delivered in Riga on September 22, 2017
Riga Regional Court Criminal Cases collegium judges Jānis Tiltiņš, Iveta Brimerberga, Diāna Dumbre, have considered, in written process, the appeal protest by the Chief Prosecutor of the Central District Prosecutor’s Office of Riga City, J. Omuls, against the City of Riga Vidzeme Urban District Court judgment of 8 May, 2017.
On April 7, 2017, State police Riga regional board Riga Centre District Order Police Division inspector E.Eleds (Ē.Eleds) compiled a protocol of administrative violation No. PC 316753 (hereinafter also – the protocol), regarding Aleksejs Saripovs (Aleksejs Šaripovs), in which it is stated that on March 16, 2016 [sic! This is a translator’s note on the clerical error. In fact – 2017. The correct year is mentioned in the judgment below], at 11.10, in Riga, in Reformacijas square 1, Aleksejs Saripovs participated in a previously publicly announced picket, organized by “Latvian Anti-Nazi Committee”, which initially was coordinated with the Riga City authorities, but later was revoked by the organization, as well as picket was launched failing to ensure persons for maintaining order. During the picket, Aleksejs Saripovs used a banner, in which violence was depicted, thus propagating violence, in violation of second paragraph of Section 10, and second paragraph of Section 12 and third paragraph of Section 18 of the Law “On Meetings, Processions, and Pickets”.
The administrative violation is qualified in accordance with the Section 174.3 of the Latvian Administrative Violations Code (hereinafter – LAVC), without specifying the paragraph of the Section.
With the judgment of City of Riga Vidzeme Urban District Court of May 8, 2017, the proceedings in the administrative violation case against Aleksejs Saripovs, personal No. 251067-10600, for committing the administrative violation provided for in Article 174.3 of the LAVC, have been terminated.
The court recognized that by the absence of a specific qualification of actions of A. Saripovs as administrative violation in the protocol, the mandatory requirement specified in the first paragraph of Section 248 of LAVC, to be indicated in the protocol, has not been observed. The court has indicated that arising doubts have to be interpreted in favour of the person called to administrative liability, therefore proceedings regarding administrative violation case shall be terminated.
The Chief Prosecutor of the Central District Prosecutor’s Office of Riga City, J. Omuls, filed an appeal against this judgement, in which he asked for the annulment of the judgment of the first instance court, to call A. Saripovs to the administrative liability provided for in the first paragraph of Section 174.3 of the LAVC, and to impose a sanction on him.
The Chief Prosecutor pointed out that from the facts specified in the protocol and the evidence gathered in the case it is found that the activities of A. Saripovs fully complies meets the corpus delicti of the administrative violation provided for in paragraph of Section 174.3 of LAVC, as indicated, inter alia, by the signature of A. Saripovs in the administrative violation protocol, that he has been informed of the protocol, it is understandable to him and his duties and rights are explained to him, two self-written explanations by A. Saripovs, in which he completely confirms and does not deny any activities that have been recorded in the administrative violation protocol, thus confirming that he has performed all activities specified in the protocol, qualifying under the first paragraph of Section 174.3 of the LAVC.
The Prosecutor does not contest the fact that the administrative violation protocol contains an error in the classification of an administrative violation, which is to be construed as an error due to negligence, but points out that administrative violation proceedings have been initiated against A. Saripovs for a specific violation found in the protocol, as referred to in the first paragraph of Section 1743 of the LAVC. With a reference to the case law, that the final settlement is admissible by a decision, the prosecutor believes that, in the given situation, with the Protocol No. PC316753, a violation by A.Saripovs was found, which meets the corpus delicti of the violation, provided for in the first paragraph of Section 174.3 of the LAVC. In accordance with the Sections 213 and 289.16 of the LAVC, in the administrative violations cases, where person has committed a violation provided for in the Section 174.3 of the LAVC, the final ruling shall be adopted by the district (City) courts judges. From this, it can be concluded that in the given situation, the protocol does not constitute a final decision, but one of the means of evidence in the administrative violation proceedings. In the given situation, only a court can make a final judgment on a particular violation, which implies that the inspector did not commit such a violation in the drafting of an administrative violation protocol that would serve as the basis for the termination of administrative proceedings.
