"Evidence and Its Role in Criminal Proceedings" Forbes Latvia

Zvērināta advokāte Ph. D., Dr. iur.

As stipulated in Section 127 (1) of the Criminal Procedure Law, evidence in criminal proceedings is any information acquired in accordance with the procedures provided for in the Law, and fixed in a specific procedural form, regarding facts that persons involved in the criminal proceedings use, in the framework of the competence thereof, in order to justify the existence or non-existence of conditions included in an object of evidence.

Section 124 (1) (2) of the Criminal Procedure Law stipulates that object of evidence are the totality of circumstances to be proven, and the facts and auxiliary facts connected thereto, in the course of criminal proceedings. The existence or absence of the elements of a criminal offence and other circumstances stipulated in the Criminal Law and the Criminal Procedure Law, which are relevant for the just settlement of the criminal legal relations shall be proven in the criminal proceedings.

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The legal literature contains the conclusion that the evidence related directly to a fact to be proved in criminal proceedings is called direct evidence, and that evidence which establishes binding facts is called circumstantial evidence.

Pursuant to Section 129 of the Criminal Procedure Law, evidence shall be attributable to a specific criminal proceeding if information regarding facts directly or indirectly approves the existence or non-existence of the circumstances to be proven in the criminal proceedings, as well as the existence or non-existence of other evidence, or the possibility or impossibility to use other evidence.

The Department of Criminal Cases of the Supreme Court in its judgement of 13 May 2021 in criminal case No. 11091099518 stated that circumstantial evidence may also be used to prove the existence or non-existence of provable circumstances in criminal proceedings, which, gives ground to make a conclusion about provable circumstances by means of related facts. The judgement recognises that the fact what evidence – direct or circumstantial – is used to prove the guilt of the accused is of no critical significance, but whether the totality of the evidence is sufficient and reliable to allow the conclusion that the accused is guilty is important.

Thus, the relevance of evidence lies in the fact that it establishes the existence or non-existence of the circumstances which are the object of the evidence. The relevance of the object of evidence lies in the fact that it allows achieving a just settlement of the criminal legal relations. Therefore, the importance of evidence cannot be overestimated, since the evidence substantiates the object of the evidence and, consequently, just settlement of the criminal legal relations is based on the evidence.

The court cannot ignore the facts that are relevant to proving the guilt of the accused. The written evidence shall be considered in relation to each other and with close reference to the testimony of the persons who gave evidence in court.

Section 123 of the Criminal Procedure Law stipulates that proving is an activity of a person involved in criminal proceedings that is expressed as the justification, using evidence, of the existence or non-existence of facts included in an object of evidence.

By failing to assess all the evidence in the case, which contains information about the facts, the court was in breach of the provisions of Section 123 of the Criminal Procedure Law on evidence in criminal proceedings. Thus, it can be concluded that the evidence in a case determines the court's decision, therefore evidence plays a decisive role in just settlement of criminal legal relations.

It is obvious that, given the importance of evidence, a court cannot simply rely on the fact that the evidence gathered in pre-trial proceedings is true and meets all the requirements for a judgement to be based on it and for a just settlement of the criminal legal relations. That is why the evidence is checked at the court hearing.

Section 449 (1) of the Criminal Procedure Law stipulates that a court of first instance shall directly examine evidence in a case.

It means that the court directly verifies the existence of each piece of evidence and the information it contains. For instance, the testimony of witnesses is one of the most important pieces of evidence. Section 449 (2) of the Criminal Procedure Law stipulates that a person shall provide testimony orally in a court hearing. In fact, the court interviews the witness during the hearing to make sure that the witness really exists and to verify the information he or she has given. At the same time, the court also checks the veracity of the information against other evidence.

Evidence shall be examined directly in court, which means that even if the person giving the evidence (witness, victim) has given evidence before the trial, he or she shall do so again at the court hearing if one of the parties to the proceedings requests that he or she be interrogated.

Other evidence is examined in the equivalent way. At the court hearing, the court shall check that the evidence exists, that it contains the information related to the object of the evidence and shall compare that information with the information contained in the other evidence.

It should be noted here that evidence shall meet three requirements: it shall be credible; admissible; relevant. Credible means that the evidence is true. This is checked by comparing the information contained in the evidence with the information contained in other evidence. Admissible means that evidence may be obtained only in accordance with the procedures set out in criminal proceedings. It is not allowed to use the evidence obtained in a different way. Relevant means that the evidence shall relate to the object of the criminal proceedings.

At the same time, in addition to examining these three characteristics, the court may also examine the content of the evidence more closely, for example by calling a forensic expert to further explain the content and conclusions of the expert's opinion.

