THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 14755/03 
by Ž.  
against Latvia

The European Court of Human Rights (Third Section), sitting on 26 January 2006 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr L. Caflisch
 Mrs M. Tsatsa-Nikolovska
 Mr V. Zagrebelsky
 Mrs A. Gyulumyan
 Mr David Thór Björgvinsson, 
 Mrs I. Ziemele, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 24 April 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Latvian national, born in 1959. He is currently serving his prison sentence in Latvia.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  The applicant’s arrest and detention on remand

On 18 November 2000 the applicant was arrested and taken into custody on suspicion of rape of a minor female, aged fourteen, and unauthorised acquisition, storage and conveyance of narcotic substances. The applicant had been living in a rented flat in Riga before he was arrested.

On an unspecified date in November 2000 an order was made by a judge for the applicant’s detention on remand.

On an unspecified date in January 2001 the applicant unsuccessfully applied to the Prosecutor General Office seeking his release.

On 5 March 2001 a judge of the Riga City Zemgale District Court, considering the gravity of the crime the applicant was charged with and the fact that he had a criminal record, prolonged the applicant’s detention on remand until 15 May 2001. The applicant appealed against the decision averring that the case-file contained no proper evidence of his guilt. On 24 April 2001 the Riga Regional Court dismissed the appeal, finding that his detention was lawful under Articles 72 and 77 of the Law on Criminal Procedure. The court considered that the gravity of the crime the applicant was charged with and the fact that he had four previous convictions confirmed the existence of a risk of his absconding, re-offending and perverting the course of justice. The applicant was present at the hearing. The decision was not subject to further appeal.

On 31 May 2001 the applicant was officially charged with rape of a female minor, aged fourteen, and unauthorised acquisition, storage and transportation of narcotic substances in large amounts.

June 2001 a judge of the Riga Regional Court committed the applicant for trial and decided that the applicant’s “remand shall remain unchanged”.

The first hearing set for 2 July 2002 was adjourned due to the absence of witnesses.

The first instance court delivered its judgment on 27 March 2003.

2.  Court proceedings against the applicant

Upon the conclusion of the preliminary investigation, the applicant’s case was transmitted to the Riga Regional Court. On an unspecified date in June 2001, a judge of the Riga Regional Court committed the applicant for trial and decided that his “remand shall remain unchanged” and set a hearing for 2 July 2002.

On an unknown date, apparently in June 2001, the applicant was given a copy of the bill of indictment which contained information related to the basic elements of the charges brought against him, namely the dates, places and context of his acts, the identification of the victim and it invoked the relevant substantive provisions of the Criminal Law. According to the indictment, the applicant’s rape charge was based inter alia on the statements of twelve identified witnesses given during the preliminary investigation.

On unspecified dates the applicant asked the court to call witnesses who had given testimonies during the investigation and an expert gynaecologist who had produced an expert opinion. In addition, he requested to call further experts, a gynaecologist and a psychiatrist, who had not been involved in the preparation of the expert opinions submitted in the case, since the applicant considered that the relevant expert opinions were incomplete and contradictory.

On 2 July 2002 the proceedings were postponed as none of the witnesses summoned attended the hearing.

On 9 September 2002 the Riga Regional Court informed the applicant that the witnesses and the expert requested by him would be summoned for the next hearing.

Between 24 and 27 March 2003 a hearing was held before the Riga Regional Court. The applicant was found guilty of rape of a female minor, aged fourteen, and unauthorised acquisition, storage and transportation of narcotic substances in large amounts. He was sentenced to eight years’ imprisonment. The Riga Regional Court used the following wording in the factual part of its judgment:

[Ž.], having previously committed rape, committed an act of sexual intercourse with a minor person by means of violence and threats.”

According to the judgment - the applicant, the victim, her two girlfriends and two men were drinking alcohol in a parked car on 18 November 2000. At some point the applicant told the others, except the victim, to leave the car. After they left, the applicant hit the victim in her face at least three times and raped her. The court also established that the applicant had unlawfully acquired, stored and conveyed 1,5623 grams of heroine.

In finding the applicant guilty of the rape charge, the Riga Regional Court relied on the incriminating statements of one witness, the on-duty policemen at the time, given during the trial. It also had regard to the statements of the victim, her father and three witnesses recorded during the pre-trial investigation since the witnesses were absent even though they had been summoned.

The court heard a policeman who was on duty at the material time. He stated that the victim had reported to the police that the applicant had raped her.

According to the victim’s pre-trial testimony, on the critical date she, her two girlfriends and two men had drunk alcohol in a parked car. After the others had left the car, the applicant had started touching her breasts. When she had resisted, the applicant had slapped her across the face at least three times and had hit her in the face at least three times. Resisting the applicant, she had hit him over his head with an empty bottle and on his back with a wooden bar. Being stronger, the applicant had persisted in touching her body while she had unsuccessfully tried to push him back. Then the applicant had undressed her partially and had forced her to have sexual intercourse with him. Afterwards she had escaped and had reported to the police. The victim also stated that she had never had sexual intercourse before the above assault.

