“Sankcionēju”

Replies to the questionnaire for preparing the Opinion of CCPE No.12(2017) “The rights of the victims, witnesses and vulnerable persons” (the Republic of Latvia)

1. Definitions

1.1. In the Criminal Procedure Law is provided for that a victim in criminal procedure may be a natural or legal person to which harm was caused by a criminal offence, that is, a moral injury, physical suffering, or a pecuniary loss. The Criminal Procedure Law includes also the definition of a witness, providing for that a witness is a person who has been invited, in accordance with the procedures specified by Law, to provide information (testify) regarding the circumstances to be proven in criminal procedure and the facts and auxiliary facts connected with such circumstances.

1.2. For ensuring the special regime for persons who have suffered from the specific criminal offences in the Criminal Procedure Law is included the concept of the victim to whom the special protection shall be granted. The status of the victim whom the special protection shall be applied in the criminal procedure without additional assessment is applicable to under-aged person, a person who due to mental or other health disturbances can not fully enjoy his/her procedural rights, a person who has suffered from the criminal offence against his/her sexual inviolability and integrity or from the human trafficking, a person who has suffered from the criminal offence associated with the violence or threatened violence and committed by the relative, former spouse of the victim or by a person with whom the victim was living in informal partnership, a person to whom in the result of the criminal offence possibly are inflicted the serious bodily injuries or mental disorders, a person who has suffered from the criminal offence possibly committed due to racism, nationalism, ethnical or religious motives. By a decision of the person directing the proceedings (investigator, prosecutor or court) the special protection may be granted also to another person not included into the above list, if such person is especially vulnerable due to the detriment caused in the result of the criminal offence and is exposed to repeated threats, intimidation or reprisal.

1.3. The definition of a victim whom special protection shall be granted is included into the Criminal Procedure Law and its clarification is provided in 1.2 paragraph.

2. The rights of the victims, witnesses and vulnerable persons

2.1. In Latvia in addition to the general human rights for the victims, victims whom special protection shall be granted and the witnesses in the criminal procedure also other rights are provided for.

2.2. In the Criminal Procedure Law are laid down the fundamental rights and rights of the victims, including the victims whom the special protection must be granted in the criminal procedure, in the courts of first instance, appeal and cassation instance courts. The Criminal Procedure Law provides for also the rights of the witnesses.

2.3. The victims, including the victims whom the special protection shall be granted have rights to receive information regarding conditions for applying and receiving of the compensation, including the state compensation, to submit application regarding indemnification of the damages, do not provide testimonies against themselves or relatives, to made the settlement with the person who has caused the detriment to them, as well as to receive the information on making of the settlement and its consequences, to invite the counsel of defence for receiving of the legal assistance, to submit the request to take the necessary measures in case of threats to such person, his/her relatives or property, to submit application on reimbursement of the procedural expenses incurred in the criminal procedure, to submit the complaint regarding the procedural decision or actions of the person authorised to conduct the criminal procedure, to receive the contact information for communication in relation with the given criminal procedure, to receive the information regarding the available support and medical assistance. In addition to the abovementioned rights the victim in the pre-trial criminal procedure (also as the victim to whom a special protection shall be granted) has rights to familiarise him or herself with the criminal procedure register, and to submit a rejection to officials entered therein, to submit applications regarding the performance of investigative and other operations, to familiarise him or herself with a decision regarding the determination of an expert examination before the transferral thereof for execution, and to submit an application regarding the amendment thereof, if the expert examination is conducted on the basis of his or her own application, after the completion of a pre-trial criminal procedure to receive copies of the criminal case files to be transferred to a court that directly apply to the criminal offence with which harm has been caused to him or her, if they are not provided earlier, or by a consent of the Prosecutor to familiarize with such files of the criminal case, to submit a request to the investigating judge that he or she be acquainted with the files of special investigative operations that are not appended to the criminal case (primary documents), to receive the written translation in cases provided for by the Law. In the first instance court the victim (including the victim enjoying the special protection) has rights to find out the place and time of the trial in a timely manner, to submit a rejection to the composition of the court, an individual judge, a public prosecuting official, and an expert, to participate him or herself in examination of a criminal case, to express his or her view regarding every matter to be discussed, to participate in an examination performed directly and orally of each piece of evidence to be examined in court, to submit applications, to speak in court debates, to familiarise himself or herself with a court judgment and the minutes of a court session, to appeal the court judgment. The victim enjoying the special protection additionally has the rights to request that his/her participation or hearing before the court would take place by using the technical means. In the appeal instance court the victim has the same rights as in the first instance court, as well as the rights to maintain and substantiate his/her complaint or to revoke it. The victim in the criminal procedure regarding the criminal offence associated with the violence or offence against sexual inviolability or integrity has the rights to request that a person directing the proceedings informs him/her regarding the advancing of the criminal procedure in part related with the criminal offence, by which the detriment was caused to him/her. The victim, his/her guardian or custodian in all phases of the criminal procedure and in all its types has rights to request to take the European Protection Order, if exist the grounds for issuing of the European Protection Order provided for by this Law. A witness has the right to know in what criminal procedure he or she has been invited to testify, to which official he or she is providing information, and the procedural status of such official. Before an inquiry and interrogation, a witness has the right to receive information from a performer of a procedural operation regarding his or her rights, duties, and liability, the mode of the recording of information, as well as regarding the right to provide testimony in a language that he or she knows well, using the services of an interpreter, if necessary. A witness has the rights to make notes and additions in testimonies recorded in writing, or to request the opportunity to write testimonies by hand in a language that he or she knows, do not testify against him or herself or against his or her close relatives, to submit a complaint regarding the progress of an inquiry or interrogation during pre-trial criminal procedure, to submit a complaint to an investigating judge regarding the unjustified disclosure of a private secret, or to request that the court withdraw a matter regarding a private secret, and to request that the request be entered in the minutes of the session if such request is rejected, to invite the counsel of defence for receiving of the legal assistance. The witness in all phases of the criminal procedure and in all its types has rights to request to take the European Protection Order, if exist the grounds for issuing of the European Protection Order provided for by this Law. An image of a witness recorded as a photograph, video, or by other types of technical means shall not be published in the mass media during procedural operations without the consent of such witness, if such publication is not necessary for the disclosure of a criminal offence.

