DMITRIJEVS v. LATVIA - 49037/09 - Chamber Judgment [2014] ECHR 1397 (16 December 2014)

In the case of Dmitrijevs v. Latvia,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Päivi Hirvelä, President,
          Ineta Ziemele,
          George Nicolaou,
          Nona Tsotsoria,
          Zdravka Kalaydjieva,
          Krzysztof Wojtyczek,
          Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 25 November 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 49037/09) 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 Sergejs Dmitrijevs (“the applicant”), on 25 August 2009.

2. The applicant, who had been granted legal aid, was represented by Ms I. Nikuļceva, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Mrs K. Līce.

3. The applicant alleged, in particular, that the national courts had failed to award him compensation for unlawfully transferring him to a prison where the regime was stricter than the one to which he was entitled.

4. On 24 June 2013 the complaints concerning Articles 3 and 13 were communicated to the Government and the remainder of the application was declared inadmissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The applicant’s transfer to serve his sentence under a more stringent prison regime

5. The applicant was born in 1960 and lives in Riga.

6. He was arrested in July 1995 and in May 1998 he was convicted and sentenced to capital punishment. In June 1999, following the amendments to the Criminal Law Code, the appellate court converted the sentence of capital punishment into fifteen years’ imprisonment. The applicant started serving his sentence in a closed-type prison under the strictest (“lower”) regime (zemākais soda izciešanas režīms) (see “Relevant domestic law” below).

7. On 27 March 2001 the applicant was transferred to the “medium” regime in a closed-type prison (vidējais soda izciešanas režīms). In accordance with domestic law, the applicant was entitled to a list of rights (see “Relevant domestic law” below).

8. On 27 July 2005, while the applicant was serving his sentence in Pārlielupe Prison, the prison’s administrative commission decided to apply a more stringent regime to him and to transfer him to a closed-type prison under the “lower” regime. Relying on that decision, on 16 August 2005 the governor of Pārlielupe Prison recommended transferring the applicant to Daugavpils Prison owing to the fact that Pārlielupe Prison did not have appropriate facilities for him to continue serving his sentence under a more stringent regime.

9. On 5 September 2005, on an appeal by the applicant, the decision of the administrative commission was revoked by a decision of the Jelgava Court, which on 6 September 2005 was forwarded to Pārlielupe Prison. At the same time, on 5 September 2005 the Prisons Administration approved the recommendation by Pārlielupe Prison to transfer the applicant to Daugavpils Prison (see paragraph 8 above) and on 6 September 2005 the governor of Pārlielupe Prison issued an order to that effect.

10. On 18 October 2005 the order was executed despite the fact that the initial decision of 27 July 2005 had been revoked, and the applicant - who in the meantime had been admitted to the prison hospital - was transferred to Daugavpils Prison. During his stay in that prison the applicant was able to enjoy only a limited number of rights normally applicable to prisoners under the “medium” regime. In particular, he could not exercise his right to leave his cell for more than one hour a day, or his right to unrestricted access to the medical unit, prison shop, canteen and library.

11. On 20 October 2005 the management of Daugavpils Prison informed the Prisons Administration that they could not provide the facilities required under the “medium” regime.

12. On 26 October 2005 the Prisons Administration adopted a decision to transfer the applicant to Jēkabpils Prison to serve his sentence under the “medium” regime. That decision was executed on 4 November 2005.

B. The applicant’s complaints to the Prisons Administration about his allegedly unlawful transfer to Daugavpils Prison

13. It appears from the file on the applicant’s case before the administrative courts that on 27 September 2005 he raised an objection with the Prisons Administration about his transfer to Daugavpils Prison under a more stringent regime, but that the Prisons Administration dismissed it on 13 October 2005, and also dismissed a further complaint on 21 April 2006.

14. According to the Government’s submissions, on 17 October 2005 the applicant sent a complaint to the Prosecutor General’s Office, which forwarded it to the Specialised Multibranch Prosecutor’s Office. The latter then forwarded the complaint to the Prisons Administration.