He considers that the inspector’s mistake due to negligence cannot serve as the basis for termination of the administrative violation case, because, firstly, the first paragraph of Section 174.3 of the LAVC is indicated in the decision on commencement of the administrative violation proceedings, secondly, the factual and legal circumstances of the case which show the commission of the violation referred to in the particular Section of the LAVC are correctly, comprehensively and fully established and described in the protocol. Consequently, it should be concluded that there is sufficient evidence in the administrative violation case to conclude that A. Saripovs has committed an administrative offence.
In accordance with the second part of Section 289.21 of LAVC, A.Saripovs has submitted a written opinion on the protest, in which it is indicated, that the first instance court ruling is correct and shall be left unchanged.
He indicates that it has been proven at the hearing that the event, which is reflected in the protocol of the administrative violation, did not take place, i.e. a picket, which was previously announced, but subsequently banned by the Riga City Council decision, and which, however, took place in violation of the provisions of the Law “On Meetings, Processions, and Pickets”. He was detained, while participating in a spontaneous, undeclared and unannounced picket, the regulations for which significantly differ from the regulations for organizing a previously announced event.
He also noted that the requirements of the second paragraph of Section 12 and third paragraph of Section 18 of the Law “On Meetings, Processions, and Pickets” are applicable only to the pickets applied for and announced previously, which neither A. Saripovs nor the association “Latvian Anti-Nazi Committee” has done since the applications were withdrawn.
Consequently, neither the Constitution of the Republic of Latvia, nor the Law “On Meetings, Processions, and Pickets” does not restrict A. Saripovs’ right to express his personal opinion freely and publicly about the procession commemorating the Legionnaires, in compliance with the restrictions contained in the said regulatory enactments. He has therefore exercised his rights and organized an individual unannounced picket that was joined by two of his supporters during the event.
He disagrees with the record in the administrative violation protocol, in which is stated that A.Saripov propagated violence by means of a banner. During the hearing, the submitter of the opinion has already explained that the poster depicts the events of 1941 in Liepaja – the killing of the civilians by the Nazis. Consequently, contrary to the protocol, he has not promoted the violence, but, on the contrary, condemned the violence of the Nazi occupants and their local collaborators in Latvia.
He draws the Court’s attention to the fact that all of the above arguments were available to the Court of first instance and influenced the final decision to terminate the proceedings based on the clause 1 of Section 239 of LAVC. Considers that the motivation of the judgment of the court of first instance was limited to another administrative violation protocol deficiency – a particular part of Section LAVC 1743 was not reflected, due to procedural economy. The said procedural violation is considered by him to be sufficient to end the administrative violation proceedings.
He pleads for the rejection of the protest and for leaving intact the judgment of the court of the first instance.
The Court, following examining the files of the administrative violation case, evaluating the motives of the appeal protest, acknowledges that the appeal protest is to be satisfied, the judgment of court of the first instance shall be void and a new judgment shall be made.
In accordance with the conditions of the Section 289.21 and Section 289.22 of LAVC, the Court of Appeal observes the order of court proceedings established by chapter 23a of the LAVC and delivers a ruling in an administrative violation case, in accordance with the requirements of the said chapter.
Section 246 stipulates that an authorised person shall draw up an administrative violation protocol regarding an administrative violation committed. In accordance with the first paragraph of Section 248 of the LAVC, the protocol on the administrative violation shall indicate, among other things, the nature of the violation, as well as the legal provision providing for liability for this violation. The Court collegium acknowledges that with the failure to prepare a protocol in accordance with the requirements of Article 248 of the LAVC, a procedural violation has been committed.
