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THIRD
SECTION
CASE OF J.L. v. LATVIA
(Application
no. 23893/06)
JUDGMENT
STRASBOURG
17 April 2012
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 J.L. v. Latvia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Egbert
Myjer,
Ján Šikuta,
Ineta
Ziemele,
Nona Tsotsoria,
Kristina Pardalos,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 27 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 23893/06)
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 a Latvian national, Mr
J.L. (“the applicant”), on 2 June 2006. The
President of the Chamber decided of its own motion to grant the
applicant anonymity pursuant Rule 47 § 3 of the Rules of Court.
- The
applicant, who had been granted legal aid, was represented by
Mr Berndt Bergshem, a lawyer practising in Stockholm. The
Latvian Government (“the Government”) were represented by
their Agent, Mrs I. Reine.
- The
applicant complained in particular under Articles 3 and 13 of the
Convention that the prison authorities had refused to investigate his
physical ill-treatment by fellow prisoners, and that he has had no
effective remedies for it.
- On
21 May 2007 the application was communicated to the Government. It
was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1980.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
A. The applicant’s cooperation with police
officers
- On 21 November 2005 the applicant’s
wife’s car was stolen. G. contacted the applicant and asked for
money for return of the car. The applicant reported this to the
police and on 25 November 2005, under instructions from
police officers, he gave the money to G. and recorded the
conversation on audio tape. On the same day G. was arrested. On
5 June 2006 G. was charged with theft and extortion, mainly
on the basis of the aforementioned evidence. On 14 July 2006
the criminal case was referred to the court.
B. Criminal proceedings against the applicant
- Meanwhile,
on 7 November 2005 the Aizkraukle District Prosecutor’s
Office brought charges against the applicant concerning repeated
misappropriation.
- On 16 November 2005 the applicant entered a
plea of guilty and confirmed that the examination of evidence was not
necessary. He explicitly refused the assistance of defence counsel.
On the same day the criminal case was referred to the court.
10 On
4 January 2006, during the hearing, the applicant confirmed
that defence counsel and examination of witnesses were not necessary.
The Aizkraukle District Court found the applicant guilty and
sentenced him to three years’ and nine months’
imprisonment. The applicant was taken to Central Prison from the
courtroom.
- On 26 January 2006 the Zemgale Regional
Court examined the applicant’s appeal and upheld the judgment
of the lower court. According to the records of the hearing the
applicant said in his statement to the court that he had been beaten
up on his way to the prison and that it had happened because of his
previous cooperation with the police.
- In
his appeal on points of law of 16 February 2006 the applicant
complained about the severity of the sentence. He also mentioned his
cooperation with police, and that as a result he had suffered bodily
injuries in prison.
- On 23 February 2006 the applicant asked the
Prosecutor General to reduce his final sentence. He mentioned, inter
alia, that because of his cooperation with the police he had
encountered problems in prison, specifically that his nose had been
broken and he had also sustained other body injuries. In March 2006
he sent a similar request to the Aizkraukle District Court.
- On 7 March 2006 the Supreme Court dismissed
the applicant’s appeal on points of law.
- On
1 September 2006, at the request of the Prosecutor
General’s Office, the Aizkraukle District Court reduced the
applicant’s sentence by one year, owing to the fact that he had
helped to disclose a serious criminal offence.
- On
22 June 2007 the applicant was released from prison after
serving his sentence.
C. Alleged ill-treatment in Central Prison and further
measures taken by the authorities
- The
applicant arrived at Central Prison on 5 January 2006 and
was placed in a filtering cell with eleven other inmates.
- According
to the applicant, during the night of 5-6 January 2006 he
was physically and sexually assaulted by his fellow inmates: his nose
was broken and he was raped. He complained about this to the Central
Prison doctor, who rendered medical assistance but refused to draw up
a medical report in this connection; similarly, a prison guard
refused to initiate an investigation into the assault.
- On
6 January 2006 he was transferred to cell 72, which
provided services to the prison canteen.
- According to a report drawn up by the head of the
medical unit of the Prison Administration, on 6 January 2006 the
applicant was examined by the Central Prison doctor, who recorded the
applicant’s complaints about inflammation of the duodenum. On
16 January 2006 the applicant had a prophylactic
examination by the same doctor, who assessed him as in good health
and fit for work in the prison canteen.
- On
14 March 2006 the applicant asked the Prison Administration
to transfer him to specialised detention facilities in Matīsa
Prison, arguing that he had been receiving threats from those
he had testified against.
- On 21 March 2006 an officer of the Security
Department of the Prison Administration met the applicant. According
to the report drawn up by the officer during the meeting the
applicant complained about possible threats, in that the people he
had testified against were known to some of his fellow inmates. The
applicant denied having any problems in Central Prison where he was
employed in the canteen.