2.4. When a person is admitted to be the victim (also as the victim to whom a special protection shall be granted), the written information regarding the fundamental rights of the victim in the criminal procedure is provided, in case of necessity explaining them. Inter alia the victim shall be informed about the toll free hotline for receiving of emotional and psychological support and information about rights of the victim in the criminal procedure, including regarding compensation for damages and state compensation. Additionally to the victim is explained a possibility to visit the website consisting the information regarding the rights of the victims, legal issues, as well as practical recommendations. In the mentioned website are also indicated NGOs, where is possible to receive the assistance required for the victims, for example, consultations for children and families which have encountered with the violence. To the witness before the interrogation are explained the rights and obligations.

2.5. For intentional failing to comply with the procedures and requirements provided for by the legal acts the disciplinary liability may be applicable to an investigator or prosecutor and the disciplinary sanctions may be applied, for example, reproof or reprimand etc.

2.6. In Latvia are provided for the special rights for vulnerable persons (see reply to 1.2 regarding victims enjoying special protection). For example, the victim enjoying the special protection has rights with the consent of a person directing the proceedings to participate in the procedural actions together with a confidant, except if the criminal procedure is instituted against such confidant, if such person is detained, suspect or defendant. In its turn the provision of the legal assistance to the under-aged victim (victim enjoying special protection) and to the representative of the under-aged victim is mandatory in the criminal procedure regarding the criminal offence associated with the violence committed by the person, on whom the under-aged victim is financially or otherwise dependant, or if the criminal offence is committed against sexual integrity of inviolability.

2.7. In Latvia the temporary protection against the violence is regulated by the Civil Procedure Law and temporary protection measures are laid down by the Court. The Police is responsible for supervision of the fulfilment of the Court rulings. In cases when imminent threats exists that any person present in home or nearby it may cause the detriment to life, freedom or health of a person to be protected, the police officers according to the procedures provided for by the “Law on Police” may take police decision on separation, by which may also be imposed the prohibition to the person presenting the threats to contact with the person to be protected.

In its turn in the criminal procedure for protection of the rights of any specific person the following security measure may be applied to the suspect or defendant – prohibition to approach the specific person or place. By imposing the prohibition to approach the specific person the rights of the suspect or defendant to be present at proximity of the given person closer than at certain distance laid down in such decision are limited. In such case the person, approaching to whom is prohibited, may herself/himself notify the person directing the proceedings regarding the violation of the security measure. Similarly the restriction to meet with certain persons may be imposed by applying the security measure – police supervision. The decision on applying the security measure in the form of the police supervision shall be sent for fulfilment to the police authority being in charge of the territory where the respective person is living. In such case the person, who can not be approached, may notify the police authority or a person directing the proceedings about the violations of the security measure, or such violation may be found by the police officers while conducting the checks provided for by the Law. There exist also another legal measure for protection of the witnesses and victims in the criminal procedure – special procedural protection, aimed to protection of the life, health and other legal interests of the persons providing testimonies. The decision on special procedural protection in the cases provided for by the Law is sent for fulfilment to the special protection authority.

