This chapter explores possible strategies to drive the overall performance of the Latvian prosecution in light of international good practices. It proposes to leverage existing strategic plans to increase efficiency through the establishment of a robust monitoring and evaluation mechanism powered by data. It considers the introduction of measures for improving the speed and amount of prosecutions, such as standardisation and simplification. It also highlights the importance of involving the whole-of-justice chain in improving prosecutorial performance.
Performance of the Prosecution Services in Latvia
A Comparative Study
4. Towards excellence in the Latvian prosecution system
Abstract
Introduction
How is success measured in prosecution? Is it conviction rates, the outcome of specific important cases, or less criminality? What information can prosecutors rely on to make management decisions? This chapter focuses on addressing these questions from the perspective of international good practices and standards, as well as how to drive forward an overall successful performance of the prosecution. It proposes to leverage the Prosecutor General’s Office existing strategic plans to set clear targets and assign resources accordingly, with a view to increasing efficiency of work processes through performance-oriented management. It explores the establishment of a robust monitoring and evaluation mechanism through data to ensure that the level of achievement of objectives can be adequately assessed. This includes a focus on the use of qualitative indicators and involvement of the whole-of-justice chain in the strive towards excellence. It considers the introduction of measures for improving the speed and amount of prosecutions, such as standardisation and simplification.
Until recently, not much empirical research was available to address these concerns. However, increasingly, a growing international trend signals towards the need to improve the quality and performance of prosecution services,1 in order to increase satisfaction and trust of the public in the justice system (Ivan-Cucu, 2015[1]). Over the past two decades, the majority of OECD member countries have implemented reforms to improve the performance-oriented management of public sector organisations. When used properly, performance assessments allow for the recognition of individual and collective efforts in an objective and transparent manner. Such practices also function to clarify organisational goals for staff so that they gain a better understanding of their role within the organisation and therefore how to best implement change and contribute towards strategic organisational objectives. Performance assessments and management requires the presence of indicators, of which several sets have been developed internationally (see Box 4.1).
Box 4.1. Examples of international indicators
In the United Nations Rule of Law Indicators – Implementation Guide and Project Tools, indicators are grouped under three institutions: the police (41 indicators); the judicial system (51 indicators); and prisons (43 indicators). The public prosecution system falls under the judicial system.
The judicial system indicators are grouped into several clusters, each relating to one of the four main dimensions of prosecutorial services within the judicial system. Few countries have adopted indicators that systematically address the prosecutors’ performance, but the most used are both quantitative and qualitative:
The average number of cases per prosecutor.
The average number of appellate cases per prosecutor.
The number of cases completed per year per prosecutor.
The number of cases where a prosecution has been initiated and then abandoned or stayed.
The proportion of cases in a year that went to trial.
The proportion of cases in a year where a conviction was obtained, which should be taken into account only in the context of all other indicators and not as a standalone merit.
The proportion of cases that went to trial in which the offender was eventually acquitted.
The number of cases of wrongful convictions in a year.
The proportion of cases that were diverted away from the formal criminal justice process (and the same indicators for juvenile offenders specifically).
The average cost per case prosecuted during a given period, usually a year.
The performance of the prosecutions is measured through:
The public confidence, assessing whether the public believes that the judicial system is fair and effective and respects individual rights.
Integrity and independence, assessing whether courts or prosecutors violate human rights or abuse their power and are free from undue influence of political and private interests (bribes to judges, prosecutors or court personnel).
Transparency and accountability, assessing whether relevant information is publicly available on the activities, decision-making processes, decisions and use of resources by the courts, and whether the judges and prosecutors are held accountable for their actions:
Public access to criminal trials.
Investigation of prosecutor’s misconduct.
Performance monitoring system for prosecution.
Assessment of whether the judiciary treats, fairly and without discrimination, vulnerable individuals, such as members of minorities, children in need of protection or in conflict with the law, internally displaced persons, asylum-seekers, refugees, returnees, and stateless and mentally ill individuals.
Assessment of the prosecutorial services’ capacity: The capacity is measured through evaluating the existence and use of:
material resources: whether prosecution services have the infrastructure and equipment they need to deliver across the country, such as material resources of the courts, means to protect court personnel, prosecution material resources and
human resources: whether courts and prosecution services have sufficient personnel who are adequately screened, fairly recruited and sufficiently remunerated – all focused on competence (skills and knowledge) of prosecutors compared against the competence (skills and knowledge) of defence counsels, and remuneration of prosecutors.
Source: (DPKO & OHCHR, 2011[2]).
Prosecution systems seek on the one hand to promote the fair, impartial, and expeditious pursuit of justice, guaranteeing the procedural rights of the accused and the protection of victims and witnesses; and on the other, more broadly, to ensure safer communities by reducing crime. The standards of the European Union signal in addition to the importance of appropriate management of the length of judicial proceedings through measuring the number of unresolved cases, the clearance rate2 and the number of pending cases (See Box 4.1). There are also growing reflections on the creation of actionable frameworks for prosecution excellence (Albers, 2016[3]) (inspired by the International Framework of Court Excellence3). For example, elements related to prosecution excellence could include: 1) management (including management of resources) and leadership; 2) prosecution policies and plans; 3) efficient prosecution procedures; 4) effective co‑operation with relevant justice and police authorities; 5) a high quality of prosecution case files (indictments); 6) a high level of user satisfaction and public trust; and 7) a high level of accessibility (Albers, 2016[3]).
