BĒRZIŅŠ v. LATVIA

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 25 October 1999 criminal proceedings were initiated against the applicant on suspicion of abuse of office.

Between 25 October and 15 December 1999 the applicant was in pre-trial custody. On 15 December 1999 he was placed under police supervision.

On 14 December 1999 the prosecution issued an order suspending the applicant from office on the grounds that if he remained in office he could obstruct the investigation. The order stated that the applicant would be suspended during the pre-trial investigation.

On 21 December 2001 the pre-trial investigation was completed and the case was transferred to a court.

The applicant and twelve other co-accused were brought before the Ludza District Court (Ludzas rajona tiesa) for the main trial.

According to the indictment, on 25 October 1999 the applicant, in his official capacity as customs officer and acting in concert with other individuals, had processed documents for a vehicle that had not crossed the State border and had not exported goods.

On 24 November 2011 the applicant was found guilty of aggravated abuse of office under section 318(2) of the Criminal Law, in the wording in force until 1 January 2005.

The District Court considered that the applicant had committed a serious crime with one aggravating circumstance and no mitigating circumstances. It took into consideration the applicant’s good character references and the fact that he had no previous convictions. Referring to section 5(2) of the Criminal Law (lex mitior) and section 491 of that Law (determination of sentence where the right to completion of criminal proceedings within a reasonable time has not been respected), the District Court considered it appropriate to impose a non-custodial sentence, namely, compulsory work, without any ancillary penalty.

In that regard, relying on section 14 of the Criminal Procedure Law (right to completion of criminal proceedings within a reasonable time), the District Court reasoned as follows: “Completion of criminal proceedings within a reasonable time is related to the volume of a case, its legal complexity, number of procedural actions [and] the attitude on the part of the persons involved in the proceedings towards their obligations, and [is related to] other objective circumstances. The criminal proceedings under consideration were commenced on 25 October 1999 [and] on 14 January 2002 the criminal case was received for adjudication by the court. [T]he adjudication of the case was restarted anew before three compositions of the trial bench [and] twenty-one court hearings were scheduled for the adjudication of the case. The reasons for postponement of the [proceedings] were not related to the non-performance of procedural obligations on the part of the accused [including the applicant]. In such circumstances [and] taking into account the volume of the case file and [its] legal complexity, with the accused charged in relation to nine incidents, [the court] finds that the right of the accused to completion of criminal proceedings within a reasonable time has not been respected.”

In determining sentence the District Court cited the wording of section 491(1)1) of the Criminal Law (see paragraph 20 below). It stated that a court’s finding of non-compliance with the reasonable-time guarantee could be taken into account in mitigating sentence. The District Court’s further considerations read as follows: “The court deems it impossible to apply ... a fine, because neither the prosecution nor defence have submitted evidence on the financial situation of the accused that would enable the court to assess their ability to pay the fine immediately or their possibility to gain income [in the future] enabling them to pay the fine imposed within the time-frame foreseen by the law. In determining the sentence ... the court takes into consideration that ... a very long time has passed since the commission of the crime, the positive character references of the accused and the fact that [the applicant] cares for a child who is a Category 1 disabled ... and that there are no mitigating circumstances ... with respect to [the applicant] there is one aggravating circumstance...”

Accordingly, the District Court found that it could determine the sentence within or close to the minimum penalty prescribed by law.

Applying section 491 of the Criminal Law, the District Court imposed a sentence of forty hours’ compulsory work on the applicant. It credited to the applicant’s sentence the time he had spent in pre-trial custody between 25 October and 15 December 1999. As a result, the court concluded that the applicant had already served his sentence in full.

On 7 May 2012 the Latgale Regional Court (Latgales apgabaltiesa) upheld the applicant’s conviction on appeal.

The Regional Court noted that the sentence which had been imposed on the applicant complied with the Criminal Law and there were no grounds to consider that it was disproportionate.

On 2 November 2012 the Senate of the Supreme Court (Augstākās tiesas Senāts) refused to consider an appeal on points of law lodged by the applicant.

That decision was final.

The applicant learnt of the decision of the Senate of the Supreme Court on 12 November 2012, when it was communicated to him.

The domestic law and practice has been cited in Trūps v. Latvia ((dec.), no. 58497/08, §§ 16-33, 20 November 2012). For the purposes of the present case it is appropriate to set out the wording of section 491(1)1) of the Criminal Law: “(1) If a court finds that a person’s right to completion of criminal proceedings within a reasonable time has not been respected, it may: 1) take this circumstance into account in determining sentence and mitigate the sentence; ...”

Under section 318(2) of the Criminal Law, an abuse of office that had caused grave consequences or had been committed with the intent to obtain a material benefit was punishable by a custodial sentence of up to eight years or a fine of up to one hundred and fifty minimum monthly salaries. On 1 January 2005 amendments to section 318(2) entered into force. The punishment of compulsory work and the ancillary penalty of prohibition on exercising certain duties for a period of one year to five years were added.