LAVC does not foresee the division of procedural infringements into material and non-material violations, legislative norms must be evaluated according to their content and purpose. According to case-law, not every error committed in the record file of an administrative violation is the basis for terminating an administrative violation case; the violation of procedural rules must be assessed according to its effect on the final decision (see the judgment of the Department of Administrative Cases of the Supreme Court Senate of the Republic of Latvia of March 15, 2005 in case No. SKA – 59 clause 14). The fact that the paragraph of the relevant Section is not indicated in the administrative violation protocol does not automatically indicate that the proceedings in the administrative violation case have to be terminated. Compliance with procedural rules is not an end in itself, that is, a formal reference to a procedural violation cannot serve as a basis for the annulment of an administrative act (see the judgment of the Department of Administrative Cases of the Supreme Court Senate of the Republic of Latvia of November 22, 2005 in case No. SKA – 374). When assessing the procedural violation, which was admitted while failing to observe the requirements of the first paragraph of Section 248 of the LAVC, and its effect on the validity of the administrative violation protocol, it shall be ascertained whether such an error can be considered to be a material procedural violation.
In accordance with the first paragraph of Section 243 of the LAVC, evidence in an administrative violation matter is any facts gathered in the order established by LAVC and fixed in a certain processual form, which the persons involved in the administrative violation proceedings, according to their competence, use to prove determine the existence or non-existence of the administrative violation, and to clarify other circumstances important in correct deciding of the case. In accordance with the fourth paragraph of this Section, these facts shall be established, inter alia, with the prepared protocol.
It follows from the said legal provisions that an administrative violation protocol is a document in which a competent official records, in writing, the unlawful actions of a person. In fact, the official acknowledges that the person has, by actions recorded in the protocol, committed a violation , for which he is liable for administrative liability. This document, as the initial charge, is the basis for further proceedings in the administrative violation case.
Consequently, on the one hand, the court, which has jurisdiction to rule in this case, assesses the validity of the findings expressed in the protocol, namely whether a person shall be called to administrative liability for the activities specified in the protocol. On the other hand, the person on whose activities the protocol is drawn up, has the opportunity to properly enforce the procedural guarantees for his defence [Sic! This is a translator’s note on the possible clerical error – words like “in connection” might have been omitted here] with the violation indicated in the protocol (for example, to prepare his arguments, to submit evidence) (see the judgment of the Department of Administrative Cases of the Supreme Court Senate of the Republic of Latvia of April 25, 2007 in case No. SKA – 157 clause 9.2).
In the opinion of the Court collegium, it follows from the meaning of Section 248 of the LAVC that the description of an administrative violation must be such that it allows to fully understand its nature without seeking additional explanations in the case files, in other words, the protocol must be such that the person brought to administrative liability can know not only for what violation it is brought to responsibility, but also what specific actions, made under what circumstances are imputed to him and which laws and regulations have been violated by a person.
It is seen from the printout of an article from the news portal “Delfi”, that the picket, meeting applied for by “Latvijas Antinacistiska komiteja” has been publicly announced, indicating the vicinity of the Freedom Monument as the venue (page 31 of the Case), but from the actual circumstances, established in the case, the picket was organized by A.Saripovs in Riga, Reformacijas Square 1. It does not follow from the case file that the picket in Riga, Reformacijas Square 1, was publicly announced, thus it cannot be established that A. Saripovs violated the requirements of second paragraph of Section 12 of the Law “On Meetings, Processions, and Pickets”.
Third paragraph of the Section 18 of the Law “On Meetings, Processions, and Pickets” states that the event may not be started, if the organizer, event manager, assistants to the manager and sufficient number of persons for maintaining order are not present.
Taking into account the fact that from the case materials, in accordance with second paragraph of Section 12 of the Law “On Meetings, Processions, and Pickets”, the obligation of an organizer of a picket to submit an application for organising a picket in the Riga City Municipality does not arise, the activities of A. Saripovs do not reveal a violation of the third paragraph of Section 18 of the Law “On Meetings, Processions, and Pickets”.
Second paragraph of the Section 10 of the Law “On Meetings, Processions, and Pickets” states that during meetings, processions and pickets, it is forbidden to attack the independence of the Republic of Latvia, to propose forcible amending of the political system of Latvia, to call for disobedience of laws, to propagate violence, national and racial hatred, open Nazism, fascism, or communism ideology, to propagate war, or to praise or suggest committing criminal offences and other law infringements.