As such, throughout this chapter and in the rest of the report, the achievement of excellence in the prosecution system along those lines will be understood as a guiding beacon to propose key policy recommendations for Latvia, also drawing on the experiences of benchmarked OECD countries.
Prosecution performance drivers
Six key performance drivers have been identified throughout this Study to be among the top mechanisms used by prosecution systems in OECD benchmarked countries and in Latvia to improve efficiency and effectiveness of the system. Many of them are used in conjunction with each other. They are the following:
1. Establishment of strategic objectives and goals (see below).
2. Development of a Quality Management System.
3. Specialisation and training of prosecutors (further analysed in Chapter 5).
4. Standardisation and simplification (see below).
5. Bonuses depending on the good results achieved by individual prosecutors.
6. Prioritisation and diversion measures (as outlined in Chapter 3).
These six measures will not be analysed in detail here as they have largely been addressed in other sections of the report. Nonetheless, Box 4.2 provides some examples of the main strategies followed by OECD benchmarked countries to introduce performance drivers in their systems.
Box 4.2. Examples of performance drivers across OECD prosecution systems
Finland’s work towards improved performance: A quality management system
In Finland, work is underway to introduce a quality management system. Detailed process descriptions will be drawn up and quality management will become an integral part of organisational management. The existing system of specialised prosecutors will also be developed further, especially focusing on the monitoring and improvement of quality.
Bonuses depending on performance in France
In France, there is no management by results scheme properly speaking, but there are bonuses depending on the participation of a given prosecutor in tackling the workload of his/her jurisdiction. The scheme is based on quantitative targets (duration of the penal response ratio) and qualitative (percentage of actions alternative to prosecution and detention). The targets are decided by the Minister of Justice on proposal by the General Prosecutor and in liaison with the judges. At the local level, the targets are the result of a dialogue of the General Prosecutor with the local prosecutors (Procureurs de la République) and are based on the establishment of priorities (e.g. chasing drunk drivers, protecting the environment, prevention of street crime, etc).
Specialisation of prosecutors
In France, specialisation is gaining currency through the creation of specialised jurisdictions and the accompanying specialised prosecutors (Parquet National Financier- PNF for corruption and financial crimes; Juridictions interrégionales spécialisées-JIRS for dealing with complex financial and organised crime cases; Parquet National Antiterroriste-PNAT for terrorist crimes and crimes against humanity). In the Netherlands, specialisation and standardisation have been the main drivers for performance enhancement. There are two national operating specialised prosecutorial services. One for serious organised crime and terrorism, the other for fraud, environmental, social security crimes. The law determines the degree and hierarchical level of specialisation and this latter is determined by the Prosecutor General Office. While providing incentives is a good practice, the best approach would be cautious against using bonuses that are too high in respect of the average salaries of the service.
Source: Benchmarking country responses to ad hoc 2020 OECD Questionnaire on Prosecution Services.
Taking management practices of institutions to excellence involves as a key pillar the need to introduce strategic planning, in order to set clear objectives and targets and assign resources accordingly. In addition, it requires the establishment of a robust monitoring and evaluation mechanism through data to ensure that the level of achievement of objectives can be adequately assessed, and to allow for evidence-based policy making with the potential to address any gaps in the structure and functioning of the system. Prosecution services operating in different legal systems have developed different ways to deal with this challenge. Efficiency, competence, speed, economic rationality and accountability should all be considered. Today more than ever, the role of the prosecution service requires training, specialisation, prioritisation, effective control, co‑ordination and direction of the criminal proceedings, and finally a good digital support of organisational processes allowing for information sharing among the principal actors in the fight against criminality. The subsequent sections focus on advancing these practices in the Latvian PGO.
Strategic planning for the prosecution
Development of a criminal prosecution strategy, which could include a strategic plan, accompanied by yearly operational plans, containing clear performance targets, human, material and financial resources required, could serve as a core first step to drive performance excellence in prosecution services. A number of efforts in the direction of strategic planning have already been made by the Latvian PGO through Strategy plans, the latest being the Strategy of the Prosecution Office for 2017-2021 (approved by the Prosecutor General’s Council Decision No.4 of 5 July 2017). This plan outlines the following five overarching objectives:
effective and qualitative fulfillment of the Prosecution Office functions in fighting financial and economical crimes
ensuring the development of the Prosecution Office Information System (further referred as “ProIS”)
improving of the internal legal acts system of the Prosecution Office
improving the work environment of Prosecutors and employees of the Prosecution Office.
It then describes smaller activities that must be reached to achieve each of the five objectives. To provide an example, in order to ensure the effective and qualitative fulfillment of the prosecutor office functions in fighting financial and economic crimes, a smaller target is to “periodically include into the Prosecution Office Work Plan the conducting of the checks in the structures of the Prosecution Office regarding the efficiency and quality of the investigation supervision and criminal prosecution of the financial and economical crimes.” In order to take the current strategic plan to the next level, further steps could be taken to establish, on the one hand, clear and measurable goals (e.g. instead of proposing to fight crime effectively, propose a percentage in the decrease of criminality nationally for particular types of crimes that is sought, or the case prosecution ratio that is desired); and on the other hand, the establishment of a clear and quantifiable roadmap that will take the Office to the results. This latter exercise could include a specific allocation of resources to reach a given goal. Finally, it could include a system and indicators to measure the level of attainment of the objectives. For example in Denmark, setting specific objectives and targets and monitoring its success enabled the system to increase productivity by 3.9% from 2013 to 2016 (See Box 4.3).
