You do not have the right to remain silent

Dienas Bizness | Opinion

“I am no thief” – an accused person once said to defend himself in a 17th-century English courtroom. To which the judge coldly replied, “Then you must prove it.”

The poor man was likely hanged, as there was hardly any opportunity to defend oneself in the criminal proceedings of that time. The accused did not have the right to an attorney because it was considered that the court could fulfil both the defence and the judicial function. This is how it usually worked – after hearing the prosecutor’s accusation, the judge advised the accused to confess “for his own good”. Moreover, the accused was not given a full indictment, but only a summary of it was read to him on the day of the trial, effectively excluding the opportunity to prepare his defence. In turn, such defence strategy as remaining silent was suicidal at the time – the one who was silent was the one who was guilty.

The logic behind the early modern criminal proceedings was to compel the accused to act as an eyewitness. Only later did lawyers persuade the court that no one should be forced to betray themselves (from Latin: nemo tenetur prodere seipsum), and the essential guarantee of the modern rights of defence – the right to remain silent – was born.

In the 21st century Latvia, an institution seems to have drawn inspiration from the peculiarities of the criminal proceedings of the past. The Competition Council acts both as an investigator and as the court; an accused company is given only 20 days to become familiar with and respond to the allegations and evidence collected by the Competition Council over a 2-year period; and the Competition Council has just declared that an accused person has no right to remain silent.¹

If we illustrated this scenario with an example from a Hollywood thriller, an actor who plays a police officer that manages to catch a dangerous criminal, wrestle it to the ground, jump on top of it dripping with sweat and blood, should now say: “You have no right to remain silent!”

To the general public, the name of the Competition Council probably doesn't mean much. It definitely doesn’t mean as much as the State Revenue Service. Therefore, it should be noted that the Competition Council is the institution that suspended the waste management project “Tīrīga”. And the institution whose long-term chairperson, Ms Skaidrīte Ābrama, recently announced that she was leaving her post, even though she had 2 years left to complete her term. The Competition Council is also the institution that has, quite invisibly to the general public, become more dangerous than the police, the prosecutor’s office or the Corruption Prevention and Combating Bureau (KNAB). Because only the Competition Council dares to openly sanction persons for exercising their rights of defence.

A few years ago, the Competition Council discovered a cartel formed by building material dealers. “Depo” (SIA “Depo DYI”), “Kesko” (AS “Kesko Senukai Latvia”) and “TNK” (SIA “Tirdzniecības nams Kurši””) did not plead guilty and heavy fines were imposed upon them. The highest fine was imposed upon “Depo” – 3.7 million euros. On the other hand, “Krūza” (SIA “Krūza”) and “Knauf” (SIA “Knauf” and NORGIPS SP. Z O.O.) reached a settlement with the Competition Council and paid lower fines.

“Depo” appealed the Competition Council’s decision establishing a cartel to an administrative court. And this usually means that the proceeding quietly runs its course for five years or more until the final court judgment is made. The final judgment either finds the Competition Council’s decision to be correct and the perpetrator must then pay the fine, or the decision is annulled and the innocent company can begin cleaning up its reputation.

But this time things were different. At the end of 2019, “Depo” received another decision imposing a fine and repeatedly entered the media spotlight. 700’000 euros for exercising its rights of defence! Which the Competition Council refers to as “providing incomplete information at the Competition Council’s request”.

We can reconstruct what happened from the decision text that’s available publicly. More than a year after the initiation of the cartel case, the Competition Council summoned before it a “Depo” employee, which the decision referred to as “Person A”, but, for the purposes of readability, we will refer to as the “Witness”. During the interrogation, the Witness was presented with a 12-year-old email correspondence with “Knauf” and explanations were requested. The Witness refused to provide any commentary on the e-mails – because they were too old, the broader context of the correspondence would be necessary and because he wanted to refrain from making assumptions about the content of the emails. It is also clear from the decision text that the Witness had appeared at the interrogation together with a lawyer. Thus, the Witness may not have acted of his own accord, but may have used a defence strategy recommended by his lawyer.

So far everything went well. The officials of the Competition Council probably didn’t like such response, but they used no methods of inquisition against the Witness, and he happily left the building located at 55 Brīvības Street.

However, two years later the Witness suddenly began to speak at a court hearing. The Witness had examined the e-mail correspondence in the context of the other evidence in the case and his archived e-mails and (presumably, again upon his lawyer’s advice) provided the court with detailed explanations of the significance of these e-mails in the case. Of course, explanations that contradicted the Competition Council’s allegations.

And that was when the officials of the Competition Council enraged. This defence strategy cost “Depo” 700’000 euros.

“Depo” has also appealed this Competition Council’s decision, and as a keen observer I can only congratulate “Depo” for taking such step.

Even if we assume that the Witness was not quite honest with the authority – that the context of the e-mails presented to him was clear to him at the time of the interrogation – the choice to remain silent and not provide any commentary was completely legal. Why would a Witness who at the time of an interrogation does not know what the case really is about and what other evidence the Competition Council has collected, should provide premature commentary and possibly disclose to the authority something that would later be definitely used against him or his company?

Why would a Witness actively cooperate with an authority that collects incriminating evidence and also passes the sentence, and which in addition to that is not an independent authority (the Competition Council operates under the supervision of the Minister of Economics)? Such defence strategy as remaining silent during an interrogation by the authority, awaiting the full indictment, getting familiar with the evidence, developing defence argumentation and giving explanations only to the court is understandable. Unlike the competition authority, the court is independent and has no interest in proving an infringement – a court is able to remain relatively objective.

In turn, the Competition Council’s choice not to leave the case to the court (whether the Witness’s statements are credible or not would be assessed in the judgment), but to impose another penalty, could be called “a proceeding containing vintage elements”. But the most accurate name for it would be “an archaic method compelling self-incrimination”. Because, unless the court annuls this decision of the Competition Council, the interrogation procedures at the Competition Council will continue to be based on the principle: “You have no right to remain silent. Everything you say will be used against you.”

¹ The parallels drawn between the proceedings of the Competition Council and criminal proceedings are not inappropriate. The European Court of Human Rights has recognised that sanctions applied for breaches of competition law can be equated with criminal penalties. In turn, the Latvian general meeting of judges of the Department of Criminal Cases of the Supreme Court has recognised that the investigative activities of the Competition Council by their content correspond to the those of criminal proceedings and, in particular, raids.

 

by Debora Pāvila, Partner, Latvia

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