- Further, according to the same report, in a telephone
conversation on 22 March 2006 a police officer in charge of
G.’s criminal case confirmed that the applicant was
cooperating, and acknowledged that the applicant might therefore
encounter problems in prison, but he refused to confirm this in
writing. With the agreement of the deputy head of the Prison
Administration it was decided to transfer the applicant to Jēkabpils
Prison. The report also stated that on 22 March 2006 a
representative of the Prison Administration had advised the head of
Jēkabpils Prison by telephone to take the applicant “under
control”.
- On
30 March 2006 the applicant was transferred to Jēkabpils
Prison.
- On 13 August 2006 the applicant complained
to the Ombudsman (the Bureau for the Protection of Human Rights at
that time) that he had been ill-treated on 6 January 2006
in Central Prison. At the Ombudsman’s request in September 2006
the Prison Administration requested information from Central and
Jēkabpils Prisons about the applicant’s situation there.
- On 25 September 2006 the head of Jēkabpils
Prison reported that when the applicant arrived his personal file did
not contain any indication that he required isolation from other
inmates, and that he had not raised any complaints about physical
ill-treatment while detained in Jēkabpils Prison. It was also
noted that according to the prisoners’ internal classification
the applicant was “kreisais” (someone who had
allegedly, inter alia, cooperated with the law enforcement
authorities).
- On 27 September 2006 the head of Central
Prison informed the Prison Administration that the applicant had
never complained about the incident of 6 January 2006. The
letter contained statements from three of the eleven fellow inmates
with whom the applicant had been placed on 6 January 2006;
they all denied any ill-treatment of the applicant.
- Relying
on the above reports, on 3 October 2006 the Prison
Administration informed the Ombudsman’s Office that there was
no information about the applicant’s ill-treatment.
- In
response to the request of the Government Agent, on 2 November 2007
the Office of the Prosecutor General stated that they had not
received any complaints from the applicant concerning ill-treatment
in Central Prison on 6 January 2006 or in any other prison.
The letter confirmed that by virtue of section 6 of the Law of
Criminal Procedure the Office of the Prosecutor would have decided on
the opening of criminal proceedings if it had received a complaint
from the applicant of physical or sexual ill-treatment or a refusal
by the prison administration to review the complaint.
D. Other security measures taken by the authorities
- Aiming to ensure that the applicant attended G.’s
trial, on 4 September 2006 the prosecutor in charge asked
the Prison Administration to transfer the applicant from Jēkabpils
Prison to Rīga. In her letter the prosecutor noted that G. had
been detained in Central Prison and that his criminal case contained
compelling information that G. had previously intimidated the
applicant. Therefore the Prison Administration was asked to transfer
the applicant to the specialised detention facilities in Matīsa
Prison. The prosecutor referred to a report addressed to the Office
of the Prosecutor General which confirmed the attempt to intimidate
the applicant.
- It
appears that on two occasions the applicant had been transferred to
Matīsa Prison in Rīga in order to attend G.’s trial.
- In
September and October 2006 the Prison Administration dismissed the
applicant’s requests to allow him to continue serving the rest
of his sentence in Matīsa Prison.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Criminal Law and the Law of Criminal Procedure
as in force at the material time
- Sections 159 and 125 of the Criminal Law provides
criminal sanctions for rape and other forms of sexual assault, the
severity of sanctions varying according to the qualification of the
offence.
- Section
6 of the Law of Criminal Procedure provides that the official
authorised to perform criminal proceedings has a duty in each case
where the reason and grounds for initiating criminal proceedings have
become known, to initiate proceedings and to direct them towards fair
regulation of the criminal law as set out in the Criminal Law.
- By virtue of section 369 parts one and two, one reason
for initiating criminal proceedings is information which indicates
that a criminal offence has been committed, if such information has
been submitted to, or acquired by, an investigating institution
(izmeklēšanas iestāde),
the Office of the Prosecutor, or the court. The information referred
to above may be submitted, inter alia, by a person who has
suffered as a result of a criminal offence; by controlling and
supervising institutions; by medical practitioners or institutions;
or by any natural or legal person regarding possible criminal
offences from which that person has not directly suffered.
- Section
370 provides that criminal proceedings may be initiated if there is
an actual possibility (reāla iespēja) that a
criminal offence has been committed. Criminal proceedings may also be
initiated if the information received described circumstances
relating to a criminal offence which may have taken place and the
examination of such information is possible only by methods
applicable to criminal proceedings.
- Section
371 sets out the responsibility for instituting investigations and
those of the Office of the Prosecutor and the courts in the
initiation of criminal proceedings. In particular, an investigator
has a duty to initiate criminal proceedings, within his or her
competence, if any of the factors referred to in Section 369 of this
Law are present. A public prosecutor may send materials for
examination to an investigating institution or commence criminal
proceedings within the scope of his or her competence, in connection
with any reason referred to in section 369 of this Law. Besides, a
decision of a public prosecutor regarding the initiation of criminal
proceedings, and the materials related to such decision, shall
immediately be sent to an investigating institution, except for
particular cases referred to in section 38, paragraph 3 of this Law.
