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THE NECESSITY TO EXPAND THE CASES OF MANDATORY DEFENCE IN CRIMINAL PROCEEDINGS IN LATVIA
Abstract
In accordance with Section 88 of the Latvian Criminal Procedure Law, a person who has the right to defence is entitled to refuse a defence counsel. Such refusal shall be allowed only on the basis of the initiative of the person himself or herself; whereas if a person who has the right to defence has expressed a request regarding the participation of a defence counsel, the refusal of a defence counsel may take place only in the presence of the defence counsel. The problem is related to the fact that the police provides the detained and the suspect with a paper that contains the persons rights in writing (the document includes the aforementioned right to defence), but in fact, a defence counsel is only provided upon the persons request. The aim of the work is to substantiate that to fully ensure the human rights of the person who has the right to defence in the criminal procedure, the normative legislation needs to be amended to provide that at least in case of a planned detainment of a personthe refusal of a defence counsel may take place only in the presence of the defence counsel, providing a state-provided defence counsel if required. The investigator will not be able to provide the person with an objective and probably quality explanation, from the point of view of defence, of their rights and to provide at least a minimal, but important for defence, and quality consultation.The mechanism proposed would not allow the investigator to mislead or influence the person who has the right to defence, performing the procedural activity without the defence counsel. Legally the mechanism can be worked into the Criminal Procedure Law, expanding the range of mandatory defence cases, but providing for the person the opportunity to refuse a defence counsel after a consultation with the defence counsel.
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References10
Criminal Procedure Law, Latvia, 2005. Retrieved from https://likumi.lv/ta/en/en/id/107820-criminal-procedure-law
Constitution of the Republic of Latvia, Latvia, 1922. Retrieved from https://likumi.lv/ta/en/en/id/57980-the-constitution-of-the-republic-of-latvia
International Covenant on Civil and Political Rights, 1966. Retrieved from https://likumi.lv/ta/en/starptautiskie-ligumi/id/705-international-covenant-on-civil-and-political-rights
European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950. Retrieved from https://likumi.lv/ta/en/starptautiskie-ligumi/id/649-convention-for-the-protection-of-human-rights-and-fundamental-freedoms
Charter of Fundamental Rights of the European Union https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012P/TXT
Basic Principles on the Role of Lawyers, Cuba, 1990. Retrieved from https://www.ohchr.org/en/professionalinterest/pages/roleoflawyers.aspx
Platpirs V. Advokātu vecākā loma valsts nodrošinātas aizstāvības īstenošanā. „Administratīvā un Kriminālā Justīcija” [The Role of a Senior Advocate in the Implementation of Defence Provided by the State. “Administrative and Criminal Justice”], Latvia, 3 (68), p 46, 2014
Appendix 2 to 22 December 2008 Cabinet Regulation No 1093, Statistikas pārskats par tiesas darbības teritoriju zvērinātu advokātu vecāko Kriminālprocesa likumā noteiktajā kārtībā saņemto un caurskatīto procesa virzītāju pieprasījumu skaitu 2009., 2010., 2011., 2012., 2013., 2014., 2015., 2016., 2017., 2018.gadā[Statistical Report on the Number of Requests Received from Directors of Proceedings and Reviewed by Senior Advocates of Court Jurisdictions in Accordance with the Procedure Provided for in the Criminal Procedure Law in 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018],Senior Advocate for the advocates practicing in the jurisdiction of Latgale District Court and Rēzekne Court Vitālijs Platpirs. Partially published. See Platpirs V. Advokātu vecākā loma valsts nodrošinātas aizstāvības īstenošanā. „Administratīvā un Kriminālā Justīcija”[The Role of a Senior Advocate in the Implementation of Defence Provided by the State. “Administrative and Criminal Justice”], Latvia, 3 (68), p 47, 2014
Platpirs V., The Problematics of Refusing of a Defender in Agreement Proceedings, 6th International Interdisciplinary Scientific Conference “Society. Health. Welfare”: Living in the World of Diversity: Social Transformations. Innovations. Solutions, Latvia, pp 88-89, 2016
The Supreme Court of the Republic of Latvia, Criminal Law, Latvia, Retrieved from http://at.gov.lv/lv/judikatura/tiesu-prakses-apkopojumi/kriminaltiesibas/
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