IV. Questionnaire
In the Criminal Procedure Law of Latvia, which came into force on 1st October of 2005, as one of the basic principles of criminal procedure the mandatory criminal proceedings is provided for. Section 6 of mentioned law states that an official who is authorised to perform a criminal proceedings (investigator, prosecutor, judge) in each case shall be, if there are known a reasons and grounds for instituting of criminal proceedings, obliged to institute a criminal proceedings and lead such proceedings to fair regulation of criminal legal relations, provided for in the Criminal Law. CPL states that criminal proceedings shall be performed in the interests of the society independently of will of that person to whom a harm were inflicted, except in cases provided for by law. Such proceedings are a procedure of public prosecution within which an indictment function on behalf of the state is implemented by the prosecutor. The will of person to whom a harm have been inflicted (a victim) is significant merely in that cases when the following criminal offences were committed: a criminal offences related to preventing of realization of electoral rights and rights to attend a referendum, a person were caused intentional not serious bodily injury or bodily injury committed through negligence, a disclosure of secret of another took place, a rape, a forcible sexual assault, a failure to return a minor and separation a child from his mother, father or guardian, a theft, a fraud, a misappropriation at small scale or neglect were committed, an information that is not state secret was disclosed, or violation of the traffic provisions and provisions regarding vehicle operation occurred. In the concerned cases a procedure of the public prosecution will be instituted only if an application from person to whom a harm were inflicted would be received. For defamation and injuring of indignity of person, as well as for causing of not serious bodily injuries there is carried out a private indictment criminal proceedings in the court, when an indictment functions are implemented by a victim. In these cases a preliminary criminal proceedings are not carried out. Along with taking effect of the new Criminal Procedure Law a new types of completion of criminal proceedings were introduced, that allows to person directing the proceedings (investigator with consent of prosecutor, or prosecutor), provided that certain conditions exist (suspect or defendant has confessed his guilt, has compensated or will compensate a harm inflicted to a victim, agrees with fulfilment of obligations provided for by the Criminal Law and determined by the prosecutor – to express excuse to a victim, or eliminate an inflicted harm within certain time period, not change a place of residence without agreement of a probation service, periodically to register with a public probation service and attend a probation programs, desist from certain actions or kinds of activities, to undergo a treatment against addiction to alcoholic, narcotic, psychotropic, toxic substances or another addiction), to terminate a criminal proceedings, if settlement between victim and suspect, or defendant took place, to terminate a criminal proceedings, conditionally dismissing a defendant from a criminal liability, to complete a criminal proceedings, applying an injunction of prosecutor regarding a penalty (in Europe is known as penalty order of prosecutor). Moreover there exist also other elements to simplify criminal proceedings that provide a possibility to investigator and prosecutor to direct criminal proceedings to the court pursuant to procedures of emergency or summary, or applying an agreement on guilt and penalty. In its turn in the court there is a possibility, if agreed both by defence and prosecution, to take a decision on non-performance of examination of evidences regarding to whole indictment or permanent part thereof (episode), provided that defendant confess his / her guilt, and court does not have any doubts about guilt of defendant.
At present moment in Latvian legislation there exist the following alternative and simplified kinds for regulation of criminal legal relations:
1. Termination of criminal proceedings, if such criminal offence has been committed, which has a constituent elements of criminal offence, but which has not inflicted such harm that criminal penalty would be applicable.
In the mentioned case a decision on termination of criminal proceedings can be taken by person directing a proceedings (investigator, prosecutor), taking into account an opinion of victim. The decision of person directing the proceedings can be appealed both by victim and by guilty person to a prosecutor who performs a supervision or prosecutor of higher position.
2. Termination of criminal proceedings, if a settlement is reached in case of private complaint.
In this case a decision on termination of criminal proceedings is taken by the court, if victim and defendant have reached a settlement. The court ruling can be appealed both by victim and defendant to court of higher instance.
3. Termination of criminal proceedings, if a settlement between person who committed a criminal violation or less serious crime, and victim is reached.