- By
virtue of sections 386 and 387 the Prison Administration shall carry
out pre-trial criminal proceedings and investigate criminal offences
committed by detained or convicted persons, or by employees of the
Latvian Prison Administration in places of imprisonment.
- According
to part 9 of the transitional provisions the terms izziņas
iestāde (institution of an inquiry) and izziņas
izdarītājs (person presiding over an inquiry) used in
other legal enactments shall hereinafter be understood as the terms
izmeklēšanas iestāde (investigating
institution) and izmeklētājs (investigator).
B. Administrative proceedings
- According
to section 1, an administrative act is a legal instrument issued by
an institution in an area of public law. It further specifies that
decisions regarding, inter alia, criminal proceedings and
court adjudications, are not administrative acts.
- The
other relevant parts of the Law of Administrative Procedure as
applicable at the material time concerning the right to challenge
administrative acts and actions of public authorities are summarised
in Melnītis v Latvia; no. 30779/05, §§
24-26, 7 February 2012, not yet final.
C. The Law on the Prosecutor’s Office
- The
relevant provisions of the Law on the Prosecutor’s Office
applicable at the material time are summarised in Leja v.
Latvia, no. 71072/01, § 34, 14 June
2011. In particular, according to section 15 a prosecutor
shall supervise the execution of sentences of deprivation of liberty
and the places of that detention.
- Section 16 provides that a prosecutor shall, in
accordance with the procedures prescribed by law, carry out an
examination if the information received contains assertions regarding
either a crime or violation of the rights and lawful interests of,
inter alia, detainees.
D. The Law on Prison Administration (“Ieslodzījuma
vietu pārvaldes likums”, as in force until 1
October 2006)
- According to section 2 paragraph 5 the Prison
Administration is an institution of an inquiry (izziņas
iestāde) in criminal proceedings instituted to investigate
offences committed by detained or convicted persons. By virtue of
section 6 paragraph 4 the head of the Prison Administration shall
have the power to launch an investigation in such criminal
proceedings.
E. The Law on Special Protection Measures (“Personu
speciālās aizsardzības likums”, as in force at
the material time)
- According
to section 5 the special protection measures specified in this law
are ensured by the following institutions: a specially authorised
division of the State Police; a specially authorised department of
the Latvian Prisons Administration and at the place of imprisonment –
a specially authorised division of the place of imprisonment, as well
as other persons performing investigative operations, if, in
accordance with the instructions of the Prosecutor General, it is
necessary to ensure special protection.
- According
to section 6 the reasons of applying special protection
shall be an actual threat to the life, health or other legal
interests of a person, expressed imminent threats or other sufficient
grounds indicating that the danger may be imminent owing to a
person’s participation in criminal proceedings. The special
protection shall be appplied based on either a written request of a
person testifying in criminal proceedings and a proposal of the
investigating authority; or the initiative of a court, if a reason
for applying special protection has arisen during the course of
adjudication; or a written submission of another person to whom the
special protection has been assigned.
III. RELEVANT PARTS OF THE CPT REPORTS
- The report of 13 March 2008 to the Latvian
Government on the visit to Latvia carried out by the European
Committee for the Prevention of Torture and Inhuman or Degrading
Treatment (“the CPT”) from 5 to 12 May 2004
notes the following:
“46. During the 2004 visit, the delegation
examined several internal investigation files on inquiries conducted
by the Security Departments into serious incidents of inter-prisoner
violence at Daugavpils Prison and Rīga Central Prison. The
delegation also had consultations with the competent prosecutor in
Rīga.
It came to light that, in several cases, no criminal
investigations had been initiated, despite the fact that medical
evidence consistent with allegations of inter-prisoner violence was
available. In this connection, the delegation was informed that, as a
rule, instances of inter-prisoner violence were only reported to the
prosecutor if the victim made explicit allegations to this effect in
his written statement to the Security Department. In this connection
it appeared to be immaterial whether or not the prisoner concerned
had previously made such allegations to the doctor and the
allegations had been recorded in his medical file.
It is also of concern that, even when the prosecutor had
become aware of serious cases of inter-prisoner violence, he had not
always initiated investigation not taken a formal reasoned decision
on the matter. In fact, the Security Department’s investigation
file was simply returned to the prison, without any record being kept
that the prosecutor had examined the case.
47. The CPT recommends that the existing procedures be
reviewed in order to ensure that whenever injuries are recorded by a
doctor which are consistent with allegations of inter-prisoner
violence, the matter is immediately brought to the attention of the
relevant prosecutor and a preliminary investigation is initiated by
him.
More generally, the CPT calls upon the Latvian
authorities to develop strategies with a view to addressing the
problem of inter-prisoner violence in the establishments visited
(and, as appropriate, in other prisons in Latvia).
50. In the light of the above, the CPT calls upon the
Latvian authorities to take immediate steps to review throughout the
prison system the role played by the Security Departments, in the
light of the remarks made above ... .
