Questionnaire - Comparative criminal procedure law study:
The State Audit Office of Latvia performs a performance audit "On Possible
Deficiencies in the Regulation of the Criminal Law and the Criminal Procedure Law for
Effective Investigation and Prosecution of Criminal Offenses in the Field of Finance and
Economy". I am involved as an expert in this audit. Therefore, colleagues, I would be very
grateful if you could find an opportunity to answer the questions below briefly. Please send me
the answers by e-mail no later than August 15.
1. Is the judge given full procedural discretion in the trial, or there is some
procedural limitations?
Explanation: In Latvia, when a case is brought before a court, a set of documents (case)
is attached. It contains a set of evidence (witness testimony given in the previous investigation,
expert opinions and other documents substantiating the accusation, indictment and, victims)
list.
Does the criminal procedure in your country require the prosecutor to attach the case
file to the court?
Yes. The Prosecutor’s Office is obliged to set out in the statement of charges the
evidence in proof of the facts which are the basis of the charge, and a reference to the facts
which are intended to be proven with each piece of evidence (Code of Criminal Procedure of
the Republic of Estonia § 154 (2) 4)). Similar to Latvia, this evidence may include witness
testimony given in previous proceeding, expert’s report, physical evidence etc. In addition, a
list of the persons to be summoned to a court session at the request of the Prosecutor’s Office
shall be appended to a statement of charges (Code of Criminal Procedure of the Republic of
Estonia § 226 (2)). And if a civil action or a proof of claim in public law was filed in pre-court
procedure, the Prosecutor’s Office shall send this too together with the statement of charges to
the court (Code of Criminal Procedure of the Republic of Estonia § 226 (7)).
However, it is important to point out that no evidence shall be appended to the statement
of charges, civil action or proof of claim in public law in a criminal matter sent to a court
pursuant to the general procedure. The Supreme Court of Estonia has also ruled that while
setting out the evidence in the statement of charges the Prosecutor’s Office must not disclose
the content of the evidence.
If the answer is yes:
1.1. Does the judge have the right to audit the number of persons to be summoned
when preparing a case for trial? Or list of persons to be summoned to court is
an absolute discretion of the prosecutor and the lawyer?
1.2. May a trial judge, based on the particular circumstances of the case, instruct
parties about limits of the duration of the examination of a witness, expert, or
parties can interrogate persons without any time limits?
Explanation: In Latvia, a judge does not currently have such a right, and this often
creates situations when the persons summoned to the proceedings are interrogated for a
disproportionate length of time. As a result, litigation is lengthy and difficult to manage. In turn,
such situation causes great dissatisfaction in society and criticism of the work of the judiciary.
In ICTY, before the hearing, the prosecutor and lawyers informed the court of the
expected length of the interrogation of the witness. In principle, the court already accepted these
requests, but in the process followed how usefully the parties use the allocated time. This, in
turn, allowed the court, in cases where the prosecutor or lawyer requested additional time, to
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objectively assess the grounds for such a request. We denied such requests about extension of
time quite often.
1.1. Yes, in Estonia the judge has the right to audit the number of persons to be
summoned when preparing a case for trial. For example, as previously stated, the Prosecutor’s
Office shall not only list the persons to be summoned to a court session, but also set out in the
statement of charges the facts which are intended to be proven with each piece of evidence. The
same obligation applies for the counsel – the statement of defence shall set out the evidence
which the counsel wishes to submit to the court and a reference to the facts which are intended
to be proven with each piece of evidence (Code of Criminal Procedure of the Republic of
Estonia § 227 (3) 2)). This allows the judge to get a general and initial overview of the parties’
intentions and decide whether the request to summon a person is justified (or at least if the
request is obviously unjustified). To be clearer, a witness is a natural person who may know
facts relating to a subject of proof (Code of Criminal Procedure of the Republic of Estonia § 66
(1)). If it is seen from the request of a party that the person they wish to summon to court cannot
know the facts relating to a subject of proof and the party fails to convince the judge otherwise,
the judge may decide not to summon the person to court.
1.2. The question concerning the limits of the duration of the examination is more
complicated and is solved case by case balancing between the principle of fair and equitable
judicial procedure (including the right of defence of the accused) and efficiency of the criminal
proceedings. However, the general answer is yes – a trial judge may instruct parties about limits
of the duration of the examination.
The court shall hear a matter as an integral whole and shall ensure that a decision is
made as quickly as possible (Code of Criminal Procedure of the Republic of Estonia § 151).
