The provision which does not provide for the right of the accused to become acquainted with the materials of operational activities which are not appended to the criminal case and are related to the object of evidence is compatible with the Constitution
On 2 December 2022, the Court adopted a judgement in Case No 2021‑42‑01 “On Compliance of Section 500, Paragraph Six of the Criminal Procedure Law with Article 92 of the Constitution of the Republic of Latvia”.
The contested provisions
In accordance with Section 500, Paragraph six of the Criminal Procedure Law, if the information obtained in operational activity measures is used in a criminal case as evidence, only the court upon a reasoned request of the prosecutor, victim, accused or his or her defence counsel may become acquainted with such materials of operational activities which are not appended to the criminal case and are related to the object of evidence, indicating in the case materials and ruling that such materials have been evaluated.
Provisions with a higher legal force
Article 92 of the Constitution of the Republic of Latvia (hereinafter – the Constitution): “Everyone has the right to defend his or her rights and lawful interests in a fair court. Everyone shall be presumed innocent until his or her guilt has been established in accordance with law. Everyone, where his or her rights are violated without basis, has a right to commensurate compensation Everyone has a right to the assistance of counsel.”
Facts of the case
The case was initiated on the basis of an application submitted by Alvis Pīlāgs (hereinafter – the Applicant). According to the contested provision, during the hearing of a criminal case the Applicant was denied access to the materials of operational activity, which were not appended to the criminal case and which related to the object of evidence in the given criminal case. The Applicant holds that for this reason the principle of equal opportunities of the parties has not been ensured during the trial of the criminal case, and thus the Applicant’s fundamental right to a fair court established in Article 92 of the Constitution has been infringed.
Conclusions of the Court
On observance of the term for submitting a constitutional complaint
The Constitutional Court concluded that the Applicant had possibilities to defend their fundamental rights by means of general legal remedies, which they had used. The constitutional complaint was submitted with the Constitutional Court within six months from the date of entry into force of the decision of the last institution. The time-limit for submitting a constitutional complaint has therefore been complied with [11].
On the scope of Article 92 of the Constitution
The Constitutional Court held that the first sentence of Article 92 of the Constitution included the principle of equal opportunities of the parties, which, inter alia, provided for equal opportunities of the parties to become acquainted with those materials which were relevant for evidence. However, in cases involving national security, derogations from this principle are permissible insofar as such derogations are necessary and the guarantees of the accused person’s right to a fair court are respected [12‑12.2].
On whether the contested provision strikes a fair balance between the principle of equal opportunities of the parties and the interests of the State and public security
The Constitutional Court concluded that the prohibition included in the contested provision for the accused and their defence counsel to become acquainted with the materials of operational activities, which are not appended to the criminal case and are related to the object of evidence, was established with the aim to protect the official secret, life and health of the officials and third parties to the operational activity, as well as the organisation, methodology, tactics and further conduct of operational activities [13.4].
The Constitutional Court recognised that the materials of operational activity which were not appended to the criminal case and which related to the object of evidence, were to be separated from the information on facts obtained as a result of operational activity and used in evidence, as they were only subsidiary to the information that the accused might have committed a criminal offence, and served only to substantiate the admissibility of evidence [14].
The Constitutional Court concluded that the contested provision establishes the obligation of the court, when assessing the materials of the operational activity which are not appended to the criminal case and are related to the object of evidence, to ascertain that the information obtained as a result of the operational activity on the facts, on which the arguments regarding the guilt of the accused person in committing the criminal offence are based, has been obtained in a lawful manner. The court must also ensure that the information contained in the material does not otherwise violate the accused person’s right to a fair court. Moreover, according to the contested provision, the court must not only examine the relevant materials of the operational activity and state that these materials have been assessed, but also give an opinion which duly assesses the objections of the parties to the admissibility of the evidence and contains reasoned conclusions of the court [14].
The Constitutional Court recognised that the prohibition included in the contested provision for the accused and their defence counsel to become acquainted with the materials of the operational activity which were not appended to the criminal case and which related to the object of evidence, was necessary in order to protect the interests of State security and society. And the legal regulation established by the contested provision is sufficient to ensure the right of a person to a fair court. Thus, the contested provision ensures a fair balance between the principle of equal opportunities of the parties and the interests of the State and public security [14].
- The Constitutional Court ruled the following:
to declare Section 500, Paragraph six of the Criminal Procedure Law compatible with Article 92 of the Constitution of the Republic of Latvia.
The Judgement is final and not subject to appeal, it enters into effect on the day of its publication.
The text of the judgment is available (in Latvian) on the website of the Constitutional Court.
Press release in PDF is available here.
Linked case: 2021-42-01