As the Department of Criminal Cases of the Supreme Court stated in its decision of 4 October 2018 in case No. 11520035214, the circumstances that are the object of evidence shall be deemed proven if any reasonable doubt as to their existence or non-existence is excluded in the course of proving. The circumstances included in the object of evidence shall be proved by admissible, relevant, reliable, and sufficient evidence, obtained, examined and evaluated in accordance with the procedure set out in the Criminal Procedure Law. The Criminal Procedure Law does not stipulate how evidence should be evaluated – objective evaluation or clarification of objective truth.

This shows that the Supreme Court notes another characteristic of evidence – sufficiency. Sufficiency means that the evidence excludes any reasonable doubt as to the existence or non-existence of the circumstances in the object of evidence. This characteristic may not be present in each individual piece of evidence, but in the totality of evidence. For instance, a witness's testimony that he saw the suspect commit the crime may not be enough to prove the suspect's guilt, but if this testimony is corroborated by other evidence, such as fingerprints left by the suspect at the crime scene and stolen property found on him, then the totality of the evidence together is sufficient for the court for just settlement of the criminal legal relations in these proceedings.

If no party has requested that any evidence in a case be examined, the court shall be certain that it meets all the above requirements if it does not examine any evidence at the hearing, and therefore a decision not to examine it would not affect the just settlement of the criminal legal relations.

It should be noted that the European Court of Human Rights (ECHR), in its decisions concerning violations of Article 6 of the European Convention on Human Rights, also states that courts must carefully examine and assess the evidence and arguments presented by the parties, objectively addressing the question of the relevance of that evidence to the case. The courts responsible for establishing the facts shall assess the evidence. Evidence shall be assessed in an open trial, in the presence of the accused, in accordance with the adversarial principle.

Verification of evidence in court can be related to the adversarial principle in criminal proceedings. The prosecution and defence present their evidence to establish the defendant's guilt, but the court shall assess it in line with the above requirements.

In accordance with Article 6(3)(d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, everyone charged with a criminal offence has the minimum rights to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

The ECHR held that the presumption of innocence established in Article 6(2) of the European Convention on Human Rights and the guarantees established in Article 6(3)(d) relating to the examination of witnesses are elements of the right to a fair trial under Article 6(1) which must be considered whenever the fairness of the proceedings as a whole is assessed.

The ECHR also emphasised that, in addition to the questioning of "witnesses", the obtaining of documents is another manifestation of the principle of equality of arms established in Article 6(3)(d) of the European Convention on Human Rights. National courts are obliged to give reasons when refusing a defendant's requests, and not only when it comes to calling witnesses. This obligation to state the reasons for refusal also applies where the accused requests to provide other types of evidence, including evidence held by third parties.

In this context, it should be noted that during the trial the defence requested that new expert reports be added to the case file. When assessing whether the principle of equality of arms has been respected, the ECHR considers that the prosecution submitted such expert reports to the court to prove specific facts in the case. The experts' opinions were obtained in a pre-trial investigation, which was not conducted as an adversarial process and in which the accused did not participate. The accused was not, inter alia, given the opportunity to formulate his own questions to the experts, to challenge them or to propose the inclusion of experts of his own choice in the expert examination, etc. The ECHR found that the expert reports obtained by the accused were not admitted as evidence by the court and were not included in the body of evidence. In the present case, the national court interpreted the condition to call an expert in a restrictive manner, referring only in general terms to the expertise of the expert, thus denying the accused the opportunity to rebut the conclusions reached in the expert reports used by the prosecution, which is incompatible with the principle of equality of arms. Furthermore, the ECHR added that this did not ensure a balance between the rights of the accused and the prosecution to obtain and use "expert evidence", which constituted a violation of the principle of equality of arms.

As can be seen from the ECHR's findings on the manifestation of the principle of equality of arms in criminal proceedings, this applies not only to the rights of individuals in court proceedings. To establish that the proceedings were conducted in a just manner, respecting the equality of arms, the ECHR even focuses on the rights of the accused in pre-trial criminal proceedings and the nature of the investigation. If the investigation is not an adversarial process, it is essential that the trial also ensures balance between the rights of the accused to obtain and present evidence and to rebut the prosecution's case. The accused is guaranteed a minimum of procedural rights in a fair trial, including the right to obtain and present evidence, to challenge the prosecution's evidence and to object to its reliability.

The following factors influence the court's examination of evidence: the court is an impartial evaluator of evidence, not bound by prosecutor’s or defence functions; evidence is examined directly, applying the principles of competition and equality of arms; the court has the entire body of evidence obtained and evaluated in pre-trial proceedings; all parties to the pre-trial proceedings can be called in order to find out what factors influence the conduct of the parties during the examination of evidence.

