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THIRD
SECTION
CASE OF SHANNON v. LATVIA
(Application
no. 32214/03)
JUDGMENT
STRASBOURG
24 November 2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Shannon v. Latvia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura, appointed
to sit in respect of Latvia,
Corneliu
Bîrsan,
Boštjan M. Zupančič,
Alvina
Gyulumyan,
Egbert Myjer,
Luis López
Guerra, judges,
and Stanley Naismith,
Deputy Section
Registrar,
Having
deliberated in private on 3 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32214/03) against the Republic
of Latvia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an American national, Mr Lindsey Hughes Shannon
(“the applicant”), on 25 September 2003.
- The
applicant was represented by Mr J. Močuļskis, a lawyer
practising in Rīga. The Latvian Government (“the
Government”) were represented by their Agent, Mrs I. Reine.
- On
12 July 2007 the President of the Third Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
- Ineta
Ziemele, the judge elected in respect of Latvia, was unable to sit in
the case. The Government accordingly appointed Elisabet Fura, the
judge elected in respect of Sweden, to sit as an ad hoc judge
(Article 27 § 2 of the Convention and Rule 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and is a citizen of the United States of
America.
- On
25 September 2002, while the applicant was temporarily
staying in Olaine (Rīga District, Latvia), the Latvian police
initiated criminal proceedings concerning sexual assault of juveniles
purportedly committed by him during his previous trip to Latvia, in
November 2001.
- On
1 October 2002 the applicant was apprehended by the police
and taken into custody on suspicion of having committed sexual
assault of juveniles. According to the arrest report, the applicant
had been identified by an eyewitness whose name was not indicated.
The charges against the applicant were explained to him in English by
an officer from the Latvian National Interpol Bureau. The arrest
report noted that the applicant had confirmed that he had understood
the substance of the report but had refused to sign to that effect.
- On
4 October 2002 the applicant was brought before a judge of
the Rīga City Centre District Court, who decided to detain him
on remand. The judge filled in a standard pre-typed form by writing
her name, the date of the detention order and other details of the
case. In substantiating the decision, the judge had simply to
underline the pre-typed text of the standard form, choosing from the
following list of grounds for detention: risk of absconding, risk of
impeding the investigation, risk of committing crimes, severity of
the crime the arrested person is suspected of, his or her
personality, occupation, state of health, and “other
circumstances”. The judge underlined all of the aforementioned
grounds, except the “risk of absconding”, the “state
of health”, the “occupation”, and the “other
circumstances”. The applicant received the English translation
of this order on 10 February 2003.
- The
applicant's attorney appealed against the detention order to the Rīga
Regional Court on 15 October 2002. The attorney did not attend the
hearings that had been scheduled for 18 and 29 October 2002. By a
final decision of 5 November 2002, taken after a hearing
with the applicant's lawyer's participation, the Rīga Regional
Court dismissed the appeal, finding that the impugned order had been
taken in accordance with the applicable law. No other reasons were
given.
- In
the meantime, on 31 October 2002 the applicant was
officially charged with sexual assault.
- On
29 November 2002, a judge of the Rīga City Centre
District Court, on the request of the public prosecutor in charge of
investigation, extended the applicant's detention on remand until
1 February 2003. This decision was not written on a
standard form with a pre-typed text. According to that decision, the
applicant's detention was extended on the basis of the reasonableness
of the suspicion against the applicant, the severity of the crime
with which he was charged, the fact that he had no legal and/or fixed
residence in Latvia, the danger of his absconding and the possibility
that he could impede the investigation. It also mentioned the risk
that the applicant could put pressure on witnesses or endanger them.
- The
applicant appealed against that decision to the Rīga Regional
Court. According to the requirements of the law, he submitted his
appeal, written in English, to the court that had adopted the
disputed order, in order for it to be transmitted to the Regional
Court. On 13 December 2002 the Regional Court sent the
applicant's appeal back to the Centre District Court, directing that
it should be first translated into Latvian. It also directed the
Centre District Court to provide the applicant with an English
translation of its decision, which was done on 8 January 2003. The
competent judge of the Centre District Court sent the applicant's
appeal back to him, in order for him to make the translation.
- The
applicant complained again to the Rīga Regional Court. By a
decision of 21 January 2003 the Regional Court declared
that, by compelling the applicant to translate his appeal himself
rather than sending it for translation at the State's expense, the
first instance judge had “grossly violated” his
fundamental procedural rights guaranteed by law. Consequently, the
Regional Court suspended the proceedings and ordered the Centre
District Court to remedy the above-mentioned shortcomings. The case
was also reported to the Ministry of Justice, competent in
disciplinary matters involving the judiciary. The case was later
assigned to another judge of the Centre District Court.