Therefore, the trial judge is responsible for solving the criminal case within a reasonable period
of time. If the judge sees in the course of the court proceedings that the examination of a person
is intentionally delayed or a party is abusing its procedural rights, the judge has the possibility
to act accordingly. For example, the judge has the right to instruct parties about limits of the
duration of the examination of a person or even limit the duration of examination. However,
this is done in rare cases.
1.3. In Latvia there is also a certain problem with the examination of the documents in
the case, which is not directly related to the testimony of witnesses, experts, victims, but which
could play a significant role in a fair trial.
Imagine, in large-scale cases with several defendants, 25-30 volumes of documents are
submitted in the case. each of them may contain a document that would be relevant to the
adjudication of the case. Now, in the process, the courts are simply forced to spend time publicly
reading all these documents at the request of the parties or on their own initiative. You can
imagine how much time the court spends for this purpose.
how your court deals with this issue?
In Estonia the court shall accept and organise the taking of only such evidence which has
relevance to the matter (Code of Criminal Procedure of the Republic of Estonia § 2861 (1)).
Therefore, reading all the volumes of documents during a court session is not in line with the
law.
In addition, if a document has relevance to the matter and the court accepts it, the party to
judicial proceedings which submitted the evidence shall read it out in full or in part or disclose
it in another way, taking into account the nature of the specific evidence and the purpose of
using thereof. Non-disclosure of evidence is allowed by agreement of parties, if the court finds
that this is not contrary to the principle of public access to court sessions (Code of Criminal
Procedure of the Republic of Estonia § 296 (3)). In practice, this means that the extent of public
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reading of written evidence depends on the specific case, specific evidence and the capability
of a specific trial judge to chair the court proceedings. Some judges encourage the parties to
remain reasonable and read the documents (in full) only if it is necessary.
II. Application of Criminal procedure law in the court.
Explanation: The literature indicates that in the countries of the inquisitorial process,
the actions of courts are strictly limited by the text of the law. This, in turn, means that they
have little opportunity to interpret the provisions of the Criminal Procedure Law in an extended
manner. However, there are also sources where it is indicated that the courts do not have to
apply the law of criminal procedure as an instruction but have the right to perform the
translation in accordance with the meaning and purpose of the norm. The text of the articles of
the Criminal Procedure Law often also contains open legal concepts, which the court usually
fills with specific content in the process of application of the norm.
Would a court, in process of adjudication, be entitled to interpret the meaning of
this article according to the circumstances of the particular court proceedings?
The Estonian courts have the right to translate the provisions of criminal procedure law
in accordance with the meaning and purpose of the norm among other criteria. Also, the text of
the provisions of law may contain open legal concepts, which the court fills with specific
content in the process of application of the norm. However, this does not give the courts the
possibility to interpret the meaning of said provisions according to the circumstances of the
particular court proceedings. Despite the type of the particular court proceedings (general
procedure, alternative procedure, settlement procedure etc) or the specific criminal matter, the
same criminal law provisions are translated in the same way.
III. Procedural expenses.
Is the cost of each criminal proceedings calculated in the country from the
commencement until res judicata?
Yes.
If so, can the costs of criminal proceedings be a reason for a prosecutor or court to
refrain from using financially expensive means of obtaining evidence in the proceedings?
It is not out of the question. The court may refuse to accept evidence and return the
evidence, or refuse to take evidence, if the evidence is not accessible and, above all, if the
witness's data or location of a document is unknown, or if the relevance of the evidence is
disproportionate to the time necessary for taking the evidence or other difficulties related
thereto (Code of Criminal Procedure of the Republic of Estonia § 2861 (2) 1). The high cost of
obtaining evidence may be considered as other difficulty related to the taking the evidence.
However, to this date, no Estonian court is known to refuse to take evidence on this ground.
If so, how is justice and fairness ensured in such cases?
As this case is not yet known to take place in Estonia, we can answer your question
theoretically. Taking into account the text of the law cited above, the court should compare the
relevance of the evidence with the cost of taking the evidence. The court may refuse to take the
evidence only if the relevance of the evidence is disproportionate to the cost of taking the
evidence.
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SUPREME COURT
REPUBLIC OF ESTON IA
Riga Stradins University
Uldis Ilinis 12 August2020
[email protected] No.7-8i20-400
Dear Sir
I hereby send you the answers of the Supreme Court of Estonia to your questions based on the
study on comparative criminalprocedure law. I wish you good luck in Yõur endeavours.
Yours
Andraš Tšitškan
Head of Legal Information and Judicial Training Department
The Supreme Court of Estoni
Attachment 1. Answers to the questionnaire.
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l7 Lossi St,50093 Tartu, ESTONIA. Tel +372 l.30 9002, e-mail:
[email protected]
www.riigikohus.ee