Consultative Council of European Prosecutors (CCPE)

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LATVIJAS REPUBLIKAS PROKURATŪRA
ĢENERĀLPROKURATŪRA

Reģ.Nr. 90000022859, Kalpaka bulvārī 6, Rīgā, LV-1801
tālr. 67044400, fakss 67044449, e-pasts: gen@lrp.gov.lv



Replies to questionnaire

2nd question
The powers of the Prosecution Office regarding imprisonment institutions and liberty deprivation sentence are provided for by the Section 15 of the Prosecution Office Law.
Section 15. Supervision of the Execution of a Sentence of Deprivation of Liberty
(1) A prosecutor in accordance with the procedures prescribed by law shall supervise the execution of sentences of deprivation of liberty adjudged by a court and the places where persons arrested, detained or under guard are kept and shall take part in the sittings of a court relating to a change in the specified term of a sentence or of circumstances.
(2) A prosecutor has the right and the duty to, without delay, take a decision and release from places of deprivation or restriction of liberty persons held there illegally.
(3) A protest by a prosecutor with respect to a sentence illegally imposed on a person held in a place of deprivation of liberty shall suspend its further execution until the review of the protest is completed.
Presently is elaborated a draft law by which is planned to reduce Prosecutor’s powers regarding supervision of imprisonment and liberty deprivation sentence execution. It is required because imprisoned persons according to effective legal acts have wide possibilities to apply with national and international institutions, the Court and other bodies provided for by Sentence Execution Code and Law on Procedures for Keeping of Persons in Custody of Latvia with aim to defend their own rights. For example, from Law on Department of Imprisonment Institutions stems out that Department of Imprisonment Institutions examines complaints of imprisoned persons regarding living conditions, education, health care, employment, food and other issues related with conditions of imprisonment. If violations are found, the Department of Imprisonment Institutions is obliged to react and rectify them. Nevertheless as core task of the Prosecution Office is supervision of compliance with legality and to counter against violations of law, in the draft law is foreseen to preserve supervision of Prosecutor related with detection and prevention of the criminal offences in places where arrested, detained persons, persons remanded to custody and persons sentenced with liberty deprivation sentences are kept. Additionally the Prosecutors competence to attend hearings of administrative commissions of the imprisonment institutions which examines issues related with execution of the criminal sentences will remain intact. It is foreseen to exclude from Prosecutor’s powers a Prosecutor’s protest, because it can not be considered as effective remedy. It is admitted also by the Constitutional Court of the Republic of Latvia, who in its case-law has referred to ruling of the European Court of Human Rights in the case “Tumilovich against Russia” (1999), wherein is specified that Prosecutor’s protest in the context of the Convention might be regarded as a discretionary power, but not as effective remedy. So that to ensure fair adjudication of case and respecting of person’s rights, an interested party must be provided with possibility to request revision of rendered ruling in the court by his/her own initiative.
4th question