To build on the current efforts, Latvia may consider examples of the way OECD benchmarked countries define their strategic priorities and operationalise the results to achieve increased efficiency and efficacy of the system. Some of the key ways in which OECD benchmarking countries have driven their results include defining quantitative targets to assess progress and mandatory deadlines, for example through a weighted production model taking into account production, processing time, and reduction of old charges; engaging different actors from across the justice chain in their strategic plans; and increasing training for prosecutors (Box 4.3).
Box 4.3. Strategy setting across OECD benchmarked countries
In Finland, general strategies concerning the prosecution service are included in the Finnish Government Programme and the strategies of the Ministry of Justice. The Ministry of Justice has approved a strategy on criminal policy, which includes considerations on how the resources allotted have been used. Within the Ministry of Justice, the permanent secretary is responsible for co‑ordinating the targets for the entire crime-fighting chain. The prosecution service has also its own strategy. The most important stated goals of a reform carried out in 2019 were favouring the standardising of the decisions made by prosecutors and increasing the efficiency of prosecutorial work. An additional goal was that one nationwide single bureau can make use of resources as flexible as possible. If work piles up in one prosecution district, another district can process some of its criminal matters. The main performance indicators for the prosecutorial service are the average disposition time, the total amount of open cases, budgetary expenses per caseload, job satisfaction indicators, effective working time regarding caseload. The Finnish Prosecution Service’s performance guidance system sets out the organisation’s quality targets which are monitored annually.
In Portugal, in accordance with the Framework Law on Criminal Policy, the government submits to parliament a bill establishing criminal policy goals, priorities and guidelines every two years. The priorities are defined and outlined when the annual budgets are drafted, although they may undergo adjustments throughout the year. Every three years, the Prosecutor-General’s Office defines strategic objectives in selecting priority areas of intervention, in performance quality, in procedural promptness and in organisational quality. In Sweden, the priorities according to which the prosecutors operate are established primarily by the legislator, by establishing mandatory deadlines e.g. finalising investigations against young offenders. Priorities are further established by the Prosecution Authority and set out in internal documents such as the annual general planning document and other operational guidelines.
In Denmark, a set of guidelines were issued by the prosecution services in 2011 concerning the achievement of quality in the processing of criminal cases. It was underlined that whenever new initiatives are implemented as pilot projects, it is important to define measuring points to be able to evaluate whether the initiatives do lead to any improvement.
For the prosecution, the main target of the 2007 reform adopted by Parliament in 2006, were organisational changes to achieve improvements in competence, strategy and performance measurement.
It was an objective to achieve an increase in efficiency by using management methods based on targets and results. The prosecution services now enter into a yearly agreement with the Ministry of Justice concerning targets set and results to be achieved in the coming year. The overall objectives in the performance contract for the Prosecution Service are negotiated between the Ministry of Justice and the Director of Public Prosecutions; whereas the objectives in the internal contracts are negotiated between the Director of Regional Public Prosecutions and the Public Prosecutors/the Commissioners of Police. The contract covers performance objectives on efficiency (based on a weighted production model), production, processing time, reduction of old charges (the average age). The Prosecution Service calculates its productivity based on standard cases. All cases are assigned a weight according to a case weight model based on a combination of payroll costs and the number of cases within each case area.
One of the vision statements of the Ministry of Justice of Denmark is that the entire justice sector is to act as one group to ensure co‑operation between all the authorities in the justice sector. The group approach is found throughout the period of strategic indicators from 2007 to 2018, where the group approach constitutes a heading for strategic indicators, which concerns efficient case processing from the perspective of all authorities involved. Yearly target and result documents are created based on a co‑operative effort in a series of workshops arranged across the prosecution services, where the issues to be given weight in the components of the strategic indicators are discussed and defined, so as to ensure that the strategic indicators become a joint goal and not a top-down imposition, thus letting the strategic indicators setting process in itself becoming a platform for co‑operation. As a practical outcome of co‑operation between judicial authorities, a mechanism was set up in 2009 to ensure that routine judicial hearings, such as extensions of custody decision, could be decided through videoconferencing with the court, which entailed timesaving for all parties involved.
An additional initiative, which serves to support both quality enhancement and co‑operation, has been the introduction of a basic education for new prosecutors, which is provided for staff with less than 3 years of employment. In addition to the modular basic education for prosecutors, the prosecution services provide basic training for non-judicial staff, as well as continuous training for all staff members.
Results: From 2013 to 2016, productivity increased by 3.9%. For the purposes of the yearly report, the productivity is measured by dividing a weighted case number by the total staff costs, to arrive at a cost per case. One important feature of the weighted model is that by not focusing only on successful judgments (i.e. convictions), the model avoids encouraging prosecutors to limit their efforts to cases with a high probability of success, thus avoiding complicated cases to the detriment of justice.
