Supreme Court Chief Justice: I see no rational reason why the Minister of Justice has a conflict with me

In an interview with Neatkarīgā, the Chief Justice of the Supreme Court, Aigars Strupišs, explains that there is no rational basis for his conflict with the Minister of Justice, Jānis Bordāns. However, it also has a positive aspect - it unites judges in their efforts to achieve the independence of the judiciary from the executive, and mobilizes the Judicial Council to step up its work to improve the quality of judges' judgments and the management of court proceedings.
29.11.2021. Uldis Dreiblats, Ritums Rozenbergs
 
CHIEF JUSTICE OF THE SUPREME COURT Aigars Strupišs (pictured) believes that politicians and the executive have completely misunderstood the principle of separation of powers. Politicians think that there is a power vertical - first power, second power, third power. But this is not the case if the powers exist horizontally; each has its own function and they are equal ©F64

The main political figure in the justice sector, the Minister for Justice, Jānis Bordāns, began his career three years ago with a sharp public conflict with the Chief Justice of the Supreme Court, your predecessor, Mr Ivars Bičkovičs. Your election in June 2020 was also accompanied by the rhetoric of a disgruntled Bordāns and his party members. Now the Minister for Justice has launched something of a crusade against you. What could be the purpose of three years of such conflicts?

To be honest, I personally do not see any rational reason for the conflict. Let me stress - rational. The Minister has not said anything specific that might be the rational basis for this attitude. I can see one reason which I cannot call rational. It is the strategy of the Judicial Council, which we approved at the Judicial Council earlier this year, and the central motive of which is to strengthen the independence of the judiciary. This is to be achieved by achieving financial independence from the Ministry of Justice and, to a large extent, also from the government. We want to talk about the budget straight with Saeima. These are the issues that seem to be of great concern to the executive. If I remember correctly, the relations started to escalate precisely with this strategy discussion. This leads me to assume that the Minister sees in this judicial independence a threat to the role and place of the Ministry and to his own personal role and place. That is all I can see. The aggravation of the relationship would not in itself be a problem if it were dealt with within the framework of a professional discussion. Then we could discuss the place and role of independence in the judicial system, but when it has turned into personal dislike, that is already a problem. My aim is to significantly improve the quality of the judicial system. I have no other objective than to make the justice system capable of functioning at the highest level. Unfortunately, that cannot be done in one or two years. We have started to make serious progress, we have introduced a very strict procedure for the selection of new judges. Not everyone can become a judge just because they feel like it. We have started a reform of the whole system of training judges. We have paid more attention to the monitoring of deadlines in the courts. In the last three weeks, I have initiated three disciplinary proceedings, one for delays in hearing cases and two for poor quality of work resulting in a violation of the human right to a fair trial. So, a lot is being done. What can the Minister accuse me of? That is why I say that I see no rational reason for the conflict. There can be many and different irrational reasons but I do not pay attention to them because I am doing my job.

Let us try to figure it out. It would be too shallow to explain such a conflict by personal dislike alone, which is, of course, an irrational factor. It looks more like there might be some specific political objectives. Perhaps the Minister does not like the fact that the Supreme Court does not obey him in any way? Perhaps this is an attempt on the part of the Minister to subordinate the Supreme Court to himself?

Maybe. There are attempts in the world to subordinate the courts. For example, at the moment in Poland, where it is very obvious, and the European Court has already given two judgments, saying that the independence of the courts is actually not guaranteed in Poland. How can this be achieved? It is usually achieved precisely through the interplay between politicians, through the legislature and the executive, by taking independent judges out of the game and replacing them with judges who are loyal to the authorities. The European Court of Justice has said loud and clear that there must be a separation of powers. Our Constitution has said it too: the judiciary must be independent so that it can keep an eye on both the legislative and the executive and correct their mistakes. Therefore, subjugating the judiciary and trying to force the judiciary to do the bidding of the government is totally unacceptable. This has been made clear by both the Court of Justice of the European Union and our Constitutional Court.

Your predecessor, Mr Bičkovičs, in his last press interview with us, emphasized the independence of the Supreme Court, as opposed to the subordination of regional and district courts to the Minister of Justice. Let me quote: "District and regional courts are under the administration and organizational management of the executive power. The executive is run by politicians. We have a political force in power which has its own vision on this." Mr Bičkovičs stressed in particular the organizational and administrative dependence of these regional and district courts on the executive. Is there now less dependence of district and regional courts on the Minister for Justice?

Nothing has changed fundamentally, but that is exactly what we are trying to achieve with the new strategy of the Judicial Council. What is the reason for such a strategy?

The problem is that in the current system of state structure, the judiciary is completely dependent on the executive, both financially, materially and in terms of support staff, such as judicial assistants.

