Introduction ................................................................................................ 1 - 2
Article 1...................................................................................................... 3 - 14
Article 2...................................................................................................... 15 - 22
Article 3...................................................................................................... 23 - 34
Article 4...................................................................................................... 35 - 43
Article 5...................................................................................................... 44 - 48
Article 6...................................................................................................... 49 - 52
Article 7...................................................................................................... 53 - 54
Article 8...................................................................................................... 55 - 58
Article 9...................................................................................................... 59 - 61
Article 10.................................................................................................... 62 - 67
Article 11.................................................................................................... 68 - 74
Article 12.................................................................................................... 75 - 77
Article 13.................................................................................................... 78 - 79
Article 14.................................................................................................... 80 - 82
Article 15.................................................................................................... 83 - 86
Article 16.................................................................................................... 87 - 94
Introduction
1.
The initial report of
2.
A special working group was established to draft this report, representing
the Ministry of Foreign Affairs, the Ministry of the Interior, the Ministry
of Welfare, the Ministry of Justice and the National Centre for the Protection
of the Rights of the Child, and headed by a representative duly authorized
by the Cabinet of Ministers pursuant to the “Regulations on Representation
of the Cabinet of Ministers at International Human Rights Institutions” of
17 March 1998. The Report was examined
and accepted by the Cabinet of Ministers on
Article 1
3.
Article 89 of the Constitution of Latvia provides that “the State recognizes
and protects basic human rights in accordance with this Constitution, the
Laws and international agreements binding to
4.
5.
The legal system of
6.
The Supreme Court gave its explanation for the term “torture” in its plenum
decision “On Application of Criminal Laws in Cases of Infliction of Intentional
Bodily Injuries”, adopted on 1 March 1993, in which it indicated
that “torment must be understood to mean actions that, committed by the guilty
person, being aware of it, cause particularly strong pain to another person,
physical or moral suffering (for example, leaving a person without food, drink,
warmth for extended periods of time as well as placing or leaving a person
in other conditions that are hazardous for health), while torture must be
understood to mean actions that, committed by the guilty person, being fully
aware of it, are characterized by multiple or prolonged acts, causing particular
pain or suffering to victims (for example, whipping with rods, pinching, influence
by thermal factors, pricking with sharp objects, etc.)”.
7.
In the light of article 89 of the Constitution, which stipulates that human
rights in Latvia are protected in accordance with the international agreement
binding upon Latvia, and taking into account that international agreements
are directly applicable in Latvia, the definition of the term “torture” given
in article 1 of the Convention is directly applicable and is binding upon
the State institutions of Latvia.
8.
The prohibition of torture has been prescribed by several other legal acts
that are in force. Thus, the Penal Law
stipulates that upon the execution of any criminal penalty, the guarantees
provided by law for the convicted person against torture and inhuman or degrading
treatment or punishment must be respected; that the objective of the execution
of the penalty is not to cause physical suffering or to degrade human dignity,
or to exclude the person from the community. Discrimination among convicts on the grounds
of race, nationality, language, gender, social and material status, political
views, religious affiliation or other criteria is not permissible, all convicts
being equal before the law.
9.
The Law “On Police” prescribes that a police officer must not commit or
support any acts that involve torture or other cruel, inhuman or degrading
treatment or punishment. No police officer
may refer to the order of a senior officer or such emergency situations as
martial law or a threat of a war, a threat to national security, national
domestic political instability or extraordinary circumstances in order to
justify torture or other cruel, inhuman or degrading treatment or punishment. Likewise, the Law stipulates that the police
officer is liable for unlawful action under the procedure prescribed by law
and service regulations. Internal instructions
for officers of the police service include norms prohibiting inhuman or degrading
treatment. Disciplinary regulations
prescribe the disciplinary liability of officers for various violations of
service discipline. Heads of structural entities bear personal liability
for compliance with the service authority of the personnel.
10.
The 1997 Medication Law stipulates that a patient has a right to quality,
kind and respectful medical treatment and care. The Law in particular emphasizes that all civil,
political, economic and social rights prescribed by law must be guaranteed
also to persons with psychological disorders and mental afflictions and that
such disorders must not be grounds for discrimination. The Law also stipulates that mental patients
have the right to receive medical assistance and care of the quality that
corresponds to the accepted general medical standards. Article 155 of the Criminal Law also prescribes
liability for the illegal confinement of a person in a psychiatric hospital.
The possible penalty for this is deprivation of liberty for a term
of up to
11.
The Criminal Law also prescribes liability for crimes involving the use
of violence or torture. Article 74 of
the Criminal Law prescribes that war crimes, that is, violation of the provisions
and customs regarding the conduct of war prohibited by international agreements
that are binding for Latvia, which has been manifested by the murder, torture,
robbery, deportation or assignment to coercive labour of civilians, hostages
and prisoners of war of the occupied territory, or the unjustified destruction
of cities and other entities, are punished by life imprisonment or deprivation
of liberty for a term of 3 to 20 years.
