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THE NEW CODE OF CONDUCT OF PROSECUTORS OF LATVIA – MORE MODERN, SPECIFIC AND PRACTICAL

Transparency in the work of prosecutors is essential in a modern democracy. Codes of professional ethics and of conduct, based on international standards, should be adopted, and made public.[1]

The Code of Ethics for Prosecutors of Latvia (hereinafter – the Code of Ethics) was initially developed and approved in 1998, and by 2021 it had not been revised or updated. In its 2021 study (published in January) on the activities of the Prosecutor’s Office of the Republic of Latvia (hereinafter – the Prosecutor’s Office), the Organization for Economic Co-operation and Development (hereinafter – OECD) identified the need to review and update the Code of Ethics and ensure that it is no longer viewed as a formal document with no impact on the actions of prosecutors.[2] The State Audit Office also agreed with the OECD conclusions in its audit report on the activities of prosecutors, emphasizing in particular the need to make the Code of Ethics alive document instead of just a formality.[3] In view of the above, Transparency International Latvia / “Sabiedrība par atklātību – Delna” (hereinafter – TI Latvia) agreed to co-operate with the Prosecutor’s Office in updating the Code of Ethics and promoting its implementation.

Co-operation with TI Latvia

TI Latvia has established co-operation with institutions responsible for reducing corruption and implementing good governance as one of the goals of its activities in the statutes.[4] Therefore, in order to achieve its goals, it was important for TI Latvia to meet with the Prosecutor’s Office and discuss the OECD report of 2021, as well as to find out the plans of the Prosecutor’s Office to implement the recommendations of this report. TI Latvia’s first meeting with the Prosecutor’s Office took place in April 2021, and it was already clear that both sides were interested in further co-operation.

In this co-operation, it was important for TI Latvia to ensure that the Code of Ethics of the Prosecutor’s Office is revised, considering the suggestions and recommendations of international experts. Initially, the deadline set by the Prosecutor’s Office for updating and approving the Code of Ethics was about one month. However, after compiling expert comments on how to improve the Code of Ethics, TI Latvia requested the Prosecutor’s Office to reconsider the original deadline for approving the document and to consider extending it. As a result of mutual communication, the initial deadline was extended, allowing all parties involved in the process to fully explore the issue of the Code of Ethics and develop a document that is not only in line with international practice in regulating ethics, but will be implemented in prosecutors’ daily work.

Compliance with international standards

The international standards that European prosecutors should follow in their work and actions are summarized in Opinion No. 9 (2014) of the Consultative Council of European Prosecutors, “European Norms and Principles Concerning Prosecutors”.[5] These principles emphasize the need for transparency in the work of prosecutors,[6] define the boundaries of communication with the media,[7] emphasize integrity or the rule of law as some of the key principles,[8] and make mutual cooperation an integral part of effective prosecution at both local and international level.[9]

To ensure that the new Code of Ethics complies with international standards, TI Latvia engaged experts from the US Department of Justice, the Transparency International Estonian chapter, the Integrity Division of the Dutch Public Prosecutor’s Office, the Max Planck Foundation for International Peace and the Rule of Law and the European Security Agency. and the Office for Democratic Institutions and Human Rights (OSCE ODIHR).

The experts got acquainted with the 1998 Code of Ethics, as well as with the updated version during the work and provided detailed recommendations and comments. The main expert recommendations are briefly described hereafter. The expert from the US Department of Justice recommended the inclusion of integrity as a separate principle in the Code of Ethics, recommended that the prosecutor be required to cooperate with colleagues, and stressed the need to emphasize the importance of prosecutor’s reputation. The expert from Transparency International Estonia, for his part, proposed that the Code of Ethics include provisions on the use of public communications and the media, as well as the right of prosecutors to seek advice on the interpretation of ethics norms from a senior prosecutor. The Dutch expert paid more attention to the essence of the code of ethics, stating that to be a viable document, it was necessary to define the purpose of the code and pay more attention to the internal integrity and values. Expert from the Max Planck International Fund for Peace and Justice and the Office for Democratic Institutions and Human Rights (OSCE ODIHR) commented in general terms, pointing out that the 1998 Code of Conduct was outdated, vague and could improve the means of expression used throughout the document.