- On
30 January 2003, a judge of the Rīga City Centre District Court,
on the request of the public prosecutor in charge of investigation,
again extended the applicant's detention on remand, this time until
1 April 2003. The reasoning of this detention order was
similar to the first two orders. The applicant's detention was
extended on the basis of almost the same grounds: the reasonableness
of the suspicion against the applicant, the severity of the crime
with which he was charged, the danger of his absconding and the
possibility that he could impede the investigation. Contrary to the
earlier decisions on the applicant's detention, this order in
addition referred to the possibility that he could “flee after
having committed an offence” and specifically mentioned the
fact that he had no legal and/or fixed residence in Latvia as well as
no permanent residence permit there.
- By
a decision of 14 February 2003 the Rīga Regional Court
dismissed the applicant's appeal against the detention order of
30 January 2003. Although the decision set out the
applicant's arguments in detail, the court's reasoning consisted of
repeating the reasons given by the court of first instance and
declaring that the latter had acted in conformity with the law. The
Regional Court further noted that the appeal against the detention
order of 29 November 2002 was still pending.
- On
25 February 2003 the Rīga Regional Court finally
examined and dismissed the applicant's appeal against the detention
order of 29 November 2002, by which his detention had been
extended until 1 February 2003. The court observed that
there continued to be grounds for applying the exceptional measure –
detention. Those grounds included the fact that the applicant had
been charged with committing a serious crime, that he had no
permanent residence permit in Latvia and that he had no permanent
place of residence there, as well as the grounds mentioned by the
judge of the first instance court.
- On
28 February 2003 the applicant was examined by a board of
psychiatrists which established that he had suffered from a mental
disorder in the past and that he had undergone treatment in a
psychiatric hospital in the United States. However, the board
declared itself unable to reach a precise conclusion and recommended
the applicant's internment in a psychiatric hospital for further
examination. On 23 May 2003 experts of the State Psychiatry Centre,
after having observed the applicant in a psychiatric hospital over a
period of one month, found that he was of a sound mind.
- On
31 March 2003, a judge of the Rīga City Centre
District Court again extended the applicant's detention on remand
until 1 June 2003. The reasoning was practically identical
to that in the decision of 30 January 2003. The applicant's appeal,
in which he inter alia complained that the decision to leave
him in detention solely because his residence permit had expired was
discriminatory, was dismissed by the Rīga Regional Court on
9 May 2003, which used similar reasoning to the previous
decisions.
- On
30 May 2003, the competent judge of the Rīga City
Centre District Court, on the request of the public prosecutor in
charge of the investigation, extended the applicant's detention on
remand until 1 August 2003. Besides the usual grounds, the
judge's decision noted:
“...Having assessed the gravity of the offence
allegedly committed, [as well as] the particularities of
investigating a case where the victims are children, I consider
that... the length of the remand measure prohibiting Lindsey Hughes
Shannon from exercising his freedom of movement is consistent with
the character of the socially dangerous act of which he has been
accused...”
- On
13 June 2003 the Rīga Regional Court upheld the
aforementioned detention order, repeating in substance the reasons
given by the first instance judge.
- On
18 June 2003 the prosecutor expanded the charges against
the applicant, also accusing him of having molested young boys on the
occasion of another trip to Latvia, in July, August and September
2001. Besides the existing charge of sexual assault, the applicant
was accused of having committed aggravated forcible sexual assault,
forcible sodomy, inducing or compelling a juvenile to engage in
prostitution, and engaging a juvenile under fourteen years of age in
production of pornography. On 10 July 2003 the preliminary
investigation was completed and the case-file was handed over to the
defence, who finished acquainting themselves with the case on 28 July
2003.
- On
30 July 2003 the applicant and his lawyer were presented with the
final bill of indictment and its English translation. On the same day
the case was sent to the Rīga Regional Court for trial.
- On
1 August 2003 a single judge of the Rīga Regional
Court adopted a decision to commit the applicant for trial and to
keep him in detention. The decision to keep the applicant in
detention was reasoned as follows: “The preventive measure has
been chosen in accordance with the accused person's personality and
the gravity of the charges brought [against him], and there is no
reason to alter [that measure]”. There was no possibility to
appeal against that decision (see below paragraph 33).
- After
having adjourned hearings of 9 and 12 January 2004, by a
judgment of 20 January 2004 the Rīga Regional Court
found the applicant guilty of all the crimes he had been accused of
and sentenced him to five years' imprisonment. According to
Article 43 of the Criminal Law, the court ordered his
deportation from Latvia after having served the sentence. The
applicant appealed against this judgment.