12.
Articles 125 and 126 of the Criminal Law prescribe liability for the infliction
of an intentional serious bodily injury or an intentional moderate bodily
injury if they had the character of torment or torture. Article 125 prescribes deprivation of liberty
for a term of 3 to 12 years, while article 126 prescribes punishment by deprivation
of liberty for a term of up to 8 years. Under article 130 of the Criminal Law “Intentional
Slight Bodily Injury” regular beating that has the nature of torture or any
other kind of torture, provided these actions have not had the consequences
set out in articles 125 and 126 of the Law, are punished by deprivation of
liberty for a term of up to three years or custodial arrest, or community
service, or a fine in the amount of up to 60 minimum monthly salaries.
13.
Article 294 of the Criminal Law provides as a punishment deprivation of
liberty for a term of up to 10 years for compelling to testify at an interrogation,
if it involves violence, a threat of violence, humiliation of the interrogated
person, or has been committed in any other way, and if it has been committed
by the pre-trial investigator. Article
338 “Violence against a Subordinate” of chapter XXV of the Criminal Law “Criminal
Offences Committed during Military Service” in turn prescribes liability for
the infliction of intentional moderate bodily injury to a subordinate as well
as of other acts which have the nature of torture.
The penalty for such acts is deprivation of liberty for a term of up
to eight years. In 2001 three crimes provided by article 338
of the Criminal Law have been registered. Under
article 340 of the Criminal Law a person is criminally liable for the battery
and torture of a military serviceman. The maximum penalty for such acts, if they involve
the infliction of serious bodily injury, is deprivation of liberty for a term
of 3 to 12 years.
14.
The compensation available to the persons who considers himself/herself
to be the victim of torture, as well as the right to complain to the competent
authorities, are described in paragraphs 78-82 of the present report (comments
concerning articles 13-14).
Article 2
15.
Overview of legal acts in force prohibiting torture and providing for punishment
for such actions is given in paragraph 3 and paragraphs 8-13 of the present
report. According to the legal acts
in force, the right not to be tortured may not be restricted.
15.
16.
Article 116 of the Constitution contains an exhaustive list of human rights
which may be subject to restrictions in cases provided by law with the purpose
of protecting the rights of other persons, the democratic system, public security,
welfare and morality. These rights are
the right of an individual to the inviolability of privacy, residence and
correspondence, the right to free movement in the territory of Latvia and
to choose one’s domicile, the right to freely leave Latvia, the right to freedom
of speech and opinion, the right to have free access to information and to
disseminate it, the right to freedom of association and meetings, the right
to freely choose one’s occupation, the right to strike, as well as the right
to expression of one’s religious conviction.
In addition to article 116, article 105 of the Constitution provides
restrictions on the right to property. Thus,
the right not to be tortured provided by article 95 of the Constitution may
not be subject to any restrictions.
17.
Also, the 1992 Law “On State of Emergency” exhaustively defines the permissible
restrictions if a state of emergency has been proclaimed. The said Law allows the following restrictions:
(a) A special procedure for entry into and departure from the country, as well as restrictions on movement;
(b) Reinforced protection of public order and of specific objects;
(c) Prohibition on the organization of meetings, rallies, street marches and demonstrations as well as other mass events;
(d) Prohibition of strikes;
(e) Restrictions on the movement of transport vehicles and the inspection of transport vehicles.
If a state of emergency has been proclaimed in view of internal riots that have broken out or are about to break out, the following restrictions may be imposed in addition to the above-mentioned:
(f) Imposition of a curfew;
(g) Censorship or suspension of the mass media; seizure of their printing and duplication equipment;
(h) Suspension of the operation of political parties and other non-governmental organizations if they create obstacles to the implementation of the state of emergency;
(i) Conduct of examination of the documents of individuals; inspection of individuals and the property in their possession if there is information that these individuals posses weapons;
(j) Restriction or prohibition of the sale of weapons, highly effective chemical and poisonous substances and alcoholic beverages, as well as temporary seizure of those articles from natural and legal persons;
(k) Expulsion of violators of public order who are not permanent residents of the area where the state of emergency has been proclaimed.
18.
The Law particularly emphasizes that the proclamation of a state of emergency
does not repeal the operation of those laws that regulate the use of physical
force, special means and firearms against natural persons. Officials and other persons are liable criminally,
administratively and disciplinary in complying with the procedure prescribed
by the law for violations of laws and the abuse of the state of emergency.
The Prosecutor General of the
19.
It must be emphasized that a state of emergency has never been proclaimed
since the restoration of independence.
20.