The decision on termination of criminal proceedings can be taken by investigator, prosecutor or court. The decision can be appealed by victim or guilty person to a prosecutor who performs a supervision, or prosecutor of higher position, or court of higher instance.
4. Termination of criminal proceedings, conditionally dismissing from criminal liability.
The decision on termination of criminal proceedings with conditional dismiss of defendant from criminal liability can be taken only by prosecutor, if prosecutor of higher position agrees with that. When terminating the criminal proceedings a prosecutor can impose on defendant the obligations provided for by the Criminal Law (mentioned previously). The decision can be appealed by victim to a next prosecutor of higher position.
5. Termination of criminal proceedings (prosecution) against person, who has assisted in the disclosure of serious or particularly serious crime committed by another person and reduction of sentence in exceptional cases.
Only Prosecutor General with his / her decision can terminate the criminal proceedings against person, who significantly assisted in disclosure of serious (a deprivation of liberty for a term of not less than 5 and not exceeding 10 years is foreseen) or particularly serious crime (a deprivation of liberty for a term of not less than 10 years or life sentence is foreseen), that is more serious or dangerous than criminal offence committed by the concerned person. The mentioned provisions are not applicable to a person, who is charged with a criminal liability for commission of especially serious criminal offence. The decision of Prosecutor General can be appealed by victim to the Senate of the Supreme Court.
6. An agreement of prosecutor with defendant on confessing of guilt and penalty.
The mentioned agreement can be concluded by prosecutor pursuant his / her own, defendant or his / her defence counsel initiative. The agreement shall be approved by the court. Before concluding of agreement a victim has rights to express his / her opinion on possible application of agreement procedure. The prosecutor is obliged to give a hearing of victim’s opinion. Moreover, a victim has rights to express objections against approval of agreement in the court and to submit a cassation complaint on violations of agreement procedure or violations of provisions of the Criminal Law.
7. Agreement on non-performance of an examination of evidences in the court investigation.
The court can take a decision on non-performance of an examination of evidences regarding whole indictment or its permanent part (episode) with prior clarification of an opinion of prosecutor, defendant and victim in relation to concerned issue, as well as explaining them a procedural essence and consequences of non-performance of an examination of evidences. In this case a victim can to appeal a court judgement in the part regarding an imposed penalty or in relation with admitted procedural violations.
8. Injunction of a prosecutor regarding a penalty.
The prosecutor can to apply an injunction regarding a penalty, if defendant committed a criminal violation or less serious crime, prosecutor has got a certitude that there does not exist a necessity to apply a penalty related with deprivation of liberty and defendant confesses his / her guilt and has compensated a harm inflicted to a victim, and agrees with decision of prosecutor. The victim can appeal an injunction of prosecutor regarding a penalty to a prosecutor of higher position.
Following the Criminal Procedure Law took an effect, an issue on regular evaluation of intensity of Prosecution Office work when completing the criminal proceedings in all ways provided for by the law was topical. In order to be aware on and monitor a situation changes, as well as to carry out analysis of its causes and find a solutions to prevent a possible negative trends, Prosecution Office developed specific surveillance report form concerning investigatory activities, that is filled in each week by all Prosecution Office institutions. While summarizing and analysing these reports it must be concluded that in year 2006 the prosecutors transferred to the court 6896 criminal cases pursuant to general procedure, concluding an agreements in 1207 criminal cases, 518 criminal cases were applied a summary procedure, 605 criminal cases were applied an emergency procedure, 740 criminal cases were completed by applying an injunction of prosecutor regarding a penalty, 528 criminal cases were completed by applying a conditional dismiss from the criminal liability.
Furthermore, basing on a work plan of the Prosecution Office the summaries are made, analysing a lawfulness, usefulness and scale of applicability of application of individual types of completion of preliminary proceedings.
Prosecutor General Office can to recommend as experts in these issues the following persons: the Head Prosecutor of division of Prosecutor General Office Arvīds Kalniņš, and prosecutor of Prosecutor General Office Sandra Kerno.