Speech by the Vice President of the Constitutional Court Dr.iur., asoc.prof. Irēna Kucina at the OECD Global Access to Justice Roundtable
Irēna Kucina
Vice President of the Constitutional Court
Speech at the OECD Global Access to Justice Roundtable
Riga, 21 September 2022
Dear colleagues, ladies and gentlemen,
Considering that I am the only representative of the judiciary branch on today’s panel, let me address some points offered for today’s discussion from the point of view of a judge of a constitutional court.
Albeit initially courts were seen to fulfil the role of authoritarian conflict-settlers, German legal scholars have concluded that this view is now gradually being replaced by the view that courts provide services.[1] Latvian commentators have also indicated that the work of the courts has to be seen as providing services to the society.[2]
One of the functions of states is to provide for socially significant goods and services, the production or provision of which in the private sphere is impossible or inefficient.[3] One example of such social services is judicial services. The state resources that may be allocated for the provision of judicial services are limited and therefore need to be used efficiently because, unlike in the usual situations where an increased demand causes an increase of prices, this correlation does not work with respect to judicial services; when the state is providing judicial services, it does not make a profit.[4]
This is one of the main differences between customer-oriented approaches in private sphere and people-centred approach with respect to the services of the judiciary. It is not only the limitations necessarily deriving from the restricted competence of each court and from the demands of impartial and independent judges but also purely economic vectors that make courts cautious with respect to opening themselves to the risk of being exposed to trivial or even vexatious lawsuits.
That said, the trust in justice is a goal in itself for courts and for the state at large because, as the Constitutional Court of the Republic of Latvia has explained, “[i]f the society does not trust the courts, it will not look for a solution to their problems in courts, and therefore one of the branches of state power will become inoperative”.[5] And that, in turn, would without a doubt be a threat to the very cornerstone of a democratic state governed by the rule of law – the principle of separation of powers. More globally, the Constitutional Court has said that “[t]he trust of the sovereign for constitutional bodies of state power is one of the most important preconditions for the existence of a democratic state based on the rule of law”.[6]
The nature of judicial proceedings is such that frequently the motives of even the best-argued rulings may be incomprehensible to a lay person. It is for that reason that judges of the Constitutional Court have indicated that “[i]n order for the society to trust the judiciary, the society has to understand the aims, tasks and basic principles of the activities of the judiciary. Such an understanding may be achieved if the work of the courts is transparent, which means that the information about the work of the courts is open, accessible and comprehensible”.[7]
From the perspective of the Constitutional Court of the Republic of Latvia, ensuring that the information about its work is open and accessible is relatively the easiest task – the Court publishes detailed information about its pending cases, which includes specific indications of when and how cases would be examined and all the decisions that have been made.
A more challenging issue is the one of ensuring comprehensibility of information about the Court’s work. The challenge lies in the fact that the information is occasionally difficult to comprehend to a lay person not because it is intentionally made overly technical and obscure but because of the nature of issues addressed by the Court. The Court puts a considerable effort into ensuring the comprehensibility of the information about its work. For instance, on the website of the Constitutional Court anyone can access plain-language instructions on how to submit applications to the Court. The Court publishes thematic compilations of its case-law on specific topics. Every significant ruling of the Court is accompanied by a detailed press-release where the central issues of the case and the main points of the Court’s conclusions are reflected in a logical and accessible manner. Furthermore, in the most important cases examined by the Court, the judge rapporteurs of each case record a special video explaining the ruling of the Court in their own words.
However, as indicated above, these activities have their limits. Therefore it is insufficient for the Court to engage in one-sided provision of information, it is necessary to discuss issues relating to the Court’s work but also with regard to constitutional issues in general, such as the rule of law, fundamental rights, democracy, etc. in collaboration with various groups of society. In recent years, the Constitutional Court has been very active in engaging in such general dialogues, starting from organising lectures by judges and staff members of the Court in various regions of Latvia, continuing with organising an annual drawing and essay competition for pupils and ending with organising public interdisciplinary discussions with leading intellectuals regarding issues of statehood, democracy, etc.
The time allocated to me does not allow me to provide further examples of how the Constitutional Court of the Republic of Latvia is attempting to enable persons to gain a full understanding of the operation of legal system and to be able to, if needed, protect their rights in courts. However, in conclusion I would like to once again return to the difference between the understanding of “people-centred justice” within the court system and in a broader sense. When carrying out their principal function – adjudicating cases – courts may not and should not exceed their competences in order to become more “people-centred” because it would be a real threat for the delicate mechanism of a fair trial. On the other hands, courts can and should do whatever is in their power to build trust in the justice system and the rule of law in general.
Thank you for your attention!
[1] Weitz T.T. Gerichtsnahe Mediation in der Verwaltungs-, Sozial- und Finanzgerichtsbarkeit. Frankfurt am Main: Lang, 2008, S.100
[2] Tiesas klientu vērtējums – ceļš uz tiesu darba pilnveidi. 2010. gada tiesu darba vērtējuma pētījums. Pārskats par pētījuma veikšanu un aptaujas rezultātiem. Latvijas Tiesnešu mācību centrs, 2011, 5. lpp. Sk. arī: Gailīte D., Pleps J. Pārmaiņas tiesu varā ir vajadzīgas, bet tās nenāks viegli. Jurista Vārds, 2010. gada 9. marts, Nr. 10, 6. lpp.; Litvins G. Profesionālās darbības novērtēšana leģitimē tiesnesi. Jurista Vārds, 2010. gada 1. jūnijs, Nr. 22, 6. lpp.
[3] Mansfield E. Microeconomics. Theory, Applications. 7th edition. New York: Norton, 1991, p. 10.
[4] Bārdiņš G. Dialoga loma tiesas spriešanā. Rīga: Tiesu namu aģentūra, 2016, 240.–241. lpp.
[5] Judgment of the Constitutional Court of the Republic of Latvia of 12 November 2015 in case no. 2015-06-01, para. 16.2.
[6] Judgment of the Constitutional Court of the Republic of Latvia of 23 December 2019 in case no. 2019-08-01, para. 16.
[7] Separate opinion of judges Kaspars Balodis and Gunārs Kusiņš of the Constitutional Court of the Republic of Latvia in case no. 2015-06-01, para. 8.2.