What’s new in the code of ethics?

In view of the extended deadline for the approval of the Code of Ethics, it has been possible to revise the structure and content of the document, including a number of innovations.

  • New principles. The new Code of Ethics enshrines the rule of law, emphasizing the obligation to follow only the law, and the public’s right to be informed of the motives and argumentation for decisions and actions taken.[10] The new Code of Ethics also emphasizes the principle of integrity, to which the OECD has placed great emphasis in its 2021 report.
  • Significance and responsibility of prosecutors’ work. Article 6 of the new Code of Ethics stipulates that the prosecutor shall be aware that success or failures of prosecutor will be perceived as achievements or defeats of the state of Latvia. Thus, the new Code of Ethics emphasizes the important role of prosecutors in the Latvian judicial system, while reflecting the need for particularly strict ethical requirements for prosecutors. Article 42 of the Code of Ethics also emphasizes the personal duty and ongoing obligation of each prosecutor to respect and be responsible for complying with the principles of the Code of Ethics.
  • Cooperation between prosecutors. The new Code of Ethics imposes an obligation on prosecutors to cooperate by requiring each prosecutor to share his or her professional knowledge and experience with colleagues. The new Code of Ethics also provides for the right of any prosecutor to seek advice from another prosecutor on the interpretation and application of ethical standards.
  • Use of the media. Given that the media were not such a large part of the daily life and information flow at the time of the drafting of the 1998 Code of Ethics, it is now necessary to set specific requirements for the use of the media. Articles 32 and 33 of the new Code of Ethics prohibit the use of the media to resolve disputes in public, as well as to promote oneself.
  • Strengthening trust. Article 41 of the new Code of Ethics stipulates that the prosecutor with his/her stance and behavior in any situation shall respect and observe the principles of prosecutor’s conduct laid down by the Code of Ethics, seeking to strengthen the trust of the society to the Prosecutor’s Office as the authority belonging to the judicial power. In Latvia, trust in the judicial power is generally very low. Eurobarometer data from 2021 show that only 39% of respondents in Latvia tend to trust the national justice system, while in Estonia, for example, it is 76%.[11] Consequently, it is necessary to strengthen the duty of prosecutors to behave and act in such a way as to promote the confidence and trust of the Latvian society in the prosecutor’s office and the judiciary in general.
  • Competence of the Attestation Commission. The prosecutors’ Attestation Commission was and still is responsible for handling cases of breaching the Code of Ethics. However, the new Code of Ethics gives the Attestation Commission additional competence to explain and analyze the provisions of the Code of Ethics, as well as to advise prosecutors on ethical issues. The new Code of Ethics is thus in line with the OECD recommendation on the need for a mechanism to address ethical and integrity issues and dilemmas.[12]
  • Moral sanctions. In the 1998 Code of Ethics, one type of sanctions applicable to a prosecutor was moral sanctions – discussion in the Attestation Commission, reprimand, public apology or sending an information letter to all prosecutor’s offices. The limits and scope of moral sanctions have been identified by the OECD as an ambiguous area with a possibility for improvement.[13] The new Code of Ethics has abandoned moral sanctions as a form of sanction for breaches of the Code of Ethics which make the ethical rules stricter. Although the Prosecutor’s Office shared observations during the drafting of the new Code of Ethics that moral sanctions, such as public apologies, often discipline more than disciplinary liability, however, strict disciplinary liability, together with OECD recommended wider public access to disciplinary decisions,[14] would enhance trust and understanding of the disciplinary system as well as refraining from committing infringements.
  • Means of expression. From the outset, the invited experts agreed that the 1998 Code of Ethics described the behavior that prosecutors are expected to follow, giving a vague and recommendatory impression of the document. This is confirmed by the OECD’s finding that prosecutors also viewed the Code of Ethics as a formal document without any impact on the prosecutors’ behavior and conduct.[15] Instead of using an expression of necessity in the text, defining what the prosecutor must “should do” and “should comply with”, the new Code of Ethics is dominated by the expression of reality, which strictly defines what the prosecutor “does” and “observes”. Although it may seem like a stylistic change, the experts confirm that in this wording the Code of Ethics gives the impression of a more concrete, stricter, and more binding regulatory enactment.