Although many interdependencies exist between the different elements of Danish public prosecution, the reform of 2007-2010 has in general achieved a simplified structure that allows the different actors in the judicial system to concentrate on the respective main objectives. The 2007-2010 reform of the Danish prosecution services, concurrently with the reform of court and police systems, have led to a much-simplified structure for the prosecution services, and has provided an impetus for focus on quality and productivity enhancement.
Sources: Benchmarking country responses to ad hoc 2020 OECD Questionnaire on Prosecution Services; (CCPE, 2020[4]); (Council of Europe Committee on Counter-Terrorism, 2018[5]); (CCPE, 2012[6]).
Measuring performance of prosecution systems
Understanding whether the established strategy and plans are effectively implemented and achieving the desired results, performance measurement is a crucial step. In this regard, two aspects must be present: first, the existence of mechanisms to record and report on performance; second, the existence of relevant statistics and data to substantiate the reports. Across the OECD membership analysed as a part of this study, the obligation to report on performance in quantitative and qualitative term is widespread, including in Latvia:
Figure 4.1. Obligation to report on performance in quantitative and qualitative terms
Note: The following question was asked as part of the ad hoc OECD Questionnaire on Prosecution Service to benchmarking countries: Does the prosecutor’s service have an obligation to report on its performance in quantitative and qualitative terms?
Source: Benchmarking country responses to ad hoc 2020 OECD Questionnaire on Prosecution Services.
Establishing robust indicators to measure performance, along with practical ways to gather all the information necessary to assess performance under such indicators, are both key elements to enable evidence-based policy formulation and improvement. If applied wisely, statistics, targets and orientation towards results can be used to focus resources effectively and drive performance in policing and law enforcement. Additional ways in which data can support the fulfilment of strategic plans towards excellence are summarised in Box 4.4.
Box 4.4. Benefits of investing in gathering more data and evidence about the criminal justice system
More data also enables sound financial resource management. An excellent office of the public prosecution requires that the management of financial resources is properly organised and that each office has the budgetary freedom to allocate the budgetary resources according to their local needs. Most ideally, effective offices of the public prosecution have a system of performance based budgeting in place, where there is a close connection between the budgetary needs required and the expected performance.
Case clearance rates, actions taken in response to incoming cases, the number of cases being handled by a prosecution service or local office by day, week, month or year can provide a prosecutor general with a great deal of information about how efficiently a court system or office is functioning, how staff should be best allocated, what are the key bottlenecks and how those challenges might be solved. Overwhelmed prosecutors are not in a suitable position to make sound and timely decisions, and they may become more reactive than proactive, resulting in poor decisions affecting the accused, victims, police, the court and the public in general. Careful scrutiny of the number of cases carried by each prosecutor and the case clearance rate of an office can inform senior officers as to the action that needs to be taken. In some cases, efficiencies can be found simply by ensuring that each prosecutor’s caseload is properly distributed.
The availability of better data could also support prosecutors’ proposals made for reform of the criminal procedure or policy, enabling evidence-based policy making for the criminal justice sector, which is likely to be better received and easier to explain to key stakeholders involved.
Levels of user satisfaction and public trust can also be assessed through statistics, by collecting on a regular basis feedback information from the users of the services of the office of the public prosecution. In excellent prosecution services, the application of a prosecution user survey is stimulated, as well as the use of other forms of feedback mechanisms such as client panels and a proper procedure for the handling of complaints.
Statistics can also be useful to answer queries and address negative impressions held by groups or individuals regarding the efficiency of a prosecution service in a transparent and defensible manner, thus reinforcing public confidence in the administration of justice.
Source: Author.
The way in which statistics are interpreted in prosecution systems should be carefully considered. As will be further analysed in Chapter 5 of this Report, the idea of “winning or losing” a criminal case if the case was decided according to law should not be a deciding factor in assessing a prosecutor’s performance or lack thereof. A broader perspective must be taken, in the understanding that raising the conviction rate can be easily achieved by only prosecuting the most straightforward cases. It is thus relevant not only to collect statistics, but also to establish indicators for interpretation of data.
In the Latvian system, two main types of relevant data gathering take place. Firstly, and as established in 2020, the Prosecution must start reporting to the Parliament annually on performance and activities. This development is likely to bring to light important information and insights for the Latvian prosecution on how to manage and allocate resources most effectively. The law does not strictly determine the content of the Report to be submitted to Parliament, but during the interviews, the Latvian Prosecution Office has explained that it shall include statistics on number and types of cases; caseload; aggregated data on individual performance of prosecutors; resource data (ratios between resources employed and results achieved); training activities and attendance records; the total crime indicators in the country, statistical indicators and analysis of the work performed by prosecutors in various areas. The reporting obligation, nonetheless, could benefit from legislating the minimum amount of quality and performance assessment indicators that the Report shall include.
