Uldis Krastiņš, Professor, Head of the Department of Criminal Law, University of Latvia
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The Role of Law as a Science in the Development of Judicial
Practice
One of the expressions of fairness principle in the criminal law is the
requirement that similar criminal offences have to be qualified equally, that is,
the same Standard of the Criminal Law has to be applied; this requirement is
also in the basis of imposing correct and fair punishment for an offence. The
famous criminal law specialist of pre-war Latvia Pauls Mincs when speaking
about possibility of unrestricted arbitrariness in application of law has said:
„... even when excluding conscientious (meaning – intentional, remark of
mine) arbitrariness, numerous judges within their territorial competence shall
adjudicate differently similar cases what naturally would lead to different
understanding of one and the same law and finally would harm the legal
understanding of people as well as reliability to fairness of criminal
repression” (P. Mincs. Criminal Law. Special Part. – Riga, 1939, p.8). In my
opinion, it sounds quite up-to-date.
The role of the Supreme Court of the Republic of Latvia in
development of uniform court practice in the field of qualification of criminal
offences has been considerable. And I would like to stress especially the
significance of decisions of the Plenary Sessions of the Supreme Court. In
preparation of draft decisions of the Plenary Sessions scientists – experts in
criminal law have taken active participation, and it should be noted that many
decisions of the plenary sessions contain theoretically grounded cognitions in
the understanding of contents of criminal law standards. And naturally, the
courts in their practice apply approaches included in the decisions of the
plenary sessions although their binding character is being denied. I would like
to stress specially the decision of the Plenary Session of December 14, 2004,
„Application of Law in Criminal Cases Regarding Theft of Property”.
However, it is sad to find that this is the last decisions of plenary sessions in
the field of interpretation of Criminal Law standards.
The activities of the Plenary Session of the Supreme Court in the field
of interpretation of the criminal Law stopped after exclusion of indication
from Article 49 of the „Law on Judicial Power” that positions of application
of the Criminal Law standards enclosed in decisions of the plenary sessions
are not binding for the courts. Competence of the plenary sessions covered
possibilities to discuss current issues of interpretation of law standards
(Amendment dated October 31, 2002, by the Parliament to the second part of
Article 49 of the „Law on Judicial Power”).
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Report in the Conference, October 7, 2005
Uldis Krastiņš, Professor, Head of the Department of Criminal Law, University of Latvia
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However, we have to state that activities of plenary sessions of the
Supreme Court regarding interpretation (lat. interpretari – to explain, disclose
essence, translate) of the Criminal Law standards has not been renewed, and
we have to admit that in this field a serious stagnancy has set in. The attempt
of lecturers of the University of Latvia Law Faculty Criminal Law Sciences
Department to replace decisions of plenary sessions by scientifically prepared
guidelines regarding interpretation of the Criminal Law standards failed. This
regards the guidelines prepared on the basis of summarizing the court practice
materials by the Supreme Court on practice of application of Article 125 of
the Criminal Law in courts.
The capacities of plenary sessions regarding interpretation of law
standards are not made use of, however, the Supreme Court does give its
contribution to the development of uniform court practice. The Department of
Plenary Sessions and Generalization of Court Practice deals with research of
court practice and generalization in separate criminal law categories. Such
generalization of court practice contains also conclusions and they are
published. However, first of all, recommendations expressed in such
conclusions in most cases do not have scientific grounding. Secondly, there
are no legal grounds to regard the recommendations included in the
conclusions as interpretation of law standards as in connection with the
mentioned second part of Article 49 of the „Law on Judicial Power” the
plenary sessions of the Supreme Court solely have the official right of
interpretation.
In relation with interpretation of law standards we could deal with court
rulings in specific criminal cases. However, it should be mentioned that case
law, at least, in this moment will not be based on the law and in the classical
meaning, as it is in the community of Anglo-Saxon law, the case law will
hardly find its application in Latvia.
At the same time, we have no grounds to deny that summarization and
publishing of rulings of higher courts (Department of Criminal Cases of the
Supreme Court Senate and the regional courts) in separate volumes serve for
disclosure of mistakes allowed by the courts in separate criminal cases and for
exercising of transparency of administering justice. The idea of publishing
court rulings through internet is positive. It is apparently significant for
increasing responsibility of judges for quality of grounding of the rulings. For
this, introduction of theoretical cognitions of criminal law in specific court
rulings could be helpful. Commentaries on the Criminal Law have been
prepared in three volumes; the possibility to publish a new extended volume
of commentaries is being discussed. As well, there have been several quite
serious scientific publications of theoretical nature regarding understanding of
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Report in the Conference, October 7, 2005
Uldis Krastiņš, Professor, Head of the Department of Criminal Law, University of Latvia
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contents of the Criminal Law standards and issues on application. I think that
theoretical cognitions in qualification solutions on criminal offences should
be used more widely. At this moment, such practice does not exist, as it does
not have any support.
At the end of my speech regarding usage of court rulings in
development of uniform court practice, I would like to focus on such issues:
firstly, as I mentioned previously, application of case law in court rulings is
not based on the law; secondly, the criminal procedure law allows situation
when court rulings which contain obviously wrong qualifications remain
effective, and it cannot be corrected. The qualification of criminal offences in
the courts are stated mostly by the prosecutor’s viewpoint, as the courts on
their own initiative have no right to pass a case for additional investigation for
imposing heavier charges to the accused, and this causes situation when the
court ruling, even in the cassation instance, that an offence is qualified
wrongly. If no protest follows such ruling (it is not possible in the cassation
instance), and it becomes legally effective, the allowed legal mistake cannot
be corrected because the criminal procedure law allows submission of protests
on effective courts rulings only in cases when lighter Criminal Law standards
can be applied to the offence.
To conclude my thoughts on development of uniform court practice
regarding application of the Criminal Law standards I have to admit that, at
least, at this moment the only way is the possibility of interpretation of law
standards of the Supreme Court plenary sessions which is not used; other
measures of the Supreme Court regarding promotion of court rulings and the
work on summarization of court practice is preparation activities for lawbased interpretation of the Criminal Law standards. The Supreme Court
should seek for wider possibilities based on the law to interpret the Criminal
Law standards and in such a way to make the development of uniform court
practice more efficient regarding application of the Criminal Law standards.
In this field the criminal law science must have considerable influence.
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Report in the Conference, October 7, 2005