By Alexander Ushakov
What do the Baltics lack in order to feel more certain about their future? Some will at once say that it's the money, someone else may mention stability in a hopeful voice, and after some hesitation others may even suggest it's something to do with moral values. And yet, it's most likely that all these factors show room for improvement. Nevertheless, one should not forget the legal space in which we live by - the laws passed by parliament and decisions made by the local judicial machines. All of the above and other legal peculiarities in the Baltic states were amongst topics we discussed with three of the most renowned Baltic lawyers: Kazimiras Moteka from Lithuania, Ainars Platacis from Latvia and Leon Glikman of Estonia.
A lawyer with a politician's soul
senior prosecutor for top cases, a lawyer, a member of the Soviet Lithuanian
Supreme Council and, finally, the same brazen Lithuanian, who in 1989
was the first to speak from the rostrum of the Soviet Union's Supreme
Council about the need to restore the independence of Lithuania and investigate
the signing of the Molotov-Ribentrop pact. Today he is chairman of the
Lithuanian Bar Association and owner of a small law office located in
a fashionable neighborhood of Vilnius, and claims he was not scared back
then in the 1980s. Everybody was aware that the Soviet Union is crumbling
and there is no way back.
- Which case do you see as the most successful in your legal
Kazimiras Moteka: All cases in which justice prevailed. (Laughs.) But seriously, I have never really given any thought to it. For example, for four years I acted as defense counsel for our Prime Minister, Adolfas Slezavicus, who was charged with embezzlement and abuse of official powers. I took up this case without any hesitation as it wasn't simply about private rights. The state was being compromised as a whole, as it concerned actions by the prime minister of the Republic of Lithuania. After years of litigation I was able to prove that the criminal case had been trumped up out of purely political motives in order to compromise Slezavicus.
Ainars Platacis: There are two cases I regard as the most successful in my practice. The first one dates back to the early 1990s when a number of the Latvian Company Register employees were illegally sacked after reorganization of the Justice Ministry. At the time we had a post-Soviet legal system, and post-Soviet labor code. More senior colleagues tried to talk me out of it. Back then nobody dared to sue the state. I was told: "A lawsuit against the state? Use your head!" It seemed hopeless, but we won the case. It was even like science fiction - the judge summoned the Justice Ministry as a defendant.
The other case I recall was in 1993. It was a libel suit against the Latvian Radio. Based on a court decision, the judiciary branch distinguished between two notions - untrue information and libelous information.
Leon Glikman: It's hard to say. Probably it would have been the most publicized of recent cases - the claim against Hansapank. In this case I represented the claimant - a former lawyer for Hoiupank. They wanted to take away his shares in Hansapank, but we managed to get compensation for our client. The press was all over the case, but I rather find cases allowing for developments of new legislative concepts much more interesting. Officially, there is no case law in Estonia, but we do have an institute of legislative interpretation.
- Which is the largest case you have won?
K.M.: Probably the case of Prime Minister Shlezhavichus. The figure was at twenty-five million litas (about 6.25 mln US dollars).
A.P.: I was representing the Finance Ministry against a foreign trade company, Lata International. The total amount of the claim was 4.5 million US dollars.
L.G.: The largest amount I had to deal with in a case was probably the bankruptcy proceedings against a former state-owned company, Ookean, where some USD 20 million were at stake. But the amount doesn't mean anything, because cases for insignificant amounts with very complicated legal disputes also occur. There have also been a number of cases concerning privatization issues involving rather large amounts.
The cardinal's advocate
is only 35. Many may feel envious of his rocketing career. In ten years
he made it from a rank-and-file trade union lawyer to the advocate of
bankers, businessmen, mayors, politicians and even cardinals. He is the
owner of one of the largest law offices in Latvia. He claims it is not
a luxury but a life-dictated need because apart from making claims, filing
charges and defending clients, companies must also be managed.
- What flaws do you see in your country's legislation?