In addition, and in a more disaggregated manner, indicators of structural units of the Prosecution Office are compiled in dynamic reports, which allow to determine and analyse the efficiency of prosecutors’ activity. Such an assessment is performed within the framework of the assessment of the prosecutors’ individual performance, as well as in accordance with the Prosecutor General’s Order No. 47 On the comparative table of the work results of the structural units of the district level prosecution offices approved on 9th of November 2018. To ensure the assessment of work results of structural units of the District Prosecution Office according to the average workload and performance criteria of Prosecutors, the Prosecutor General ordered the production of a report, which would be assessed in accordance with criteria set in the Annex 3 of the Order, to be carried out monthly. A comparative table of work results of structural units of the District Prosecution Office is then produced. All data and reporting is introduced in the Information System of the Prosecution Office (ProIS). ProIS allows for the collection of a large amount of data about ongoing prosecutions, as has been observed by the OECD directly, disaggregated into different sections including by topic, criminal code article number, date and time, prosecutor and office, among other criteria. ProIS also allows to observe data on the activities of a specific prosecutor. From this exercise, an excel table and a graph are generated which enable a visual representation of workload and efficiency of each prosecutor office, and enable better allocation of resources by the Prosecutor General’s Office. As highlighted at the outset, it is not only important to gather information, but also to establish assessment indicators. In Box 4.5, a summary of how such data is assessed from the perspective of performance is provided.
Box 4.5. Criteria for the Assessment of Work Result of Structural Units of the District Prosecution Office in Latvia
The work results of structural units of the District Prosecution Office are summarised in a comparative table consisting of four sections:
The Informative Section (points are not granted) which contains information on the number of criminal cases accepted, transferred to the court, accused persons and criminal offences in the reporting year; the number of remaining criminal cases at the beginning of the month and at the end of the month, among other categories.
The Workload Section (only positive points are granted) contains the number of criminal cases transferred to the court, criminal offences, accused persons and especially topical criminal cases; the number of satisfied protests; the number of criminal cases examined at the first instance and time consumption therein; the number of persons discharged from criminal liability pursuant to some specific procedures.
The Performance Section (both positive and negative points are granted) contains the number of criminal cases transferred to the court according to accelerated procedure, as well as upon entering into an agreement; the number of proceedings transferred to the court by proposing to apply coercive measures to a legal person; the number of adjudicated criminal cases, in which the verification of evidence has not been carried out pursuant to the procedures laid down in CPL Section 499; the number of arrested persons in criminal cases, contained in the records of the Prosecution Office, who have been rehabilitated in pre-trial proceedings; the number of criminal cases received from the court for the elimination of deficiencies and violations; among several others.
The Summary Section contains a comparison of all the districts’ data in relation to workload and the result of the performance assessments.
The performance assessment is carried out in accordance through an elaborate system of point allocation, established in detail in Annex 3 of the Order no. 47. For example, 2 negative points are awarded for each remaining criminal case with a prosecution period exceeding 2 months; 1 positive point is granted for each criminal case transferred to the court upon entering into an agreement; and 1 positive point is granted for each criminal case transferred to the court pursuant to the accelerated procedure, all measures that would aim to drive further efficiency and expediency. On the contrary, negative points are awarded when the court sends back a case due to gaps or violations in the investigation phase. Average indicators are obtained by dividing the sum of workload or performance points by the number of working Prosecutors. This can be considered a positive assessment practice on the part of the Latvian prosecution, as it does not rely on convictions but rather on promoting broader efficiency objectives.
Source: Order no. 47, Prosecutor General of Latvia, On the comparative table of the work results of the structural units of the district level prosecution offices approved on 9 November 2018.
The Parliament and the Prosecutor's Office have identified effective and high-quality prosecution in combating financial and economic crimes as a policy priority area. In order to deepen the evaluation and assess progress in this regard, Latvia could strongly gain from leveraging the amounts of data it collects in order to feed into criminal reform design and goal achievement. This may require the collection of more data, including qualitative information on criminal cases, as well as analysis of the backlog of pending cases, the full duration of criminal cases, and the situation with regard to the respect of human right, could be productive areas of expansion of the data collection exercise. The State Audit Office of Latvia had requested, for instance, information on existing backlogs of cases, which the office of the Prosecutor General allegedly could not share as it was not aggregated, it was only available from each prosecutor individually. In addition, the Office of Prosecutor General considered it necessary to state that it did not find such aggregation of information necessary, as it would require significant resources of the Prosecutor’s Office while not providing a useful return. Despite this conception, and as stems from the above analysis, the collection and analysis of aggregated national data on criminal statistics could prove useful to enable the design of policies that better allocate existing resources. The Prosecution Office could consider that, given the significant investment that it has already entailed to collect individual data and develop the system ProIS, going one step further could become stepping stones to achieve its strategic objectives.
In addition, the current obligation to Report to Parliament could be made more effective by clarifying its scope and meaning, as already noted in Chapter 2. As the reporting requirement only requires submission by the Prosecutor General of a report to the Parliament on performance of the office during the preceding year and the priorities for the next year, no clear scope is determined for the statistics to be submitted, but also on quality and performance indicators to be assessed as part of the Report. Quality indicators could include, as examples,4 the following:
backlogs
productivity of judges and court staff
satisfaction of court staff
satisfaction of users (regarding the services delivered by the courts)
costs of the judicial procedures for defendants and victims
number of appeals
appeal ratio
clearance rate
disposition time
reduction of crime.