If information is received regarding violation of imprisoned person’s rights and lawful interests, the Prosecutor institutes examination according to procedure provided for by the Law. See Section 17(2) of the Prosecution Office Law:
Section 17. Powers of a Prosecutor when Carrying out Examination of a Submission
(2) A prosecutor, determining a violation of law, in conformity with its nature has the duty to:
1) warn of the non-admissibility of the violation of law;
2) submit a protest or a submission regarding the necessity of prevention of the violation of law;
3) bring an action in court;
4) initiate a criminal matter; and
5) to initiate the adjudication of the question of subjecting to administrative or disciplinary liability.
Moreover the Prosecutor according to the Section 15(2) of the Prosecution Office Law has the right and the duty to, without delay, take a decision and release from places of deprivation or restriction of liberty persons held there illegally.
5th question
The Prosecutor is granted sufficiently wide powers provided for by the Section 17(2) of the Prosecution Office Law (see extract of the Law in reply to 4th question) for responding to breaches of imprisoned person’s rights.
6th question
We consider that role of Prosecutor regarding defending of imprisoned person’s rights is sufficiently regulated by the legal acts.
7th question
The Prosecutor has rights to check how detention institution complies with rights of person. It stems out from Prosecution Office Law, Criminal Procedure Law and Law of Procedures for Keeping of Persons in Custody.
8th question
Imprisoned person can meet with Prosecutor individually. Upon application of imprisoned person the Prosecutor arrives to such person in imprisonment institution or such meeting may take place in imprisonment institution in working hours of Prosecutor. Prosecutors regularly arrange meetings in all imprisonment institutions and imprisoned person, who wants individual meeting with Prosecutor, may apply for such one.
9th question
If application of imprisoned person is received, Prosecutor takes examination and responds to the violation according to the procedure provided for by the Section 17 of the Prosecution Office Law:
Section 17. Powers of a Prosecutor when Carrying out Examination of a Submission
(1) When carrying out an examination of a submission in accordance with the procedures prescribed by law, a prosecutor has the right to:
1) request and receive regulatory enactments, documents and other information from State administrative institutions, banks, the State Audit Office, local governments, undertakings, authorities and organizations, as well as to, without hindrance, enter the premises of such institutions;
2) assign heads and other officials of undertakings, institutions and organizations to carry out examinations, audits and expert-examinations and to submit opinions, as well as to provide the assistance of specialists in the examinations carried out by the prosecutor;
3) invite a person and receive from him or her an explanation of the violation of law. If the person, in bad faith, evades attending pursuant to the invitation of the prosecutor, the prosecutor may take a decision on the forcible conveyance of such person, which shall be carried out by the police.
(2) A prosecutor, determining a violation of law, in conformity with its nature has the duty to:
1) warn of the non-admissibility of the violation of law;
2) submit a protest or a submission regarding the necessity of prevention of the violation of law;
3) bring an action in court;
4) initiate a criminal matter; and
5) to initiate the adjudication of the question of subjecting to administrative or disciplinary liability.