K.M.: I don't see any serious flaws in legislation. Instead I see deficiencies in the interpretation of laws. Their spirit is being distorted. The practice of taking illegal actions for granted is growing, especially when it concerns businessmen. First they arrest him, and only then they order an audit, start looking for something. In the meantime the person is kept in jail. In the end they don't find anything but when it comes to release, they start picking at tiny details and altering charges. Such an approach worries me very much. And another thing, we have a new Civil Law effective as of July 1 - six volumes of articles drawn in compliance with the legislation of the European Union. Let's see how it works.
A.P.: To call them flaws would be putting it mildly. Firstly, it's the Latvian judicial system. As a result of legal reform, judges received certain independence, but it led to judicial irresponsibility, absolute righteousness of judges, and an impossibility to appeal against verdicts in a whole category of cases - this is a big problem for the Latvian legal system. For example, in Latvia one cannot appeal against verdicts that announce corporate entities insolvent. Secondly, in a democracy the state must not interfere or meddle with relations within private capital. Regretfully, a trend has prevailed in Latvia, which in future may lead to increased influence of state institutions on the private business sector. And lastly, it is the implementation of court rulings. If a claimant has failed to obtain an attachment over assets to secure the claim, it would be very difficult for him to actually get any money even if he wins the case.
L.G.: The Estonian legal system is young, without longstanding traditions; therefore it is bound to have some flaws. The judicial authorities provide few legislative interpretations. Few laws provide sufficient protection of human rights, while on the other hand, there are many laws presenting wide opportunities for public servants. In short, these are the same problems as faced by other countries from the former eastern bloc.
The slow work of judicial authorities is another problem. There is a shortage of judges. But the progress is obvious when compared to what we used to have a decade ago. Let's put it like this - if in the early 1990s adequate protection against public servants or the state was simply impossible, today there are many such mechanisms in place.
Also, our system has a lot of red tape. For example, large corporations cannot make any move without obtaining special authorizations from government agencies. The property law concept we borrowed from Germany is too slow and fails to meet contemporary requirements. If you want to take a loan, pledging land as a security, you will get the loan only after the registration of a mortgage in the Pledge Register, but the process takes 2-3 months.
- Have you ever come across corruption in any litigation?
K.M.: In Moscow I used to know a very old lawyer, Mr. Rosfeld. He had advised Khruschev on the rehabilitation of repressed persons. We became acquainted and he taught me an indisputable rule that I will remember all my life: "A good lawyer never takes any bribes." As for the courts, corruption is very rare in this system. A bought ruling is a very vulnerable thing and can be reversed at the first complaint. It is not a strategic victory, just a tactical one. A temporary achievement, but nothing should be temporary when it comes to law. I have seen such cases in my practice, though.
A.P.: I have to admit that sometimes at the court you notice an inadequate and unsubstantiated attitude to one of the parties while the other party is treated more harshly. I think such situations can cause suspicion.
L.G.: It is very difficult to say because the possibility of error is inherent in the judicial system. That is why we have courts of three instances so that one can appeal against an earlier verdict. And it is very difficult to strike out with three judges. As a rule, the right verdict is made eventually. We have filed appeals, of course, but I find it hard to say whether the unlawful decisions were the result of a pay-off or simply by a judge's mistake.
A lawyer to be feared
brand new business center is situated right on the outskirts of Old Tallinn.
A spacious office on the fifth floor houses one of the oldest private
law offices in Estonia. Its owner, Leon Glikman, is known today
in almost all business and political circles in Tallinn.
- To what extent is the judicial system of your country independent
from other powers - executive and legislative?
K.M.: I think we have managed to keep the court independent. The Justice Ministry has minimum influence in Lithuania. A new court law is due to be passed in the nearest future. It expects that the government will no longer fund the judicial system. The national budget will have a separate cost item for the maintenance of courts. On the other hand, the so-called telephone law still works with us in separate cases, when knowing the right people helps to settle a dispute. But the higher the court instance, the lesser the chance to influence proceedings. In addition, many young judges, who are determined to keep their offices, have entered the system. We have also managed to ensure that they get quite decent salaries.
