Having discussed court practice in cases on frauds, in order to provide uniformity of application of law standards, general meeting of judges of the Department of Criminal Cases of the Senate and Chamber of Criminal Cases of the Supreme Court, managed by the Chief Justice of the Supreme Court on May 22, 2009, made decision, in which it has expressed its opinion in questions of interpretation and application of law standards.

During last years number of cases on frauds increases, inter alia, on swindle of immovable property, there is no uniformity in interpretation and application of law standards, so it was topical to make such a research.

The fraud is acquisition of strange property or rights for such property, in a way of malpractice or deceit. In decision of the general meeting it has been mentioned that qualification of a crime hasn’t been influenced by the fact, if the fraud has been realised by malpracticing or deceiting the person, or by existence of both features.

In the decision there has been expressed opinion related to basic composition and qualification features of a crime. If the guilty party commited two or more frauds, and each of them contains all features of composition of a crime, provided in appropriate parts of the Paragraph 177 of Criminal Law (CL), then crime has been qualified by the graviest part of the Paragraph 177 of CL. It is possible to qualify by qualifying feature provided in Part 3 of Paragraph 177 of CL, it is, great volume, only if at least one of these crimes has been qualified by this part of the paragraph.

In the opinion of the Supreme Court, fraud has been admitted as commited in great volume and qualified by the Part 3 of the Paragraph 177 of CL, if total value of the objects of the crime in a moment of commitment of the crime was more than a sum of fifty minimum monthly wages, established by the government of the Republic of Latvia for that time.

The general meeting of judges of the Supreme Court turns the attention that in Criminal Law there is no special Paragraph that would provide responsibility for illegal actions with immovable property. In order to qualify swindle of immovable property according to Paragraph 177 of the Criminal Law, it is necessary to establish all features of basic composition of the fraud. In cases, when a person made realienation of his/her immovable property that had been alienated before,by using the fact that first obtainer didn’t make a record in the landbook, it is necessary to evaluate the question, if crimes haven’t been qualified as misappropriation and legalisation of means, received in a criminal way.

One more aspect, to wich it had been paid the attention, is qualification of further actions with property swindled. In the decision it has been said: if the guilty party, by malpracticing or deceiting the person, has obtained strange property or rights for such property, then further actions of the guilty party with property swindled – sale, pawning, change, etc., have not been admitted as new fraud, also in cases, when the guilty party directly or indirectly misleads third party, setting himself/herself up as a person, who has rights to take actions with that property.

The part of recommendations relates to limitations of compositions of crimes, provided in Special Part of the Criminal Law. Thus, for example, while explaining reviewing of cases of frauds with insurance, the Supreme Court shows that according to the first part of the Paragraph 178 of the CL, the person is made answer, who destroyed, damaged or hid its property on purpose, in order to receive a sum of the insurance. If such actions were made with strange property, also property, possessed by the guilty party, but belonging to a leasing company, bank, other legal of private person, then this crime committed has been qualified as fraud according to the Paragraph 177 or 180 of the CL, that provides more severe punishment.

Explanation has also been given for crimes that are related to rendering of untruthful information. If there has been stated that the guilty party rendered untruthful information in order to get subsidiary, Credit or other loan, but didn’t wish to cause damages to the issuer of the loan or Credit, then the crime has been qualified only by the Paragraph 210 of the CL, it is, unfair receivement and usinfg of credits and other loans. In its turn, in case, if the guilty party made such actions in order to use loan received in his/her own needs, and in the moment of receiving of loan knew that terms of contract would not be executed and loan received would not be paid back, then the crime, in addition to the Paragraph 210 of the CL, has been qualified also as fraud, according to the Paragraph 177 or 180 of the CL.

The general meeting of judges of the Chamber and Department of the Senate of the Supreme Court – it is a new institution of the Supreme Court that was founded with amendments in the law „On judicial power” by April 3, 2008. The general meeting of judges has been summoned by the Chief Justice, in order to discuss topical questions in the field of law and interpretation of law standards. The general meeting formulates its opinion on questions of interpretation and application of law standards as decision that has been published. The general meeting of judges of the Department of Criminal Cases of the Senate and Chamber of Criminal Cases of the Supreme Court on May 22 was the third time, when such institution had been used in the Supreme Court.

For work out of recommendations summary of the court practice in reviewing of cases on frauds has been used, that was prepared by the Division of Case-law in cooperation with speciālist in the field of criminal law, associated professor A. Judins. Within the framework of the investigation there were analysed materials of 150 criminal cases, in which 202 persons were charged with Paragraphs 177 , 180 , 177 1, 178 , 204 and 321 of the Criminal Law. Criminal cases analysed were reviewed in the court of the first instance during the period of time from year 2004 till year 2008, and final judgements were taken in 2007 and 2008.

The decision of the general meeting of judges of the Department of Criminal Cases of the Senate and the Chamber of Criminal Cases of the Supreme Court is available for reading in the home page www.at.gov.lv in the section Court information/Decisions of general meetings of judges.

The summary of the court practice in reviewing of cases on frauds also will be published in the home page soon.

 

Information prepared by

Head of the Division of Communications of the Supreme Court Rasma Zvejniece

E-mail: rasma.zvejniece@at.gov.lv, telephone: 7020396, 28652211