Questions and answers regarding the conducting of judicial proceedings in accordance with the Law “On the Activities of State Institutions During an Emergency Situation Due to the Spread of Covid-19” 08.04.2020


Civil proceedings

1. Which civil cases should and which should not be examined by written procedure?

2. If the court concludes, after having examined all circumstances in advance, that the right of a person to a court can be ensured also by examining the case in writing, can cases related to a significant violation of the rights of a person and an objective urgency be examined by written procedure without conducting a hearing in accordance with Paragraph two of the applicable Section of the Law?

3. Should the wording in the Law if it is possible to ensure the observance of the procedural rights of the participants in the case” be left only up to the judgment of the court, for example in circumstances where one of the parties will consider that the written procedure does not, in fact, ensure his or her procedural rights?

4. Can a default judgment be given in regard to a civil case which has been examined by written procedure?

5. How many days would be a sufficient time period for the parties to provide additional explanations and for the submission of evidence prior to the examination of the case by written procedure? If, within this time period, one of the parties submits additional evidence, should the other party be given a new time period for getting acquainted with them and for providing additional evidence?

6. If a civil case is scheduled to be examined by written procedure, when should the judgment be given? After how many days (minimum time limit) can a case be scheduled when sending the court notice by post?

7. If an application or complaint concerning the administrator's decision had been appointed for examination by oral procedure, should the transition to the written procedure be made by the decision regarding the change of the procedure, or simply by means of a court notice requesting additional explanations?

8. In conjunction with Section 2, Paragraph two, Clause 2 of the Law, which stipulates abstaining from legal formalities, does this also apply to the sending of judgments to the participants in a case in simplified court proceedings?

9. Can an adoption case be examined by written procedure by requesting a written opinion from the public prosecutor?

10. Can divorce proceedings be examined by written procedure if the defendant has not provided any explanations or opinion in regard to the action brought before the court?

11. Can an action for divorce be also examined by written procedure if the parties do not have any dispute over it?

12. Can an amicable settlement be approved by written procedure if it has not been concluded in the form of a notarial deed?

 

Cases concerning administrative infringements

When dealing with cases covered by Section 213, the currently existing practices may be maintained (the police shall indicate the place and time of the examination of the case), while informing the participant in the case (possibly using a separate form) that the case may be examined during an emergency situation without the presence of the participants in the case, and that no fines shall be imposed due to not appearing at the court for court proceedings. At the same time, if a person wishes the case to be examined by written procedure, including providing additional observations in writing, he or she shall not be deprived of such a right.

13. What should be done with requests for questioning witnesses in regard to the cases referred to in Section 213 of the Latvian Administrative Violations Code?

14. Is the procedure determined in Section 5 also applicable to complaints concerning decisions by the authorities in regard to cases concerning administrative infringements? If the complainant has requested a case to be examined by oral procedure, can the court adjourn the case to be examined by writing?

15. Can a case concerning administrative infringement be examined by written procedure which has been initiated before the entry into force of the law and where a court hearing has been scheduled? Shall can a hearing be cancelled and examined by written procedure?

16. When examining a case concerning administrative infringement by written procedure, shall a statement regarding the right to apply for a rejection, to get acquainted with the materials of the case, to provide explanations, etc. be issued?  (Section 5 “… When examining a case by written procedure, the institution (an official) shall, in a manner consistent with the nature of the written procedure, shall provide the participants of the procedure with the same amount of rights as in the oral procedure.”)

17. Is it necessary to take a decision (in the form of a separate document or a resolution) regarding further examination of the case by written procedure?

18. Is it necessary to set a time limit for the submission of additional evidence in this decision, or should it be mentioned only in the accompanying letter notifying the parties of examination by written procedure?

19. Should this statement specifically highlight the right of the parties to apply for the recusal of the judge?

 

Criminal and enforcement cases

20. What should be observed when considering the question of the continued enforcement of detention by video conference?

21. Can enforcement cases be examined by written procedure?

22. Do the courts continue to send orders for the enforcement of judgments in criminal matters, criminal enforcement cases, and administrative cases?

 

Transitional period at the end of the emergency situation

23. What should be done with the cases assigned to be examined by written procedure in the context of the emergency situation, at the end of the emergency situation?