According to article 34 of the Criminal Law, execution of a criminal command
or a criminal order is to be considered as excluding criminal liability, provided
the person executing said command or order was not aware of the criminal nature
of the command or order and it was not obvious. However, the above-mentioned article emphasizes
that criminal liability applies if a crime against humanity and peace, war
crimes or genocide was committed.
21.
A similar provision has also been included in the Law “On Police”, whose
article 27 stipulates that deliberate execution of an unlawful command or
order does not exempt the police officer from criminal liability. It is underlined in the same article that no
police officer may refer to the order of a senior officer or such emergency
situations as martial law or a threat of a war, a threat to national security,
national domestic political instability or extraordinary circumstances in
order to justify torture or other cruel, inhuman or degrading treatment or
punishment.
22.
The table below presents information on the registered and detected crimes
provided in the articles of the Criminal Code (CC) and the Criminal Law (CL)
referred to in the present report, between 1995 and 2001.
|
1995 |
1996 |
1997 |
1998 |
1999 |
2000 |
2001 |
|||||||
CL/CC |
reg. |
det. |
reg. |
det. |
reg. |
det. |
reg. |
det. |
reg. |
det. |
reg. |
det. |
reg. |
det. |
Art. 74/68.3. |
- |
- |
- |
- |
- |
- |
2 |
1 |
- |
- |
- |
- |
- |
- |
Art. 125/105 |
597 |
341 |
467 |
298 |
500 |
349 |
427 |
305 |
429 |
279 |
424 |
272 |
367 |
238 |
Art. 126/106 |
414 |
189 |
394 |
210 |
372 |
226 |
395 |
245 |
393 |
239 |
421 |
225 |
462 |
250 |
Art. 130/109 |
25 |
18 |
28 |
16 |
18 |
17 |
62 |
57 |
124 |
78 |
128 |
95 |
184 |
146 |
Art. 139/223 |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
Art. 155/125 |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
Art. 294/172 |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
1 |
- |
Art. 338 |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
3 |
3 |
Art. 340/235 |
5 |
2 |
31 |
17 |
36 |
30 |
26 |
22 |
16 |
9 |
16 |
7 |
18 |
9 |
Notes: Article 74 of the Criminal Law, article 68.3. of the Criminal Code - War crimes;
Article 125 of the Criminal Law, article 105 of the Criminal Code - Intentional serious bodily injury;
Article 126 of the Criminal Law, article 106 of the Criminal Code - Intentional moderate bodily injury;
Article 130 of the Criminal Law - Intentional slight bodily injury, article 109 of the Criminal Code - Deliberately inflicted (intentional) slight bodily injury;
Article 139 of the Criminal Law - Illegal removal of human tissue or organs, article 223.1. of the Criminal Code - Illegal removal of tissue or organs from living or dead humans;
Article 155 of the Criminal Law, article 125.2. of the Criminal Code - Illegal confinement of a person in a psychiatric hospital;
Article 294 of the Criminal Law, article 172 of the Criminal Code - Compulsion to testify;
Article 338 of the Criminal Law - Violence against a subordinate;
Article 340 of
the Criminal Law -
Article 235
of the Criminal Code -
Article 3
23.
According to the legal acts in force, a person who is in
24.
In accordance with the legal acts in force, a person is expelled if an
expulsion order has been issued with respect to that person in a procedure
prescribed by law, or if the court has imposed expulsion as an additional
penalty. Article 36 of the Criminal
Law provides that
25.
The Law “On Entry and Stay of Foreigners and Stateless Persons in the Republic
of Latvia” (art. 38) regulates the expulsion of foreigners and stateless
persons in cases when the foreigner or the stateless person stays in the country
without a valid visa or a residence permit, or if the person has otherwise
violated the visa regime, or if the residence permit issued to the foreigner
or the stateless person has been annulled owing to the following reasons:
(a) The person has submitted knowingly false information
to the Citizenship and Migration Board, has violated rules of the immigration
regime or has lost legitimate grounds for staying in
(b) The person has been found guilty of the commission of a crime by a court judgement that has become effective;
(c) Competent public institutions have reasonable grounds to suspect that the said person poses a threat to public order and safety or national security;
(d) The person has no legal source of income;
(e) The person is active in a totalitarian, terrorist or other organization using violent methods that does not recognize the public system of the Republic of Latvia, or is a member of any secret anti-government or criminal organization;
(f) The person has entered the military or other public service of a foreign country, except in cases when this is provided by international agreements;
(g) The person has repeatedly failed to comply with regulations for the registration of the residence permit;
(h) The person has entered into fictitious marriage with a citizen or non-citizen of Latvia or a foreigner or a stateless person who has a permanent residence permit, with the purpose of forming grounds for the receipt of a permanent residence permit;
(i) The person has terminated studies or training which had been the grounds for the issue of a fixed-term residence permit;
(j) The person has terminated employment relations which had been the grounds for the receipt of a residence permit;
(k) The person has divorced a citizen or non-citizen
of
(l) The person has been hired without an appropriate permit;
(m) The person has received compensation for leaving
26.