In addition, such reporting could serve as a strategic tool to drive performance and as an accountability instrument. At the moment, it emerged during stakeholder interviews and through the annotation to the draft law by the Prosecutor General’s Office that reporting is interpreted largely as a provision of information rather than a matter of accountability: “In order to achieve greater involvement and understanding of the legislator and the public, it would be necessary to deliver that report to a higher level, thus signalling at the same time that one should recognise the work of the Prosecutor’s Office as nationally significant (Prosecutor General's Office, n.d.[7]).” If this interpretation is not upgraded to a more ambitious one, the reporting may not necessarily represent an improvement from the pre-existing practice to organise annual meeting of chief prosecutors, where the results of the previous year were announced.5 The State Audit Office in 2019, when analysing such results, drew the attention of the Cabinet of Ministers to the fact that most of the informative reports prepared by the ministries on the problems of the enforcement of the Criminal Procedure Law did not provide an in-depth analysis of statistical data and the general situation. It pointed to the fact that reports focused on quantitative indicators characterising the crime situation in the country and statistics on prosecutorial work, while missing qualitative analysis of the performance and results achieved by the Prosecutor’s Office. These could include, for example, the impact of the activities implemented by the Prosecutor’s Office on reduction in crime rates, and the prosecution’s contribution and plans to improve efficiency and quality of pre-trial investigations, quality of state prosecutions in court, and other relevant areas of activity in the field of criminal justice.
Making the most of the data collected by all institutions involved in criminal policy making would be useful to design and implement evidence-based policies in the area of reforming criminal justice and help the creation of optimised strategic plans. Strong data protection regulations within the European Union may however sometimes difficult this exercise (Open Society Institute Sofia, 2008[8]). In the following Box 4.6, the practices in OECD benchmarked countries are analysed to serve as inspiration on further avenues to collect and use statistical data on the criminal justice system that could be useful to the Latvian PGO.
Box 4.6. Practices on statistic data gathering and performance measurement in OECD countries
In New Zealand, the Public Prosecutions Reporting Framework is applied. Data is collected about individual cases every month. High-level statistical information about the structure and resources required to administer the prosecution function is collected annually. Each Crown Solicitor firm and prosecuting agency participates in the reporting framework. The reporting framework provides a greater understanding of both the current and future sustainability of the Crown Solicitor Network. The oversight functions, including the reporting framework, are designed to provide information about the Crown Solicitor Network’s workloads and to gauge the value for money provided. The regular surveys and reviews may examine: a) the legal acumen and performance of Crown Solicitors and their staff; b) the management of the work; and c) how the relationship with others is conducted in the justice sector.
In Portugal, statistical indicators to assess the quantity and quality of the work performed by public prosecutors. Regarding criminal investigation, there are data available defining, for a specific period: the number of cases lodged; the number of cases closed; of these cases, the number of cases leading to accusation or to dismissal, and those where one of the simplified and consensual forms of proceedings, as laid down in the Criminal Procedure Code was used. There is also an overall control of all criminal inquiries highlighting those where a criminal investigation took longer than 8 months. Finally, it is possible to ascertain the number of lodged and closed cases according to the complexity and type of crime and how many of them were against unknown perpetrators. A well-structured system of statistical surveys exists for the whole justice field in Italy as well.
In Finland, the Finnish Government has a performance guidance system. This means that Parliament grants a common operating budget appropriation to certain operations, e.g. the prosecution service, and sets general targets that the operations should achieve. Both qualitative and quantitative targets are set for the prosecution service. The most important quantitative targets are related to the time it takes to consider charges. Charges should be considered in a timely manner. Targets have been set for the average time taken to consider charges, and for no case to remain under consideration for exceedingly long time (more than six months or a year). Qualitative targets have been related to co‑operation between the prosecutor and pre-trial investigation authority during pre-trial investigations, increasing the level of knowledge on certain criminal phenomena.
In Sweden, information management in the judicial system involves eleven authorities. The government uses several indicators to assess the performance of authorities, presented in the annual Budget Bill. Indicators for crime investigation and prosecution directly concerning the prosecution services are:
number and percentage of suspected crime resulting in prosecution (or summary imposition of a fine)
number and percentage of suspects resulting being prosecuted (or receive a summary imposition of a fine)
case handling time.
In France, Organic law n° 2001-692 of 1 August 2001 on finance laws provided the Parliament with assessment tools to evaluate the performance of public policies in return for the autonomy granted to managers. The “annual performance projects”, attached to the bill finance laws, specify the programme strategy, the objectives, the performance assessment indicators and the effectiveness of the action, and the expected results. These commitments are assessed in the year following the budget execution using “annual performance reports” where programme managers report their results.
Source: Author.
