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Last update: 12-12-2008
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Interim and precautionary measures - Latvia

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TABLE OF CONTENTS

1. What are the different types of measure? 1.
1.1. Precautionary measures (securing a claim) 1.1.
1.2. Interim measures 1.2.
2. What are the conditions under which such measures may be issued? 2.
2.1. The procedure 2.1.
3. What is the object and nature of such measures? 3.
4. Is there a possibility of appeal against a measure? 4.

 

1. What are the different types of measure?

Under Latvian legislation precautionary measures in disputes over property relate to the securing of an actual or potential claim, whereas in disputes over intellectual property they involve interim safeguard measures. The securing of evidence is also possible. Interim measures are provided for in cases of marriage annulment or dissolution and in matters arising from custody or access rights. All of the measures referred to can only be laid down by a court, at the request of an interested party.

1.1. Precautionary measures (securing a claim)

In disputes over property, the following instruments may be used to secure a claim before or at the time it is brought:

  1. the attachment of movable property and cash belonging to the defendant;
  2. entering a prohibitory endorsement in the appropriate movable property register or other public register;
  3. entering an endorsement regarding the securing of a claim in the Land or Ship Register;
  4. the arrest of a ship;
  5. banning the defendant from performing certain activities;
  6. the attachment of payments (including deposits in credit institutions) owed by third parties;
  7. the postponement of execution activities (including a ban on bailiffs giving money or property to a debt collector or debtor, or the suspension of the sale of property).

Where the subject matter of an action is the right to own movable or immovable property, or the claim relates to the securing of a right, the claim is secured by attaching the movable property in dispute or entering a prohibitory endorsement in the subdivision of the Land Register corresponding to the immovable property concerned.

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Where a monetary claim forms the subject matter of an action, the claim is secured through immovable property by entering a lien endorsement in the subdivision of the Land Register relating to the immovable property in question.

A maritime claim can be secured by sequestering a vessel, but where a monetary claim is secured with other movable property, the property must be attached.

Where the subject matter of an action is the right to own immovable property, the claim is secured by entering an encumbrance endorsement in the subdivision of the Land Register relating to the immovable property in question.

The following interim safeguard measures may be used in disputes over intellectual property:

  1. attachment of movable property that possibly infringes an intellectual property right;
  2. an obligation to recall goods that potentially infringe an intellectual property right;
  3. imposition of a ban on both the defendant and persons whose services are being used to infringe an intellectual property right, or on persons facilitating such an infringement.

Securing of evidence

Where a person has reason to believe that the submission of evidence that he or she requires may in future be impossible or impeded, he or she may request that this evidence be secured.

Applications for the securing of evidence may be submitted at any stage of the proceedings, as well as prior to bringing an action before a court.

Until an matter is brought before a court, evidence shall be secured by the district or city court in whose operational territory the source of the evidence to be secured is located. Following the bringing of matter before a court, evidence shall be secured by the court examining the matter.

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1.2. Interim measures 

In cases of marriage annulment or dissolution and cases arising from custody or access rights, the Acto on Civil Procedures provides for an interim decision to be taken in force until a judgment is handed down, stipulating:

  • the child’s place of residence;
  • procedures for the child’s care;
  • procedures for the exercise of access rights;
  • means of support for the child;
  • a ban on taking the child out of the country;
  • resources for maintaining the spouse’s previous level of welfare or ensuring the payment of support;
  • procedures for utilisation of the married couple’s jointly-owned property, or requiring that one of the parties provide the other with household and personal effects.

2. What are the conditions under which such measures may be issued?

2.1. The procedure

Securing a claim

Where there is reason to believe that the implementation of a judgment in a dispute over property could be impeded or become impossible, a plaintiff or potential plaintiff may make a request – in the form of a reasoned application – that the court take a decision regarding the securing of the claim. Such a request is permitted at any stage of the proceedings, as well as prior to any action being brought before a court.

An application to secure a claim before it is brought must be submitted to the court in which the claim to be secured is to be brought. Where the parties have agreed to submit the dispute before an arbitration court, the application shall be submitted to a court corresponding to the location of the debtor or their property.

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An application to secure a claim must indicate the preferred means of securing the claim.

A potential plaintiff may petition for their claim to be secured prior to it being brought before a court, and even before an obligation has become due, where the debtor, in avoidance of their obligations, removes or alienates their property, leaves their place of residence without informing the creditor, or performs other actions that indicate that the debtor is not acting in good faith. When submitting an application for securing a claim prior to bringing it before a court, the potential plaintiff shall submit evidence that confirms their rights on the basis of obligations and the necessity to secure the claim.

A decision on an application for securing a claim shall be taken by a court or a judge no later than the day after it is received, without giving prior notice to the defendant and other participants in the matter. In satisfying an application to secure a claim, a court or judge may require that the plaintiff secure losses which the defendant may suffer in connection with securing the claim, by paying a certain sum of money into the bailiff's deposit account.