The person must leave
27.
In cases when the person has failed to appeal against the expulsion order
or the appeal has been declined but the person remains in the country, the
Head of the Citizenship and Migration Board or the head of the territorial
unit of the Board may adopt a decision on the forcible expulsion of the person.
The National Border Guard has the right to detain the person in order
to enforce the decision on the forcible expulsion.
In cases when there are reasonable suspicions that the person will
hide or the person poses a threat to public order or security, or the person
has no permanent place of residence in
28.
If the person has entered the country illegally, the head of the territorial
board of the National Border Guard or his/her deputy may take the decision
on the forcible expulsion of this person. The National Border Guard carries out the forcible
expulsion.
29.
In order to eliminate existing irregularities and to secure a timely and
effective procedure for the expulsion of foreigners, a working group was established
which drafted new instructions, “On the forcible expulsion of foreigners and
stateless persons”, in force as of
30.
Legal norms in force that regulate the extradition of persons for criminal
prosecution, trial or serving of sentence are described in paragraphs 55-58
of the present report (comments concerning article 8).
31.
When deciding on the extradition of a person, the interpretation of the
European Convention on Human Rights as adopted by the European Court of Human
Rights is taken into account, according to which extradition of a person to
a State where this person may be subjected to torture or cruel, inhuman or
degrading treatment or punishment violates the human rights of this person
and, therefore, is impermissible.
32.
As of 1 January 2002 Latvia has agreements on the readmission of persons
who have entered or resided in the country illegally with 23 States (Austria,
Baltic States, Benelux States, Denmark, France, Greece, Croatia, Iceland,
Italy, Liechtenstein, Norway, Portugal, Slovenia, Finland, Spain, Switzerland,
Ukraine, Hungary, Germany and Sweden).
33.
The National Border Guard has no information on possible violations of
the Convention’s provisions by officials of the National Border Guard that
would give reason to suspect that any person has been subjected to torture.
Likewise, on no occasion in the practice of the National Border Guard
was a person who reported that in the country of destination he/she may be
subjected to torture returned to that country or expelled from
34.
According to the 1997 Law “On Asylum-Seekers and Refugees in the Republic
of Latvia”, a person who has been granted the status of refugee cannot
be extradited or expelled to the country where that person fears persecution
owing to his/her race, religion, nationality, social affiliation or political
conviction. If a person is not granted
the status of a refugee by decision of the Centre on Refugees’ Affairs of
the Citizenship and Migration Board, the person still is not expelled to a
country where the person is subjected to the threat of torture, referring
directly to article 3 of the Convention and article 3 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms. In practice these persons are issued residence
permits, or they are allowed to reside in the asylum-seekers’ accommodation
centre. In order to establish a precise
procedure for the protection of such persons, a new Asylum Law has been drafted,
prescribing the granting of an alternative status to persons who are under
the threat of a death penalty or corporal punishment, torture, or inhuman
or degrading treatment or humiliating punishment. Currently, this draft is being debated in the
Parliament. According to information
submitted by the Ministry of the Interior, there was no case in 2001 of a
person being extradited or transferred to another country where there was
a threat that the person would be subjected to torture.
Article 4
35.
Section 2 of article 15 of the Criminal Law defines preparation for a crime
and an attempted crime as separate uncompleted criminal offences.
36.
Section 3 of article 15 of the
Criminal Law stipulates that the location or adaptation of means or tools or other intentional creation
of circumstances conducive to the commission of an intentional offence which
was not committed for reasons independent of the will of the guilty party
is to be considered as preparation for a crime.
Under section 4 of article 15 of the Criminal Law a conscious act (failure
to act) directly dedicated to intentional commission of a crime which was
not completed for reasons independent of the will of the guilty party, is
to be considered as an attempted crime. Liability
for preparation for a crime or an attempted crime is determined under the
same article of the Criminal Law that prescribes liability for the specific
offence. However, it should be emphasized
that a person is criminally liable for attempted less-serious crime, serious
crime and particularly serious crime, and for preparation for serious or particularly
serious crimes. The Criminal Law distinguishes
four categories of criminal offence depending on the degree of their severity
- criminal offences, less-serious crimes, serious crimes and particularly
serious crimes. This distinction is determined according to sanctions
prescribed by the Criminal Law.
[1]
37.
Since the sanction for the crimes mentioned in paragraphs 11-13 of the
present Report is deprivation of liberty for a period exceeding two years,
according to the Criminal Law a person is criminally liable for the attempt
to commit these crimes. Likewise criminally
punishable is the preparation for these crimes, except for the crime provided
for in article 130 of the Criminal Law - intentional slight bodily injury.
38.