As regards the victim enjoying the special protection the Criminal Procedure Law provides for that in cases when the application of the victim enjoying the special protection is received with request to provide information on release or escape from the prison or short-term detention facility of that arrested person who has caused the detriment to him/her, the person directing the proceedings shall send the given information to the victim as soon as it was learnt about the release or escape.

The victim, his/her guardian or custodian in all phases of the criminal procedure and in all its types has rights to request to take the European Protection Order, if exist the grounds for issuing of the European Protection Order provided for by the Criminal Procedure Law. After taking of the European Protection Order it shall be sent to the person directing the proceedings and to the competent authority of that EU Member State, where the person to be protected is planning to live or lives, or is planning to reside or resides.

2.8. The Criminal Procedure Law of Latvia does not provide for that the person directing the proceedings shall receive a permission for provision of testimonies from the legal representative of the victim enjoying special protection or of under-aged witness. Nevertheless, while conducting the interrogation of the under-aged person, the peculiarities of the interrogation of the under-aged person laid down by the Criminal Procedure Law shall be compulsorily taken into the consideration, for example, one of the legal representatives, adult relatives or confidants of the under-aged person have rights to be present during the interrogation. The mentioned person may ask the questions to the person to be interrogated, if a consent of the performer of the investigation activity is received. In case if the detriment is caused to a person, who due to physical or mental disability is admitted to be the victim without his/her consent, the victim shall be represented by one of his/her relatives. In such case all rights of the victim are exclusively and absolutely granted to his/her representative and the victim can not enjoy them autonomously.

2.9. The explanation regarding the rights of the person who due to physical or mental disability as admitted to be the victim without his/her consent is provided in Paragraph 2.8. Regarding the peculiarities of the interrogation of the under-aged persons it should be noted that in cases when the psychologist considers that the direct interrogation may cause harm to the mental condition of the person who has not reached the age of 14 years or to the mental condition of such under-aged person, who is admitted to be the victim of the violence committed by a person, on whom such under-aged person is financially or otherwise dependant, of the human trafficking or of the criminal offence against the sexual inviolability or integrity, such interrogation shall be conducted by using the technical means or through the psychologist. If investigator or prosecutor does not agree with it, then the direct interrogation shall be conducted only with the consent of the investigation judge, but before the Court – with the consent of the Court.

2.10. In the criminal Procedure Law are laid down those persons who should be admitted as the victims enjoying the special protection. The explanation regarding the victim enjoying the special protection is provided in Paragraph 1.2. Information regarding applying of the protection measures is already provided in Paragraph 2.7. For ensuring the protection of the persons involved into the criminal procedure, as well as in criminal cases related with the criminal offence committed against under-aged person the Court may decide that the haring will take place in the closed court hearing. Additionally the victim enjoying the special protection may request that his/her participation or hearing before the Court is ensured by the technical means.

2.11. In Latvia the investigation activities conducted in the criminal procedure, including the providing of testimonies may be filmed, namely, the sound and picture may be recorded. The procedures thereof are laid down by the Criminal Procedure Law. In the Criminal Procedure Law are provided for the cases when the interrogation of the under-aged victim and witness shall be mandatory recorded by the sound and picture recording device. The interrogation of the under-aged victims and witnesses shall be recorded by the sound and picture recording device, if it is in the best interests of the under-aged person and is necessary for reaching the purpose of the criminal procedure. The interrogation shall be mandatory recorded by the sound and picture recording device also in cases, when testimonies are being provided by the under-aged person, who is admitted to be the victim of violence committed by the person, on whom the under-aged victim is financially of otherwise dependant, the victim of the human trafficking or if the criminal offence is committed against sexual integrity of inviolability. The sound and picture shall not be recorded in cases, when it is contrary to the best interests of the under-aged person or if it may hinder the reaching of the purpose of the criminal procedure.

2.12. If there are grounds for suspicions that a person suspected or accused for the commission of the criminal offence may commit repeated criminal offence against the victim, the person directing the proceedings shall take into consideration such possibility when applying the security measure. It is also possible to decide the issue on special procedural protection for the victim in the cases provided for by the Law. The persons who are victims of the violence and the human trafficking also have the possibility to use the social rehabilitation services.

2.13. All rights of the victims and witnesses provided for by the Criminal Procedure Law are applicable both to the locals and foreign nationals.

3. The role of Prosecutors in protection of the rights of victims, witnesses and vulnerable persons

3.1. The person directing the proceedings shall in due time inform the person about the rights to be admitted as the victim in the criminal procedure. The person shall be admitted to be the victim by the decision of the person directing the proceedings, inter alia it may be admitted to be the victim also by the decision of the Prosecutor. When the person is admitted to be the victim, to him/her shall be immediately issued the written information about the fundamental rights of the victim and in case of necessity also explained. Also the witness has the rights before the inquiry or interrogation to receive the information about his/her rights. During the conducting of the criminal procedure the person directing the proceedings, including the Prosecutor shall ensure to the person involved into the proceedings the possibility to use all procedural rights.