All these factors allow the court to assess the evidence in the case in the most objective way. Evidence must also be assessed in pre-trial proceedings, but initially it is fragmentary at the start of the proceedings, whereas during the prosecution, when the prosecutor has access to the entire body of evidence, the prosecutor's function to lay an accusation prevents him from assessing this evidence in a fully objective manner. Therefore, only a court can conduct a fully objective examination of the evidence in a case.

Section 128(3) of the Criminal Procedure Law stipulates that no piece of the evidence has a previously specified degree of reliability higher than other pieces of evidence.

The Senate acknowledged that the reliability of any information obtained as a result of investigative activities must be examined in accordance with the requirements of Section 128(2) of the Criminal Procedure Law – in their totality and in relation to other evidence obtained in the case.

The Senate pointed out that under Section 128(1) of the Criminal Procedure Law, statements of police officers are subject to a credibility assessment and do not have a higher degree of credibility than other evidence. In criminal proceedings, the assessment of the reliability of evidence is conducted in accordance with the criteria established in Section 128 of the Criminal Procedure Law. Criteria for assessing the reliability of evidence set out in other types of cases and procedural laws do not apply in criminal proceedings.

Taking into account the findings on the criteria for the assessment of evidence established in case law, it can be concluded that none of the evidence has a predetermined higher degree of reliability than the other evidence in criminal proceedings, therefore, the court is not entitled, neither in criminal proceedings in general nor in cases of certain categories indicated in the Criminal Procedure Law, e. g., in the case of proceedings for proceeds of crime, as regulated by Chapter 59 of the Criminal Procedure Law, the evidence submitted by the person conducting the proceedings shall be given a higher degree of credibility than the evidence submitted by the defence. Any evidence submitted to the court is subject to a credibility assessment. This means that the court must not only assess each piece of evidence in the case, but if it gives more credibility to one piece of evidence than to others, it cannot merely state its critical assessment of it and that it should not be accepted as credible, but must justify its findings in their totality and in relation to the other pieces of evidence in the case.

Therefore, it should be concluded that if the defence party submits evidence challenging the assumptions of the person directing the proceedings and proves the contrary by evidence of the existence or non-existence of the facts in question in proceedings for proceeds of crime, the court must assess it in the same way as the evidence submitted by the person directing the proceedings and give its opinion on the reliability of the information – in its totality and in relation to the other evidence obtained in the case. A court cannot give more credibility to the evidence of a party to a proceeding, such as the person directing the proceedings, than to the evidence of another party, simply on the basis that documents prepared by public officials have a priori public credibility. Such a finding by the court cannot be accepted in criminal proceedings, as the Senate has held; it constitutes a fundamental irregularity which led to an unlawful ruling.

Considering the aforesaid, it must be concluded that the evidence in a criminal case and its examination by a court are of fundamental importance and that their examination in their totality and in relation to each other makes it possible to achieve a just settlement of the criminal legal relations.

1 Strada-Rozenberga K. Theory of evidence in criminal proceedings. General part Riga: Biznesa augstskola Turība, 2002, pp. 195-196.
2 Judgement of the Department of Criminal Cases of the Supreme Court of 13 May 2021 in criminal case No. 11091099518. Available: https://www.at.gov.lv/lv/tiesu-prakse/judikaturas-nolemumu-arhivs/kriminallietu-departaments/klasifikators-pec-lietu-kategorijam/kriminalprocesa-likums/9nodala-pieradisana-un-pieradijumi-123-137pants
3 Judgement of the Department of Criminal Cases of the Supreme Court of 4 October 2018 in criminal case No. 11520035214. Available: https://www.at.gov.lv/lv/tiesu-prakse/judikaturas-nolemumu-arhivs/kriminallietu-departaments/klasifikators-pec-lietu-kategorijam/kriminalprocesa-likums/9nodala-pieradisana-un-pieradijumi-123-137pants
4 Брянская E. B., Исследование доказательств по уголовным делам в суде первой инстанции // Сибирский юридический вестник N.3 (66), 2014., c. 85-91.
5 Judgement of the ECHR of 14 January 2020 in case Khodorkovskiy and Lebedev v. Russia (No. 2) (application No. 51111/07 and 42757/07), paragraph 473. Available: https://hudoc.echr.coe.int/eng#{%22appno%22:[%2242757/07%22],%22itemid%22:[%22001-200333%22]}
6 Ibid, paragraphs 515, 517.
7 Ibid, paragraphs 494–499.
8 Ruling of the Supreme Court of 9 December 2021 in case No. SKK-561/2021 and ruling of the Supreme Court of 30 March 2022 in case No. SKK-30/2022. Available: https://manas.tiesas.lv/eTiesasMvc/lv/nolemumi
9 Ruling of the Supreme Court of 30 March 2022 in case No. SKK-30/2022. Available: https://manas.tiesas.lv/eTiesasMvc/lv/nolemumi