An interview with Aigars Bērziņš, a lawyer

Recently, the question of the rights of owners to manage their own real estate has become a topical issue. This concerns various restrictions created in the name of supposedly legal objectives, which are registered in the Land Register as encumbrances on real estate.

In a democratic state, which Latvia is supposed to be, many things should take place in accordance with the country's fundamental law – the Constitution. At the awards ceremony for the justice system and the Ministry of Justice held on 15 November 2019, the President of the Constitutional Court, Ineta Ziemele, gave a speech, concluding with the words: “I wish for you and for us not to miss the opportunity to shape Latvia as we see it in the Constitution!” Why does this not happen in many areas of life? After all, we live in a full-fledged EU country.

Let us take the Constitution and turn to Article 105, which is the only one that defines our rights and duties as far as they relate to property: “Everyone has the right to property. Property shall not be used contrary to the public interest. Property rights may only be restricted in accordance with law. Expropriation of property for public needs in exceptional cases is permitted only on the basis of a specific law in return for fair compensation.”

In relation to this Article 105, both natural and legal persons in Latvia have gone to court to prove that certain provisions of the Law “On Residential Tenancy” do not comply with the rights established in the third sentence of Article 105 of the Constitution. This refers to 2014, when a wide range of invited specialists (experts) were involved in the litigation – more than 20: university civil law faculty and other professionals associated with the sector! The litigation concerned a property acquired at an auction that had been mortgaged, but when the debtor could not repay the money, the bank decided to buy the property by participating in an auction organised by a bailiff. After the auction, it was discovered that the former owner had concluded an unregistered lease agreement with a person who, even by court order, could not actually be evicted from the property. GE Money Bank believed that there was no other option but to turn to the Constitutional Court, because: property has been acquired, there is a right to use it, but it is effectively “unusable” because there is a tenant in the property who cannot pay and is not paying, but cannot be evicted. The Constitutional Court, unfortunately, rejected the claim, although the majority of the invited specialists pointed out: “the condition of the tenancy law, as a special law: ‘there may be an agreement that is not registered in the Land Register’, but which I must observe as an owner, does not correspond to Article 105 of the Constitution”. The rejection was effectively based on the Constitutional Court’s conclusion that upon discovering such unregistered encumbrances in the Land Register, owners have the right to go to court to prove and cancel fictitious agreements.

I do not wish to claim that the right to sue for one’s justice cannot be exercised. Such rights exist, and they are widely used. But: why must such litigation circumstances arise, and why is litigation an unpredictably long and expensive process that not everyone can afford?

If we open the publicly available website manastiesas.lv during our conversation, we can see, for example, the current situation in Latvian courts today. There are administrative courts where decisions of local governments and state institutions are challenged; there are ordinary courts that hear both civil disputes and criminal cases. Let us look at the court calendar, for example, for December. Scheduled court hearings – Kurzeme District Court – 92, Daugavpils Court in Preiļi – 60, Daugavpils Court in Krāslava – 38, Daugavpils Court – 91; 153 cases in criminal proceedings in Daugavpils Court, 203 cases in Riga City Pārdaugava Court, 199 cases in Latgale Suburb Court, etc. In total, within one month, in December, about 4,000 (!!!!) cases will be heard in all judicial institutions. This situation is the same every month! Moreover, December, as is well known, is a holiday month, therefore a relatively short one.

That is the reality! Personally, I think these numbers are incredibly high. This means that there are a great many residents and entrepreneurs whose rights are infringed and violated, and who must file a claim in court, pay large state fees, and hire lawyers to litigate and prove their case over the course of several years to regain their violated rights.

To explain what I mean, I can cite the example of drivers, their duties towards the law, and fines. When there were no speed cameras and high fines, there was a noticeable “driving culture”. Speed cameras were introduced, fines were increased, and… after some time, state institutions already concluded and expressed that the fine collection plan was not being met. The Minister of the Interior also spoke about this because talk had begun about removing the “unprofitable” cameras.

In my opinion, by installing cameras, the right path was taken, but someone is trying to conclude that the financial plan for fines is not being met. Hm…

Perhaps the state also has a plan for how many cases there should be in the courts and how high the income from state fees should be?

Seeing the number of cases being heard in courts, this feeling arises. Looking at the information, for example, in the Supreme Court, which is the third instance, I see that the oldest case waiting to be heard is dated 2010. Therefore, a resident or institution in Latvia has been fighting for their justice for 10 years. The timelines for other cases, which are heard in all three court instances and are currently waiting to be heard at the Supreme Court, are also no shorter than 3-6 years. The only positive fact is that, when litigating in the third instance, the fees are relatively small (for a collateral complaint – 70 euros, for a cassation complaint – 300 euros, and these are considered security deposits that the payer can get back in case of victory), but… in the first or second instance, the fee if you appeal a judgment is quite large! I had a litigation case where, just to file a complaint for the cancellation of a fictitious transaction, I had to pay 18,000 euros in state fees! Moreover, the person who registered this fictitious transaction paid only 900 euros in state fees! With this example, I want to say that as a “user of the justice system” (and often a forced user), whether for my own interests or those of a client, in most cases I have to count on a very long litigation time and large resources of money and patience.