It follows from the factual circumstances described in the protocol, that A. Saripovs had used a placard depicting violence during the picket, thus propagating violence.
The fact that A. Saripovs used a banner that displayed violence during the picket is proved by the Administrative Violation Protocol No. PC 316753 (page 4 of the case), the Protocol on the removal of belongings (page 13 of the case), the report of the Chief of State police Riga regional board Order police division Patrol police division, Colonel V.Juniks from March 16, 2017 (page 17 of the case), photos (pages 18, 19, 29 and 30 of the case, and explanations of A.Saripovs (page 8 and 11 of the case).
When assessing the existence of the corpus delicti of the first paragraph of Section 174.3 of the LAVC in the activities of A. Saripovs, it needs to be clarified whether the activities of A. Saripovs, expressing his opinion, on March 16, on the Latvian soldiers memorial day, being in a public place with the banners found in the case, are considered to be a propaganda of violence within the meaning of second paragraph of Section 10 of the law “On Meetings, Processions, and Pickets”.
The first and second paragraphs of the Section 3 of the Law “On Meetings, Processions, and Pickets” provide that everyone has the rights to organize peaceful meetings, processions, and pickets, and also to participate in them, in accordance with that law. The exercise of this right shall not be subject to any restrictions, except those established by law and necessary in a democratic society, to defend the security interests of the state and society, to prevent riots or criminal offences, to protect public health and morals, as well as the rights and freedoms of other people.
In accordance with the Section 2 of the Law on Holidays and Remembrance Days, March the 16th is recognized to be the Day of Remembrance of Latvian Soldiers.
The Court collegium takes into account that March 16th is a commemorative day for a group of society who commemorate fallen legionnaires every year. It organizes and participates in commemorative events in many places in Latvia. This group of society considers laying flowers at the Freedom Monument to be especially important, as this symbolizes the aspirations of the people of Latvia for freedom and their own statehood – the values for which the legionnaires fought.
The Court collegium also takes into account that there is a group of people that expresses opposite views, and organizes aggressive counter events year after year, in order to prevent the public gatherings manifestations of the first group of society.
Events on March 16 (during the last 10 years) have been used to create ethnic tension in Latvia. For this purpose, certain historical events, are used that are drawn from the general context and presented, on the one hand, as a commemoration day of the Latvian Legionnaires, but on the other hand, as a “symbol of national revenge”.
The Court collegium does not deny the findings of the case-law, that a gathering in which opinions or ideas are expressed, that can infuriate a part of society or offend persons who have a different opinion than the one expressed (see the judgment of the Department of Administrative Cases of the Supreme Court Senate of the Republic of Latvia of March 10, 2010 in case No. SKA – 34/2010), is protected, too. However, on the placard used by A. Šaripovs during the picket, a direct violence, with a military organization using violence against prisoners of war, is depicted. Taking into account that the picket was organized by A. Šaripovs exactly on March the 16th, a part of the society undeniably connects those soldiers with Waffen SS military organization, where ethnic Latvians had served, among others. Thus, the way how A. Saripovs wished to express his opinion shall be evaluated.
In the opinion of the Court, State interference in the realization of the right of persons to assembly and freedom of expression cannot be tolerated, even if opinions that are sharply different from the opinion of large part of the society and even causes anger, the State has a duty to ensure that public buildings, streets and squares are accessible to persons, who want to hold meetings, processions or pickets, and that those participating in such events are protected, yet the public display of such inimical and violent photo images, which promote national hatred in the society, can undeniably cause mass riots, which can lead to further destabilisation of the political situation and a transfer of the socio-political and economic tensions present in the society to interethnic relations; the transfer of conflict to international relations, because it directly fuel the hatred in a group of people who commemorate fallen legionnaires who, in violation of the Fourth Hague Convention of 1907 on the Laws and Customs of War on Land, were illegally involved in the mobilization of the population in the army of the occupying country or in semi- militaristic work. Public display of such photo images is closely connected with discrediting the image of Latvia internationally.