Any criminal procedure in Latvia shall be conducted according to the basic principles laid down in the Criminal Procedure Law. In the cases provided for by the Law the victim has rights to lodge the complaint regarding the procedural decisions and actions of the person authorised to conduct the criminal procedure. When the victim or witness has lodged such complaint regarding the decision of the person directing the proceedings – investigator, such complaint according to the provisions of the Criminal Procedure Law shall be examined by the prosecutor supervising the investigation.

3.2. The rights of all persons involved into the criminal procedure, as well as the duties of the officials conducting the criminal procedure are laid down in the Criminal Procedure Law.

3.3. According to the provisions of the Criminal Procedure Law the Prosecutor in any specific criminal procedure may have the status of Prosecutor supervising the investigation, of the person directing the proceedings, or of the public prosecuting official. During the supervision of the investigation the Prosecutor has the following duties:

· to give instructions regarding the selection of the type of procedure, the direction of an investigation and the performance of investigative operations, if a person directing the proceedings does not ensure a targeted investigation and fails to prevent an unjustified interference into the life of a person or a delay;

· to request that the direct superior of an investigator replace a person directing the proceedings, or make changes in the investigative group, if given instructions are not fulfilled or if procedural violations are committed that threaten the conduction of criminal procedure;

· to examine the complaints within the frameworks of his/her competence;

· to take decisions regarding the lodged rejections within the frameworks of his/her competence;

· to take over the direction of criminal procedure without delay when sufficient evidence for the fair settlement of criminal legal relations has been obtained in an investigation.

The fulfilment of the mentioned duties may also be related with safeguarding of the rights of the victims or witnesses in the criminal procedure, for example, by giving instructions regarding the investigative actions to be taken, while examining the complaints of the victims or upon taking the decision regarding notified rejections.

3.4. During the phase of the investigation and criminal prosecution the persons involved into the proceedings may apply directly to the Prosecutor regarding matters related with the protection of their rights. During the investigation phase the persons involved into the proceedings may submit the complaint regarding actions and decisions of the investigator or to submit the rejection of the person directing the proceedings, in its turn during the criminal prosecution phase, when the prosecutor is the person directing the proceedings, the persons involved into the proceedings may apply to Prosecutor with submission, application or request regarding ensuring of their rights and legal interests. The decisions taken by Prosecutor in the status of the person directing the proceedings the persons involved into the proceedings in cases provided for by the Law may appeal with superior Prosecutor.

3.5. The Prosecutor in the cases provided for by the Law may upon own discretion take measures for protection of the rights of the victims and witnesses. For example, if during the examination of the criminal procedure is found that the rights of the persons involved into the proceedings are not complied with, Prosecutor may not only give instructions to the person directing the proceedings and notify that a violation has incurred, but also according to the Prosecution Office Law to take Prosecutor’s injunction for ceasing the illegal action, preventing the consequences of such action or for prevention of violation. Prosecutor being in charge of any specific criminal procedure may take decision on changing of the security measure applied to the defendant if there are data indicating that the defendant may influence the persons giving testimonies in the criminal procedure. The decision regarding the special procedural protection during the pre-trial procedure shall be taken by Prosecutor General, but in such case the application of the person being in danger and proposal of the person directing the proceedings is required.

3.6. In relation with the providing of the assistance to the victims, witnesses and vulnerable persons and in the matters of Prosecutor’s qualification the Prosecutor General’s Office is cooperating and will continue such cooperation with other public authorities and non-governmental organizations. In relation with these issues the Prosecutor General’s Office has developed the successful cooperation with the foundation “Centrs Dardedze”, the State Inspectorate for Protection of Children’s Rights, Training Centre of the Local Governments of Latvia, the non-governmental organization “PROVIDUS”, the State Probation Service, the Ombudsman of the Republic of Latvia etc.

3.7. The Prosecutor General’s Office jointly with the counterparts regularly every year is organizing the specialized training courses for Prosecutors in area of children’s rights protection. During the theoretical lectures and practical training conducted by the professional lecturers the Prosecutors of the all levels of the Prosecution Office structures have acquired in-depth knowledge regarding types of the violence against children and its features, peculiarities of the interrogation of children and inter-institutional cooperation in relation with the victims etc. The non-governmental organizations are organizing well-tailored seminars for Prosecutors, including in relation with the rights of the victims and legal assistance.