15. On 20 December 2005 the Prisons Administration mentioned in a letter addressed to the applicant that his stay in Daugavpils Prison had been the result of the slow exchange of information between the courts, the prisons and the Prisons Administration.

C. Administrative court proceedings concerning the applicant’s allegedly unlawful transfer to Daugavpils Prison

16. On 26 October 2005 the applicant complained to the District Administrative Court that as a result of the unlawful activities of the Prisons Administration, he had been transferred to a prison in which he could not serve his sentence under the regime applicable to him.

17. Before initiating the administrative proceedings the District Administrative Court asked the applicant to pursue the appropriate out-of-court procedure by appealing against the negative decision of the Prisons Administration, which the applicant did in March 2006 (see paragraph 13 above).

18. After a series of procedural decisions, on 6 November 2007 the District Administrative Court found that the applicant’s transfer to Daugavpils Prison in order to serve his sentence under a stricter regime had been carried out without any lawful basis and awarded him 100 Latvian lati (LVL - 150 euros (EUR)) in compensation for non-pecuniary damage. Its finding was based on a comparison of the list of rights to which the applicant was entitled under the “medium” regime and the rights which he had actually enjoyed as a result of his unlawful transfer to more stringent prison conditions. The court also took into account the actions of the management of Daugavpils Prison and the duration of the applicant’s stay there.

19. The Regional Administrative Court partly upheld that decision, after analysing whether the applicant’s transfer to a more stringent regime amounted to a significant infringement of his rights under Article 3 of the Convention. The court established that in transferring him, the authorities had executed a decision which had been already revoked by the national courts, and that for a duration of eighteen days he had unlawfully been required to serve his sentence under a regime whereby he remained locked in a shared prison cell all day. According to the court, these conditions were aggravated by the fact that both the applicant and the authorities were aware that his transfer was unlawful. It held that he had suffered a serious infringement of his rights and accordingly awarded him LVL 300 (EUR 450) in compensation for non-pecuniary damage.

20. Following an appeal by the Prisons Administration, on 16 September 2009 the Senate of the Supreme Court quashed the appellate court’s decision and discontinued the administrative proceedings owing to the fact that the examination of decisions taken in the course of the execution of prison sentences did not fall within the jurisdiction of the administrative courts. The Senate also referred to section 16 of the Law on the Prosecutor’s Office, concerning the prosecuting authorities’ powers to initiate investigations into alleged violations of prisoners’ rights. In this connection the Senate mentioned that the applicant had lodged a complaint with the Prosecutor General’s Office about his transfer.

21. On 14 July 2010 the applicant was released from prison after completing his sentence.

22. On 15 March 2013 the Prisons Administration destroyed the applicant’s file on account of the expiry of the statutory archiving period.

II. RELEVANT DOMESTIC LAW

A. Relevant provisions of the Sentence Enforcement Code (Latvijas Sodu izpildes kodekss), as in force at the material time

23. Section 50.⁴ of the Code (Sentence Execution Regime in Closed Prisons) read as follows at the material time:

“Male convicts sentenced to deprivation of liberty for having committed serious or especially serious crimes ... shall serve their sentence in a closed-type prison.

Increased security and maximum surveillance of convicted persons shall be ensured in closed prisons.

[Persons sentenced to life imprisonment and persons whose sentence of capital punishment has been replaced by deprivation of liberty] shall serve not less than five years of the sentence under the lowest regime in a closed-type prison, not less than ten years under the medium regime, and the rest of the sentence under the highest regime. They shall be placed in a separate prison block with heightened security, avoiding contact with the other inmates. Convicted persons who are serving their sentence under the lowest regime in a closed-type prison may be placed in solitary cells for a period of up to six months.

...”