In respect of a decision with which a claim that has been or could potentially be brought is secured, the court shall issue an execution order, which is to be given to a sworn bailiff for execution.

The securing of a claim remains in force until the day the judgment comes into lawful effect. Where no action has been taken in the proceedings or the proceedings are terminated, the court revokes the securing of a claim within its decision. The securing of a claim is preserved until the day the judgment comes into lawful effect. In rejecting a claim, the securing of a claim is revoked within the court judgment.

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Where a decision regarding the securing of a claim is taken prior to bringing a claim before a court and the claim is not brought within the time period laid down by the court, the judge, upon receipt of an application from the potential plaintiff or defendant, takes a decision to revoke the security.

Interim safeguard measures

If there is reason to believe that the rights of a holder of intellectual property rights are being infringed or may be infringed, a court, on the basis of a reasoned application from a plaintiff, may take a decision on laying down interim safeguard measures. The interim safeguard measure shall be indicated in the application to lay down the measure.

Applications for laying down an interim safeguard measure may be submitted at any stage of the proceedings, as well as prior to bringing a claim to court.

An application to lay down an interim safeguard measure shall be ruled on by a court or a judge within 10 days of receiving the application or the initiation of the matter, where the application has been submitted at the same time that the claim is brought.

Where delay may cause irreversible harm to the holder of intellectual property rights, a court or judge rules on an application to lay down an interim safeguard measure no later than the day after the application is received, without previously notifying the defendant and other participants in the matter. Where a decision on laying down an interim safeguard measure has been taken in the absence of the defendant or other participants in the matter, they shall be notified of the decision no later than at the time the decision is enforced.

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In satisfying an application to lay down an interim safeguard measure prior to a claim being brought, a court or a judge may require that the plaintiff pay a specified amount of money into the bailiff's deposit account or provide an equivalent guarantee and to secure losses in connection with laying down the interim safeguard measure that may be incurred by the defendant or other persons whose services are used.

On the basis of an application by the plaintiff, the court may replace existing interim safeguard measures with other measures.

Interim safeguard measures may be revoked by the same court on the basis of an application by a participant in the matter.

In rejecting a claim, the interim safeguard measure shall be revoked in the court judgment. The interim safeguard measure shall be in force until the day the judgment comes into lawful effect.

Where no action is taken in the proceedings or the proceedings are terminated, the court shall revoke the interim safeguard measure within its decision. The interim safeguard measure shall be in force until the day the judgment comes into lawful effect.

Where a decision regarding the laying down of an interim safeguard measure is taken prior to bringing a claim before a court and the claim is not brought in the time period laid down by the court, the judge, upon receipt of an application from the potential plaintiff or other possible participant in the matter or the defendant, takes a decision on the revocation of the interim safeguard measure.

Where an application has been submitted at the same time that a claim is brought, a decision laying down an interim safeguard measure shall be implemented within 30 days of its adoption. The submission of an ancillary complaint regarding the decision shall not prevent enforcement of the decision.

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A decision laying down an interim safeguard measure, taken on the basis that a delay may cause irreversible harm to the holder of an intellectual property right, shall be enforced after the plaintiff has paid the amount specified by the court or judge into the bailiff's deposit account or provided an equivalent guarantee. The execution order shall be issued after payment of the amount specified by the court or receipt of an equivalent guarantee.

A decision laying down an interim safeguard measure – the attachment of movable property with which intellectual property rights are allegedly being infringed – is carried out pursuant to the procedures on directing recovery against movable property, as laid down in the Act on Civil Procedures.

A decision laying down an interim safeguard measure – prohibiting the performance of specific activities or imposing an obligation to recall goods with which intellectual property rights are allegedly being infringed – is enforced by a bailiff, who notifies the court decision to the defendant or an appropriate third person (who must provide a signature certifying receipt) or by registered mail.

The revocation of an interim safeguard measure that has been applied is carried out under an order by the bailiff who enforced the decision on laying down the measure.

A decision on substituting the interim safeguard measure is enforced by a bailiff, by first applying the substitute interim safeguard measure and then revoking the substituted interim safeguard measure.

Securing of evidence

An application to secure evidence is examined at a court sitting to which the applicant and other participants in the matter are invited. However, the failure of these persons to attend does not pose an obstacle to examining the application.

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Where an application to secure evidence has been submitted before a claim is brought, a court or judge shall take a decision with respect to the application within 10 days of receiving it.

Evidence may be secured without summoning potential participants in the matter pursuant to a judge's decision and only in urgent cases. Such cases may relate to violations or possible violations of copyright and related rights, database protection (sui generis), trade marks and geographical origin indicators, patents, rights relating to design samples, plant varieties and semiconductor product topography (hereinafter – intellectual property rights), or instances where it cannot be established who the participants in the matter will be.