 

 

 

1. Which civil cases should and which should not be examined by written procedure?

The court shall ensure that civil cases are examined in accordance with the general procedure of court proceedings:

  1. By oral proceedings - only those cases which involve a significant violation of the rights of a person and an objective urgency, and which cannot be examined by written procedure;
  2. By written procedure - all civil cases in the examination of which the observance of the procedural rights of the participants in the case can be ensured, and oral proceedings are not essential for a fair adjudication of the case, shall be examined by the court by written procedure.
  3. The court shall postpone the examination of the case if it finds that the case cannot be examined by written procedure and the case does not involve a significant violation of the rights of a person or an objective urgency. After the end of the emergency situation, the court shall ensure that the postponed cases are examined as a matter of urgency.

The court shall treat each case on an individual basis.

The court shall assess the proportionality between the timely settlement of a dispute by written procedure against the postponement of the case to a later post-crisis period (in the absence of a situation involving a significant violation of the rights of the person or objective urgency).

If it is recognised that there are grounds for examining the case by oral proceedings (namely, that the case affects important rights of a person or is objectively urgent and cannot be examined by written procedure), the organisation of remote proceedings shall be considered first. If the proceedings are organised in person, the mandatory precautionary measures during the emergency situation shall be observed (a 2-metre distance between persons in the courtroom, disinfection of surfaces, etc.).

The court has the right to determine the examination of oral proceedings of a case by written procedure if it is possible to ensure the observance of procedural rights of the participant in the case, and if the court has not found it necessary to adjudicate the case at a court hearing. In cases where the court considers that the case cannot be examined by written procedure, since it would be impossible to ensure full observance of the procedural rights of the participants in the case, or if there are additional circumstances which the court may find out only at the court hearing, the court must postpone the oral proceedings, unless the case involves a significant violation of the rights of the person and an objective urgency.

This means that taking into account the circumstances of the particular case, the court shall  consider whether oral proceedings are strictly necessary for ensuring a fair hearing, i.e. whether the civil-procedural rights of the parties referred to in Section 74, Paragraph two of the Civil Procedure Law (to participate in court hearings (Paragraph 2), the right to provide oral explanations to the court (Paragraph 7), to participate in examination of the evidence (Paragraph 5) and the rights laid down in Section 10, Paragraph two of the Civil Procedure Law (participating in the examination of witnesses and experts, participation in court argument) may affect the establishment of the factual circumstances and the correct settlement of the dispute.

Since, during an emergency situation, participants in the case have restrictions with regard to familiarizing themselves with the materials of the case file, the court shall be obliged to ensure that all of the evidence submitted in the case is sent to all of the participants in the case, ensuring the possibility of assessing, examining and commenting on it (expressing their opinion).

The restriction of oral proceedings as a precautionary measure has been established in a number of EU countries, but only Estonia has established a catalogue of cases listing specific cases that are to be examined by oral proceedings as a matter of urgency. At the same time, it should be stressed that this list too has only a recommendatory character. The Estonian list includes cases relating to the separation of a child from the parents; establishment of guardianship; capacity cases; cases related to asylum seekers; infringements related to the limitations imposed due to the emergency situation; proclaiming of search for the person; imposition or reviewing of an arrest; early release due to a serious illness; release of the offender on parole, and other cases, if the court recognises them as urgent.

Similarly, in Latvia too these are cases that are primarily related to:

1) the limitation imposed on the physical freedom or capacity for action of a person;

2) cases which affect the rights of the child and are to be resolved without delay;

3) cases related to emergency measures in order to prevent threats to the life or health of persons;

4) cases related to the monitoring of compliance with the rules imposed during the emergency situation.

 

2. If the court concludes, after having examined all circumstances in advance, that the right of a person to a court can be ensured also by examining the case in writing, can cases related to a significant violation of the rights of a person and an objective urgency be examined by written procedure without conducting a hearing in accordance with Paragraph two of the applicable Section of the Law?

They can. With regard to civil cases, the legislator has determined that the courts in all three instances shall examine all civil cases by written procedure, if it is possible to ensure the observance of the procedural rights of the participants in the case, and oral proceedings are not relevant for a fair hearing. In exceptional cases, oral proceedings may be used for examining cases involving a significant violation of the rights of the person and an objective urgency, if they cannot be examined by written procedure.

If the court considers that the case cannot be examined by written procedure and the case does not involve a significant violation of the rights of a person or an objective urgency, the examination of the case shall be postponed. After the end of the emergency situation, the court shall ensure that the postponed cases are examined as a matter of urgency.