In particular, steps should be taken to ensure that:
- criminal investigations into instances of
ill-treatment by staff as well as inter-prisoner violence are no
longer carried out by the Security Departments. Such investigations
should be conducted by a body which is independent of the
establishment concerned, and preferably of the prison system as a
whole.
- prisoners are allocated/transferred to cells under the
responsibility of the Director of the establishment concerned”.
...
66. At Rīga Central Prison, neither the complement
of qualified nursing staff nor the psychiatric/psychological services
had been strengthened, despite the specific recommendations made
after the 1999 visit and reiterated after the 2002 visit. ....
67. In the light of the above, the CPT reiterates its
recommendation that steps be taken, as a matter of priority, to
ensure that:
- the complement of qualified nursing staff at
Daugavpils Prison and Rīga Central Prison is increased;
...
- every newly-arrived prisoner is properly interviewed
and physically examined by a medical doctor (or a fully qualified
nurse reporting to a doctor) as soon as possible after his admission
to Daugavpils Prison; save for exceptional circumstances, the
interview/examination should be carried out on the day of admission;
...
68. In both establishments (including the Prison
Hospital), the examination of medical files revealed that the
injuries observed (upon admission or after violent incidents within
the prison) were frequently not recorded in detail, and that no
additional information was given as to the causes of the injuries
sustained.
...
The CPT must therefore reiterate its recommendation that
steps be taken at Daugavpils Prison and Rīga Central Prison (as
well as in other prison establishments in Latvia) to ensure that the
record drawn up after a medical examination of a prisoner, on arrival
or after a violent incident within the prison, contains:
(i) a full account of statements made by the prisoner
concerned which are relevant to the medical examination, including
any allegations of ill-treatment made by him;
(ii) a full account of the objective medical findings
based on a thorough examination;
(iii) the doctor’s conclusions in the light of (i)
and (ii). In his conclusions, the doctor should indicate the degree
of consistency between allegations made and the objective medical
findings; these conclusions should be made available on request to
the prisoner concerned and his lawyer.
Further, whenever injuries are recorded by a doctor
which are consistent with allegations of ill-treatment made by a
prisoner, the record should be immediately brought to the attention
of the relevant prosecutor (see also paragraph 47)”.
- In
response to the above report the Latvian Government referred to an
instruction of 29 March 2004 adopted by the Prison Administration.
According to the instruction, in case there has been an incident of
ill-treatment in a prison establishment, the prison doctor has to
examine the detainee and to inform the administration of the prison.
The latter has to inform the Prosecutor’s office and carry out
an investigation according to the procedure established by law.
- The
report of 15 December 2009 to the Latvian Government on the
visit to Latvia carried out by the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment (“the
CPT”) from 27 November to 7 December 2007 notes:
“78. ... As was the case during all previous
visits, the delegation observed a number of shortcomings in the
manner in which injuries were recorded at Rīga Central Prison.
First of all, several newly-arrived prisoners met by the delegation
displayed visible injuries on various parts of the body (including on
the face), but no injuries at all were recorded in the medical file,
despite the fact that these injuries had apparently been sustained
prior to admission. Further, although objective medical findings
relating to injuries were recorded in other cases, they were
frequently not accompanied by an account of the statements made by
the persons concerned which are relevant to the medical examination.
In particular, medical records frequently failed to note the
prisoner’s account of the origin of these injuries (or to note
if the person concerned had refused to reply to the relevant
questions asked by the doctor) as well as the doctor’s
conclusions in the light of the objective findings and the prisoner’s
account. Further, at Jēkabpils Prison, the delegation found
instances where visible injuries had not been recorded at all in the
prisoners’ medical files (including after violent incidents in
the prison).
The CPT must recommend once again that steps be taken at
Rīga Central Prison and Jēkabpils Prison, as well as in all
other prisons in Latvia, to ensure that the record drawn up after a
medical examination of a prisoner, on arrival or after a violent
incident within the prison, contains:
(i) a full account of statements made by the prisoner
concerned which are relevant to the medical examination, including
any allegations of ill-treatment made by him;
(ii) a full account of objective medical findings based
on a thorough examination;
(iii) the doctor’s conclusions in the light of (i)
and (ii). In his conclusions, the doctor should indicate the degree
of consistency between any allegations made and the objective medical
findings; these conclusions should be made available to the prisoner
and his lawyer.
IV. OTHER RELEVANT TEXTS
- Recommendation Rec (2005)9 of the Committee of
Ministers of the Council of Europe to member states on the protection
of witnesses and collaborators with justice.
...
“II. General Principles
1. Appropriate legislative and practical measures should
be taken to ensure that witnesses and collaborators of justice may
testify freely and without being subjected to any act of
intimidation.
2. While respecting the rights of the defence, the
protection of witnesses, collaborators of justice and people close to
them should be organised, where necessary, before, during and after
the trial.
3. Acts of intimidation of
witnesses, collaborators of justice and people close to them should,
where necessary, be made punishable either as separate criminal
offences or as part of the offence of using illegal threats”.
...
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
- The
applicant complained that the staff of Central Prison had refused to
investigate the physical ill-treatment to which he had been subjected
by fellow inmates, and that he therefore had no effective remedy. In
particular, he complained that on the night of 5-6 January 2006
he was beaten up and raped by two of his eleven cellmates because he
had cooperated in the past with law-enforcement authorities.
He
further complained of threats to his physical safety in Jēkabpils
Prison and that the authorities had refused to transfer him to
specialised detention facilities in Matīsa Prison.
The
complaints are covered by Article 3 and 13 of the Convention, which
read as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment”.
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority ...”
Admissibility
1. Incident in Central Prison
- The Government submitted that the applicant has failed
to exhaust domestic remedies in respect of his complaints of the
alleged ill-treatment by fellow inmates in Central Prison and the
lack of investigation thereof. According to the Government the
applicant had two sets of remedies available to him. He could pursue
the administrative procedure by complaining to the head of Central
Prison, whose decision would be subject to an appeal before the
Prison Administration and further on before the administrative court.
The latter had extensive investigative powers concerning complaints
of allegedly unlawful decisions and de facto actions on the
part of public officials. Alternatively, the applicant could lodge a
complaint with the Office of the Prosecutor. The Government
emphasised that the applicant had not raised the issue of the alleged
ill-treatment and the misconduct of officials during his interview
with the representative of the Prison Administration (see paragraph
22, above).
- The
applicant’s representative disagreed, contending that the
applicant had complained to the Central Prison authorities and had
been offered the option of solitary confinement, which he had
refused. In his letters to the authorities he had referred to the
situation which had resulted from his having cooperated with the
police.
- The
Court observes that the parties also raise the same arguments
concerning the merits of the complaints under Articles 3 and 13 of
the Convention. It considers that the non-exhaustion arguments are
closely related to the substance of the complaints, and should be
examined in the light of the State’s positive obligation to
take effective measures against ill-treatment (see, more recently,
Stasi v. France, no. 25001/07, § 62,
20 October 2011).
- The
Court concludes that this part of the complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Alleged threats to safety in Jēkabpils Prison
- The Government contended that the applicant’s
allegations that he was unsafe in Jēkabpils Prison were purely
hypothetical, as he had never provided the Court with any evidence
that threats, discrimination or ill-treatment had been directed
against him in Jēkabpils Prison. He had also never complained of
this issue before domestic authorities.
- The
applicant had not commented on the Government’s allegations.
- As
to the applicant’s safety in Jēkabpils Prison, the Court
notes that the applicant has failed to make his allegation specific,
either before the domestic authorities or before the Court.
- The
Court further notes that at the prosecutor’s request the
applicant was held in the specialised detention facilities in Matīsa
Prison during the periods when he was transferred to Rīga to
attend court hearings (see paragraphs 30-32, above).
- In
those circumstances it follows that the above complaint is
inadmissible under Article 35 §§ 1 and 4 of the
Convention.
Merits
1. Arguments of the parties
- The
Government contended that as regards the incident in Central Prison
the applicant has neither provided the Court with any plausible
evidence, including medical records supporting his allegations, nor
has he addressed the relevant State authorities.
- The
applicant’s representative argued in response that after the
incident of 6 January 2006 the applicant had received
medical assistance from the Central Prison doctor, but that the
latter had refused to record the violation, considering that any
inquiries would worsen the applicant’s situation in prison.
Immediately after the incident, on the doctor’s recommendation,
he had been transferred to the kitchens, where he could not be
subjected to threats. He had not brought further complaints to the
Central Prison administration, because of his fears of being moved
away from the relatively safe cell he was in. Finally, the applicant
submitted two receipts for medication which had been prescribed by
the Jēkabpils prison doctor; this however was not reflected in
his medical records.
- The
Government in their additional observations commented that the
transfer of inmates was not within the competence of the prison
doctor and that any complaints with respect to the effectiveness or
otherwise of investigations should be brought to the attention of the
Prison Administration. The Government dismissed as irrelevant the
applicant’s comments about his alleged health problems in
Jēkabpils Prison.
2. The Court’s assessment
- The
Court reiterates that Article 1 of the Convention, taken in
conjunction with Article 3, imposes on the States positive
obligations to ensure that individuals within their jurisdiction are
protected against all forms of ill-treatment prohibited under Article
3, including where such treatment is administered by private
individuals (see A. v. the United Kingdom, 23 September 1998,
§ 22, Reports of Judgments and Decisions 1998 VI).
This obligation should include effective protection of, inter
alia, an identified individual or individuals from the criminal
acts of a third party, as well as reasonable steps to prevent
ill-treatment of which the authorities knew or ought to have known
(see, mutatis mutandis, Osman v. the United Kingdom, 28
October 1998, § 116, Reports of Judgments and Decisions
1998 VIII; more recently, E. and Others v. the United
Kingdom, no. 33218/96, § 88, 26 November 2002).
- Secondly, the Court notes that the applicant’s
complaint under Article 3 raises an issue with respect to the State’s
positive obligation to carry out an effective investigation in
response to an arguable claim of ill-treatment (see Assenov and
Others v. Bulgaria, 28 October 1998, § 102, Reports
1998-VIII, and Labita v. Italy [GC], no. 26772/95, §
131, ECHR 2000-IV). Such a positive obligation cannot be
considered to be limited solely to cases of ill-treatment by State
agents (M.C. v. Bulgaria, no. 39272/98, §
151, 4 December 2003, ECHR 2003 XII).
- Even
though the investigation may differ in scope as regards the alleged
ill-treatment inflicted by persons other than state officials, it
nevertheless should contain the core requirements of an effective
investigation (see Denis Vasilyev v. Russia, no. 32704/04, §
100, 17 December 2009). In particular, according to the
Court’s case-law, the investigation should be independent,
impartial, prompt and subject to public scrutiny (see Batı
and Others v. Turkey, nos. 33097/96 and 57834/00, §§ 135-136,
ECHR 2004 IV (extracts)) and the investigation is to be
considered effective if the authorities had taken reasonable steps to
secure the evidence concerning the incident, including, a detailed
statement concerning the allegations from the alleged victim,
eyewitness testimony, forensic evidence and, where appropriate,
additional medical reports (ibid, § 134).
- The
aforementioned obligations shall not, however, be interpreted as
meaning that the State shall guarantee that ill-treatment is never
inflicted or that criminal proceedings should necessarily lead to a
sanction (see Beganović v. Croatia, no. 46423/06, §
71, 25 June 2009). Nevertheless the State shall be held liable in a
situation if the domestic legal system fails to provide effective
protection against violation of the rights enshrined by Article 3
(ibid.)
(a) Existence of an arguable claim
- At
the outset the Court notes that it is not disputed by the parties
that the applicant had collaborated with the police in investigating
a serious crime (see paragraph 7, above), and that at the same time
the applicant himself was standing trial. In these circumstances the
cooperation as such would oblige the authorities to take measures to
ensure the safety of witnesses and collaborators of justice. The
importance of this obligation has also been enshrined in a
recommendation of the Council of Europe (see paragraph 50, above).
- In
the present case there is no information that as soon as the
applicant was cooperating and before he was transferred to prison any
reasonably expected measures by the investigating authorities had
been taken, such as, for example, communicating to the prosecutor and
the prison authorities the fact that he was cooperating with
investigators. Such measures would have been intended to prevent the
applicant from being subjected to possible threats from either those
he had testified against or other inmates who might have found out
that he had cooperated. The Court notes that the Government did not
comment on the fact of the applicant’s cooperation with the
investigating authorities and the possible consequences thereof.
- The Court refers in this respect to events subsequent
to the alleged incident. Even though the Prison Administration
ordered the administration of Jēkabpils
Prison to take the applicant “under control”, and
following the prosecutor’s conclusions (see paragraphs 23 and
30, above), in the official report the Jēkabpils Prison
administration did not reveal that the applicant had been entitled to
any particular precautionary measures in prison (see paragraph 26,
above), thereby demonstrating that protection against possible abuse
was left to the discretion of prison officials.
- In the light of the above-mentioned, the Court will
address the parties’ disagreement concerning the sufficiency of
proof in support of the applicant’s allegations of physical
ill-treatment by fellow inmates. As established in the case-law, the
Court shall in this respect apply the standard of “beyond
reasonable doubt”, however, such proof may also follow from the
coexistence of strong, clear and concordant inferences or similar
presumptions of fact (Ireland v. the United Kingdom, 18
January 1978, § 161, Series A no. 25). Besides, where the
events in issue lie wholly, or in large part, within the exclusive
knowledge of the authorities, as in the case of persons within their
control in custody, strong presumption of fact will arise in respect
of injuries occurring during such detention Salman v. Turkey
[GC], no. 21986/93, § 100, ECHR 2000 VII).
- As
to the allegations concerning the act of violence in Central Prison,
the Government stated that there were no medical records or
representations by the applicant to show that the incident had
happened at all. The Court notes that the applicant’s main
complaint is precisely the alleged failure of the doctor and other
staff of Central Prison to register the applicant’s injuries
and to investigate the incident. The Court shall therefore examine
the inferences deriving from the factual circumstances which were not
disputed by the Government (see Kadiķis v. Latvia (no. 2),
no. 62393/00, § 51, 4 May 2006).
- Even
if it was only in August 2006 that the applicant for the first time
produced a detailed complaint in respect of the events of
6 January 2006 (see paragraph 25, above) the Court notes
the consistency with which the applicant had on various occasions
asserted to the authorities that he had been subjected to
ill-treatment in Central Prison (see paragraphs 11 - 13,
above; contrary to Bazjaks v. Latvia, no. 71572/01,
§ 76, 19 October 2010). As concerns the medical
records, the Court regrets that it has not been furnished with a copy
of the applicant’s medical report of 6 January 2006
and the reasons for his transfer to the kitchen unit at the Central
Prison (see paragraph 20, above). It notes that the Government has
not commented on the fact that even if the initial medical
examination did not refer to any health problems suffered by the
applicant, ten days later the applicant was repeatedly seen by a
doctor (ibid.). There is no explanation as to why there should have
been a need for the applicant to undergo a “prophylactic”
medical examination, especially considering the already limited
medical facilities in Central Prison (see the CPT report in this
respect, paragraph 47, above) The Court notes in this connection that
the CPT, during their visits to Central Prison, had observed the
failure of medical personnel to properly record in the medical files
injuries sustained by inmates of the prison (ibid.).
- The
credibility of the applicant’s allegation as to the act of
violence is corroborated by the undisputed fact attested by the
national authorities that the applicant, who was a victim and the
main witness in criminal proceedings concerning a serious criminal
offence, had been subjected to intimidation from the defendant (see
paragraph 30, above). The latter was being held in the same prison
and was known to the fellow prisoners, this fact adding probative
weight to the applicant’s allegations (contrary to Bazjaks,
cited above, § 76).
- In
the light of the aforementioned the Court considers that with respect
to the applicant’s allegations of violence in Central Prison,
the consistency of his submissions corroborated the confirmation of
the intimidation of the applicant, and, keeping in mind his
cooperation with the police, lead to a conclusion that the applicant
has an arguable claim in the light of Article 3, which therefore
required the State to exercise its obligations, examined below.
(b)
Compliance with the obligation to investigate
- The
Court shall next assess whether the domestic legislation in force and
its application by the authorities in response to the applicant’s
claim were in compliance with the principles deriving from Article 3
of the Convention.
- The
Court observes that the Criminal Law set out the criminal liability
for the criminal offences cited by the applicant (see Relevant
domestic law, paragraph 33, above). The Law of Criminal Procedure
imposes an obligation on investigating bodies and the Office of the
Prosecutor to institute public prosecution proceedings if information
is received about an alleged criminal offence (see paragraph 35,
above). Concerning persons held in custody, by virtue of the Law on
the Prosecutor’s Office the latter supervises the execution of
sentences and detention facilities (section 15 § 1) and
shall, inter alia, carry out an inquiry if the rights of
detainees have been infringed (section 16 § 1), while it is the
Prison Administration which secures the implementation of security
measures related to deprivation of liberty and execution of
sentences. By virtue of the Law on the Prison Administration (as in
force at the material time), in carrying out this task the Prison
Administration has investigative powers concerning criminal offences
committed by detainees or convicted persons (see paragraph 44,
above).
- The
Court shall next examine separately the application of the
aforementioned regulation by addressing both types of domestic
remedies invoked by the Government.
(i) Administrative measures
- The
Court is critical of the Government’s argument that the
administration of Central Prison and the Prison Administration were
not aware of the applicant’s complaints about the incident. It
observes that even if the applicant had not cited his complaint about
the ill-treatment during the interview with the representative of the
Prison Administration (see paragraph 22, above), in September 2006,
at the request of the Bureau for the Protection of Human Rights, the
Prison Administration requested the administration of Central Prison
to carry out an investigation into the same allegations (see
paragraph 28, above). The Court observes that despite the theoretical
division of responsibilities between the Security Department of the
Prison Administration and the prison establishment, in practice the
latter continued carrying out investigations of complaints against
actions and omissions of the officials of the same establishment,
thereby undermining the independence of the investigation.
- The
Court also observes that there were shortcomings in the investigation
carried out in Central Prison. Even though the applicant’s
allegation that his nose had been broken could still have been
substantiated by medical examination and an X-ray, no examination of
this kind was carried out. Besides, there is no evidence that any
statements were taken from the applicant or the practising medical
doctor at the time concerned. The statements taken from three of the
eleven cellmates could not be considered sufficient.
- The
Court also observes that it is not clear whether the applicant was
informed of the results of the investigation. Even though the
investigation was carried out on the basis of information received
from other sources than the applicant, the Court considers that the
duty of investigation would entail communicating the results to the
applicant, indicating the possibility of an appeal against it. The
Court notes that this formal approach during the investigation of the
ill-treatment was also noted by the CPT (see paragraph 47,
above).
- In
these circumstances the Court considers that the investigative
measures taken by the Prison Administration and Central Prison
administration in response to the complaint of ill-treatment cannot
be regarded as independent and as intending to establish what
actually took place.
- The
Court shall further address the Government’s argument that by
virtue of the Law of Administrative Procedure the decisions and
actions of Prison Administration officials could be appealed against
in the administrative court (see paragraph 52, above). In this
respect the Court notes the broad powers vested in the Prison
Administration under the Law of Criminal Procedure (see paragraphs
35-39 and 44, above) the control of which falls outside the
jurisdiction of the administrative courts (see paragraphs 40-41,
above). Even though the Prison Administration in principle could also
take action and adopt decisions falling within the sphere of public
law, the Government has not submitted relevant domestic case-law
examples in which in comparable factual circumstances decisions or
actions of the Prison Administration have been scrutinised by
administrative courts. The Court is thus unable to conclude that the
actions and decisions closely related to the special powers vested
with the Prison Administration in investigation of violence in prison
would fall within the scope of the administrative rather than the
criminal law. In the latter case the examination of complaints
concerning such decisions would fall outside the jurisdiction of the
administrative courts.
(ii) The
Office of the Prosecutor
- The
Court reiterates that observing the broad powers vested with the
Office of the Prosecutor in supervising places of detention (see
Relevant domestic law, above) and reviewing complaints submitted by
individuals with restricted capacity to protect their rights,
detainees should normally address to the Office of the Prosecutor any
complaints they have concerning physical ill-treatment while in
detention (see Leja, cited above, § 68).
- Turning
to the facts of the particular case, the Court notes that on at least
two occasions the applicant made representations about ill-treatment
to the Office of the Prosecutor, in particular in January 2006 during
the hearing before the appellate court in the presence of a
representative of the Office of the Prosecutor (see paragraph 11,
above) and in February 2006 in a letter to the Prosecutor
General (see paragraph 13, above). On the basis of the latter the
Office of the Prosecutor launched proceedings aimed at reducing the
applicant’s sentence, but the allegations of ill-treatment were
left unexamined.
- As
the Court has previously noted, the prosecuting authorities
recognised that the applicant was intimidated by individuals against
whom he had testified (see paragraph 30, above). Because of the
absence of the report referred to by the prosecutor the Court cannot
conclude whether the episodes covered by the report include the
incident cited before the Court. Be this as it may, the Court
considers that, even though the applicant’s letter of 23
February 2006 was devoid of detailed description of the incident, the
applicant’s allegations were corroborated by the information on
his collaboration with the police and his status in other criminal
proceedings. The Court therefore considers that this information was
sufficient for the Office of the Prosecutor to apply section 16 § 1
of the Law of the Public Prosecutor’s Office (see paragraph 43,
above) and to launch an enquiry concerning the matters brought to its
attention.
(c) Conclusion
- Even
if the applicant primarily complains of the lack of effective
investigation into the alleged ill-treatment rather than the absence
of a reasonable preventive mechanisms in the circumstances concerned,
the Court notes the lack of sufficient coordination among the
investigators, the prosecution and the detention institutions to
prevent possible ill-treatment of detainees who, owing to cooperation
in disclosure of criminal offences, have become particularly
vulnerable and prone to violence in prison.
- In
the light of all the aforementioned, the Court considers that the
conduct of the national authorities and the manner in which they
applied the domestic law in response to the applicant’s claim
of ill-treatment fail to comply with the State’s procedural
obligations deriving from Article 3 of the Convention. It follows
that there has been a violation of Article 3 of the Convention.
- Having
regard to the above, the Court finds that there is no need to examine
separately the complaint under Article 13 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant alleged violations under various other Articles of the
Convention.
- 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 considers
that the remainder of the application does not disclose any
appearance of a violation of any of the above Articles of the
Convention. It follows that these complaints are inadmissible under
Article 35 § 3 as manifestly ill-founded and must be
rejected pursuant to Article 35 § 4 of the
Convention
III. 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.”
A. Damage
- The
applicant claimed 17,000 Latvian lati (LVL, approximately 24,000
euros (EUR)) in compensation for pecuniary damage, and LVL 15,000
(approximately EUR 21,200) in compensation for non-pecuniary damage.
- The
Government disagreed with the claims. They contended that the
applicant had not demonstrated that he had incurred any pecuniary or
non-pecuniary damage, nor had he demonstrated a causal link between
the alleged violations and the damages sought. Alternatively, in
respect of non-pecuniary damage the Government submitted that the
finding of a violation would itself constitute sufficient just
satisfaction.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 10,000 in compensation
for non-pecuniary damage.
B. Costs and expenses
- The
applicant’s representative claimed 46,106 Swedish kroner (SEK,
approximately EUR 5,250) for costs and expenses incurred before the
Court.
- The
Government raised doubts as to the credibility of the claim,
especially owing to the fact that the applicant had received legal
aid.
- 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. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
rejects the claim for costs and expenses for the proceedings before
the Court.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares admissible the complaints under Article
3 and 13 of the Convention concerning the incident in Central Prison
and the remainder of the application inadmissible;
- Holds that there has been a violation under the
procedural limb of Article 3 of the Convention;
- Holds that there is no need to examine the
complaint under Article 13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention EUR 10,000 (ten
thousand) plus any tax that may be chargeable, in respect of
non-pecuniary damage at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 April 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall Registrar President