 

Conclusions and further steps

During the co-operation between TI Latvia and the Prosecutor’s Office, there was a rapid growth both in the quality of the Code of Ethics and in the Prosecutor’s Office’s view of the Code of Ethics. If at the beginning of the year the OECD concluded that the existing Code of Ethics was perceived as a formality by the Prosecutor’s Office, then the currently updated document is more specific, practical, transparent, and much more viable than its predecessor.

During the development of the new Code of Ethics, the Prosecutor’s Office indicated that in the development of the new Code of Ethics, the Prosecutor’s Office plans to take inspiration from the recently approved Code of Ethics for Judges of Latvia. Although the structure and principles of the new Code of Ethics for Prosecutors are comparable to the Code of Ethics for Judges, prosecutors have taken a step further, for example by requiring them to mutually strengthen the competence and knowledge of other prosecutors, as well as by prescribing a specific mechanism for resolving ambiguities regarding the application of ethical standards.

To further reduce the risk that the new Code of Ethics will remain a formal document over time, TI Latvia will continue to work with the Prosecutor’s Office to consider and implement other OECD recommendations, such as developing guidelines on the application of the Code of Ethics and regular training on ethics and integrity issues for existing and new prosecutors.

It should be noted that the co-operation between TI Latvia and the Prosecutor’s Office shows that the involvement of civil society organizations is of great benefit to both the institutions and society. By cooperating with each other, the institutions can obtain an objective and independent opinion on issues that are important to them, while showing the public their openness, self-criticism and building public confidence in the institutions, as well as promoting civic activism in the long term.

 

Authors: Executive Director of Transparency International Latvia Inese Taurina and legal consultant Krista Asmusa, specially for “Jurista Vārds“.

The Code of Ethics for Prosecutors of Latvia in English is available on the Prosecutor’s Office website ->

 

[1] Consultative Council of European Prosecutors (2014), European norms and principles concerning prosecutors, the “Rome Charter”, principle VII, https://rm.coe.int/168074738b

[2] OECD (2021), Performance of the Prosecution Services in Latvia: A Comparative Study, OECD Publishing, Paris, https://doi.org/10.1787/c0113907-en; pp.111-112.

[3] The State Audit Office (2021) a summary of the main findings and recommendations of the audit, https://www.lrvk.gov.lv/en/audit-summaries/audit-summaries/effectiveness-of-investigations-and-trials-of-the-criminal-offences-in-the-economic-and-financial-area

[4] TI Latvia statutes Clause 3.1 “e”, https://delna.lv/wp-content/uploads/2021/05/Delna_Statuti_2021.pdf

[5] Consultative Council of European Prosecutors (2014), European norms and principles concerning prosecutors, the “Rome Charter”, https://rm.coe.int/168074738b

[6] Ibid, principle VII

[7] Ibid, principle IX

[8] Ibid, principle XIII and XV

[9] Ibid, principle XX

[10] Code of Conduct of Prosecutors of Latvia, Article 13, 14, http://www.prokuratura.gov.lv/en/noderigi

[11] Standard Eurobarometer 94 – Winter 2020-2021, https://europa.eu/eurobarometer/surveys/detail/2355

[12] OECD (2021), Performance of the Prosecution Services in Latvia: A Comparative Study, OECD Publishing, Paris, https://doi.org/10.1787/c0113907-en; pp.114

[13] OECD (2021), Performance of the Prosecution Services in Latvia: A Comparative Study, OECD Publishing, Paris, https://doi.org/10.1787/c0113907-en; pp.115

[14] Ibid, pp.116

[15] Ibid, pp.111

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