19 December, 2008
A settlement between the accused and the victim or his/her representative as one of the elements of the mechanism to regulate the criminal legal relations is applied in the courts in Latvia quite frequently what in general may be evaluated positively as a settlement concluded in accordance with the requirements of the law may promote the achievement of the goals of the Criminal Procedure Law. In general, the requirements of the Criminal Procedure Law (CPL) regarding the implementation of the settlement between the accused and the victim, the form of the settlement and the notification on the settlement are followed.
However, in most cases when criminal proceedings have been initiated under Article 130 of the Criminal Law (CL) – for intentional slight bodily injury if an offence is connected with violence in a family, the judge and the prosecutor, as well, has an incorrect understanding of the essence of the settlement in criminal proceedings of this kind. This is one of the conclusions of the joint meeting of the Department of Criminal Cases of the Supreme Court Senate during the discussion of the collection of the court practice accomplished jointly by the Department of Criminal Cases and the Division of Case law regarding the court practice in termination of criminal proceedings and releasing a person from the criminal liability on the basis of a settlement between the victim and the accused.
A settlement between the accused and the victim or his/her representative may be reached in all kinds of criminal proceedings, however, its legal consequences depend on in what kind of criminal proceedings – public or private accusation – a settlement is reached.
A settlement as a circumstance which does not allow a criminal proceeding is stated in a criminal proceeding on a privately public accusation which is initiated for criminal offences indicated in the second part of Article 7 of the CPL, if an application is filed by the person to whom the harm was inflicted. If a settlement is reached between the victim and the accused in such criminal proceeding, in accordance with the requirements of Article 377, p.9 of the CPL the criminal proceeding has to be terminated. The only exception to this requirement regarding the public accusation criminal proceedings to be initiated on the grounds of the victim’s application only is criminal offences which are qualified in accordance with Article 130 of the CL if the offence is connected with violence in a family when a settlement between the accused and the victim will be a circumstance allowing the initiator of criminal proceedings to evaluate the possibility of termination of the criminal proceedings. There are no objections to the court decision in a criminal proceeding to acknowledge the settlement with the victim as a mitigating circumstance for the accused applying the rights stipulated in the second part of Article 47 of the CL. However, such a decision should not be adopted in every case, without a respective assessment.
Only in two cases out of the 36 analyzed when the settlement was announced between the victim and the accused the court decisions are substantiated by Article 377, p.9 of the CPL what means that a settlement has been reached in a criminal proceeding which may be initiated on the basis of the victim’s application only, except criminal proceedings for the offence stated in Article 130 of the CL if it is connected with violence in a family.
In most cases the initiators of the proceedings have not taken into account that in such cases a settlement not always is the basis for the termination of criminal proceedings. It is indicated in the conclusions of the senators’ joint meeting that when the offence is connected with violence in a family, a settlement in the criminal proceeding may not be evaluated as a circumstance which allows to adopt a decision on the termination of criminal proceedings releasing a person from the criminal liability, besides, rather frequently referring to the goal of the law stated in Article 1 of the CPL – to ensure efficient application of the standards of the Criminal Law and fair regulation of the criminal legal relations without unjustified intrusion into the person’s life. At the same time the termination of criminal proceedings on the basis of a non-rehabilitating circumstance affect considerably the legal interests of the accused and cause such negative legal consequences which the legislator has not foreseen in the cases of this category terminating the criminal proceeding with a settlement, the senators of the Department of Criminal Cases of the Senate note.
The study allows to find also other mistakes of the judges and the prosecutors when a settlement is applied in the proceedings. Neither the second part of Article 58 of the CL, nor the first part of Article 379 of the CPL imposes an obligation to terminate a criminal proceeding, it just offers the initiator of the proceedings a possibility to decide whether there are grounds to terminate the criminal proceeding and to release the person from the criminal liability. The summary also shows that in almost two thirds of the analyzed rulings on the termination of criminal proceedings, releasing the person from criminal liability, the court has not provided argumentation of such a decision.
The Senate notes that to terminate a criminal proceeding a very careful analysis of all the case materials is necessary in the criminal proceedings regarding criminal offences committed against minors. The termination of the criminal proceedings and releasing a person from the criminal liability in these cases is allowed only if it is in the interests of the minor and the court is completely convinced that they will not be threatened in future. A settlement as the basis for the termination of criminal proceedings is rather widely applied also in cases when intended gross violations of the traffic rules are committed and the consequences of the offence is the death of a person. It is indicated in the conclusions of the study that in every particular case it is necessary to evaluate strictly the limit between the obligation of criminal proceedings, the principle of purposefulness and justice.
The collection of the court practice accomplished jointly by the Department of Criminal Cases of the Supreme Court Senate and the Division of Case law covers 155 court decisions and judgments adopted in the first half of this year in which 168 accused have reached the settlement with the victim or his/her representative, as well as the materials of 25 criminal cases to obtain additional information. In 128 cases in relation to 139 persons the decision has been adopted to terminate criminal proceedings due to the settlement, in 10 rulings on 12 persons the settlement has been taken into account when determining the punishment, in 16 rulings in relation to 16 persons the settlement has been acknowledged as a mitigating circumstance. In one case upon the victim’s request the settlement was not accepted because the accused did not fulfill its provisions.
The full study on the court practice regarding the termination of the criminal proceedings and releasing the persons from the criminal liability on the basis of the settlement of the victim and the accused is available on the website of the Supreme Court www.at.gov.lv, in the section Court Information/Studies.
Information prepared by
Head of the Division of Communications of the Supreme Court Rasma Zvejniece
E-mail: email@example.com, telephone: 7020396, 28652211