24. In accordance with the same section, convicted persons serving their sentence under the medium regime in a closed-type prison are entitled to remain outside their cell from wake-up time until night time in a specially designated area. The other rights normally applicable to prisoners under the medium regime, namely wearing their own clothing, visiting the medical unit, prison canteen, dining room and library unaccompanied, and attending events outside their separate prison block, are not available to prisoners who have been sentenced to life imprisonment or whose initial sentence of capital punishment has subsequently been replaced by deprivation of liberty.

B. Relevant provisions of the Law on the Prosecutor’s Office

25. Section 15 of the Law on the Prosecutor’s Office provides that, in accordance with the procedure prescribed by law, a prosecutor supervises the execution of sentences in custodial facilities.

26. Section 16 provides that on receiving information concerning an alleged breach of the law, a prosecutor, in accordance with the procedure prescribed by law, is to carry out an investigation if the information relates to a crime or to a breach of the rights and lawful interests of certain categories of persons, including prisoners and other persons who have limited capacity to protect their own rights. A prosecutor must also carry out an investigation if a complaint is received from an individual regarding a violation of his or her rights or lawful interests; moreover, the complaint must have been examined by a competent State institution which has refused to rectify the breach of the law referred to in the complaint or has failed to reply at all within the term specified by law.

27. Section 17 reads as follows:

“(1) When carrying out an investigation of a complaint in accordance with the procedures prescribed by law, a prosecutor has the right to:

1) request and receive regulatory enactments, documents and other information from State administrative institutions, banks, the State Audit Office, local government bodies, businesses, authorities and organisations, as well as to enter the premises of such institutions without hindrance;

2) instruct heads and other officials of businesses, institutions and organisations to carry out examinations, audits and expert examinations and to submit opinions, and to provide the assistance of specialists in connection with the investigations carried out by the prosecutor;

...

(2) On deciding that there has been a breach of the law, the prosecutor shall, according to the nature of the breach:

1) issue a warning that the breach of the law is impermissible;

2) lodge a complaint or application regarding the need to prevent the breach of the law;

3) bring an action in court;

4) initiate criminal proceedings; or

5) initiate proceedings to determine administrative or disciplinary liability.”

28. Section 18 governs prosecutorial warnings, where, having established the existence of events indicating a breach of the law or any other evidence of allegedly unlawful activities, the prosecutor issues a written warning to the perpetrators explaining that their actions are impermissible.

29. In accordance with section 21, where a prosecutor has established a breach of the law which does not disclose the elements of a criminal offence, but the submission of a warning, complaint or application has not remedied the breach, the prosecutor is to bring an action before a court.

III. RELEVANT ACTIVITIES OF THE COUNCIL OF EUROPE

A. Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules(adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies)

30. Part VIII of the European Prison Rules, set out in the Appendix to Recommendation Rec(2006)2, reads as follows:

“Sentenced prisoners

Objective of the regime for sentenced prisoners

102.1 In addition to the rules that apply to all prisoners, the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life.

102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.

Implementation of the regime for sentenced prisoners

103.1 The regime for sentenced prisoners shall commence as soon as someone has been admitted to prison with the status of a sentenced prisoner, unless it has commenced before.

103.2 As soon as possible after such admission, reports shall be drawn up for sentenced prisoners about their personal situations, the proposed sentence plans for each of them and the strategy for preparation for their release.

103.3 Sentenced prisoners shall be encouraged to participate in drawing up their individual sentence plans.

103.4 Such plans shall as far as is practicable include:

a. work;

b. education;

c. other activities; and

d. preparation for release.

103.5 Social work, medical and psychological care may also be included in the regimes for sentenced prisoners.

103.6 There shall be a system of prison leave as an integral part of the overall regime for sentenced prisoners.

103.7 Prisoners who consent to do so may be involved in a programme of restorative justice and in making reparation for their offences.

103.8 Particular attention shall be paid to providing appropriate sentence plans and regimes for life sentenced and other long-term prisoners.