- On
13 October 2004 the Criminal Chamber of the Supreme Court
acquitted the applicant of the charges of producing child pornography
and reduced the penalty to four years' imprisonment. The remainder of
the appeal was dismissed.
- The
applicant then filed an appeal on points of law, by submitting
himself a short handwritten letter that was translated into Latvian
by a court interpreter. On 10 January 2005 the Senate of
the Supreme Court by a decision of a preparatory meeting declared the
appeal inadmissible for lack of arguable points of law. Ten days
later, on 20 January 2005, the applicant's lawyer tried to
submit to the Senate a more elaborate memorial; however, it was
returned to him since the time-limit for appeal on points of law had
elapsed and since the applicant's own appeal had already been
examined and rejected.
- After
the applicant had served three quarters of his sentence, he was
released on parole on 10 July 2006 and was expelled from Latvia three
days later.
II. RELEVANT DOMESTIC LAW
- The
former Code of Criminal Procedure (KPK), a legacy of the Soviet era
which was amended on numerous occasions, was applicable at the
material time. It remained in force until 1 October 2005, when it was
replaced by the new Criminal Procedure Law (Kriminālprocesa
likums).
- Under
the terms of Article 68 of the KPK, a preventive measure could be
applied where plausible reasons existed to suspect that the accused
would seek to evade investigation or hinder the determination of the
truth in the case. Eight types of preventive measure existed: an
undertaking not to change one's residence, personal guarantees,
financial guarantees, police surveillance, house arrest, detention in
prison and two measures specifically applicable to minors and members
of the armed forces.
- Under
Article 72 of the KPK, a preventive measure had to be chosen and
implemented on the basis of the following criteria: the seriousness
of the alleged offence; the personality of the accused; the
likelihood that he or she would seek to evade investigation and
hinder the determination of the truth in the case; and the accused's
occupation, age, domestic circumstances and health and other relevant
criteria. Any preventive measure had to be applied on the basis of an
order giving sufficient reasons.
- By virtue of Article 83 of KPK, a preventive measure
had to be terminated if it had been applied unlawfully or it ceased
to be necessary, or could be changed to a more severe or lenient one
if the circumstances of the case so required. The termination or
alteration of detention on remand applied by a judge or a court
during the preliminary investigation had to be effected by a reasoned
decision of a prosecutor, or it could be terminated by a court
decision in the cases provided for in Article 2221.
- Pursuant to Article 2221,
all decisions given by a judge at the pre-trial stage regarding the
detention on remand and its extension could be appealed to a higher
instance court by a suspected or accused person or his counsel or
representative within seven days after they found out about that
decision. The appeal had to be examined and a decision taken within
seven days as of its receipt. The decision was final and not subject
to further appeal.
- After drawing up and signing the
final indictment, the public prosecutor's office had to forward the
file to the trial court (Articles 209-11 of the KPK). Within fourteen
days of receiving the file, a single judge of the trial court,
without ruling on the accused's guilt, had to decide whether the file
provided a sufficient basis for committing the accused for trial and
whether the preventive measure had been chosen correctly. If he had
no objections, the single judge adopted a final decision to commit
the accused for trial and leave the preventive measure unchanged
(lēmums par apsūdzētā
nodošanu tiesai). Such a
decision could not be appealed.
- If the single judge disagreed
with the conclusions of the bill of indictment or considered that a
preventive measure had to be applied to the accused or that the
preventive measure that had been applied previously had to be
altered, he convened a preparatory meeting (rīcības
sēde). The preparatory meeting
took a decision either to commit the accused for a trial or to
terminate the proceedings or to refer the case back for additional
investigation. It also had to decide the question about the
preventive measure. The order given following a preparatory hearing
was amenable to appeal before a higher court.
- Article 241 set time-limits for examination of a case
and provided that the examination of a case before a court had to
start no later than within twenty days or, under exceptional
circumstances, no later than within one month, after the case was
received by the court. However, this provision
was very rarely complied with by the Latvian courts (see
Svipsta v. Latvia, no. 66820/01, § 62, ECHR 2006 III
(extracts)).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 (c) OF THE
CONVENTION
- The
applicant complained that his
detention on remand had been per
se illegal and
unjustified, since it had been based on insufficient evidence and
since he had had no intention of fleeing Latvia. Accordingly
he alleged that there had been a violation of Article 5 § 1 (c)
of the Convention, which reads as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; ...”
