28 May, 2013
There are two main reasons, why prosecutors’ protests have been rejected both in the appellate instance court and in the cassation instance court – such conclusion has been made in compilation of court decisions performed by the Supreme Court. These reasons are inobservance of requirements included in standards of the Criminal Procedure Law within pre-trial proceedings and inobservance of requirements pushed to a protest.
It has been in the research that violations of standards of the Criminal Procedure Law are encountered already at the stage of pre-trial criminal proceedings, when information about facts, which would be used as evidence n the court, has been gathered and consolidated. For example, standards of the Criminal Procedure Law are not observed, when performing concrete investigative activities – in disclosure for identification; in examination before disclosure for identification; in search; in arresting of property; in examination of witness under 16 years of age, rights not to give testimony established in the Criminal Procedure Law, are not observed. The court has to reject prosecutor’s protest, if circumstances of a case are established incompletely and assessed incorrectly, contradictory actual circumstances of a crime are indicated in the decision on calling of individual to criminal responsibility, if there are imperfections in formulation of accusation and concrete violations are not mentioned. The court established that documents of procedural nature have been submitted as evidence against the accused, standards of the Special Part of the Criminal Law have been interpreted incorrectly, as well as the person is declared to be a victim and criminal proceedings have been initiated without reason.
It has been also concluded in compilation of court decisions that in hearing of the appellate instance court and the cassation instance court the prosecutor doesn’t use his/her rights and either doesn’t perform his/her duty to advance verification of evidence of prosecution and to participate in verification of other evidence or performs this duty inadequately to requirements of law.
Second reason of rejection of prosecutor’s protests, which is also very characteristic, is inobservance of requirements pushed to the protest. As analysis included in compilation shows, the most part of protests submitted in 2010 and 2011 were rejected, as the court established that the appellate instance court hadn’t admitted essential violation of the Criminal Law and the Criminal Procedure Law, its decision has been legal and justified, and indication to violation of the Criminal Procedure Law expressed in the protest, is of formal nature, as court conclusion about actual circumstances of a case and assessment of evidence is challenged, in fact. When rejecting a protest, the court often established that indications in the protest were not substantiated, the cassation protest didn’t contain such arguments that would serve as a ground to cancel ruling of the appellate instance court, indicating violation of standards, the prosecutor wanted to achieve re-assessment of evidence in the cassation instance court and to achieve cancellation of a ruling due actual reasons rather than legal ones.
Another violations in content of appellate and cassation protests have been established.
244 court rulings, 56 appellate protests and 94 cassation protests, which were submitted in 2010 and 2011, are analysed in compilation of the Supreme Court. Having established that there is relatively big number of protests, which are considered to be incongruous with requirements of the Criminal Procedure Law and thus verification of rule of law of a court ruling in cassation instance is rejected, 35 cases were analysed, and it allowed to clarify reasons of rejection to verify rule of law of a ruling in cassation procedure more perfectly.
In compilation, general summary of standards of the Criminal Procedure Law is provided, which relates to submission and examination of appellate protests and cassation protests, as well as protests submitted are analysed in detail. Analysis of protests both satisfied by the cassation instance court and those, which were considered to be incongruous to requirements of the Criminal Procedure Law are analysed; also cassation protests submitted on rulings of not guilty of the appellate instance courts and protests rejected in the appellate instance court and in the cassation instance court, are analysed. Protests submitted on ruling of the first instance court, which was adopted in agreement procedure and which hasn’t become effective yet, as well as cases, when issue about amendments to charges brought against the accused was touched, are analysed.
Compilation of court decisions is carried out by the Dr.iur. Aija Branta in cooperation with the Case-law Division and the Department of Criminal Cases of the Senate of the Supreme Court.
Compilation “Case-law, when examining prosecutor’s protests in the appellate and cassation proceedings” can be found on the homepage of the Supreme Court www.at.gov.lv in the Chapter Court Information/ Compilations of court decisions/ Criminal Law
Information prepared by
Rasma Zvejniece, the Head of the Division of Communication of the Supreme Court
E-mail: email@example.com, telephone: 67020396, 28652211