Organisational aspects of imprisoning sentenced prisoners

104.1 As far as possible, and subject to the requirements of Rule 17, separate prisons or separate sections of a prison shall be used to facilitate the management of different regimes for specific categories of prisoners.

104.2 There shall be procedures for establishing and regularly reviewing individual sentence plans for prisoners after the consideration of appropriate reports, full consultations among the relevant staff and with the prisoners concerned who shall be involved as far as is practicable.

104.3 Such reports shall always include reports by the staff in direct charge of the prisoner concerned.

...”

B. Report 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 or Punishment (CPT) from 5 to 12 May 2004

31. The relevant parts of the CPT’s report read as follows:

“38. ... Daugavpils Prison had recently been formally transformed into a remand institution, although it was still accommodating sentenced prisoners as well. Its official capacity had been reduced from 800 to 543 places (including 43 juveniles). At the time of the 2004 visit, the establishment was accommodating 426 inmates, of whom 101 were sentenced and 314 on remand (including 29 juveniles). ...

43. The Committee is particularly concerned by the frequency and severity of allegations of inter-prisoner violence it received both at Daugavpils Prison and Rīga Central Prison. These allegations referred, inter alia, to severe beatings, sexual assaults (including rapes), and threats.

...

60. ... That said, the material conditions at Daugavpils Prison and in Block 5 at Rīga Central Prison (in particular, in the quarantine/transit cells Nos. 501, 502 and 503) remained very poor (state of repair, ventilation, etc.). In both establishments, metal shutters had still not been removed from all windows, and inmates were still not provided with basic personal hygiene products (including toilet paper). Further, in a number of cells (including in certain renovated parts of Rīga Central Prison) toilets were not (adequately) partitioned. ...”

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE CONVENTION

32. The applicant complained that the national courts had failed to award him compensation for the period in which he had unlawfully served his sentence under a stricter prison regime than the one he was entitled to. In support of his complaint the applicant invoked Articles 3 and 13 of the Convention, which read as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

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.”

A. Compliance with Article 3

1. Admissibility

33. The Government submitted that the applicant had not suffered a significant disadvantage and that his complaint under Article 3 of the Convention was therefore inadmissible and should be rejected in accordance with Article 35 § 3 (b) of the Convention. They emphasised that the administrative courts at two levels of jurisdiction had adjudicated on the applicant’s complaints on the merits, and that the fact that the judgment had not become final would not preclude the application of Article 35 § 3 (b) of the Convention.

34. The applicant contested the Government’s argument.

35. The Court refers to its interpretation of the de minimis principle recently summarised in another case brought against Latvia (Bannikov v. Latvia, no. 19279/03, §§ 57-58, 11 June 2013), namely, that the Court will examine, first, whether the applicant has suffered a significant disadvantage; second, whether respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits; and third, whether the case has been duly considered by a domestic tribunal (see also Zwinkels v. the Netherlands (dec.), no. 16593/10, § 24, 9 October 2012).

36. As to the first question to be examined, the Court notes that the administrative courts (before declining jurisdiction) recognised the merit of the applicant’s complaint after applying the principles established by the Court under Article 3 of the Convention (see paragraphs 18-19 above). The Court concludes that in the circumstances of the absence of a lawful basis for the prison regime applied in relation to the applicant for eighteen days the applicant has suffered a disadvantage which cannot be considered as insignificant. It is therefore not necessary to examine the two “safeguard clauses” (see also Giusti v. Italy, no. 13175/03, § 23, 18 October 2011; Van Velden v. the Netherlands, no. 30666/08, §§ 31-37, 19 July 2011).

