part in the successful flow of criminal trials, and thus should be taken into account as a whole in an integrated manner when envisaging procedural reforms. For instance, it has emerged during the study that the courts appear to schedule hearings on the basis of the defendant’s counsel availability, leading to fragmented trials where hearing flows can be interrupted and last for months. All this could potentially prolong the trials unnecessarily and may warrant consideration of some amendments to the Criminal Procedural Law.
Build an integrity system responding to prosecutors’ integrity and corruption risks
Institutionalise integrity
While the Attestation Commission plays an accountability function in relation to the Code of Ethics, the Latvian prosecution service does not appear to have a dedicated area entrusted to co‑ordinate, mainstream, and promote integrity-related activities in the prosecutorial entities. The Latvia PGO could thus create an integrity office or appoint an integrity officer in charge of promoting and co‑ordinating relevant initiatives as well as providing guidance, advice and awareness to prosecutors on integrity issues such as when faced with dilemmas on gift or conflict of interest policies.
Develop an integrity and anticorruption strategy
As part of its efforts to build an integrity system tailored to the Latvian prosecutors’ reality, the PGO of Latvia could develop a comprehensive integrity and anticorruption strategy identifying risks and mitigating measures together with corresponding roles and responsibilities as well as a timeline to measure progress. The development process, the final strategy and its monitoring would also be a way of demonstrating high-level commitment and show progress within the prosecution service and externally to other institutions and citizens, thereby promoting trust in the judiciary.
Provide guidance and opportunity to reassess integrity standards
The Code of Ethics for Latvian prosecutors of 1998 develops around a number of principles and details some expected behaviours with respect to professional growth, relationships outside work and mutual relations among prosecutors. However, interviews showed that the Code is perceived as a formal document without any actual impact in guiding prosecutors’ behaviour so it could be complemented with additional guidance and examples in relation to possible practical situations. At the same time, the PGO could promote a participative discussion among all prosecutors on the Code’s responsiveness to the current challenges and ethical situations/dilemmas in view of its possible revision.
Scale up and tailor training for integrity activities
Latvian prosecutors are offered only a few yearly activities focused on illustrating and discussing integrity issues within the prosecution service such as on the Code of Ethics or the management of possible conflict of interest situations. The PGO could scale up its capacity-building efforts and organise mandatory integrity training activities both at the beginning of the career and on a regular basis. In addition, tailored-made activities should be organised for prosecutors in at-risk positions, e.g. those with higher responsibilities or those involved in high-level financial and economic cases, which is one of the objectives of the national anticorruption strategy. (Guidelines for the Corruption Prevention and Combating 2015-2020, 2015)
Promote an open culture, also through raising awareness on whistleblowing
The set-up of a whistleblowing channel in 2019 and the appointment of a dedicated contact person is a step forward in developing a culture of integrity in the Latvian prosecution service. As of November 2020, the Prosecutor´s Office received and examined a significant number of reports. However, since only a few of them related to prosecutors´ duties and led to disciplinary liability, a campaign could be organised to clarify and raise awareness on the scope, purpose and functioning of this reporting mechanism. In order to create an open organisational culture the PGO of Latvia could also clarify or define channels that prosecutors could turn to in case of integrity questions or dilemmas since interviews during the fact-finding mission highlighted the lack of such typology of discussions.
Provide guidance on disciplinary liability to integrity breaches and leverage the potential of disciplinary data
According to the information provided by the PGO, in the last three years, no disciplinary proceedings were initiated due to violations of integrity-related regulations. Such situations could raise concern on the capability of the disciplinary system to respond to integrity-related violations, especially those related to the Code of Ethics. The loss of administrative immunity of prosecutors since June 2020 may provide greater accountability towards the integrity framework. At the same time, the PGO could provide bodies responsible for the enforcement of the Code of Ethics with a compendium of relevant decisions from the Attestation Commission and national Courts to support the understanding of the scope, rationale and sanction for each obligation. In order to promote trust, awareness and deterrence of the disciplinary system, the Latvian Prosecutor Office could also expand the collection of the disciplinary data and raise their visibility by communicating some regular information about cases, breaches and sanctions both internally and with public.
The following Table of main findings summarises the above recommendations:
Table 0.1. Main findings and key recommendations
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Main findings |
Key recommendations |
|---|---|
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Institutional position |
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Need to strengthen accountability mechanisms of prosecution performance |
Promote transparency and accountability through performance reporting mechanisms |
|
Strategic management of the prosecution services |
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Scope exists to strengthen co-ordination and co-operation of prosecutors and investigators |
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Need for increased data collection for annual, nationwide analysis and on qualitative aspects, as well as quality indicators |
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Improvement is needed in embedding quantifiable milestones and roadmaps into strategic plans |
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Human resources management |
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Need to improve capacity of the criminal justice machinery to prosecute complex, financial, corruption or cybercrimes; in addition, there is scope to establish mandatory and continued training |
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|
Room exists to increase clarity of the criteria used in individual performance appraisals |
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There is scope to promote the prosecution as a more attractive career option over private sector practice. Investigator bodies experience high turnover rates of staff |
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Efficiency of the prosecution |
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Prosecutors in Latvia currently have heavy workloads and suffer from significant case backlogs |
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Several actors of the justice chain play key roles in the efficiency of prosecution services |
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The integrity framework and the Code of Ethics |
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While the Attestation Commission has an accountability function in relation to the Code of Ethics, the Latvian prosecution service would benefit from developing a dedicated area entrusted to integrity-related activities |
Institutionalise integrity by considering the establishment of a specialised integrity office within the prosecution |
|
Need for a comprehensive integrity and anticorruption strategy in the prosecution services |
Develop an integrity and anticorruption strategy that identifies risks, mitigating measures and corresponding roles and responsibilities |
|
Few reports related to integrity breaches and the Code of Ethics have been filed and processed, despite the mechanisms available |
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