Pāvels Gruziņš, Chair of Department of Criminal Cases of Senate, Supreme Court of Latvia

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Development of the Code of Criminal Procedure in the Area of Review of Judicial Decisions That Have Become Effective

Judicial stability is an essential part of a judicial state. It needs not only well-regulated court proceedings but also such outcomeof it which is judicially stable. At the same time, the principle of a judicial state calls for the criminal proceedings to be fair. That is, individuals should not be sentenced for such criminal offence which they have not committed, and individuals who have committed criminal offence are sentenced adequately.

Judgments and decisions become effective after the expiry of the term for submission of appeals and cassation appeals and protests if such appeals and protests have not been submitted. An effective judgment is binding for everyone and it has to be executed in all the territory of the state.

Every effective court ruling is regarded as complying with the law, fair and grounded, thus, it bears the meaning of law from judicial point of view.

However, in case that a judgment or court decision contains essential shortcomings and errors, it must not retain its effect even if it has come into legal effect. Thus, the legislature on criminal procedure must provide a possibility to question and to revise anew such court decisions which have come to legal effect.1

The effective criminal procedure norms stipulate two procedural institutions for examination of rulings which have become effective:

1)renewal of criminal cases due to newly discovered circumstances;

2)renewed examination of rulings which have become effective due to gross violations of substantial and procedural law standards – previously named as procedure of surveillance.

The standards for revisions of rulings which have become effective and standards for appealing of rulings which have not come into effect relate to the field where the principle of judicial stability is opposed to the principle of justice.

The principle of judicial stability frequently contradicts with the claim for justice. Renewal of proceedings in a case which has been solved with an effective ruling, is a typical expression of such a dispute. We should look for their mutual balance.

What was the development of these institutions when we deal with proceedings in the procedure of surveillance?

Since April 1, 1961, the Criminal Procedure Code based on Criminal Procedure Codes of the soviet republics and the Soviet Union became effective in the territory of Latvia. However, since May 4, 1990, voluminous amendments were introduced to it more than 20 times.

The Criminal Procedure Code provided a possibility to examine actual circumstances of the case in essence only in one instance – the first one. During this period – in the district (city) people’s court or the Criminal Law Chamber of the Supreme Court. Appeal as such did not exist. A district court decision which had not come into legal effect could be appealed only under procedure of cassation – in the Criminal Cases Chamberof the Supreme Court. And, the judgments of these Chambers were final and could not be appealed. This situation remained till August 13, 1991, when the Supreme Council of the Republic of Latvia, under initiative of the Supreme Court, excluded Section 5 of Article 321 of the Criminal Procedure Code. This Section stated that a judgment of the LSSR Supreme Court shall not be appealed and one cannot submit a protest on it in the procedure of cassation.

Under the same law, by amending and supplementing the procedural law standards, the right was assigned to appeal and submit protests in the procedure of cassation of the judgments of the Supreme Court as the first court instance.2

Such a document was the first step to exercise the right for everyone declared guilty in a crime by the court to examine the proof of guilt or to revise the judgment in the highest instance as stated in Article 14 of the UN International pact on civil and political rights and the 7th protocol, Article 2of the European Convention on Human Rights.

However, the two-tier court system did not change and remained such till October 1, 1995, when in accordance with the law “Amendments to the Latvian Criminal Procedure Code” adopted by the Parliament on June 22, 1994, the three-tier court system started to function – trying of criminal cases in the first instance court, in the appellate instance court and the cassation instance court.3

Such three-tier court system referred to all the criminal cases tried after October 1, 1995.

However, this system did not refer to the cases in which the rulings had become effective before October.

By the same law of June 22, 1994, the 31st section “Proceedings under Surveillance Procedure” of the Latvian Criminal Procedure Code was excluded.

What did this surveillance institution state and was it so bad? What has replaced it?

Till October 1, 1995, in accordance with the Latvian Criminal Procedure Code there functioned a surveillance institute which provided a possibility to revise anew the court rulings which had become effective.

Such surveillance proceedings was a separate and independent stage of the criminal proceedings during which legality and validity of effective court judgments and decisions was examined upon protests of lawfully authorized persons.

In most cases the court rulings complied with the requirements of the law. Thus, they were valid and fair. However, we had in our practice and we still have at the present time cases when such judgments or court decisions become effective which contain shortcomings. There can be different reasons for it.

To ensure correction of mistakes made by the courts after the judgments come into effect, the law provided a possibility to revise a case anew in the procedure of surveillance.