37. The Government have not advanced any other grounds for declaring the complaints inadmissible.

38. Accordingly, the complaint is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) The parties’ submissions

39. The applicant submitted that his unlawful stay in a strict-regime prison for a duration of eighteen days amounted to treatment prohibited under Article 3. In support of his argument he contended that during this period he had been deprived of the prisoners’ rights to which he was entitled under domestic law. In particular, he had had to spend all day, except one hour, in a cell with other eleven inmates, breathing their smoke, although he himself did not smoke. The applicant also submitted that his stay in Daugavpils Prison had coincided with the period when the conditions in that prison were not in compliance with the requirements of Article 3 of the Convention, as the Court had recognised in Savičs v. Latvia (no. 17892/03, 27 November 2012); however, contrary to the circumstances in Savičs, in the instant case the applicant had been held in those conditions without any lawful basis.

40. The Government did not dispute the fact that during the applicant’s eighteen-day stay in Daugavpils Prison he had been unable to take part in outdoor activities because no such facilities were available in that prison. However, according to the Government, this was the only restriction to which he had been subjected and the inconvenience it entailed did not reach the minimum level of severity required by Article 3; in any event, moreover, the applicant had failed to substantiate his complaint. The Government emphasised that as soon as the applicant had arrived at Daugavpils prison the management had informed the Prisons Administration that they could not guarantee that the applicant could be held under the prison regime applicable to him. In the Government’s submission, he had still been entitled to take part in outdoor activities for one hour a day, whereas certain other restrictions had been applied to him even under the “medium” regime because he had formerly been sentenced to the death penalty. The Government alleged that in any event, during his stay in Daugavpils Prison the applicant had not attempted to exercise other rights, such as prison employment opportunities and the prison chapel. They also contended that the particular factual circumstances were not comparable to the Savičs case (cited above), which concerned the conditions for prisoners serving a life sentence. Moreover, the applicant had not raised before the domestic courts his complaint about the conditions in Daugavpils Prison.

(b) The Court’s assessment

41. The applicant’s principal complaint relates to the fact that for a period of two weeks, as a result of the unlawful actions of the authorities, he had to serve his sentence under the most stringent prison regime, even though he was entitled to a less strict regime.

42. The Court reiterates that a minimum level of severity is required if treatment is to fall within the scope of Article 3 of the Convention, and the assessment in this respect depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Enea v. Italy [GC], no. 74912/01, § 55, ECHR 2009). For a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see Enea, cited above, § 56, and Jalloh v. Germany [GC], no. 54810/00, § 68, ECHR 2006-IX). The extended application of certain restrictions may place a prisoner in a situation that could amount to inhuman or degrading treatment. However, the Court cannot define a precise length of time beyond which such a situation attains the minimum threshold of severity required to fall within the scope of Article 3. On the contrary, the length of time must be examined in the light of the circumstances of each case; this entails, inter alia, ascertaining whether the renewal or extension of the restrictions in question was justified or not (see Enea, cited above, § 64).

43. The Court observes that at the material time the applicant had already been in prison for ten years of his fifteen-year sentence and that, in accordance with domestic law, he was entitled to a less strict regime, namely the “medium” regime. Under this regime the applicant, albeit still serving his sentence in a closed-type prison, was allowed to stay outside his cell and to enjoy certain other privileges (see “Relevant domestic law” above), in keeping with the rehabilitative aim of imprisonment emphasised in the Court’s case-law (see Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, § 115, ECHR 2013 (extracts)). He was nevertheless transferred to a more stringent regime without any lawful basis for the transfer (see paragraphs 9-10 above); there was therefore no justification for the restrictions imposed on him. The fact that the applicant was aware that his transfer was not lawful and that his complaint did not stop the execution of the decision to transfer him would certainly have generated psychological distress going beyond that which is inextricably linked to imprisonment as such.