Article 18 of the Criminal Law regulates the liability of several persons
for participation in the joint commission of a criminal offence, assessing
the individual behaviour of each person, the committed acts and the subjective
attitude towards the criminal offence. Therefore, the participation by two or more persons
knowingly in the joint commission of an intentional criminal offence is treated
in the legal acts of
39.
Article 19 of the Criminal Law defines the concept “participation”. A criminal act committed knowingly by two or
more persons (i.e. a group) jointly, by which they thus have directly committed
an intentional criminal offence, is to be considered as participation (joint
commission). Each of the said persons
is a participant (joint perpetrator) in a criminal offence and criminally
liable. In turn, an act or failure to
act committed knowingly, by which a person (joint participant - accomplice)
has jointly with another person (perpetrator) participated in the commission
of an intentional criminal offence, but has not herself/himself been the direct
perpetrator of the criminal offence, is to be considered complicity. Under article 20 of the Criminal Law organizers,
instigators and accessories are joint participants in a criminal offence.
40.
A person who has organized or directed the commission of a criminal offence
is to be considered an organizer. A
person who has encouraged another person to commit a criminal offence is to
be considered an instigator. A person
who has knowingly promoted the commission of a criminal offence, by giving
advice, directions, resources, or by removing impediments for the commission
of such, as well as a person who has previously promised to conceal the perpetrator
or joint participant, the instruments or means of committing the criminal
offence, evidence of the criminal offence or objects acquired in a criminal
manner, or has also previously promised to acquire or to sell such objects,
is to be considered an accessory. A
joint participant is to be held liable under the same article of the Criminal
Law that prescribes the liability of the perpetrator.
41.
Under legal acts of
42.
If the perpetrator has not completed the offence for reasons independent
of his/her will, the joint participants are held liable for joint participation
in the respective attempted offence. If
the perpetrator has not commenced the commission of the crime, the joint participants
are liable for preparation for the respective crime.
43.
Voluntary withdrawal by an organizer or instigator from the commission
of the criminal offence is to be considered as such only in cases when they
have done in due time everything possible to prevent the commission of the
contemplated criminal offence with their joint participation, and this offence
has not been committed. An accessory
is not to be held criminally liable if he/she has voluntarily refused to provide
promised assistance before the commencement of the criminal offence.
Article 5
44.
The obligation of a State to establish its jurisdiction over the criminal
offences - acts of torture - committed on its territory or by its nationals,
as stipulated in article 5 of the Convention, is provided in articles of chapter
I of the Criminal Law in force. Under article 2 of the Criminal Law a person
who has committed a criminal offence in the
45.
According to article 3 of the Criminal Law a person who has committed a
criminal offence outside the territory of Latvia, on an aircraft, or a sea
or river vessel or other floating means of conveyance, if this means of conveyance
is registered in the Republic of Latvia and if it is not provided otherwise
in international agreements binding upon the Republic of Latvia, is to be
held liable in accordance with Latvian Criminal Law.
46.
Article 4 of the Criminal Law stipulates that Latvian citizens and non-citizens,
and aliens or stateless persons who have a permanent residence permit for
47.
In accordance with article 100 of the Latvian Criminal Procedure Code,
any natural or legal person who has suffered moral, physical or property damage
as a result of a crime is to be regarded as a victim. It follows that any person who has suffered damage
as a result of a crime which is within the jurisdiction of
48.
If a person who might have committed crimes mentioned in the Convention
is in
Article 6
49.
The presence of the person suspected of having committed a crime provided
in the Convention, or who is tried for committing such crime, is ensured in
accordance with the provisions of the Latvian Criminal Procedure Code which
are applicable with respect to investigation and trial of any other crime,
including the provisions concerning security measures. Under article 68 of the Criminal Procedure Code,
if there are sufficient grounds to assume that the convict or the defendant,
while free, will evade investigation and court or will obstruct the establishment
of the truth in a criminal case, or will commit a criminal offence, as well
as in order to ensure the execution of the judgement, the investigator, the
prosecutor and the court (judge) have the right to impose a security measure
on the accused person or the defendant. The possible security measures are: signed undertaking not to change the place of
residence, personal warranty, deposit, supervision by the police, house arrest,
detention, supervision of military servicemen by the commander of the army
division, and supervision of minors by parents, guardians or trustees.
50.
As of
51.
Every foreigner who has been detained, including persons detained on the
State border for more than three hours, is given the opportunity to contact
the embassy of his/her country by telephone.
In cases where the person expresses the wish to meet the representatives
of the embassy, it is ensured that this request is complied with.
52.
The National Police within 24 hours informs the Consular Department of
the Latvian Ministry of Foreign Affairs on every occasion when a national
of another country has been apprehended or detained as a suspect. According to section 2 of article 78 of the Criminal
Article 7
53.
