The Constitutional Court terminates judicial proceedings in the case regarding the procedure for receiving information prior application of detention
On 3 April 2014 the Constitutional Court adopted a decision on terminating judicial proceedings in Case No. 2013-11-01 “On the Compliance of Section 246(2) of the Criminal Procedure Law with the first sentence of Article 92 of the Satversme of the Republic of Latvia”.
The Contested Norm
Section 246(2) of the Criminal procedure Law: “Prior taking a decision on application of the security measure which is related to the deprivation of liberty, the person directing the proceedings shall issue a copy of the proposal where the selection of a security measure is justified to a person, who has the right to defence”.
The Norm of Higher Legal Force
The first sentence of Article 92 of the Satversme: “Everyone has the right to defend his or her rights and lawful interests in a fair court”.
The Facts
In the framework of criminal proceedings detention as a security measure was applied to the applicant Igors Jegorovs. The request of the applicant’s attorney to familiarise himself with all those materials of the criminal proceedings, which had served as the basis for applying detention, was rejected, since during the criminal proceedings all the materials of the criminal case are investigative secret.
It is noted in the application that the contested norm defines a person’s right to receive a copy of the proposal made by the person directing the criminal proceedings, which substantiates the selection of security measure, however, it does not envisage the right to familiarise oneself with those materials of criminal proceedings, which the person who directs the criminal proceedings considers to be the grounds for applying detention. This situation does not comply with the adversarial principle and, thus, violates the applicant’s right to a fair court. In criminal cases the adversarial principle means that the prosecution and the defence sides must have equal access to information and both parties should have the possibility to comment upon evidence attached to the case. In this case the attorney was denied access to those documents, which are essential for making an effective appeal regarding the legality of a person’s detention.
The Court’s Findings and Ruling
On the content of the right to a fair court
The Constitutional Court noted that the principle of equal possibilities of the parties in criminal proceedings envisages, on the one hand, the possibility to all parties involved in the case to explain the facts of the case, and, on the other hand, prohibits granting to one party significant advantages compared to the opponent. The criminal proceedings consist of a number of procedural stages, but it should be regarded as a united whole, therefore the principle of equal possibilities of the parties must be complied both during the pre-trial procedure and during the adjudication of the case in judicial proceedings. Thus, the principle of equal opportunities to the parties falls within the scope of Article 92 of the Satversme and must complied with also during the pre-trial criminal proceedings, inter alia, in deciding upon the application of the security measure – detention [11].
The Constitutional Court recognised that the principle of equal opportunities for the parties, enshrined in the first sentence of Article 92 of the Satversme, envisages the right to acquaint oneself with those materials of the criminal procedure that have justified the application of detention, to the extent that allows exercising a person’s right to defence [13].
On restricting the principle of equal opportunities for the parties
The Constitutional Court, in examining the case, concluded that to justify the restriction set for the applicant to acquaint himself with the materials of the criminal case Section 375 and Section 396 of the Criminal Procedure Law had been used, not the contested norm. Thus, the contested norm does not restrict the applicant’s fundamental right set out by the first sentence of Article 92 of the Satversme [15].
The assessment of the legality of such restriction does not fall within the competence of the Constitutional Court. Hence, there are no grounds to continue examining the case and assessing the compatibility of the contested norm with the first sentence of Article 92 of the Satversme [17].
On the interpretation of the contested norm
The Constitutional Court noted in its decision on terminating the judicial proceedings that the content of the contested norm and its new wording did not essentially differ. The proposal by the person directing the proceedings submitted to the investigative judge concerning application of detention is only one among a number of elements, which ensure to the person, who is entitled to defence, also the right to information during the pre-trial criminal proceedings. The references to concrete considerations, justified by case materials, included in the proposal by the person directing the proceedings, are meaningless, if the person, who is entitled to defence, is denied access to these materials. Thus, the person, neither personally, nor with the mediation of the attorney, can verify, whether the interpretation of the case materials, provided by the person directing the proceedings in the proposal regarding application of detention, is correct. Thus, the meaning of the proposal envisaged by the contested norm is to ensure that the person would know, which of the case materials he or she has the right to request to be presented to him or her [16.1].
In setting restrictions to getting acquainted with the case materials, reasonable balance should be reached between keeping the secret of the investigation and respecting the rights of other persons, on the one hand, and abiding by the principle of equal opportunities to the parties, on the other hand. A balance of this kind can be reached if within the framework of the pre-trial investigation not all case materials, but only those that justify the need to apply detention and cannot inflict serious harm upon other persons’ rights and the interests of investigation are presented to person. The person directing the procedure has the obligation to organise the criminal procedure and its materials in such a way that would enable, if necessary, to separate those materials, which justify the application of detention, from other materials, the presentation of which should not be permitted [16.2].
The investigative judge, in his or her turn, should be the one to find a reasonable balance between protection of human rights and the need to restrict a persons right in the interests of public security. A situation, in which a person’s fundamental right to get acquainted with the case materials that justify detention and this restriction to fundamental right is not subject to judicial control, is inadmissible [16.3].
In view of the above-mentioned and on the basis of Para 6 of Section 29(1) of the Constitutional Court Law, the Constitutional Court decided to terminate judicial proceedings in Case No. 2013-11-01 “On the Compliance of Section 246(2) of the Criminal Procedure Law with the first sentence of Article 92 of the Satversme of the Republic of Latvia”.
The decision by the Constitutional Court is final and not subject to appeal.
Linked case: 2013-11-01