On the “Manas tiesas” portal, there is an opportunity to follow the progress and deadlines of case hearings. That is, on the website, you can check: when a case arrived, when it is planned to be heard, and how many cases are in the queue for hearing. On the Supreme Court website, you can find information about the number of cases heard in the previous year and the number of cases waiting to be heard (as of December 2019, there were about 2,700 cases), and there is even a calculated average speed for case resolution. We can read that in 2018, the average duration of a case hearing at the Supreme Court was 222 days. But how is it calculated? By taking into account absolutely all cases! For example, a collateral complaint arrives at the Supreme Court, the SC finds that a certain article of the law was not correctly applied and sends the case back to the previous court instance to reconsider the decision taken with a different composition. Such a decision does not require a long time. In contrast, the hearing of a main case lasts for years. The calculation was made by mathematically calculating the average time for case hearings! Looking at the cases being heard in December, it can be concluded that the deadline for hearing cassation complaints in the Supreme Court Department of Civil Cases is 1-2 years, but in the Department of Administrative Cases – 2-3 years! And that is a reality that we cannot influence! A justified question arises very often: why is the litigation process so long? Someone is waiting for a judgment as a salvation, so that an unjust legal situation can be resolved!

So – if you own property that can be subject to some restriction, you may have to sue for the possibilities of using it, and the litigation can be unpredictably long.

Restrictions – justified or unjustified are determined due to “environmental requirements”…

The Environmental Protection Law is a special law that regulates the field that is of interest and importance also to a forest owner. Let us not be naive; laws are lobbied and developed by someone, they are necessary and useful for someone for the realisation of their own interests and projects. In the Environmental Protection Law, one can see what institutions and at what level can decide and encumber properties with restrictions, create National Parks, and, knowing the aforementioned litigation system… The fundamental law (Constitution) states one thing, but in life, you see something else. The Environmental Protection Law can make life difficult for many; it is not long and complex, but… There is an example: a lady, who still has an outdoor toilet on her property, collects signatures that the nearby car service station degrades her quality of life, there is no air to breathe... That’s it! The owner of the service has lost in all three court instances. With this, I want to suggest that with one created special law, you can use your property not as you wish, but as you are forced to by unfavourable neighbours, or you might not be able to use it at all.

The Environmental Protection Law regulates the operation of the Nature Conservation Agency and, effectively, this agency and its Director General regulate, coordinate, decide, manage, conceive and implement new projects in the entire field of environmental protection. The operation of the Nature Conservation Agency (DAP), in turn, is regulated by the Cabinet of Ministers Regulation. The regulation provides: the Director General manages the work of the agency and ensures legality. The decisions of the Director General can be challenged in court.

So – in one sentence, it ensures legality, and in the next – it ensures legality through the possibility for the aggrieved party to file a complaint in court. I have suspicions that when creating this institution and developing legislative norms that regulate its operation and rights, certain things have been deliberately ignored. For example, nowhere is it said that someone who has found a black stork on your property is required to submit evidence that the stork has truly been seen there and has been living there. Decisions are made, the decision can be challenged, but it seems strange to me to read the combination: there is an institution, its rights and functions, and only then are the rights of aggrieved persons to go to court provided. Effectively, it can be seen here that the right to… litigate is already embedded in the law itself.

Once in my practice, when I was working in retail, I had such a case. In February, a down jacket was sold to a customer with a 50% discount. In May, the client returned and said: “I want to return the jacket because my car, my closet at home, and the room are full of down.” I said: “I sold 20 jackets and there are no problems with the others!” The client was persistent and hired an expert. What did the expert and the Consumer Rights Protection Centre conclude? The agreement between the seller and the buyer, in their opinion, is the receipt. The hired expert had unstitched the inner lining of the jacket and concluded that the down inside “moves” freely, and that does not meet the terms of the agreement (receipt). The expert concluded that the product did not conform to the contract (cash receipt) and both the expert’s expenses and the money spent by the buyer on the purchase had to be refunded. I wore this jacket for 10 years after that! I told another shopkeeper about it as a funny story. The interlocutor smirked, because he sold underwear and tights. He was tired of complaints, because… often a client would rip the tights with a fingernail or something else and bring them back as a low-quality product. How did he find a solution? He hired his own expert! As soon as a claim arrives, it is countered by an “expert” opinion that the manufacturer is not to blame!

In many situations, there is a project, there is business, and there are experts. The project must be finished, and the specialists in a specific field are provided with work all the time. Even if an expert wants to be very objective, and the situation can be interpreted in various ways, how will it be? …

This is about what is happening and the overgrowth of what has happened with norms and the actions of many involved persons. It looks like it all has been created because work is necessary! Is it useful and with added value?

Photos by Konsta Punkka, Aigars Bērziņš and zemeunvalsts.lv have been used to illustrate the article