A. Admissibility
- The
Government firstly argued that the applicant had not raised this
issue in his submissions to the Court and that the Court had decided
to consider this issue ex officio, on the basis of documentary
evidence in the case file. In this regard, the Court notes that in
his application to the Court the applicant specifically referred to
Article 5 § 1 (c) of the Convention and argued that his
detention had been unlawful. Accordingly, this objection of the
Government is unfounded.
- The
Government also argued that the applicant had never raised the issue
of the allegedly unlawful character of the deprivation of his liberty
before the national authorities. Accordingly, it considered that with
regard to the complaint under Article 5 § 1 (c) the domestic
remedies had not been exhausted as required by Article 35 §
1 of the Convention.
- The
applicant alleged that the Government's objection was ill-founded and
had been proffered for the purpose of avoiding the Government's
responsibility.
- The
Court notes that the applicant appealed against the initial decision
to detain him on remand, which had been adopted on 4 October 2002, as
well as against all of the subsequent decisions to prolong his
detention. From the decisions that were adopted in response to the
applicant's complaints, it appears that he had been disputing the
necessity to keep him in custody and accordingly the legality of the
above-mentioned decisions. Therefore, it appears that the applicant
had given the national authorities ample opportunity to address the
issues raised in his application to the Court. Accordingly, the Court
rejects the Government's preliminary objection.
- The
Court further considers that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. Finally, it notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
- The
Government submitted that the applicant's pre-trial detention during
the period from 4 October 2002 until 1 August 2003 had been
continuously authorised by court decisions. After the applicant had
finished consulting the case file, on 1 August 2003 the Rīga
Regional Court decided to commit him for trial and keep him in
detention on remand. In the Government's submission, subsequently
there had been no need to prolong the applicant's detention until he
was eventually convicted by a judgment of the Rīga Regional
Court on 20 January 2004. Accordingly, the Government submitted that
during the entire time that the applicant had been detained on remand
he had remained within the scope of competence of judicial
authorities and that thus the guarantees of Article 5 § 1 of the
Convention had been observed.
- The
applicant noted that the violations of his rights were “obvious”,
but did not provide any further arguments.
- It
is common ground between the parties that the applicant's detention
was imposed in accordance with the applicable national law; therefore
no question arises with regard to the “lawfulness” of
that detention.
- As
to the existence of a reasonable suspicion against the applicant, the
Court reiterates that the “reasonableness” of the
suspicion on which an arrest must be based forms an essential part of
the safeguard against arbitrary arrest and detention which is laid
down in Article 5 § 1 (c). Having a reasonable
suspicion presupposes the existence of facts or information which
would satisfy an objective observer that the person concerned may
have committed the offence (see Labita v. Italy [GC],
no. 26775/95, § 155, ECHR 2000-IV). However, the
“reasonable suspicion” referred to in Article 5 § 1
(c) does not mean that the suspected person's guilt must at that
stage be established (see Murray v. the United Kingdom,
judgment of 28 October 1994, Series A no. 300-A, p. 27, §
55). Sub-paragraph (c) of Article 5 § 1 does not even
presuppose that the police should have obtained sufficient evidence
to bring charges, either at the point of arrest or while the
applicant was in custody (see Erdagöz v. Turkey,
judgment of 22 October 1997, Reports 1997-VI, p. 2314, §
51).
- In the present case, it appears that the initial
suspicion against the applicant had been based on statements from
four victims and testimony from an unnamed “eyewitness”.
The Court considers that such evidence is sufficient to have created
“reasonable suspicion” against the applicant within the
meaning of the previously cited case-law.
- Furthermore,
the Court finds that the suspicion against the applicant did not
decrease during the time of his pre-trial detention. On the contrary
– from the materials in the case file it appears that the
applicant had partially admitted his guilt at some point during that
stage of proceedings. Furthermore, with time further evidence was
obtained raising additional suspicion that the applicant had
submitted further – although related – crimes (see above,
paragraph 21). Thus there existed reasonable suspicion against the
applicant throughout the period until his case was transferred to the
Rīga Regional Court for adjudication on 30 July 2003 (cf.
Svipsta, cited above, § 82).
- With
regard to the period from 1 August 2003, when the Rīga Regional
Court accepted the applicant's case for adjudication, until
20 January 2004, when the applicant was convicted by that court,
even though the applicant's detention had a different legal basis
than before (the decision of 1 August 2003, which was adopted in
accordance with Article 225 of the Code of Criminal Procedure), the
Court finds that the character of the suspicion against him had not
changed (see Svipsta, cited above, § 88). Furthermore,
the Court has previously held that the fact that a court decides to
leave a preventive measure imposed “unchanged” as such
does not breach Article 5 § 1 of the Convention
(see, among others, Khudoyorov v. Russia, no. 6847/02, §
135, ECHR 2005 X (extracts)).