In the investigation and trial of crimes mentioned in the Convention, the
same principles of the Latvian Criminal Procedure Code are applicable as are
compulsory in the investigation and trial of any other crime, both as to the
procedure on how the evidence is obtained, examined and evaluated, and to
the obligation of the law enforcement institutions to investigate objectively,
thoroughly and completely the circumstances of the case.
54.
None of the legal acts effective in
Article 8
55.
According to the Latvian legal acts in force, extradition is carried out
in accordance with international agreements.
56.
Article 23.6 of the Latvian Criminal Procedure Code stipulates that if
a person who has committed a crime in another State where a criminal case
has been initiated, or criminal prosecution has been commenced, or this person
has been brought before the court, or a judgement convicting this person has
become effective, is hiding in Latvia, in cases provided for by international
agreements the Prosecutor General of the Republic of Latvia, after the receipt
of the request from the respective State to extradite this person, decides,
on the basis of received documents, on the extradition and forwards the adopted
decision to the Ministry of the Interior for execution. In the decision on the extradition of a person
the name and surname of the persons, birth year, grounds for extradition,
when and who has been ordered to execute the decision have to be stated and
the relevant documents annexed. Duly
authorized translation in the respective foreign language has to be annexed.
57.
On
58.
In cases when the extradition of a person from
Article 9
59.
Legal assistance in investigation and trial of the crimes provided in the
Convention is based on the same principles as legal assistance in investigation
and trial of any other crime. Article
23 of the Criminal Procedure Code of Latvia states that contacts between the
court, prosecutorial and investigatory institutions with law enforcement agencies
of foreign States, as well as the execution of requests from these foreign
institutions is to be carried out in accordance with international agreements
binding upon Latvia as well as in accordance with the norms of the Criminal
Procedure Code. However, the Prosecutor
General’s Office of the
60.
As of
61.
Article 10
62.
Since the restoration of
63.
Information on norms prohibiting torture is presented to students of the
Police Academy of Latvia in several academic courses. The course “Tactics of Interrogation” discusses
in detail the inadmissibility of torture and any other physical or mental
violence. The course “Tactics of Detention
and Custodial Arrest” includes an explanation on the admissibility of the
application of physical force and firearms only and solely with the purpose
of overcoming the resistance of the person to be detained or arrested. The course “Criminal Prosecution” explains the
norm of the Law “On Operational Activity” that prohibits any operational activities
or the application of any means if they pose a threat to human life and health.
The course “Professional Physical Training”, inter
alia, discusses the practical implementation of the norms contained
in the Convention. For example, prior
to taking the academic course on the application of special means in the detention
of an offender, the legal requirements concerning the application of these
means are explained to students, emphasizing that degrading and cruel, inadequate
action by a police officer is impermissible.
The courses “Law on the Execution of Criminal Penalties” and “Rights
of the Police” discuss the rights and duties of employees of the police, penitentiaries
and border police, emphasizing their duty to respect the human rights of every
individual.
64.
In 1999 the
65.
An integral component of the study programmes at educational institutions
of the National Police, as well as for the personnel of structural entities,
training programmes, service training programmes and upgrading programmes,
is information and education of police officers on the authority of the police,
interrogation procedures, detention and custodial arrest, the inadmissibility
of the unjustified application of physical force, special means and weapons,
and cruel, inhuman or degrading treatment.
66.
The training of employees of the State Border Guard is provided by the
School of Border Guards in Rēzekne where students, within the framework
of the training programme, study the requirements of the effective legal acts
- the Code of Administrative Violations, the Criminal Law, the Criminal Procedure
Code - and the requirements concerning actions upon the detention, arrest
and interrogation of persons.
67.
In the training programme and training courses at the
Article 11
68.
Both Latvian institutions and institutions of competent international organizations
supervise the respect for the rights of detained and imprisoned persons.
69.
There are 28 short-term detention isolators of the National Police, which
in 1999 were examined by the experts from the European Committee for the Prevention
of Torture. In several places the experts
established non-compliance with the requirements for conditions of detention.
The prosecutor’s office also has inspected isolators in several districts
of
70.
Several steps have been taken in order to improve the conditions in the
short-term detention isolators of the National Police. For example, necessary financial means were allocated
for the investment project “Building of the short-term detention isolator
and garages of the Dobele district police board” and on
71.
In order to ensure that detention conditions in the short-term detention
isolators of the National Police correspond to the existing requirements,
it is necessary to renovate and to rebuild the isolators, as well as to arrange
the exercise area and to purchase necessary equipment, but completion of these
tasks is hampered by the lack of necessary financial means.
72.