As Prof. Arturs Liede once said, in the surveillance proceedings regulated by the surveillance institute, two requirements have to be regarded as the most significant:

1)granting authority and stability of a judgments which has come into legal effect;

2) no court rulings which are illegal and invalid in essence shall not retain its legal effect which has been formally established.4

In the period from May 4, 1990, till June 21, 1994, binding amendments were introduced in Section 31 of the Criminal Procedure Code “Proceedings under surveillance procedure” which did not change the essence of this institute.

Court judgments or decisions which had come into legal effect could be revised under surveillance procedure only upon a protest of the prosecutor, court chairman or his deputy who has been assigned such right by the Criminal Procedure Code.

The mentioned protests on district (town) court judgments and decisions which had come into legal effect in case if they have not been examined in the cassation procedure in the Supreme Court, were revised by the Supreme Court Criminal Cases Court Chamber, the protests on the judgments and decisions of the Supreme Court Criminal Cases Court Chamber were revised by the Supreme Court Presidium, and the protests on the decisions of the Supreme Court presidium and the Plenary Session – by the Supreme Court Plenary Session.

The law stated that “new revision of a convicting judgment and court decision under the procedure of surveillance due to necessity to apply the law on a heavier crime, due to insufficient sentence or other circumstances which worsen the situation of the convicted, as well as acquitting judgment or court decision on closing a case is allowed under the procedure of surveillance only within one year after they come into legal effect”.

It was stated that causes for cancellation or change of a judgments could be the following: 1) one-sidedness or incompleteness of pre-trial or court investigation; 2) inadequacy of conclusions expressed by the court in the judgments with the actual circumstances of the case; 3) significant violation of the Criminal Procedure Law; 4) incorrect application of the Criminal Law; 5) inadequacy of the imposed sentence to the gravity of the crime and the individuality of the convicted person.

The law also stated that when trying a case under the procedure of surveillance the court can lighten the imposed sentence or apply the law regarding a lighter crime, but it has no right to harden sentence or apply a law regarding a heavier crime.

By entering the appeal stage in the criminal procedure law standards, the surveillance institution was excluded and thus it became impossible to revise court judgments which had come into legal effect.

Besides, no all the judgments of the first instance court were examined in the appellate and cassation procedure and therefore after such judgments came into effect if was not possible to eliminate mistakes made by the courts.

This was the situation in the period from October 1, 1995, till March 11, 1997.

Taking into account the requirements of the practice and the necessity to ensure actually the legal interests and rights of the parties of the proceedings, and to ensure a possibility to eliminate mistakes made by the courts also after the rulings become effective, on February 20, 1997, the Parliament adopted the law “Amendments to the Latvian Criminal Procedure Code”. The transition regulations included in it stated that toll the day of coming into effect of the new Criminal Procedure Code, protests in criminal cases may be submitted under the procedure of surveillance and that such protests have to be submitted and heard in accordance with the provisions of Section 31 of the Latvian Criminal Procedure Code and the mentioned transition regulations.5

Thus, a set procedure of surveillance was restored.

Article 2 of the transition regulations names the cases in which protests can be submitted under the procedure of surveillance, and namely: 1) criminal cases in which the law of the Republic of Latvia dated August 3, 1990 “On rehabilitation of illegally repressed persons” has to be applied; 2) criminal cases in which rulings (judgments and decisions) have become legally effective till October 1, 1995, if these cases were not heard in the Latvian courts of surveillance instance as stated by the law; 3) criminal cases in which rulings (judgments and decisions) have been adopted and become legally effective after October 1, 1995, and which have not been heard in the appellate or cassation procedure, as well as in cases when criminal cases have been heard in the appellate or cassation procedure, but the judgment is based on violation of the criminal law or criminal procedure law. The so-called absolute cassation causes.

Besides, Article 3 of the transition regulations stated the persons which have the right to submit protests under the procedure of surveillance, and namely, in the case stated in Article 2, sub-article 1, - by the Chief Justice of the Supreme Court and his deputy, and in the cases stated in sub-articles 2 and 3 – by the prosecutor general and the senior prosecutor of the General Prosecutor’s Office Criminal Law Department. These regulations provided, as well, that the courts of surveillance instance are the Supreme Court Chamber of Criminal Cases and the Supreme Court Senate Department of Criminal Cases.

Thus, the state undertook additional liabilities by fixing in the law those officials of judicial power which have the right to initiate revision of court rulings which have come into legal effect to correct apparently wrong court judgments in the basis of which is a mistake made by a court.

Taking into account that preparation work on the new Latvian Criminal Procedure Code and its adoption protracted, a more precise regulation for revision of cases anew under the procedure of surveillance was worked out.