 

3. Should the wording in the Law “if it is possible to ensure the observance of the procedural rights of the participants in the case” be left only up to the judgment of the court, for example in circumstances where one of the parties will consider that the written procedure does not, in fact, ensure his or her procedural rights?

Yes, the law has determined that it is only up to the court to assess this competence whether it is possible to ensure compliance with the procedural rights of the participants in the case.

 

4. Can a default judgment be given in regard to a civil case which has been examined by written procedure?

It can, because by the crisis law the written procedure is determined as the basic form of the Civil Law examination platform. In such circumstances, it is to be recognised that a default judgment may be given if the case has been adjudicated by written procedure.

 

5. How many days would be a sufficient time period for the parties to provide additional explanations and for the submission of evidence prior to the examination of the case by written procedure? If, within this time period, one of the parties submits additional evidence, should the other party be given a new time period for getting acquainted with them and for providing additional evidence?

When determining a time period for the submission of a written explanation, the time period laid down in the Section 148, Paragraph one of the Civil Procedure Law shall be taken into account, i.e. 15-30 days from the day of sending the statement of claim, but in the cases, which concern a child, determining a time period for the submission of a written explanation shall not be longer than 15 days from the day of sending a statement of claim.

A court shall inform the defendant additionally on the fact that non-submission of an explanation shall not constitute a bar for giving a judgment in a case.

Concurrently with sending of documents to the parties, a court shall explain to them their procedural rights, inform them about the court panel that will examine the case, and explain the right to apply for removal of a judge. The parties are entitled to use their civil-procedural rights that are related to the preparation of a case for trial not later than seven days prior to the notified time for the examination of the case.

If, within the allotted time period, one of the parties provides additional evidence, the other party shall be given the opportunity to familiarize himself or herself with it.

The general regulations of the Law framework require that evidence shall be submitted to the court not later than 14 days before the court hearing. The parties can count on this, therefore there is a possibility that all of the evidence was not submitted and it was planned to be submitted 14 days before the court hearing. Therefore, at the moment, both parties cannot be denied the right to provide additional evidence because they had relied on the provisions of the Law which allow them to be submitted at a later date, within the time period specified in the Civil Procedure Law; likewise, in accordance with the principle of adversarial proceedings, the parties cannot be denied the right to react to additional evidence submitted by the other party, which would constitute a violation of adversarial proceedings.

 

6. If a civil case is scheduled to be examined by written procedure, when should the judgment be given? After how many days (minimum time limit) can a case be scheduled when sending the court notice by post?

When determining the examination of a case by written procedure, the court itself shall determine the date on which the judgment shall be made available (taking into account the extent, complexity of the case, etc.). There is no time limit, except for those cases where the Civil Law determines that a particular category of cases is to be examined within a certain time limit. The date of the court hearing shall be communicated to the parties in good time - it shall be the date on which a copy of the condensed judgment may be obtained at the court chancellery. At the same time, the parties shall be informed about the composition of the court which will examine the case, explaining the right to apply for recusal of a judge.

When determining the date of the examination of the case, the possibilities of the parties to exercise their procedural rights shall be taken into account. Therefore, not later than 14 days from the date of dispatch of the court notice, if it was sent by post and if all the necessary evidence has already been collected in the case (the time period for the submission of evidence has expired), or not earlier than after 21 days if the parties were entitled to rely on the possibility of submitting additional evidence.

 

7. If an application or complaint concerning the administrator's decision had been appointed for examination by oral procedure, should the transition to the written procedure be made by the decision regarding the change of the procedure, or simply by means of a court notice requesting additional explanations?

A decision regarding the change of the form of the procedure shall be made, and it can be done in the form of a resolution. The parties shall be informed of the decision (the determined date for when the judgment will be made available, the specified time period for submitting additional explanations) by sending a court notice.

 

8. In conjunction with Section 2, Paragraph two, Clause 2 of the Law, which stipulates abstaining from legal formalities, does this also apply to the sending of judgments to the participants in a case in simplified court proceedings?

In simplified procedure cases, the Civil Procedure Law requires that a transcript of the judgment be sent without delay by mail or, if possible, by other means, in accordance with the procedures for the delivery and service of court documents governed by the Civil Procedure Law.

Within the framework of the normative regulations, any state institution shall refrain from legal formalities, and shall apply the applicable regulation based on its purpose and meaning in order to achieve the application of the legal norm that best corresponds with the purpose of  the legislator, including in extraordinary situations, taking into account the prescribed precautionary measures.