According to the legal acts in force and the established practice, there
are various ways to monitor the observance of the prohibition of torture by
officials. For example, in the evaluation
of National Police officers, which takes place periodically (every two years),
compliance with professional ethics is taken into account. Individuals may submit complaints against the
actions of police officers before several institutions - a higher police institution,
the Ministry of the Interior, the prosecutor’s office, the court, as well
as the National Human Rights Office, the Chancellery of the President of the
State, or the Parliament. A special
institution functions within the National Police - Inspection of Personnel
- whose task is to examine complaints by individuals. In 1998 this institution examined 33 complaints,
in 1999, 37 complaints, and in 2000, 67 complaints about the offences
of the staff, including unjustified apprehension and use of force or special
means. Following the examinations, in
1998 in three cases the offences complained about were confirmed and the materials
were submitted to the investigation institutions for the adoption of procedural
decisions; in 1999 there were six such cases and in 2000 seven cases.
In 2001 there were 21 complaints examined and 7 offences confirmed.
73.
Every year the National Police summarizes the statistical data on disciplinary
practice. According to this data, in
1998, 36 staff members were charged with malfeasance,
74.
Since the second half of 1999, when the Investigative Service was established
within the National Border Guard, officials of that service being authorized
to perform pre-trial investigations for crimes within the competence of the
National Border Guard, no act of torture has been disclosed by the officials,
no application from an individual has been filed, and no reproach from supervisory
institutions has been received concerning violation of the prohibition of
torture by staff members of the National Border Guard.
Article 12
75.
Article 3 of the Latvian Criminal Procedure Code stipulates that, whenever
signs of a criminal offence have been disclosed, the court, the prosecutor
and the investigation institution, within their competence, are under the
obligation to initiate a criminal case and to use all legal means in order
to detect the criminal offence, to identify the person guilty of committing
the crime and to bring him/her to justice.
76.
In accordance with article 19 of the Latvian Criminal Procedure Code the
court, the judge and the investigator are under the obligation to investigate
objectively, thoroughly and completely the circumstances of the case and to
identify the guilty person, as well as to establish all other circumstances
that are relevant for the proper examination of the criminal case.
77.
The above-mentioned principles established by the Latvian Criminal Procedure
Code are applicable with respect to the investigation and trial of any criminal
offence, including criminal offences provided by the Convention.
Article 13
78.
Article 92 of the Constitution stipulates that everyone has the right to
defend his/her rights and lawful interests in a fair court, while article
107 of the Latvian Criminal Procedure Code states that one of the grounds
for initiating a criminal case is an oral or written application by a person. The investigation institutions, the prosecutor,
the judge or the court is obliged to examine such applications immediately,
but not later than within 10 days from receipt. If it is necessary to obtain an opinion from
experts or an auditing opinion, the time limit for the examination of the
application is extended to 30 days. If
there are sufficient reasons to believe that a criminal offence has been committed,
a criminal case is initiated; it is investigated and tried according to the
Latvian Criminal Procedure Code.
79.
According to chapter nine A of the Latvian Criminal Procedure Code, special
procedural protection may be granted to victims, witnesses, suspects, accused
persons, defendants and convicts if they testify in criminal cases concerning
grave and particularly grave crimes, as well as to persons whose endangerment
may affect the protected person. Special
procedural protection is to be established if owing to their testimonies there
is real endangerment of their lives, health, property or lawful interests,
or they have received threat of such endangerment, or there are sufficient
reasons to believe that endangerment may take place. The decision to grant special procedural protection
is adopted by the Prosecutor General upon the initiative of the official responsible
for the criminal procedure and after all the materials of the case have been
examined and the endangered person has been heard.
Article 14
80.
A person who has become a victim of torture has the right to demand compensation
in compliance with article 101 of the Criminal Procedure Code, which prescribes
that a person who has suffered material losses through a criminal offence
may submit a civil claim within the framework of the criminal case against
the defendant or a person who bears material responsibility for the actions
of the defendant. The same article also
stipulates that a person who has not submitted a civil claim in a criminal
case, as well as a person whose civil claim
81.
The Civil Law, in its turn, prescribes the duty of the person whose action
has been unlawful and who has inflicted bodily injuries on another person
to compensate the victim for medical costs. The victim also has a right to demand compensation
for the unearned profit. If the victim
has lost his/her ability to work or has been mutilated, the guilty party must
in addition compensate also for the profit that the victim would have acquired
in future, as well as for the mutilation.
82.
The Civil Law also prescribes that the person who is guilty of causing
the death of another person has the duty to compensate the heirs of the deceased
for medical treatment and funeral costs. Besides, the Civil Law prescribes the duty of
the guilty party to pay an indemnity to the dependants of the deceased.
Article 15
83.
Effective legal acts of Latvia establish the principle, provided in article
15 of the Convention, that it is prohibited to use as evidence testimony that
has been acquired through torturing a person.
84.
Thus, article 19 of the Criminal Procedure Code stipulates that only evidence
that has been gained, reviewed and assessed under the procedure prescribed
by law may be used for establishing the circumstances of a case.