- As follows from the text of Article 5 § 1 (c),
reasonable suspicion of having committed an offence and risk of
flight are alternative (and not cumulative) justifying reasons for
imposing a pre-trial detention. In the present case, even if the
applicant had been able to prove that he had no intention to flee
Latvia upon release from detention, the reasonable suspicion of his
having committed a crime, which with time was supported by new
evidence, was a sufficient ground to consider that his detention
corresponded to the requirements of Article 5 § 1 (c).
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been no violation of Article 5 § 1 (c)
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant complained under Article 5 § 1 (b) of the Convention
about the improper, too abstract
and too concise reasoning of the court orders extending his pre-trial
detention. He pointed out that these orders simply repeated some of
the reasons for applying pre-trial detention listed by the law,
without explaining to what extent they actually applied in his
particular case. Invoking Article 6 § 1 of the
Convention, the applicant complained that his appeals against the
extension of his detention on remand had been examined belatedly.
Finally, the applicant complained under Articles 5 § 2
and 6 § 3 (e) of the Convention about a belated
communication to him of English translations of the detention orders
against him. The Court considers it appropriate to examine these
complaints under Article 5 § 4, which provides:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
A. Admissibility
- The
Government noted that the applicant's pre-trial detention had been
authorised by five different decisions of the Rīga City Centre
District Court. It submitted that each of those decisions had dealt
with a different stage of the applicant's detention and that they had
all contained different reasoning. Furthermore, in his application to
the Court the applicant allegedly had not complained about his
pre-trial detention in its entirety, but had merely singled out
certain decisions. Accordingly, the Government proposed to deal with
each of those periods separately, as, according to the Government,
the Court has previously done, taking into account the type and stage
of the proceedings, and/or the responsible authority. In that regard
they referred to the Court's approach in the earlier cases Estrikh
v. Latvia, no. 73819/01, §§
121-127, 18 January 2007; and Svipsta,
cited above, §§ 80-90. Accordingly, the Government
submitted that the applicant's complaint with regard to the period
from 4 October 2002 until 1 April 2003, which had been covered by the
Rīga City Centre District Court's decisions of 4 October and 29
November 2002 and 30 January 2003, was inadmissible because it had
been lodged out of time.
- The
applicant did not submit any observations on this point.
- In
this regard the Court notes that it has previously held that for
the purposes of Article 35 § 1 of the Convention, a period
of detention should be regarded in principle not as an instantaneous
act, but as a continuing situation (see
Svipsta,
cited above, § 116).
Even though in certain situations the Court has previously derogated
from this principle (see the explanation in Svipsta,
cited above, § 117, and the
jurisprudence cited there), the Court
sees no reason to do so in the present case. For the sake of
completeness, it should be noted that in the Svipsta
and Estrikh
judgments, which were invoked by the Government, the periods of the
applicants' pre-trial detention had been split up for reasons of
clarity, which had no practical impact on the running of the
six-months period for the purposes of Article 35 §
1 of the Convention. As to the Government's allegation that the
applicant had not complained about the decisions authorising his
pre-trial detention in their entirety, but had merely singled out
certain of those decisions, the Court notes that in his original
application the applicant did in fact lodge general complaints, which
concerned the nature of the domestic decisions generally, along with
specific grievances about particular decisions. Therefore that
argument is ill-founded.
- Having
regard to the above, the Court dismisses the Government's preliminary
objection. Furthermore, the Court notes
that this complaint is not manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention. It finally notes that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
Government did not submit any observations with regard to the
substance of the applicant's complaints concerning the decisions
which authorised and extended the applicant's pre-trial detention
during the period from 4 October 2002 until 30 March 2003, since they
considered that the complaints with regard to those decisions were
time-barred (see above, paragraph 52).
-
With regard to the remaining decisions of the Rīga City Centre
District Court, which were subsequently confirmed by decisions of the
Rīga Regional Court, the Government emphasized that on each
occasion the applicant's detention was evaluated by two courts: the
first instance court carefully evaluated the grounds for the
detention and the second instance court examined the quality and
legitimacy of the decisions adopted by the first instance court.
- The
Government recalled that among other grounds for keeping the
applicant in detention it was noted that the applicant's residence
permit in Latvia had expired and that he had no domicile there. In
this regard the Government referred to the Court's judgment in
Estrikh (cited above, § 122), in which, according to
the Government's submissions, the Court had held that “having
no valid residence permit may amount to a sufficient reason for
continuous detention”. According to the Government, that was
also the primary reason why the applicant had been continuously held
in detention after the case had been transferred for adjudication to
the Rīga Regional Court on 1 August 2003, since the fact that
applicant had no domicile in Latvia and no valid residence permit
made the application of a different preventive measure impossible.