Where a decision on securing evidence has been taken without the presence of the potential defendant or other participants in the matter, they are notified of the decision no later than at the time the decision is enforced.

In satisfying an application to secure evidence prior to a claim being brought, the judge lays down a time period not exceeding 30 days for submitting the claim application.

In satisfying an application to secure evidence prior to a claim being brought, a judge may request that the potential plaintiff pay a specified amount of money into the bailiff's deposit account or provide an equivalent guarantee to ensure coverage of losses the defendant may incur in connection with the securing of evidence.

The minutes of the court hearing and the material collected during the course of securing the evidence shall be kept until required by the court adjudicating the matter.

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Where the court adjudicating a matter is unable to collect evidence located in another city or district, the court or the judge shall assign specific procedural activities to the appropriate court.

Where a decision on the securing of evidence is taken prior to a claim being brought and the claim is not brought within the period laid down by the court, the judge, having received an application from the potential plaintiff or defendant, shall take a decision on the revocation of the securing of evidence.

Interim measures

In matters of marriage annulment or dissolution and matters arising from custody or access rights, a court , where examination of a matter must be postponed and at the request of one of the parties, may take a decision before a judgment is handed down to adjudicate on issues for which provision is made in law and that need to be resolved urgently.

Such a decision expires when a further ruling is made on the issue.

3. What is the object and nature of such measures?

Securing a claim is of critical importance, as this ensures that a judgment is enforced.

The attachment of a debtor’s movable property involves the property being distrained and put under guard. A bailiff shall place the debtor’s attached property in the safe-keeping of a natural person, who must provide a signature certifying receipt. A debtor or members of his or her family may use the property left in their safe-keeping if, owing to its characteristics, it is not destroyed or its value substantially diminished by use.

In attaching movable property, the signature of the debtor or storer shall be obtained to the effect that they will not alienate, pledge or use the property for any other function or purpose and that they may be held criminally liable for its embezzlement, alienation, concealment or substitution.

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Where a means of transport or other movable property subject to registration is attached, the bailiff shall notify the relevant registration authority of its attachment.

Where a court decision is handed down in a matter concerning property rights or the reinforcement of such rights, a recovery endorsement and prohibitory endorsement shall delay any voluntary reinforcement by the owner.

Interim safeguard measures also enable authors to request that a court secure their civil rights claims in non-material matters, and in so doing reduce the number of potential infringements of intellectual property rights and the scale of the loss incurred by an author. In addition, these measures enable the rapid resolution of infringements of intellectual property rights and the restoration of an author's infringed legitimate interests and rights.

Interim measures settle or secure issues that require rapid resolution, for example, the adoption of an interim measure can avert the possibility of a child being taken across a border illegally before a request for dissolution of a marriage is examined.

4. Is there a possibility of appeal against a measure?

In relation to the securing of a claim

An ancillary complaint may be submitted in relation to decisions taken on securing a claim. Where a decision regarding the securing of a claim has been taken without a party to the proceedings being present, the 10-day period for submission of an ancillary complaint shall run from the day that the aforementioned party receives the decision.

In relation to the securing of evidence

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A decision satisfying an application for the securing of evidence may not be appealed. However, the defendant may seek compensation for losses incurred in connection with the securing of evidence where:

  • evidence has been secured before a claim has been brought, but the claim has not been brought within the deadline laid down by the court;
  • the claim brought against the defendant has been rejected;
  • no action has been taken in the proceedings;
  • proceedings in the matter have been terminated because the claim has been brought by a person who does not have the right to do so or the plaintiff has withdrawn his or her claim.

An ancillary complaint may be submitted in relation to a judge’s decision to refuse to accept an application to secure evidence or where a decision has been taken without possible participants in a matter being summoned. Where a decision regarding the securing of evidence has been taken without a participant in the matter being present, the 10-day period for submission of an ancillary complaint shall run from the day the decision is issued or sent.

In relation to interim safeguard measures

An ancillary complaint may be submitted  in respect of a decision with which an application to lay down an interim safeguard measure is rejected, or where a decision on laying down an interim safeguard measure is taken without one of the parties to the proceedings being present, or the plaintiff is required to secure the potential losses that might arise in connection with laying down the measure, or an interim safeguard measure is replaced with another instrument.

Where a decision on the laying down of an interim safeguard measure is taken without a party to the proceedings being present, the 10-day period for submission of an ancillary complaint shall run from the day the decision is served or sent.

Interim measures

In relation to a court decision that, until a judgment is handed down, stipulates the child’s place of residence, procedures for the child’s care, procedures for exercising access rights, means of support for the child, a ban on taking the child out of the country, means for maintaining the spouse’s previous level of welfare or support or procedures for utilisation of the spouses’ jointly-owned home, or that requires one of the parties to issue household and personal effects to the other, an ancillary complaint may be submitted within ten days of the decision being taken.

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Last update: 12-12-2008

 
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