15 February, 2007
The Department of Criminal Cases of the Supreme Court Senate and the Division of Case-law has summarized the court practice in criminal cases on hooliganism (Article 231 of the Criminal Law). The court practice has been summarized comparing materials of 433 criminal cases which have been reviewed in 2005 in four courts of the first instance with 623 persons being convicted for hooliganism. To promote a uniform court practice and punishment policy, the summary of the court practice contains recommendations regarding application of the said Article.
In part 1 of Article 231 of the Criminal Law hooliganism is defined as gross disturbance of the public peace which is manifested as obvious disrespect for the public, or in insolence, ignoring the generally accepted standards of behaviour and disturbing the peace of persons, or the work of institutions or companies, or organizations. Part 2 of Article 231 of the Criminal Law lists the elements of a qualified hooliganism: it has been committed in a group; associated with bodily injuries to the victim; damage or destruction of property; resistance to representatives of public authorities or to a person who is acting to prevent the violation of public order; it has been committed by using weapons or other objects which can be used to inflict bodily injuries. In the examined criminal cases on hooliganism, under Article 231, part 1, 13 persons (2%) have been declared guilty and sentenced, under Article 231, part 2 of the Criminal Law – 610 persons (98%).
During the analysis, attention was paid to the following aspects:
- qualification of the committed criminal offences;
- observance of general standards of determination of punishment;
- the imposed types of criminal sentences;
- practice of application of additional sentences;
- practice of application of suspended sentence.
It has been concluded in the research that there is no unified opinion in the court practice regarding the qualification of criminal offences. It has been recommended to the courts to indicate in the descriptive part of the judgment the facts due to which the committed offence is qualified not as an infliction of bodily injuries, damage of the property, breach of inviolability of the residential unit etc., but hooliganism. It is pointed out that Article 231 of the Criminal Law stipulates responsibility for gross disturbance of the public peace. The fact that a criminal action of a person has been watched by other persons and they have even reacted to it, and that a criminal offence has been committed in a public place, does not mean itself that the committed action has to be qualified as hooliganism. Besides, it has to be taken into account that actions of hooliganism may occur not only in a public place, but also in an apartment or a private house. When qualifying a criminal offence, actions of hooliganism have to be separated from other criminal offences. The courts are recommended how to act when convicting for criminal offences which have been committed due to personal relations.
It is concluded that the court practice does not differ when serious or slight bodily injuries have been inflicted to the victim by actions of hooliganism, however, hooliganism in connection with infliction of moderate bodily injuries is qualified variously: in 30% of events the sentence is applied under Article 231, part 2, of the Criminal Law and Article 126 of the Criminal Law, thus stating the ideal aggregation of criminal offences, however, in 70% of the events, the sentence has been applied only according to Article 231, part 2 of the Criminal Law. The recommendations contain suggestions how the courts have to evaluate the application of the Articles of the Criminal Law also in the events when an action of hooliganism is connected with damage or destruction of the property.
Mitigating circumstances have been found when convicting 503 persons (81%). It is noted in the summary of the court practice that acknowledgement of any circumstance as mitigating has to be motivated. For example, being a juvenile is a fact that indicates the formal circumstance – that the age of 18 has not been reached at the moment of committing the crime, but the fact itself does not mitigate the person’s responsibility. The court practice when such circumstances as the apology of the accused to the victim, the agreement reached between the accused and the victims are acknowledged as mitigating should be supported. Aggravating circumstances have been found declaring guilty and convicting 435 persons (70%). In convictions under Article 231, part 1, of the Criminal Law, 54% of persons have been sentenced with suspended deprivation of liberty, under Article 231, part 2, of the Criminal Law, a suspended sentence has been applied to 82% of persons. The summary of the court practice shows that actual deprivation of liberty is applied rarely – such a sentence has been applied only to 11% of persons convicted under Article 231, part 2, of the Criminal Law, frequently it occurs because the law does not allow application of sentences alternative to deprivation of liberty. Out of 610 cases when the persons are sentenced under Article 231, part 2, of the Criminal Law, only in 15 cases actual deprivation of liberty has been applied where there does not exist prohibition to apply suspended sentence. Deprivation of liberty in these cases has been applied due to the fact that the accused, beside hooliganism, have committed other serious or especially serious crimes, as well as taking into account the criminal background of the convicted. For example, one person was sentenced for hooliganism already for the fifth time. When applying a suspended sentence, the courts rather seldom make use of the stipulated possibility to impose obligations on a person. Out of 500 persons upon who suspended sentences have been imposed, additional obligations were imposed only on 63 persons (13%). Most frequently it is required to register regularly with the institution which performs the surveillance, as well as notify on the change of place of residence. However, taking into account that actions of hooliganism mostly are committed under the influence of alcohol, the courts should assess a possibility and necessity to impose the obligation to undergo treatment of alcohol addiction.
When analyzing the cases in which actual deprivation of liberty has been applied, it has been concluded that in most cases the term of imposed deprivation of liberty does not exceed a year and a half, although the maximum term of deprivation of liberty which may be applied by the court when convicting under Article 231, part 2, of the Criminal Law, is seven years. It is concluded in the research that the type and measure of the sentence to be imposed to the offender most frequently does not depend on the number of elements qualifying hooliganism, and it has not been found that the choice of sentence when convicting for hooliganism would obviously depend on the type and size of the inflicted harm, the number of victims, the place and time of an action of hooliganism, as well as the age of the accused. However, the courts when determining the punishment for the guilty person should take into account these circumstances. The results of the summary of the curt practice were discussed with the judges of the regional courts in the seminar in 2006. The summary has been sent to the district (town) courts and regional courts, the Minister of Justice and the Prosecutor General. The full text of the research is accessible on the website of the Supreme Court www.at.gov.lv, section “Summaries of court practice”.
Information prepared by Division of Communications of the Supreme Court
Author: Rasma Zvejniece, Head of the Division of Communications of the Supreme Court
E-mail: firstname.lastname@example.org, telephone: 7020396, 28652211