Taking into account the high tension in the public, the international resonance, the historical situation and blatant violence depicted on the placards, in order to defend public order and safety, democratic state order, and to avoid deliberate confrontation, it is found that A. Šaripovs needs to be punished for the violation provided for in the first paragraph of Section 174.3 of the LAVC.
The facts obtained in the case confirm the existence of an administrative violation corpus delicti in the activities of A. Saripovs. In such circumstances, the court finds that A. Saripovs is punishable for the administrative violation provided for in the first paragraph of Section 174.3 of LAVC.
According to the clause 3 of the second paragraph of Section 289.12 of the LAVC, a district (city) court, when considering a complaint or a protest in an administrative violation case, is entitled to cancel a decision and to deliver a judgment finding a person to be guilty of an administrative violation, and to impose punishment. In accordance with the first paragraph of Section 289.22 of the LAVC, the above rules rules are applicable also while delivering a ruling in the court of appeals.
Given that administrative violation proceedings were terminated with the first instance court judgment, and A. Saripovs was not sanctioned for an administrative violation provided for in the first paragraph of Section 174.3 of the LAVC, then the Criminal Cases collegium, recognizing that A. Saripovs has committed the above-mentioned violation, is entitled to impose on A. Saripovs a penalty provided for in the first paragraph of Section 174.3 of the LAVC.
It follows from the casefile of the administrative violation that the proceedings in the administrative violation case were commenced on March 16, 2017 (page 5 of the Case). In light of the above, the Criminal Cases Collegium has not found the limitations period, established in the fourth paragraph of the Section 37 of the LAVC, to have expired.
For infringement of first paragraph of Section 174.3 of the LAVC, a warning is expressed, or a fine is imposed, for natural persons up to three hundred fifty euros, but a fine of up to two thousand and nine hundred euros is imposed on legal persons.
In accordance with Section 32 of the LAVC, when imposing a sanction, the nature of the committed violation, the personality of a violator, the degree of his or her culpability, his or her economic conditions, the liability-mitigating and aggravating circumstances shall be taken into account.
From the casefile it follows that A.Saripovs is a non-citizen of Latvia, has acquired secondary education, does not work, has a declared place of residence, is a member of “Latvian Anti-Fascist Committee” since 2015.
In accordance with the Section 33 and 34 of the LAVC, neither mitigating nor aggravating circumstances have not been identified for the offender’s liability.
When assessing the circumstances to be taken into account when imposing an administrative penalty, the Criminal Cases collegium considers that a warning shall be given to A. Saripovs for commitment of offence provided for in the first paragraph of Section 174.3 of the LAVC. The Criminal Cases collegium believes that this sanction is proportionate and appropriate to achieve the administrative penalty goal established in Section 22 of the LAVC.
In accordance with the clause 3 of the second paragraph of the Section 289.12, Section 289.21, Section 289.22 of the LAVC, Riga Regional court Criminal Cases Collegium
To cancel the judgment of City of Riga Vidzeme Urban District Court of May 8, 2017.
to find Aleksejs Saripovs, personal No. 251067-10600, guilty of an administrative violation provided for in the first paragraph of Section 174.3 of the Latvian Administrative Violations Code and to sanction him with a warning.
The judgment shall not be subject to appeal and shall enter into force on the day it was drawn up.
Document data: 22.09.2017. Case No. 130034817 Record keeping No. 104AA-0597-1711; ECLI:LV:RAT:2017:0922:130034817.2.S
Publisher’s notes: The warning means that Mr Saripovs is prohibited from organising public events, for one year. After a request from Mr Saripovs, the court has canceled the long-outdated statement in the above judgment, saying that “In accordance with the Section 2 of the Law on Holidays and Remembrance Days, March the 16th is recognized to be the Day of Remembrance of Latvian Soldiers”. An application to the European Court of Human Rights has been submitted. For the context, please see a placard used by the anti-Fascists during the protest:
Also see the full Latvian text of the judgment below: