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THIRD
SECTION
DECISION
Application no. 28926/10
Vladimirs VINKS and Jelena
RIBICKA
against Latvia
The
European Court of Human Rights (Third Section), sitting
on 7 February 2012 as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Egbert
Myjer,
Ján Šikuta,
Ineta
Ziemele,
Nona Tsotsoria,
Kristina Pardalos,
judges,
and Marialena Tsirli,
Deputy
Section Registrar,
Having
regard to the above application lodged on 7 May 2010,
Having
deliberated, decides as follows:
THE FACTS
- The
applicants, Mr Vladimirs Vinks (the first applicant) and Ms Jelena
Ribicka (the second applicant), are Latvian nationals who were born
in 1975 and 1972 respectively and live in Ķekava parish. They
were represented before the Court by Ms A. Kalēja, a lawyer
practising in Rīga.
- The
facts of the case, as submitted by the applicants, may be summarised
as follows.
A. Criminal proceedings against two officers
- On 13 November 2008 criminal proceedings were opened
against two officers of the Finance Police Department of the State
Revenue Service (Valsts ieņēmumu dienesta Finanšu
policijas pārvalde – “the VID FPP”) for
bribery, abuse of authority and aiding and abetting tax evasion. The
first applicant testified in these criminal proceedings, which are
currently pending before the domestic courts.
B. Criminal proceedings against the first applicant
- On
4 June 2009 the VID FPP initiated criminal proceedings concerning tax
evasion and large-scale money laundering.
- On
12 June 2009 an investigating judge issued a search warrant for the
applicants’ home.
- On
16 June 2009, around 7 a.m., the applicants’ home was searched,
the first applicant was taken into police custody (see paragraph 14
et seq. below) and taken to the premises of the VID FPP.
Allegedly, he was then forced under duress to retract the evidence
given in the criminal proceedings against the two officers of the VID
FPP (see paragraph 3 above).
- On
18 June 2009 the first applicant was declared a suspect in connection
with the criminal proceedings concerning tax evasion and large-scale
money laundering.
- On
18 June 2009 an investigating judge remanded the first applicant in
custody. No appeal was lodged against that decision.
- On
27 August and 19 November 2009 the investigating judge decided that
the first applicant’s continued detention was and continued to
be justified in view of “reasonable suspicion”. These
rulings were not amenable to judicial review.
- In
October or November 2009 an officer of the VID FPP, investigator
I.S., remanded the first applicant on bail, which was set to 25,000
Latvian lati (LVL). At the same time, a restraining order and an
order not to leave country were issued.
- On
23 November 2009 the investigating judge examined the complaint by
the first applicant regarding the amount of bail and dismissed it.
- On
26 November 2009, upon the first applicant’s request, the
investigator set bail to LVL 17,000; this amount remained
uncontested. The bail was posted on the next day and the first
applicant was released on 29 November 2009.
- These
criminal proceedings are currently pending; it appears that the
pre-trial investigation stage has not been completed. However, on 12
July 2011 the decision to remand the applicant on bail was quashed on
the ground that the time-limit for completing pre-trial investigation
had exceeded 22 months.
C. Search of 16 June 2009
- According to the applicants, on 16 June 2009, at about
7 a.m., a special police unit “Alfa” or “Omega”
without prior warning of use of force entered their home, breaking
several windows. Both applicants at that time were at home together
with a friend in the kitchen in the ground floor; the second
applicant’s daughter was sleeping in her room upstairs.
- The
second applicant’s daughter was pulled out of her bed in a room
on the first floor by two officers of the special police unit who
immediately brought her down to the ground floor, without allowing
her to dress up.
- All
those present in the applicants’ home, including the second
applicant and her daughter, were put down to the ground with their
faces against the floor. The first applicant’s hands were tied
behind his back.
- In
addition, somebody pushed the second applicant’s head against
the floor with his boot and put a gun to it.
- Subsequently,
six officers of the VID FPP entered the applicants’ home, did
not identify themselves and started the search after briefly showing
the search warrant. It appears that nothing was seized during the
house search, which was completed five hours later, at noon.
- Another
search – of the second applicant’s car – was then
carried out. It appears that nothing was seized during this search,
which was completed twenty-five minutes later, at 12.25 a.m.
- The
first applicant was then detained and taken to the premises of the
VID FPP in Rīga, where a record of his
detention was drawn up by investigator I.S. who had not participated
in the search.
- Finally,
it appears that the first applicant’s car was searched at
1.05 p.m. and many documents were seized.
D. Review of the applicants’ complaints
- As
concerns the lawfulness of the search warrant itself, on 12 February
2010 the President of the court, with a final decision, dismissed the
complaint by the first applicant and found that the search warrant
had been issued lawfully.
- As
concerns the manner in which the search was carried out, the
applicants lodged numerous complaints with several domestic
authorities.
1. Complaints by the first applicant
- On
28 June 2009 the first applicant complained to the prosecutor’s
office about allegedly illegal activities of several VID FPP
officers, including S.P. who had participated in the search. This
complaint was forwarded to the VID FPP. On 21 July 2009 the director
of the VID FPP issued the following reply, which the first applicant
received on 29 November 2009, after his release:
“On 15 June 2009 the Finance Police Department of
the State Revenue Service has received your 28 June 2009 complaint,
which was addressed to the General Prosecutor’s Office.
Information provided by you has been examined. Facts complained of
have not been confirmed and no breaches have been found in the
actions of the VID FPP officers during your arrest.”
- On
4 January 2010 a prosecutor, upon a complaint by the first applicant,
found that the actions of the VID FPP officers had been substantiated
and lawful. The first applicant lodged a complaint against this
decision.
- On
9 February 2010 a superior prosecutor noted that the 28 June 2009
decision by the director of the VID FPP had been final. The
prosecutor, however, examined the complaint about the search and the
detention of the first applicant and found that his procedural rights
had not been infringed.
- On
5 March 2010 another prosecutor, upon a complaint by the first
applicant, found that the domestic law had not been breached as
concerns the search of 16 June 2009 and the first applicant’s
detention. He examined and rejected as unfounded the first
applicant’s complaint that the actions of the VID FPP officers
of had been motivated by revenge.
2. Complaints by the second applicant
- On
29 June 2009 the second applicant lodged a complaint with the
prosecutor’s office about allegedly illegal activities of the
police officers who had authorised the 16 June 2009 search at her
house with the special police unit. The second applicant did not
receive a reply on the merits to this complaint.
- On
22 January 2010 a superior prosecutor, upon a complaint by the second
applicant, informed that the lower prosecutor had examined her
complaint and had rejected it. The superior prosecutor herself also
examined the second applicant’s complaint and found that the
search had been substantiated and lawful.
- On
25 February 2010 another superior prosecutor examined the second
applicant’s complaints and rejected them with a final decision.
COMPLAINTS
- Both
applicants complained under Article 8 of the Convention that the
search of 16 June 2009 had been unlawful, carried out in a brutal
manner and with disregard for the interests of the second applicant’s
child. They argued that the search had taken place with no prior
warning to allow for voluntary compliance and had inflicted pecuniary
damage (broken windows etc.). They argued that the involvement of the
special police unit had not been necessary. They also noted the lack
of procedural safeguards. In addition, the applicants alleged that
they did not have an effective remedy under Article 13 of the
Convention in connection with their Article 8 complaint.
- The
first applicant further complained under Article 5 § 1 (c) of
the Convention that there had been no “reasonable suspicion”
for his arrest and that his detention had been unlawful. He
complained about the amount set for bail.
- The
first applicant complained of a breach of Article 5 § 4 of the
Convention on account of the alleged lack of an adequate remedy with
which to obtain a review of the lawfulness of his detention.
- The
first applicant also complained under Article 6 § 3 (c) of the
Convention about the quality of the services rendered by a
state-appointed attorney.
- The
second applicant alleged that Article 3 had been breached in respect
of her and her daughter on account of the manner in which the search
had been carried out. She also complained, under Article 6 of the
Convention, about the fairness of the proceedings against the first
applicant.
- Lastly,
referring to the above complaints, the applicants also invoked
Articles 13 and 17 of the Convention.
THE LAW
A. Complaints concerning the search of 16 June 2009 and
the effectiveness of domestic remedies in that regard
- The
applicants complained about the lawfulness of the search of 16 June
2009 and the proportionality of such interference in their private,
family life and home. They further contended that there were no
effective remedies available under domestic law for their complaint.
- The
Court will examine these complaints under Articles 8 and 13 of the
Convention, which provide as follows:
Article 8
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Court considers that it cannot, on the basis of the case file,
determine the admissibility of these complaints and that it is
therefore necessary, in accordance with Rule 54 § 2 (b) of the
Rules of Court, to give notice of this part of the application to the
respondent Government.
B. Other complaints
- The
applicants further complained under Articles 3, 5 §§ 1 (c)
and 4, 6 §§ 1 and 3 and Article 17 of the Convention of
violations of their rights.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols. It follows
that this part of the application is manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
For these reasons, the Court unanimously
Decides to adjourn
the examination of the applicants’
complaints about the search of 16 June 2009 and the
effectiveness of the domestic remedies in that regard under Articles
8 and 13 of the Convention;
Declares the remainder of
the application inadmissible.
Marialena Tsirli Josep
Casadevall Deputy Registrar President