Driving performance through standardisation and simplification
Standardisation can support a more efficient case handling
Standardisation refers to the uniformisation of criteria and response to be applied when a particular offense arrives in the prosecution service. This method is used in order to increase efficiency and effectiveness of the prosecution of cases, reducing timelines for each case and enabling simplification of procedures. It is often coupled with a deviation of the simplest processes towards out-of-court mechanisms or fully standardised decision-making guidelines. In aiming towards excellence in the prosecution, procedures should be simplified where possible. This practice is not only necessarily applicable to simple cases, but can also prove useful for the prosecution of increasingly complex cases, as it can provide a stable interpretation of the criminal code that is beneficial for coherence and predictability of the system; and it can also make the co‑operation between prosecutors and investigators easier. In Latvia, where reaching a common understanding of the standard required for the burden of proof for each crime among prosecutors and investigators has proven to be an issue in the interviews conducted, harmonisation of the evidence threshold to be reached in relation to each crime could be a very positive practice. It emerged throughout the interviews that inter-institutional co‑operation between the prosecution and the investigator bodies has begun in this regard through a working group that will draft common guidelines related to collection of evidence, which is highly positive. Inviting representatives of the judiciary and courts to this working group may also prove positive in order to ensure that a truly common and useful understanding is reached that will enable the most efficient prosecution of crimes.
At present, prosecutors in Latvia distinguish between “clear cases”, on which some prosecutors specialise and are standardised and where the prosecution uses the “penal orders” to fine offenders, from “dark cases”. Dark cases are characterised by having no or little information about the perpetrator, thus they remain unidentified. They may remain suspended for long periods or indefinitely, since Latvian prosecutors wouldn’t be able to waive the prosecution due to the application of the legality principle. Clear cases, while benefitting from more guidance on how to proceed, often are composed of petty and simple crimes, on which prosecutors find they spend a large amount of time that is not contributing to a lower criminality overall. Throughout the interviews, prosecutors expressed their desire to find efficient solutions to both the indefinite nature of dark cases, and the repetitive one of a majority of clear cases. Standardisation and harmonisation guidelines could also help clarify the relationship between prosecutors and investigators.
Box 4.7. Standardisation and procedural simplification in the Netherlands
In the Netherlands, by the mid-1980s, it became apparent that the increasing caseload could not be dealt with simply by appointing more prosecutors. The strategy of the Public Prosecution Service (PPS) thus changed radically, developing a comprehensive standardisation process.
The Central Processing Office (CVOM) handles virtually all minor offences and traffic cases in the Netherlands. Central Processing deals with anyone who is guilty of drunk driving, speeding or driving without a licence. It makes nationwide agreements with the police concerning road traffic enforcement and assesses whether new legislation concerning the roads, waterways, airways and railways is enforceable. Through this new approach, about 80% of cases have been standardised. The PPS began to develop policy instructions and guidelines (especially to deal with cases involving petty delinquency such as burglary, shoplifting, petty fraud and drunk driving). Decision making in such standard cases is largely guided by the policy guidelines, although the nuances and specificities of each case of each case are taken into account.
Another important change is a computerised decision support system to determine appropriate sentences and speedy case disposition time (Bos-Polaris).
On the other hand, a road map known as ZSM was introduced in 2013-2014 to quickly deal with criminal cases that need not necessarily be dealt with by a criminal court to settle these cases out of court in the shortest timeframe possible. ZSM stands for Zorgvuldigheid (careful), snelheid (rapid, as soon as possible), en maatwerk (tailor-made approaches). The approach thus combines a desire for speediness with the objective to reach the best resolution for the case, which is considered best for both the suspect and the victim, and conclusively settling all cases that do not warrant the attention of a trial judge (or court).
The ZSM facility is open seven days a week. It entails a special form of co-operation between important criminal justice chain partners: the Public Prosecution Service, the police, further SHN, Probation Service, Council for Child support and local municipality. All partners work together in one space/room in which they directly bring together all the necessary and relevant information to the ‘accelerated procedure table’. Through the collective contribution of information concerning the (alleged) criminal offence and the suspect, the public prosecutor is able to assess what (still) needs to be done in the case. He/she can then decide whether and how the case should be further handled or disposed. Currently, it is aimed at conclusively deciding the ‘defendant’s fate’ within 7 days after arrest or less.
Source: Netherlands Public Prosecution Service website and Public Prosecution Service of the Netherlands ad hoc input.
Latvia may benefit in this regard from the efforts undertaken in some benchmarked countries to address very similar challenges. In France, the pressing concern for efficiency and effectiveness has led to the practice of standardisation by means of the “directives permanentes” which standardise the response to certain mass offences. This system allows police officers to issue the paperwork and send case files directly to the prosecutor’s delegate. The Netherlands started implementing significant reforms to this end by the mid-1980s, outlined in Box 4.7.
In Italy, prioritisation is not allowed, but over time, all major Italian Prosecution Offices have created special “offices for the definition of simple affairs” or “filter offices” for an “automated” disposal of crimes deemed simple or less serious in order to encourage immediate or quick ending of the proceedings. These filter offices are mainly composed of administrative and police staff who implement simplified procedures and predetermined, standardised investigative protocols with no evaluation by a magistrate (Blengino, 2020[9]).
The importance of adopting whole-of-justice chain approaches
As has been outlined throughout this report, the consideration must be made when analysing performance of the prosecution system that the prosecution does not occur in isolation. On the contrary, the effectiveness of the prosecution depends on a significant deal on its broader criminal justice context, including the respective performance and co‑operation with the court system, the ministry of justice, and other actors including criminal investigators (as has been much analysed throughout this report, due to their direct impact on prosecutions), the penitentiary system and criminal legal counsels, among others.