A.P.: I think in small countries like the Baltic states it is an ungrateful and pointless venture to speak about anything being independent from this or that. What does an independent judicial power in Latvia mean? Look at the miserable salary paid to judges, at the premises they have to work in! Of course, the judicial power depends on the state, ministries of finance and justice. A judge is appointed by politicians. If the ruling regime or parties find him unwelcome, he may have to face the consequences. I think that we will be able to talk about independent courts when it becomes possible to appeal against court rulings at various European institutions.
L.G.: I think it is independent and constantly seeks to underline this by its actions. Administrative courts are another thing, however. The law does not give the court any right to assess actions by administrative bodies. If a public servant has made some technical mistake, it is withdrawn. But if he has messed up something in substance, in contents, his decision is very difficult to dispute. This is our big problem.
- How often do you have to deal with politics in your cases?
And how do you think court proceedings could be protected against political
K.M.: We have few such cases. But sometimes politicians make use of vital problems. For example, if somebody in parliament expresses dissatisfaction with a privatizing company, the prosecutor's office is on it immediately and claims are filed by other organizations, allegedly in protection of their interests. In the end, nothing is left standing because all claims were unsubstantiated and there was no motivation. But things like that do not happen very often.
A.P.: And what is politics? Every large company, every more or less well-to-do person is pursuing his own policy in a small country like Latvia. For example, Alexander Lavent's case. I acted as his defense counsel for a while. This case is part of the state's economic policy, because Banka Baltija [crashed in 1995] used to carry very much weight in the Latvian economy. How can we distinguish between politics and the courts? We must ensure independence of the judicial system. In order to demand just and fair trials, proper funds and legislative framework should be provided.
L.G.: Practically never. All there was were attempts to influence public opinion through the press. If somebody is not pleased with a court ruling, the losing party always makes a statement to the media, saying it was a political decision. Of course, politics influence court decisions but there is such a notion as the rule-of-law, a regular thing in itself. I do not see any relation, let's say, between the decisions passed by the court and politicians in power in Estonia. But there is a link between politicians and the laws adopted by parliament. For example, if leftists come to power, the laws are usually adopted in favor of the state and, as a rule, against individuals. And vice versa - should it be rightists, their position would be more liberal. But as to politics influencing the court - this I cannot claim. Luckily, we have a free press. If they'd learn that some politician had called up a judge to tell him what ruling he had to make, it would be a big scandal. This is what reporters are waiting for. Like I said, the danger lies in the executive branch working on bills aimed at strengthening the power of public servants. Our lawmakers are not very good at law and often do not go into details when passing the laws. Sometimes it leads to, excuse me, idiocy and terrible things come out of it. For example, we have a Wine Register and only wines listed on this register can be sold. But the quality of wine changes constantly! And now the parliament intends to introduce classification of public eating places - what should be called a pub, a restaurant or a tea-house. This is what our lawmakers think about.
- If you were offered to alter the national judicial system,
what model would you choose?
K.M.: Most likely, I would not change anything. The choice was made ten years ago, and we should keep to the road we selected.
A.P.: I don't think I would change the model. What matters is the selection and placement of judges. What is a judge? It is a person with his own culture and legal philosophy, his own concepts about decency and justice, etc. No case can be solved by laws alone. If the person does not have a moral basis, nothing can be expected from him in any case.
L.G.: I am a supporter of the case system, as no other legal doctrine can equal it. It holds the foundation and the rest is based on analogies. We could introduce case law in Estonia while omitting such things as the jury. If we entrusted common citizens to decide on whether this or that defendant is guilty on criminal charges, I am afraid that for the most part we will get verdicts claiming guilty. We lack a legal culture and legal education to be objective.