The executive both sets the budget for the judiciary and decides on many other economic and organizational matters. The Minister is the key figure. The quality of the judicial system depends very much on the Minister because there is a lot that can be influenced by funding. You know that people tend to be very different. One minister may care very much about the judicial system and may have a good reputation, so he can justify to his coalition colleagues why the courts need an additional budget for development, and he can ensure the quality of projects that are important for the courts, such as the implementation of the e-case. And there may be another minister who cannot. What we want to achieve is to exclude the random factor of these ministers. So that a bad or a good minister is not the factor that affects the whole judicial system. The courts must also be independent in formulating their material needs, and then it is up to the legislator to decide. The involvement of the executive creates unnecessary mediation in the dialogue between the branches of state power.

So the Judicial Council has an important role to play here. Another quote from Mr Bičkovičs in his interview with Neatkarīgā: "We have the judges of the district and regional courts sitting on one side of the table in the Judicial Council, and their administrative head, the minister, sitting opposite them. In such a situation, we cannot talk about an atmosphere of free discussion without concern for the consequences." He is talking about the situation in the Judicial Council - not in the justice system. How do you manage to bring about change in the Judicial Council if this is the situation there?

You see, it all depends on the individual judges. Of course, there is a theoretical possibility that if a minister or a political force doesn't like a judge, they may try to defame him in some way, like they did with me. So, it all depends on the judge - whether he has a backbone or not. Also in the Judicial Council, practically any judge, if he has a backbone, can stand up to any politician. What I want to say is that the current Judicial Council has a very strong composition. All are young, all are energetic, all want to improve the judicial system. That helps a lot. There has never been, I think, such unity between the judges within the Judicial Council. Everything in the Judicial Council is focused on the need to improve the system, and this is being done very actively.

In that case, let us also quote you - Aigars Strupišs: "There is an impression that the executive and the legislative look at the court as a civil service - as a kind of peculiar civil service that is supposedly independent, but to some extent subordinate to the Ministry of Justice." This is what you said when you were running for the position of Chief Justice of the Supreme Court. Has anything changed?

The words seem to have changed. But we have to make sure that words are put into practice. If this is enshrined in the law, then the Court is not the "third son of the father" - the younger son, the fool who has no say. It is usually said that the court is the "third power". That is how most people understand it, and how politicians and the executive have understood it, that there is a vertical of power - first power, second power, third power. But that is not the case; the powers exist horizontally, each with its own function - and they are equal. It seems that at the moment, if we talk at the level of the Prime Minister, the President and the Saeima, the understanding is generally improving.

But this dependence on one ministry and one minister is very troublesome. Judges themselves have admitted this. If we look at this year's survey of judges, 71% of judges said that the Minister of Justice has a negative impact on the independence of the judiciary.

Powerful words! At one time, Jānis Bordāns pointed out that Bičkovičs was a politically appointed Chief Justice of the Supreme Court, even though he was appointed by the Senators of the Supreme Court. In your case, he did not like the fact that, out of 35 senators, you alone were running for the position. Why do you think the others did not run?

It is difficult to say. Maybe they thought I was good enough. If I was bad, someone else would have come forward to run against me. Nobody applied, so obviously everybody thought it would be good.

Another quote from the debate during the election of the Chief Justice of the Supreme Court. Juris Jurašs emphasized that "as a result of the work of the Chief Justice of the Supreme Court, the public has lost confidence in the judiciary". This was obviously aimed at Mr Bičkovičs. Have you ever felt that it is as a result of the work of the Chief Justice of the Supreme Court that confidence in the judiciary is being lost?

It can happen. But whether it has, I do not know. It depends on many factors. But, by the way, there are some interesting facts on this issue. Providus conducted a survey of court visitors - litigants, prosecutors, lawyers, plaintiffs, defendants, accused, witnesses. And these people, who have had contact with the courts, rated the judiciary very highly - 4.5 out of five. That is a very high rating. But the SKDS surveys show that only 10% of the respondents have had contact with the courts. The question is: where do the other 90% of respondents get their opinion of the court if they have had no contact with it themselves? 70% of them form their opinion of the judiciary from the media, from publications quoting politicians who in turn criticize the courts. That is how this opinion is formed. By contrast, people who actually visit the courts give the judicial system high marks.

Your first conflict with Mr Bordāns started with commenting on judgments - he commented on one judgment, you commented on another judgment. How did that conflict end - did it escalate into the current conflict?

It has not disappeared anywhere. It is still part of the process.

You have no boss, except for maybe the goddess of justice, Themis. But Bordāns has a boss, and that is Prime Minister Krišjānis Kariņš. Has the Prime Minister ever spoken to the Minister of Justice about the impact of his remarks on the judiciary?

I do not know anything about that.

So, one could assume that the Prime Minister has not spoken to his Justice Minister about the fact that that something is not quite right?

I really do not know. The current government is somewhat... how shall I put this...

Stable.

The government is fragile. It is stable because of its fragility. So, everybody is afraid to touch each other. As soon as you touch someone, it all could collapse. That might be the reason why this issue is not discussed.

Yes, but Latvia has already been burnt very badly in the same case of Aleksandrs Lavents, where the Minister for Justice and the Prime Minister also commented on something, to which the European Court of Human Rights immediately reacted.

The judge also commented.

All three.

Yes. That's how it was.

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The interview will be continued in the next issue

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