10th question
If violation of law is found, Prosecutor may take measures provided for by the Section 17(2) of the Prosecution Office Law (extract of law attached in reply to 4th question), including instituting of the criminal procedure, possibility to charge with the disciplinary liability, lodging claim with the court.

11th question

Prosecutors visit imprisonment institutions with intention to take examination upon necessity and mainly if complaints are received.

12th question

Prosecutor may appear in the imprisonment institution at any time, including in the night, so that to take examination upon his/her own initiative or if information on possible violation is received.

13th question

Prosecutor during examination has rights to involve experts, assign examinations, audits and investigations and submit opinions, as well as provide support of specialist in taken examinations (Section 17(1), para 2 of the Prosecution Office Law, extract of law attached in reply to 9th question).

14th question
If complaint regarding possible illegal actions of imprisonment institution official or employee is received, Prosecutor may take inspection himself or herself or request to do it Department of Imprisonment Institutions, which supervises imprisonment institutions. After receiving of opinion from Department of Imprisonment Institutions, Prosecutor may institute a criminal procedure, disciplinary case or take any other measures provided for by the Section 17(2) of the Prosecution Office Law (extract of law attached in reply to 4th question). After institution of the criminal procedure Prosecutor surrenders it to the Department of Imprisonment Institutions, which investigates the criminal offences committed by the officials or employees of the imprisonment institution. The instituted disciplinary case also is forwarded to the Department of Imprisonment Institutions, which has rights to decide issue regarding imposing of disciplinary sanctions.
15th question
Investigation is taken by the officials entitled by the Department of Imprisonment Institutions – investigators, but Prosecutor supervises investigation. The obligations and rights of supervising prosecutor are provided for by the Section 37 of the Criminal Procedure Law:
Section 37.      Public Prosecutor Supervising Investigation
 (1) The public prosecutor who must perform supervision of an investigation in accordance with a distribution of duties specified in a prosecutorial institution, or an order in concrete criminal proceedings, shall be the supervising public prosecutor.
(2) During an investigation, a supervising public prosecutor has a duty:
1) to give instructions regarding the selection of the type of proceedings, the direction of an investigation and the performance of investigative actions, if a person directing the proceedings does not ensure a targeted investigation and allows for unjustified intervention in the life of a person or a delay.
2) to request that the direct supervisor of an investigator replace a person directing the proceedings, or make changes in the investigative group, if assigned instructions are not fulfilled or if procedural violations are allowed that threaten the progress of criminal proceedings;
3) [28 September 2005];
4) [12 March 2009];
5) to examine complaints within the competence thereof;
6) to decide rejections within the competence thereof;
7) to take over the direction of criminal proceedings without delay when sufficient evidence for the fair regulation of criminal legal relations has been obtained in an investigation.
(3) The public prosecutor supervising an investigation has the right to:
1) take a decision regarding the initiation of criminal proceedings and the transfer thereof to an investigative institution;
2) request the execution of provided instructions;
3) carry out investigative actions, informing a person directing the proceedings beforehand regarding such carrying out of investigative actions;
4) familiarize him or herself at any time regarding the materials of the criminal proceedings;
5) revoke the decisions of the person directing the proceedings and a member of the investigative group;
6) submit a proposal to a more senior prosecutor regarding the determination of the direct supervisor of another investigator in concrete criminal proceedings, or the transfer of criminal proceedings to another investigative institution;
7) participate in a meeting wherein the investigating judge decides regarding the granting of permission to apply compulsory measures and to perform special investigative actions;
8) to participate in the performance of the procedural actions that are directed at co-operation with the person who has the right to defence, as well as to participate in the selection of simpler proceedings.
16th question
Prosecutor does not adopt and does not revoke any special measures regarding imprisoned persons of high risk. In its turn if such measures cause violation of imprisoned person rights, Prosecutor has obligation to respond according to the procedure provided for by the Section 17(2) of the Prosecution Office Law (extract of law attached in reply to 4th question).
17th question
That issue is regulated by the Section 6(1) of the Prosecution Office Law:
Section 6. Independence of a Prosecutor

    (1) In his or her activities a prosecutor shall be independent of the influence of other institutions or officials exercising State authority and administration and shall observe only the rule of law.

18th question
Prosecutor is not involved in examination of pardon applications, because according to the Amnesty Law pardon is granted by the State President upon application of convicted, his/her counsel of defense, legal representative, parents, children or spouse.
Amnesty is applied by special Amnesty Law, which provides for mandatory participation of Prosecutor in amnesty commission hearings. Last amnesty in Latvia took place according to the Amnesty Law adopted on November 20, 1997 and was applied to persons, who has committed criminal offences till December 6, 1997, when mentioned law took effect.
Prosecutors participate in administrative commission hearings pursuant to the procedure provided for by the Law on Execution of Sentences of Latvia, which examines issues related with sentence execution, including issues regarding early release from sentence serving and release from sentence serving in cases provided for by the law.
19th question
Prosecutor needs no special qualification for examination of such issues. If complaint on possible illegal actions during criminal procedural and administrative detention of person is received, any Prosecutor has rights to examine it and respond pursuant to procedure provided for by the Law.
20th question
In Latvia does not exist sentence execution supervision judge. If Prosecutor considers that a court judgment is unreasoned or illegal, Prosecutor may lodge appeal or cassation protest.
21st question
Prosecutor during sentence execution supervision cooperates with ombudsman, who within his/her competence provided for by the Law has rights to request information, files and opinions from Prosecutor, as well as in case if violation is found, to request Prosecutor to apply responding measures provided for by the Prosecution Office Law, including instituting of the criminal procedure. Moreover some cooperation takes place also with Department of Imprisonment Institutions and Ministry of Justice, which supervises Department of Imprisonment Institutions.