44. The Court will nevertheless assess the other circumstances of the case. In particular, it observes that the circumstances described above lasted for no more than eighteen days. Moreover, it appears that the management of Daugavpils Prison acted promptly in notifying the Prisons Administration of the applicant’s situation (see paragraph 11 above) and attempted, as noted by the Government (see paragraph 40 above) and not contested by the applicant, to grant him some of the privileges to which he was entitled, in so far as the limited facilities available at the prison allowed. In this connection the Court accepts the Government’s argument that in accordance with domestic law, the applicant was subjected to certain additional restrictions because he had been sentenced for having committed a serious crime (see paragraph 24 above). Moreover, although the Court notes that the applicant was transferred to Daugavpils Prison from a prison hospital, he did not claim that under the strict regime he was prevented from receiving appropriate medical treatment. In the circumstances of the case, the Court concludes that the applicant’s imprisonment for eighteen days under a more stringent regime without any lawful basis did not reach the threshold of severity under Article 3.

45. Accordingly there has been no violation of Article 3 of the Convention.

B. Complaint under Article 13

1. Admissibility

46. The Government argued that the applicant did not have an arguable claim under the Convention and invited the Court to follow either the approach adopted in the cases of Keipenvardecas v. Latvia ((dec.), no. 38979/03) and Ruža v. Latvia ((dec.), no. 33798/05), in which it had found the Article 3 complaint manifestly ill-founded and had therefore not examined the Article 13 complaint. Alternatively, if the Court were to find that there was no violation of Article 3, then it should follow the approach used in the case of Hildebrand v. Germany (no. 31513/96, Commission decision of 16 April 1998) and conclude that the Article 3 complaint did not give rise to a prima facie issue.

47. The applicant contested that argument.

48. The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to preferably prevent the infringement from happening or, alternatively, to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see McFarlane v. Ireland [GC], no. 31333/06, § 108, 10 September 2010, and Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI).

49. In this connection the Court recalls the undisputed fact that the applicant was transferred to Daugavpils Prison without a valid legal basis and further points out that the CPT has had the opportunity to analyse the conditions in that prison during the relevant period (see paragraph 31 above). Moreover, the Prisons Administration acknowledged the shortcomings in relation to the applicant’s transfer (see paragraph 15 above) and the national courts recognised the significance of the Article 3 issue.

50. The Court further observes that for an Article 13 complaint, a finding of a violation of other rights protected under the Convention is not a prerequisite. Although it has found no violation of Article 3 in the present case, the Court did not find the applicant’s complaint under that Article inadmissible prima facie but reached its finding of no violation after examining the allegations on the merits (in contrast to the Keipenvardecas and Ruža decisions, both cited above). The applicant’s complaint under Article 13 is therefore arguable and admissible.

2. Merits

51. The applicant contended that he had no effective domestic remedies for his complaint under Article 3. In support of his allegation he relied on the fact that the administrative courts had declined jurisdiction to examine his complaint (see paragraph 20 above). In relation to the other possible remedy - a complaint to the prosecutor’s office - the applicant argued that it was not effective, firstly because domestic law did not provide for a procedure of submitting a complaint to a prosecutor regarding the execution of prison sentences, and secondly because he had already used this remedy in lodging a complaint with the Prosecutor General (see paragraph 14 above), but no action had been taken on it.

52. The Government emphasised that the Prosecutor’s Office was an institution exercising judicial functions and that, in accordance with sections 16 and 17 of the Law on the Prosecutor’s Office, it could adopt numerous measures to remedy the issues complained of (see “Relevant domestic law” above). They disputed the applicant’s argument about the lack of an appropriate procedure and argued that this had not prevented the Prosecutor’s Office from examining various complaints lodged by individuals. In this connection the Government submitted a copy of a prosecutor’s warning of January 2013, issued following a complaint by a prisoner about the excessive use of restraint techniques for life-term prisoners. The warning had been issued to the Prisons Administration and concluded that the indiscriminate use of restraint techniques, such as handcuffs, could not be considered lawful. The document also contained a warning about possible criminal responsibility should the violation continue. The Government further contended that the applicant had failed to attach the complaint he had submitted to the Prosecutor General’s Office and that he had to raise a separate claim if no response was provided.