Under article 49 of the Criminal Procedure Code, evidence in a criminal
case is any facts used as the basis by the investigating institution, the
prosecutor, the judge and the court, in compliance with the procedure prescribed
by the law, for determining the presence or absence of corpus
delicti - constituent elements of a criminal offence, the guilt of the
person who has committed the said offence and other circumstances that are
significant in the appropriate adjudication of the case.
These facts are stated with the help of testimonies of witnesses, the
testimony of the victim, testimonies of the suspect, testimonies of the accused
person, expert statements, substantial evidence, and records of investigation
and courts and other documents. Information
acquired during operational activities, as well as information recorded with
the help of technical means, may be used as evidence only if it is possible
to check them under the procedure prescribed by the above Code.
85.
Under article 294, compelling to testify at an interrogation, if it involves
violence, a threat of violence, humiliation of the interrogated person or
has been committed in any other way, and if the pre-trial investigator has
committed it, is punished by deprivation of liberty for a term of up to 10
years.
86.
According to the information from the competent authorities, in 2001 only
one criminal offence provided in article 294 of the Criminal Law was registered.
Article 16
87.
As already mentioned in paragraph 3 of the present report, article 95 of
the Constitution provides for not only the prohibition of torture, but also
the prohibition of cruel or degrading treatment or punishment. Several legal acts in force secure this principle
in specific areas.
88.
The Education Law defines the rights and obligations of the pedagogue and
the students. Thus, article 51 of the
Law stipulates that the duty of the pedagogue, inter alia, is to respect the norms of professional ethics, to
respect the rights of the child, as well as to be responsible for his/her
work, methods, techniques and results. Article
55 in turn provides the right of students to express freely and to defend
their thoughts and opinions during the study and educational process, the
right to conditions that are safe for their life and health at the educational
institution and activities organized by the institution, etc. These norms apply to all educational institutions,
including special educational institutions providing general practical and
vocational education to students with mental and psychological developmental
disorders and special needs.
89.
Under articles 66 and 67 of the Criminal Law, the 1993 Law “On the Application
of Educational Corrective Measures to Minors” and article 8 of the Latvian
Criminal Procedure Code, corrective measures may be applied to minors found
guilty of offences. One of the possible
measures is to place the minor in an educational institution of social correction,
where educational programmes of social correction for delinquents are implemented.
The operation of these institutions is regulated by the Education Law.
90.
91.
Article 139 of the Criminal Law prescribes liability for the illegal removal
of tissue or organs from a living or dead human with the purpose of using
them in medicine, if it has been committed by a medical practitioner.
The possible penalty for such acts is deprivation of liberty for a
term of up to five years, and depriving the person of the right to engage
in the practice of medical treatment for a period of up to five years.
92.
The Central Committee of Medical Ethics has been established and operates
under the Medication Law; it is a collegiate advisory body that reviews ethical
issues of biomedical progress that apply to social problems - a set of moral
values and norms in biomedicine that
93.
The 1992 Scientific Activity Law stipulates that the duty of the scientist
is to terminate scientific research, if, according to the scientist’s opinion,
it can pose a threat to humanity, the society or nature, and to inform society
about it. The law prescribes the establishment
of the Scientific Council of Latvia, which is entrusted with the task of formulating
criteria for the ethics of scientific research.
94.
At the end of 2001 the Constitutional Court announced its judgement in
the case on the compliance of the Provisional Regulations “On Procedure for
Keeping Suspects, Accused Persons, Defendants and Convicted Persons at Remand
Prisons”, approved by the Ministry of Justice, with article 95 (prohibition
of torture and inhuman or degrading treatment) and article 111 (the right
to health and a guaranteed minimum of medical assistance) of the Constitution.
According to the opinion of the applicants who submitted the constitutional
complaint, the prescribed prohibition of food parcels was contrary to the
above articles of the Constitution. In its judgement the
Notes
[1] Criminal offence is an offence where the law prescribes deprivation of liberty for a term not exceeding two years or a less severe penalty. A less-serious crime is an intentional offence penalized by deprivation of liberty for a term exceeding two years but not exceeding five years, as well as an offence committed out of negligence and punishable under the Criminal Law by deprivation of liberty for a term in excess of two years. A serious crime is an intentional offence penalized by deprivation of liberty for a term in excess of five years but not exceeding 10 years. A particularly serious crime is an intentional offence which is penalized under the Criminal Law by deprivation of liberty for a term in excess of 10 years, life imprisonment or capital punishment.
[2]
Under effective legal acts the
extradition of a person from
(a) The said person is a citizen of
(b) The criminal offence has been committed in the
(c) A court judgement on the criminal offence for which extradition is requested has been already made and has become effective as well as if the case on the said charges has been closed;
(d) Under the laws of
(e) The offence for which the extradition of the person is requested is not criminal under the Criminal Law;
(f) The person has been granted political asylum in
the