By the law of the parliament dated June 20, 2002 “Amendments to the Latvian Criminal Procedure Code”, the Code was supplemented by a new section – Section 32A “Revision of cases anew due to considerable violations of substantive and procedural law standards”.6 Sometimes, it is called the delayed cassation.

The law stated that an effective judgment or decision may be revised anew if they have not been examined under the cassation procedure, respectively, regarding rulings which were adopted after October 1, 1995.

For the first time the law contained a regulation which stated new revision of rulings in cases when an international court institution has declared a court ruling does not comply with international treaties binding for the Republic of Latvia.

In the court practice, this part of the regulation has been applied only in one cases – in the case on charges to A. Lavents when the European Court of Human Rights stated violations of Article 5, parts 3 and 4, and Article 6, parts 1 and 2, and Article 8 of the Convention on Protection of Human Rights and Freedoms.

The law stated the range of persons who have the right to submit application or protest on new revision of the rulings. These persons were – attorneys, general prosecutor, and senior prosecutor of the General Prosecutor’s Office Criminal Law Department, as well as the Chief Justice of the Supreme Court and his deputies in some categories of cases.

The grounds for submission of an application or protests were in essence the same as stated as a cause for revision of judgments in the procedure of cassation.

The most essential difference between a case adjudicated in the cassation procedure and new revision of a case due to violations of substantial and procedural law regulations is seen in the attitude towards the accused.

When a case is heard in the procedure of cassation, it is possible to worsen the situation for the accused person, however, when an application or protest is heard on a revision of a judgment or decision anew, the situation of the accused shall not be worsened.

The law separately states the grounds for an application or protest: such violations of substantial or procedural regulations which have caused illegal worsening of conditions for the accused. With this, the law does not fix term limits for submission of such applications or protests.

It should be noted that the legislator has assigned the right to the Supreme Court Senate Department of Criminal Cases to postpone and suspend execution of judgments or decisions till they are revised anew.

The practice has proved that this relatively named procedure of surveillance is functioned rather efficiently. Since November 1, 2002, when Section 32A of the Criminal Procedure Code came into effect, till October 1, 2005, the day when the Criminal Procedure Law came into effect, the Senate Department of Criminal Caseshas heard 74 criminal cases under the mentioned procedure. Thus, to implement the approaches of the criminal procedure, the Senate has tried to enforce the principle of fairness both in criminal law and criminal procedure.

The procedural regulations of the mentioned section almost in the same wording have been entered in the new Criminal Procedure Law in Section 63 “New revision of effective rulings due to essential violations of substantial or procedural law regulations”.

The main difference between Section 32A of the Criminal Procedure Code and section 63 of the Criminal Procedure Law is that ruling of an international court institution stating that a ruling adopted by a Latvian court does not comply with international regulative documents which are binding for Latvia, serves as grounds, in accordance with Article 655 of the Criminal Procedure Law, to renew proceedings due to new circumstances, and it shall not be regarded as serious violation of substantial or procedural regulations.

Another significant difference –the range of persons which have the right to submit application or protest, in accordance with the Criminal Procedure Law, does not include any more the Chief Justice of the Supreme Court and his deputies who could submit protests in cases regarding rehabilitation of illegally repressed persons.

The practical life shows that regardless of all possibilities to appeal and professionality of judges, there are still cases when after a court ruling comes into effect, such a fact or court mistake emerges which has very significantly affected the court ruling. To allow a possibility to eliminate such mistakes also after a court judgment becomes effective, the legislator has provided a special procedure which only extends a chance to revise a court judgment which has become effective – to correct an apparently wrong court judgment which is grounded on a mistake allowed by the court.

So, if we separate proceedings due to new circumstances from the proceedings in the procedure of surveillance or the “delayed cassations”, we must admit that the latter which is not so widespread in the West complies with the principles of a judicial state, as well as the European Convention on Human Rights.

References:

Meikališa Ā. Criminal Procedure Law. General Part. Book 1 “RoKa”, 2000, p.381
Reporter of the Supreme Council and government of the Republic of Latvia, 1991, 35/36 No.317
Official newspaper “Latvijas Vēstnesis”, 1994. 80 No.
Liede A. Criminal procedure. Proceedings in Criminal Cases. – R. Zvaigzne, 1973. – p.244
Official newspaper “Latvijas Vēstnesis”, 1997. 69 No.
Official newspaper “Latvijas Vēstnesis”, 1994. 104 No.

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Report in the Conference on October 7, 2005