53. The applicant commented in this connection that the warning issued in 2013 did not suggest that this remedy had been effective at the time of the events to which his own application related.

54. As the Court has held on many occasions, the scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint; however, the remedy required by Article 13 must be “effective” in practice as well as in law (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 288, ECHR 2011). Besides, for an investigation to be effective, the persons responsible for carrying it out must be independent from those targeted by it. This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 320, ECHR 2014 (extracts)).

55. The Court observes that from 2001 the applicant was entitled to serve his prison sentence under the “medium” regime; in other words, this privilege (see paragraph 24 above) had been already granted and constituted an existing right (see, mutatis mutandis, Enea, cited above), which the authorities were under an obligation to provide. There was therefore no room for any discretion on the authorities’ part (contrast Boulois v. Luxembourg [GC], no. 37575/04, § 99, ECHR 2012) and the applicant would have had a reasonable expectation that there would be an adequate remedy in place in the event of an infringement of his rights.

56. The choice of the remedies would be up to the Contracting State (see, for example, İlhan v. Turkey [GC], no. 22277/93, § 109, ECHR 2000-VII). In the case at hand the Court will assess the remedies referred to by the Government.

(a) Concerning the administrative court proceedings

57. Although in 2009 the Senate of the Supreme Court declined jurisdiction to examine the applicant’s complaint of unlawful action and his claim for damages, the applicant cannot be blamed for choosing the wrong remedy, because in 2006, prior to initiating the administrative proceedings, the District Administrative Court - an institution established only in 2004 -asked the applicant to pursue the out-of-court procedure, the result of which was acceptance of his complaint and its examination at two levels of jurisdiction with a favourable outcome for him (see the “Facts” part above). Therefore, even though from the date of adoption of the Senate’s judgment in 2009 this remedy proved to be inappropriate, until then there were no indications that the applicant had chosen an inappropriate remedy.

(b) Concerning the complaint lodged with the Prosecutor’s Office

(i) Establishment of the facts

58. The Government submitted that the applicant’s case file had been destroyed on 15 March 2013 and that it was no longer possible to recover his complaint to the Prosecutor’s Office and the subsequent reply.

59. The Court has established that in proceedings before it there are no procedural barriers to the admissibility of evidence or predetermined formulae for its assessment (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005-VII). The Court adopts the conclusions that are, in its view, supported by free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions (ibid.). In the instant case the information about the applicant’s complaint to the Prosecutor’s Office stems from the file concerning his case in the administrative courts and has not been contested by the Government (see paragraph 14 above). On the contrary, they have relied on it in their written submissions. The Court therefore concludes that the facts concerning the use of the complaints procedure before the Prosecutor’s Office are undisputed.

(ii) Application of the above principles to the factual situation in the present case

60. In the light of the above factual conclusions, the Court will assess the Government’s allegation that the prosecutor’s powers provided an effective remedy which the applicant failed to use in full.

61. First, taking note of the broad powers enshrined in the Law on the Prosecutor’s Office, the Court observes that in certain circumstances this could well serve as a remedy that should normally be used (see, mutatis mutandis, Leja v. Latvia, no. 71072/01, § 68, 14 June 2011). In the present case, however, although the applicant complained to the Prosecutor’s Office after the court judgment revoking the decision to transfer him had been enforced, the complaints procedure in question nevertheless did not stop his transfer.

62. Secondly, as to whether a complaint to the prosecutor may serve as a compensatory remedy, the Court accepts the information provided by the Government indicating that in 2013 the prosecutor’s powers enshrined in section 16 of the Law on the Prosecutor’s Office (warnings) were used in the context of the supervision of prison conditions. The existing legal framework in 2013 was similar to that in force in 2005; however, the factual nature of the work carried out by prosecutors at the time of the events in issue in the present case, especially in relation to the supervision of prison conditions, has been examined and criticised in a number of other Article 3 cases against Latvia (see, mutatis mutandis, Bazjaks v. Latvia, no. 71572/01, 19 October 2010, and also J.L. v. Latvia, no. 23893/06, §§ 85-86, 17 April 2012, concerning the transfer of a prisoner). Particular criticism has been directed at the lack of promptness and proactivity of the Prosecutor’s Office (see Vovruško v. Latvia, no. 11065/02, § 52, 11 December 2012, and Holodenko v. Latvia, no. 17215/07, §§ 80-81, 2 July 2013).