In Latvia, the courts may have partial responsibility for the lengthy substantiation of criminal proceedings. It has emerged throughout the interviews carried out by the OECD that trials are often not conducted in a consecutive row of days, and so the hearing flows are interrupted and can last for months, with the added difficulty that while resuming the trial, a refreshment is needed of what happened in the preceding sessions. It emerged through the fact-finding interviews that this entails, on occasion, unreasonable prolongation of trials. Indeed, according to the joint summary of the European Commission and the Europe Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism on the average duration of criminal cases involving money laundering in the courts of the first instance in 2014-2017, Latvia has the second-longest average duration of such trials among the European Union member States and Latvia lags behind other countries in this respect. The average length of those proceedings was approximately 800 days in Latvia in 2017. According to the communication of the European Commission, EU Member States face difficulties when such proceedings take an average of about two years. Regular cases have also been identified to take very long to process by the State Audit Office, despite CEPEJ reports showing Latvia to be below the European disposition time for criminal cases (118 days, in comparison to the 144 average days in the Council of Europe countries) (CEPEJ, 2020[10]). It appears that a reason for this could be that the courts are often deferential to defendants’ legal counsels in such a way that the hearing for a certain date and time is set on the court's docket only when the defendant’s council availability allows it. In respect to the delays it causes, this circumstance might require an amendment of the criminal procedural law to empower the court to set dates as it wishes, after having heard the preferred dates of the defence.
The influence of actors outside the prosecution system on their performance calls for a holistic approach that involves the key stakeholders of the criminal justice system in Latvia. This may include the mainstreaming of a broad criminal justice strategy and objectives across different institutions of the judiciary, and significant co‑operation and integration among such actors. The preparation of joint training sessions between judges, prosecutors and investigators and the development of standardised procedures, as highlighted in other sections of this report, could be measures helpful to increase co‑ordination between the most relevant institutions and improve performance of the system overall.
Overall, in order to introduce more effective strategic management strategies, the PGO could leverage its existing strategic plan as a guide but introduce a strong focus on increasing efficiency of work processes and procedures. It is recommended that the PGO analyse its organisational structures and work processes for criminal procedures to detect potential causes for delays and lack of prosecution of relevant cases that are investigated for long periods, and stimulate the introduction of measures for improving the speed and amount of prosecutions, especially standardisation, specialisation (analysed in Chapter 5) and prioritisation (analysed in Chapter 3), along with more vigorous use of alternative ways of ending investigations, as permitted by legislation, and investment in sound diversionary measures (also analysed in Chapter 3). Additional consideration should be given in the domains of accessibility and public trust.
References
[3] Albers, P. (2016), New quality standards for the public prosecutors: is there a need for a framework for prosecution excellence?.
[9] Blengino, C. (2020), “New Public Management, Citizens’ Fears and Calls for Justice. The Prosecutor’s New Role in Italy”, in Colvin, Victoria and Stenning, Philip, eds.: The Evolving Role of Public Prosecutor. Challenges and Innovations..
[4] CCPE (2020), “CCPE country profile Finland”, https://www.coe.int/en/web/ccpe/country-profiles/finland.
[6] CCPE (2012), “Questionnaire with a view of the preparation of Opinion No. 7 on the management of the means of the prosecution services - Replies from Denmark”, https://rm.coe.int/consultative-council-of-european-prosecutors-ccpe-questionnaire-with-a/168071c89e.
[10] CEPEJ (2020), “2020 Report of the Council of Europe European Commission for the Efficiency of Justice (CEPEJ), data of 2018.”.
[5] Council of Europe Committee on Counter-Terrorism (2018), “Portugal Profile on Counterterrorism capacity”, https://rm.coe.int/profile-2018-portugal/1680981495.
[2] DPKO & OHCHR (2011), “United Nations Rule of Law Indicators – Implementation Guide and Project Tools”, https://www.un.org/ruleoflaw/blog/document/united-nations-rule-of-law-indicators-implementation-guide-and-project-tools/.
[1] Ivan-Cucu, V. (2015), Evaluating prosecutors’ performance: celebrating success and censuring failure, https://www.iap-association.org/getattachment/Conferences/Annual-Conferences/Annual-Conference-2014/Tuesday-25-November-2015/Virgil.pdf.aspx.
[8] Open Society Institute Sofia (2008), Promoting Prosecutorial Accountability, Independence and Effectiveness. Comparative Research., https://www.justiceinitiative.org/uploads/f3b388fc-c2cc-401a-98e5-9423ccee0e0d/promoting_20090217.pdf.
[7] Prosecutor General’s Office (n.d.), Annotation of the draft law “Amendments to the Law on the Prosecutor’s Office”, http://titania.saeima.lv/LIVS13/saeimalivs13.nsf/0/01AD7B6DB91FDA0CC22584D4004C80E8? OpenDocument#B.
Notes
← 1. The strategic management of prosecutorial services was the main theme of the 17th European Regional Conference 2019 of the International Association of Prosecutors held in Oporto, Portugal, on 16-17 May 2019.
← 2. The ratio of the number of resolved cases over the number of incoming cases.
← 3. Accessible at www.courtexcellence.com/.
← 4. Some of these examples are based on the ones used by the Commission on the Efficiency of Justice of the Council of Europe.
← 5. The Prosecutor’s Office’s annual reports are public and available on the website www.prokuratura.gov.lv/lv.