The victim’s father had testified during the pre-trial investigation that he had been told by her daughter that the applicant had raped her.

As to the pre-trial testimony of the witness X, he, the applicant, the victim and some other persons had been drinking alcohol in a parked car on the critical date. At some point he had gone to a nearby house to sleep over. At around 8.50 p.m. he had heard a woman screaming and had gone into the street, however, nobody had been there. After an hour he had met the victim who had told him that the applicant had raped her.

According to the written records of the statements made by the witness Y during the preliminary investigation, he had met the victim who had told him that she had been raped on the critical date.

The victim’s girlfriend A testified during the pre-trial investigation that on the critical date the applicant, the victim, herself and three other persons had drunk alcohol in a parked car. She had left the car for a time. When she had returned, she had seen the applicant and the victim sitting in the back seat of the car, however, she had not heard any noise coming from the car. Then she had gone away again and when she had returned, she had met the victim who had told her that the applicant had banged her head against the car window several times. Thereon the victim had reported to the police that the applicant had raped her.

In establishing the facts, the court further had regard to several expert opinions, on-site inspection reports and documentary evidence.

According to the police report, the victim’s glasses, one of her socks and a wooden bar had been found in the car.

According to the psychologist’s opinion of 23 February 2001, the victim was capable to understand and assess the events in question. The expert had confirmed that the victim’s appearing before the court would involve a danger to her health as she had suffered from a psychological trauma and her health would most likely again deteriorate if she were to be confronted with the applicant.

An expert gynaecologist reported that the victim’s hymen had an old laceration; no fresh tears in the hymen had been diagnosed. The expert noted that the victim had a bruise on her left thight and vaginal bruising.

According to the opinion no. 30-DK of 19 November 2000 produced by a forensic expert, the presence of vaginal cells on the applicant’s penis had not been established. It further stated that the applicant had a bruise on his head and skin abrasions on his left palm.

The forensic expert report no. 550 stated that the applicant could not be excluded as a possible donor of the semen found on the victim’s knickers. According to the report, the examination of the material under the applicant’s fingernails revealed no presence of blood or vaginal cells. However, the later conclusion was not reflected in the court’s judgment.

In the course of the proceedings the applicant requested to summon witnesses who had given testimonies during the preliminary investigations (according to the bill of indictment, twelve identified witnesses had testified regarding the applicant’s rape charge during the preliminary investigation). He also requested to hear an expert gynaecologist who had produced an expert opinion in the case and to call further witnesses – a psychiatrist and a gynaecologist – who had not been involved in the preparation of the expert opinions submitted, since he considered the relevant expert reports were incomplete and contradictory. The requests were not granted, without any reasons given.

In finding the applicant guilty of unauthorised acquisition, storage and conveyance of narcotic substances, the court relied on the statements given during the trial by one witness, the applicant’s daughter. She testified that she had been aware that the applicant had been using narcotic drugs.

The court further referred to the statements at the pre-trial investigation of two witnesses, B and C. According to the transcript of the witness B’s pre-trial testimony, he had been present as an independent observer in the applicant’s search in the course of which powdered substance had been found on the applicant. The witness C, an addiction specialist, had testified in respect of different pathways into heroin use. The applicant’s request to examine those witnesses was not granted without any substantiation of the refusal grounds.

Finally, the court had regard to the police report certifying that a powdered substance had been found on the applicant and an expert examination indicating that the substance found on the applicant had been identified as heroin.

On 27 March 2003 the Riga Regional Court delivered its judgment. One of the lay judges participating in the hearing delivered a dissenting opinion. It stated that key witnesses had not been heard by the court and that there was insufficient evidence to support the applicant’s rape conviction. The lay judge also drew attention to the apparent discrepancies between the victim’s submissions to the effect that she had not had sexual intercourse before the assault on the one hand and the gynaecologist report on the other.

The applicant appealed against the judgment disputing the assessment of evidence for his conviction and alleging inter alia that the first instance court had materially violated the law on criminal procedure in that he had not been able to consult fully the case-file. The Criminal Chamber of the Supreme Court transferred the case to the Senate of the Supreme Court as the applicant alleged violations of the law of criminal procedure.

On 14 April 2003, upon the applicant’s request, the Riga Regional Court granted him access to the case-file and provided him with the copies of certain documents.

On 5 May 2003 the applicant filed a complaint with the President of the Supreme Court alleging inter alia that his procedural rights had not been observed during the first instance court proceedings in that key witnesses and experts had not been heard in his case and that his requests to that effect had been rejected. It appears that he received no reply to his motion.

On 13 May 2003 the applicant applied to the Senate of the Supreme Court requesting to order new psychological and psychiatric expert opinions in the case. It appears that he received no reply to his motion.