 

9. Can an adoption case be examined by written procedure by requesting a written opinion from the public prosecutor?

The Civil Procedure Law requires the personal participation of at least one adopter and prosecutor, as well as summons the Orphan's Court to participate in the examination of the case, which had taken the decision on the conformity of adoption with the interests of the child, and the adoptee, if it is necessary to hear him or her at the court hearing, and if he or she has reached the age of 12. In such circumstances, we do not support the examination of adoption cases by written procedure.

 

10. Can divorce proceedings be examined by written procedure if the defendant has not provided any explanations or opinion in regard to the action brought before the court?

Divorce is a personal right and therefore requires the presence of the parties. As a minimum requirement, the identity of the parties should be verified through videoconferencing or otherwise. If the defendant cannot be reached and has not provided explanations, then the case cannot be examined by written procedure.

 

11. Can an action for divorce be also examined by written procedure if the parties do not have any dispute over it?

An exception expressed in Section 236, Paragraph three of the Civil Procedure Law may be applied: if one of the parties lives far away or due to other reasons cannot attend according to a court summons, the court may admit a written explanation by this party or the participation of his or her representative as sufficient for examination of the case.

 

12. Can an amicable settlement be approved by written procedure if it has not been concluded in the form of a notarial deed?

Each case shall be examined on an individual basis, taking into account the nature of the dispute and the content of the settlement. There may also be cases where an amicable settlement may be approved by written procedure even if it has not been concluded in the form of a notarial deed. The purpose of the presence of the parties at the approval of the settlement is to understand the content and consequences of the settlement, and to establish whether it is a voluntary agreement. Seeing, for example, that the settlement is simple, the court may ask the parties in writing whether the parties understand the content and consequences of the settlement. If the answer is affirmative and submitted in written form, the rights of the parties would be respected, even without them being present.

 

13. What should be done with requests for questioning witnesses in regard to the cases referred to in Section 213 of the Latvian Administrative Violations Code?

Primarily, the case shall be examined and a decision shall be made regarding the case on the basis of the documents available in the case file. If a request for questioning of a witness is made, it must be assessed whether that evidence can play a role in the outcome of the case. If the examination of a witness is required, a court hearing shall be held (remotely or in person, taking precautionary measures).

A proposal regarding the possibility to serve information to the person, at the time of detection of the infringement, regarding the procedure of examination of the case, the possibility of examining the case without the presence of the person, on the basis of the drawn-up protocol and the documents attached thereto, is to be supported. This statement would be issued by the State Police. This would accelerate the process and reduce the procedural expenses incurred.

 

14. Is the procedure determined in Section 5 also applicable to complaints concerning decisions by the authorities in regard to cases concerning administrative infringements? If the complainant has requested a case to be examined by oral procedure, can the court adjourn the case to be examined by writing?

Yes, complaints concerning decisions by the authorities in regard to cases concerning administrative infringements are also to be examined by written procedure. If the court finds that the case can be examined by written procedure, then, irrespective of whether or not the participant in the case has requested oral proceedings, the court may examine the administrative infringement case by written procedure.

 

15. Can a case concerning administrative infringement be examined by written procedure which has been initiated before the entry into force of the law and where a court hearing has been scheduled? Shall can a hearing be cancelled and examined by written procedure?

If the court considers that the case can be examined by written procedure, then it may be examined by written procedure.

 

16. When examining a case concerning administrative infringement by written procedure, shall a statement regarding the right to apply for a rejection, to get acquainted with the materials of the case, to provide explanations, etc. be issued?  (Section 5 “… When examining a case by written procedure, the institution (an official) shall, in a manner consistent with the nature of the written procedure, shall provide the participants of the procedure with the same amount of rights as in the oral procedure.”)

Action must be taken in accordance with the procedure laid down in Section 289.6 of the Latvian Administrative Violations Code, Paragraph four: “In examining a case by written procedure, the judge shall determine the date on which the decision shall be made available at the court chancellery, as well as a time period of at least two weeks until which the participants of the administrative infringement case may submit explanations, apply for recusal, [...], as well as to submit other applications or requests relating to the court proceedings.”

If it pertains to the so-called “driver's case”, it would be appropriate to continue the practice of having this kind of information to be provided by the State Police.