- With
regard to the requirement of speediness, the Government noted that
all of the decisions of the Rīga City Centre District Court had
been adopted in a timely manner and within the time-limits
established by the Code of Criminal Procedure. As for the promptness
of the examination of the applicant's complaints in the Rīga
Regional Court, the Government noted that certain delays had occurred
because of the exceptional nature of the applicant's case, in which
all of the decisions had to be translated into English and the
translations had been carried out by the Ministry of Justice. It was
further noted that the option of not translating the respective
decisions into English and thus speeding up the proceedings would
have violated other procedural safeguards and had been accordingly
unacceptable.
- The
applicant maintained his arguments and pointed out that after his
complaint had been lodged with the Court, the Latvian Government had
amended the legal regulation of criminal procedure in such a way as
to avoid similar violations in future.
- The
Court notes that the applicant's complaints primarily address the
fact that the domestic courts' reasoning in extending his detention
had been too abstract and concise and the fact that his complaints
and the courts' decisions had to be translated to and from English,
which had created delays. The Court will address these two complaints
in turn.
1) Abstract and concise reasoning
- The
Court recalls that on several occasions it has had an opportunity to
critically analyse the quality of Latvian courts' decisions
authorising and extending pre-trial detention (see Lavents v.
Latvia, no. 58442/00, §§ 72-75, 28 November 2002;
Freimanis and Līdums v. Latvia, nos.
73443/01 and 74860/01, §§ 93-97, 9 February 2006; Kornakovs
v. Latvia, no. 61005/00, § 108, 15 June 2006; Svipsta,
cited above, §§ 130-134, Estrikh, cited above, §§
122 and 125; and Z. v. Latvia, no. 14755/03, § 72, 24
January 2008). In those cases the Court as a rule criticised the use
of pre-typed forms in decisions and held that the courts' reasoning
had been too concise and abstract and that their decisions had mainly
listed the grounds of detention provided by law and had not explained
how those grounds had been applicable to the applicants' situations.
- The
Court points out that in the present case, even though the domestic
courts had abolished the use of pre-typed forms, they largely
continued to recount the grounds for detention provided by law and
did not provide detailed explanation as to how those grounds were
relevant to the applicant's case.
- However,
the Court notes that from the decision of 29 November 2002 onwards
the domestic courts referred to the fact that the applicant had no
valid residence permit in Latvia. He also did not have a place of
residence there. The courts invoked this consideration to
substantiate the assumption that there existed a danger of him
absconding. In this way the courts' reasoning contrasts with that
used by the domestic courts in the situation which was under the
Court's scrutiny in Estrikh (cited above, § 122),
where the domestic courts had failed to explicitly or implicitly
refer to the fact that the applicant had
resided in Latvia illegally.
- As
was mentioned by the Court in Estrikh,
an illegal residence status in a country can be a reason to justify
an accused person's detention (§ 122).
The Court has previously taken into account the fact that a person
resides illegally in a country and has concluded that such a fact
significantly increases the risk of absconding (see Dzelili
v. Germany, no. 65745/01, § 73, 10 November 2005, and
Čevizović v. Germany, no. 49746/99, § 41,
29 July 2004). Since the applicant had no
other link to the territory of Latvia, the illegality of his
residence status could legitimately be taken into account by the
national courts.
- Accordingly,
even though in other respects the reasoning used by the domestic
courts in decisions to apply and to extend the applicant's pre-trial
detention continued to be fairly abstract and concise and thus, under
different circumstances, problematic, the Court concludes that in the
specific circumstances of the case the guarantees of Article 5 §
4 have not been violated.
2) Speediness of review
- The
Court recalls at the outset that Article 5 § 4, in guaranteeing
to detained persons a right to take proceedings to challenge the
lawfulness of their detention, also proclaims their right, following
the institution of such proceedings, to a speedy judicial decision
concerning the lawfulness of detention and ordering its termination
if it proves unlawful. Although it does not compel the Contracting
States to set up a second level of jurisdiction for the examination
of the lawfulness of detention, a State which institutes such a
system must in principle accord to the detainees the same guarantees
on appeal as at first instance (Navarra
v. France, 23 November 1993, §
28, Series A no. 273 B; Toth
v. Austria, 12 December 1991, §
84, Series A no. 224). The requirement
that a decision be given “speedily” is undeniably one
such guarantee. In that context, the Court also recalls that there is
a special need for a swift decision determining the lawfulness of
detention in cases where a trial is pending because the defendant
should benefit fully from the principle of the presumption of
innocence (see Iłowiecki v.