63. Although the Court has not had occasion to analyse whether the powers enshrined in the Law on the Prosecutor’s Office may lead to an award of compensation for any damage sustained (in Leja, cited above, this was not confirmed), in the particular circumstances of the present case the Court has doubts as to the effectiveness of this mechanism for the following reasons. It is not disputed that the applicant used this remedy by lodging a complaint with the Prosecutor’s Office (see paragraph 14 above). In this case - in contrast to the Leja case, in which the applicant failed to appeal to a higher prosecutor against the decision dismissing his complaint of ill-treatment - it was the Prisons Administration, acting on the supervising prosecutor’s instructions, which carried out the establishment of the facts. As a result, it admitted to shortcomings in communication between the various authorities concerned (see paragraph 15 above), a problem which has also been recognised in other Article 3 cases brought against Latvia (see, mutatis mutandis J.L. v. Latvia, cited above, § 87). Against this background, the applicant would have expected that after the Prisons Administration had recognised this problem, the search for a solution would continue with the involvement of the Prisons Administration and Prosecutor’s Office, all the more so because the letter from the Prisons Administration to the applicant did not indicate any further appeal procedure for him to pursue (in contrast to Leja, cited above). The facts of the case indicate that nothing happened after the Prosecutor’s Office had been informed about the applicant’s situation. In those circumstances it would not be reasonable to require the applicant to launch another round of complaints on the same issue.

64. Concerning compensation, the Government have not adduced any arguments alleging the existence and effectiveness of any other type of remedies.

65. On the basis of the above reasoning and having regard to the particular factual circumstances of the case, the Court concludes that there has been a violation of Article 13.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

66. 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

67. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.

68. The Government disagreed with the claim. They contended that the applicant had failed to demonstrate that he had sustained any non-pecuniary damage. Alternatively, the Government submitted that if the Court were to find a violation, that in itself would constitute sufficient just satisfaction. However, should the Court decide to make an award for finding a violation of the substantive and procedural limbs of Article 3 of the Convention, the Government invited the Court to conclude that the applicant’s claim was excessive and that any compensation had to be awarded on an equitable basis, taking into account, inter alia, the existing case-law and socio-economic circumstances in Latvia

69. Having regard to the nature of the violation found in the present case and deciding on an equitable basis, the Court awards the applicant EUR 500 in respect of non-pecuniary damage.

B. Costs and expenses

70. The applicant also claimed EUR 42.49 for the expenses incurred before the Court.

71. The Government contended that these expenses were not necessary as the applicant’s submissions concerning the merits of the criminal proceedings against him were entirely irrelevant for the purpose of the present proceedings before the Court.

72. Noting that the applicant had been granted legal aid (see paragraph 2 above) and relying on its case-law, the Court notes that 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 dismisses the applicant’s claim in respect of the expenses incurred in submitting documents to the Court, namely copies of the entire criminal case file.

C. Default interest

73. 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,

1. Declares the complaints under Article 3 and 13 of the Convention admissible;

2. Holds that there has been no violation of Article 3 of the Convention;

3. Holds that there has been a violation of Article 13 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 500 (five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 16 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos Päivi Hirvelä
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> DMITRIJEVS v. LATVIA - 49037/09 - Chamber Judgment [2014] ECHR 1397 (16 December 2014) URL: http://www.bailii.org/eu/cases/ECHR/2014/1397.html Cite as: [2014] ECHR 1397