 

17. Is it necessary to take a decision (in the form of a separate document or a resolution) regarding further examination of the case by written procedure?

Yes, the decision may be taken in the form of a resolution. The judge shall determine the date on which the decision shall be made available at the court chancellery, as well as a time period of at least two weeks until which the participants of the administrative infringement case may submit explanations, apply for recusal, as well as submit other applications or requests relating to the examination of the case.

 

18. Is it necessary to set a time limit for the submission of additional evidence in this decision, or should it be mentioned only in the accompanying letter notifying the parties of examination by written procedure?

The term shall be determined by the judge in the court decision. The parties shall be informed about the judge's decision by sending a court notice indicating the date determined by the judge by which the decision shall be made available at the court chancellery, as well as the time limit determined by the judge, until which the participants of the administrative infringement case may submit explanations, apply for recusal, request the case to be examined at a court hearing, as well as submit other applications or requests related to the examination of the case.

 

19. Should this statement specifically highlight the right of the parties to apply for the recusal of the judge?

Yes, in accordance with Section 289.6, Paragraph four of the Latvian Administrative Violations Code, the participants of court proceedings shall also be informed of the possibility of applying for recusal.

 

20. What should be observed when considering the question of the continued enforcement of detention by video conference?

Since the videoconferencing equipment available in places of detention is being heavily used, videoconferencing with the place of detention may also be held at the end of the working day, while the court staff participating at the court hearing are asked to be in contact with the relevant detention facility, particularly in cases when decisions are taken at the court hearing, which affect the further stay of the person at the place of detention. The location of the video conference and the administrative department of the prison are located at a sufficient distance from each other (in the case of a central prison within a 15-20-minute walk). Mobile phones are not allowed to be used in the area of the prison where the videoconferencing equipment is usually located. Therefore, there is no possibility for rapid communication between the prison staff who are located at the location of the videoconference and the administrative part of the place of detention in which the decisions taken at the court hearing will be received, such as the release from the custodial sentence (that are to be executed on the same day). Therefore, in order to ensure operative communication, the support of court staff is requested by calling and informing of the decision taken by the court, or if the decision is delayed after 5:00 p.m., by contacting the prison and warning that the decision will be taken or sent after 5:00 p.m.

 

21. Can enforcement cases be examined by written procedure?

No, they cannot at this moment.

At the same time, it should be noted that currently there already is a draft law in the Saeima, which includes amendments to Section 651 of the Criminal Procedure Law, but, unfortunately, it is not expected that it could be enacted in the next few days/week:

The first paragraph should be worded as follows:

“(1) Matters related to the execution of a ruling shall, as soon as possible, be decided by a judge by written procedure.”;

The amendment to Section 1, Paragraph one 1 shall be expressed in the following wording:

“(1.1) In a statement regarding the adjudication of a matter by written procedure, the judge shall indicate the right to the prosecutor, the convicted person and the representative of the institution responsible for the execution of the ruling to apply, within 10 days, for a recusal of a judge, to submit objections against the adjudication of the matter by written procedure, to submit an opinion regarding the matter to be adjudicated, as well as indicate the date of the availability of the decision. If the matter is decided by oral procedure, with the participation of a prosecutor and the convicted person, for whom the rights provided for in Section 74.2 of this Law shall be ensured, as well as the representative of such institution, which is responsible for execution of the ruling. In the case of an unjustified non-attendance of the convicted person a decision may be taken without his or her presence.

 

22. Do the courts continue to send orders for the enforcement of judgments in criminal matters, criminal enforcement cases, and administrative cases?

The courts shall continue sending orders for the enforcement of judgments to the enforcement authorities as their enforcement will be resumed when the situation returns to normal. In the case of prison administration with regard to the execution of a short-term custodial sentence, a que is likely to be formed for the execution of the punishment, taking into account the places available for the execution of such a sentence in the prison system. It is likely to be strengthened by regulatory enactments, although the procedure for the enforcement of punishment does not currently contain any restrictions on such actions.

In the case of an administrative arrest, if the emergency situation will cease in good time before 1 July 2020, the execution of the arrest shall be resumed or other actions shall be provided for in the transitional regulatory enactments.

 

23. What should be done with the cases assigned to be examined by written procedure in the context of the emergency situation, at the end of the emergency situation?

As far as possible, we will strengthen the normative regulatory framework regarding this issue of the transitional period of the emergency situation returning back to normal by ensuring legal stability.

 

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