Poland, no. 27504/95, § 76, 4
October 2001).
- The
Court has already noted that the entire period of the applicant's
detention should be regarded as a continuing situation (see
above, paragraph 54).
In the present case, insofar as is relevant for the analysis of the
speediness of review of the lawfulness of the applicant's detention,
this issue was decided by two levels of jurisdiction on five
occasions, the first decisions being adopted by the Rīga City
Centre District Court on 4 October and 29 November 2002, and 30
January, 31 March and 30 May 2003 respectively. In order to better
assess the speediness of review, the Court – without any
prejudice to the conclusion about the applicant's detention being a
continuous situation – will assess each of those occasions
under its own heading.
a) Decision of 4 October 2002
- The
applicant's detention was first authorised by a decision of the Rīga
City Centre District Court on 4 October 2002. Pursuant to his
lawyer's appeal against that decision, the Rīga Regional Court
adopted its decision on 5 November 2002, that is, 1 month and 2 days
later. However, the applicant's lawyer on two occasions failed to
attend court hearings, causing them to be postponed (see above,
paragraph 9). Therefore, the Court
considers that the delays that could be attributable to the national
authorities were not such as to raise any issues under Article 5 §
4.
b) Decision of 29 November 2002
- The
applicant's and his lawyer's appeal against the 29 November 2002
decision of the Centre District Court was dismissed by a decision of
the Regional Court, which was adopted on 25 February 2003 (89 days
later). The Court notes that the delays were chiefly caused by the
Centre District Court's erroneous decision to return the applicant's
appeal to him for translation, even though the domestic legislation
provided that the translation is to be ensured by that court, and its
failure to provide the applicant with a translation of its decision
in a timely manner.
- Taking
into account that the Government in their observations have not
provided information on any facts that would allow the Court to
conclude that the delay in deciding on the applicant's and his
lawyer's appeals or any part thereof could be attributable to the
applicant, and taking into account the Court's case-law on such
delays (see, for example, M.B. v. Switzerland, no.
28256/95, §§ 32-43, 30 November 2000, Kadem v. Malta,
no. 55263/00, §§ 44-45, 9 January 2003, and Mitev v.
Bulgaria, no. 40063/98, §§ 124-125, 22 December 2004),
there has been a violation of Article 5 § 4 in respect of the
delay in examining the appeal against the Rīga City Centre
District Court of 29 November 2002.
c) Decision of 30 January 2003
- The
Rīga Regional Court took a decision with regard to the
applicant's and his lawyer's appeals against the 30 January 2003
decision of the Centre District Court on 14 February 2003 – 15
days later. The Court has no information as to the date when the
applicant and his lawyer submitted their appeals. However, taking
into account the time-limits provided in the domestic legislation
(7 days for the accused person to submit his appeal and a
further 7 days for the competent court to issue its ruling –
see above, paragraph 32), and taking into account the necessity
to translate the applicant's appeal and the inevitable delay caused
by that, it considers that the requirement of speediness was observed
in the respective period and accordingly the guarantees of Article 5
§ 4 were not violated.
d) Decision of 31 March 2003
- The
Rīga Regional Court adopted a decision to dismiss the
applicant's and his lawyer's appeals against the 31 March 2003
decision of the Centre District Court on 9 May 2003 (1 month and 8
days later). The Government did not provide any explanations as to
the reasons for this delay, apart from noting that the delay had been
caused by the necessity to translate the first instance court's
decision into English and the applicant's appeal into Latvian. Thus,
even though the task of the Regional Court was virtually identical to
the one it had faced in connection with the appeal against the
decision of 30 January 2003 (see above, paragraph 72),
the process lasted more than three weeks longer. Against this
background, and taking into account the previously cited case-law
(see above, paragraph 71), the
Court concludes that there has been a violation of Article 5 §
4.
e) Decision of 30 May 2003
- The
applicant and his lawyer appealed against the Centre District Court's
decision of 30 May 2003. The Regional Court dismissed their appeals
by a decision of 13 June 2003, thus within 14 days. Considering that
such a delay was permitted by domestic
law and there is nothing in the case file to suggest that it was
unreasonable at that specific moment, the Court concludes that there
has been no violation of Article 5 § 4.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the
Convention about the overall length of criminal proceedings against
him. In the light of all the material in its possession, and taking
into account the particular circumstances of the case, the Court
finds that the overall length of the criminal proceedings against the
applicant (approximately two years and three months) does not
disclose any appearance of a violation of Article 6 § 1.
Accordingly, this complaint is inadmissible as manifestly
ill-founded.
- The
applicant further complained that the pre-typed standard form of the
initial detention order adopted by the Rīga City Centre District
Court on 4 October 2002 contained the expression: “...taking
into account: the gravity of the crime committed; ...” which
had allegedly infringed his right to the presumption of innocence. In
this respect he invoked Article 6 § 2 of the
Convention. The Court finds that this complaint is inadmissible as
being manifestly ill-founded, since the aforementioned formula does
not logically imply that the accused has committed a crime; it merely
states the objective fact that a crime has been committed and
assesses its gravity.
- Finally,
the applicant complained under Article 8 of the Convention that in
extending his detention on remand, the Latvian courts had neglected
his state of health, the fact that he had been placed under
psychiatric supervision in the United States, and that he had a
disabled brother in his care. The Court observes that this complaint
pertains to the quality of decisions extending the applicant's
detention on remand. Accordingly, it has to be viewed from the angle
of Article 5 of the Convention. That complaint has been analysed
above (see paragraphs 62-66). For that reason the Court concludes
that this complaint is inadmissible as being manifestly ill-founded.
- Finally,
by reference to Article 8 the applicant also complained that the
Latvian authorities had done nothing to secure his property in
Florida. The Court notes that there is no indication in the materials
before it that the applicant has raised this complaint – either
in form or in substance – before the domestic authorities.
Therefore, without analysing whether the situation described by the
applicant would be covered by Article 8 of the Convention or by
Article 1 of Protocol No. 1, the Court finds that in this respect
domestic remedies have not been exhausted as required by Article 35
§ 1 of the Convention. Accordingly this complaint is also
inadmissible.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant claimed 100,000 US dollars, which encompassed compensation
for all his pecuniary and non-pecuniary damages as well as all costs
and expenses. He did not specify the amounts to be paid under each of
those heads.
A. Pecuniary damage
- The
Government noted that the applicant's claim for pecuniary damage had
not been sufficiently specific and that it any case there did not
exist any causal link between the damage claimed and the alleged
violations of the Convention.
- The
Court fails to see any causal link between the violation of Article 5
§ 4 of the Convention and the sums claimed by the applicant,
which furthermore have not been supported by any documentary or other
evidence, and accordingly dismisses his claims under this head (see,
for example, Nikolova v. Bulgaria [GC], no. 31195/96, §
73, ECHR 1999 II).
B. Non-pecuniary damage
- The
Government alleged that the applicant's claim for 100,000 USD under
this head was unjustified, excessive and exorbitant. It furthermore
considered that it was impossible to establish that the applicant had
suffered any non-pecuniary damage and that in any case there was no
causal link between the alleged damage and the alleged violations of
the Convention.
- The
Court considers that the finding of a violation of Article 5
§ 4 of the Convention with regard to the delays in issuing a
ruling with regard to the applicant's appeals against the Rīga
City Centre District Court's decisions of 29 November 2002 and 31
March 2003 constitutes in itself sufficient
just satisfaction for any non-pecuniary damage which the applicant
may have sustained.
C. Costs and expenses
- The
Government stated that the applicant's claim for costs and expenses
was unsubstantiated.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum (see Editions Plon v. France, no.
58148/00, § 64, ECHR 2004-IV). The Court points out that
under Rule 60 of the Rules of Court “the applicant must submit
itemised particulars of all claims, together with any relevant
supporting documents failing which the Chamber may reject the claim
in whole or in part” (see Parizov v. the former Yugoslav
Republic of Macedonia, no. 14258/03, § 71, 7 February
2008).
- The
Court notes that the applicant did not submit any supporting
documents or particulars in respect of his claim for the costs and
expenses incurred in the proceedings before it. Accordingly, it does
not award any sum under this head (see Parizov, cited above,
§ 72).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 5 §§ 1 (c)
and 4 admissible and the remainder of the application inadmissible;
- Holds that there has been no violation of
Article 5 § 1 (c) of the Convention;
- Holds that there has been a violation of
Article 5 § 4 of the Convention with regard to the delays
in issuing a ruling with regard to the applicant's appeals against
the Rīga City Centre District Court's decisions of 29 November
2002 and 31 March 2003;
- Holds that there has been no violation of
Article 5 § 4 of the Convention with regard to the
remainder of the applicant's complaints under that provision;
5. Holds that the finding of a violation constitutes in itself
sufficient just satisfaction for any non-pecuniary damage which the
applicant may have sustained;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 24 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Josep Casadevall
Deputy Registrar President