On 13 May 2003 the Senate of the Supreme Court reviewed the case through the procedure of cassation only to the extent it concerned the alleged violations of the law on criminal procedure and dismissed this part of the appeal. The Senate subsequently referred the case to the Criminal Chamber of the Supreme Court for adjudication of complaints subject to review by way of appeal procedure.

On 2 June 2003 the applicant applied to the Criminal Chamber of the Supreme Court requesting to summon and examine witnesses who had given statements to investigating authorities.

On 15 September 2003 the applicant filed a motion with the Criminal Chamber of the Supreme Court seeking release from detention. It appears that he did not receive any response.

On 11 December 2003, during the hearing, the Criminal Chamber of the Supreme Court heard the applicant and reassessed the evidence obtained during the trial. The applicant repeated his request to hear the witnesses involved in the case, the expert gynaecologist and to summon further expert witnesses, a gynaecologist and a psychiatrist, in order to hear them in connection with the expert opinions submitted. Likewise, his requests were refused without substantiation of the refusal grounds. The appeal court confirmed the judgment of the first instance court holding it lawful, well-founded and sufficiently motivated. In the Supreme Court’s view, the Regional Court had thoroughly analysed the evidence available and expressly indicated in its judgment which facts it considered to have been established as well as the reasons for its conclusions. It observed inter alia that the trial court properly had found the applicant guilty of unauthorised acquisition, storage and conveyance of narcotic substances, an offence provided for in Article 253 § 4 of the Criminal Law, but it had stated in the operative part of its judgment that the applicant had been found guilty under Article 253 § 2 of the Criminal Law due to a clerical mistake. Accordingly, the Criminal Chamber of the Supreme Court amended the judgment holding that the applicant was found guilty under Article 253 § 4 of the Criminal Law.

Through the first and second instance court proceedings the applicant was represented by officially appointed defence counsel, a member of the Latvian Bar Association.

On 12 December 2003 the applicant applied in writing to the Criminal Chamber of the Supreme Court, requesting to provide him with a copy of the transcript of the appeal hearing. His request was refused.

The applicant submitted an appeal on points of law. He alleged various breaches of substantive and procedural law. He complained inter alia that his procedural rights had not been observed, in particular that he had not been informed satisfactorily of the nature and cause of his accusation, that his requests to call key witnesses, the expert and the specialists had been rejected, that he had not been afforded adequate time to prepare his defence in that he had meetings with his defence counsel only shortly before hearings, that his defence had not been prepared in an appropriate way and that he was not provided with a copy of the transcript of the appeal hearing.

On 22 March 2004 the Senate of the Supreme Court dismissed the applicant’s appeal on points of law as manifestly ill-founded at a sitting held in camera. It considered that the applicant had not demonstrated the existence of arguable grounds which would justify holding a hearing in the cassation proceedings. The Senate concluded that the applicant’s guilt had sufficiently been established on the basis of the extensive testimony given by the victim during the pre-trial investigation which had been corroborated by other evidence confirming his guilt. Moreover, it noted that the applicant had failed to specify which particular facts should have been clarified by the questioning of witnesses. The Senate did not establish any violations of procedural and substantive law which would have hindered the thorough, complete and objective investigation of the case. Further, it noted that the refusal to provide the applicant with a copy of the transcript of the appeal hearing was not contrary to the Law on Criminal Procedure.

Subsequently, the applicant sought, unsuccessfully, the re-opening of the proceedings.

The applicant is currently serving the sentence. He was not allowed to vote in the referendum on Latvia’s accession to the European Union, which took place on 20 September 2003.

3.  Employment conditions in the Riga Central Prison

According to the applicant, from 18 November 2000 to April 2004 he had been working during his detention in the Riga Central Prison, but had received either vacation nor any compensation for the unused vacation.

4.  Conditions of detention in the Grīva Prison

On an unspecified date in April 2004 the applicant was transferred to the Grīva Prison to serve his sentence. The applicant submits in general terms that he was psychologically ill-treated and humiliated by the prison personnel. He contends that the hair on his head was forcibly shaved off as he refused to do it himself and that he was subsequently punished by solitary confinement for his refusal. The applicant also alleges that in the late autumn of 2004 he was kept in a cell which was so cold that he slept with all his clothes on during the nights.

B.  Relevant domestic law

1.  Law on Criminal Procedure (Kriminālprocesa Kodekss) in force on 1 April 1994

(a)  Imposition of prevention measures and appeals against detention

(i)  Pre-trial stage

Article 77 of the Law provides that the maximum term of detention on remand during the investigation of criminal cases shall not last for more than two months. In cases in which it is impossible for the investigation of the case to be completed within that period and there are no grounds for the prosecutor for altering a preventive measure, the period of detention may be extended by the judge up to one year and six months. If necessary, the detained person, his defence counsel and a legal representative may be heard. Extension of detention beyond one year and six months is not allowed and the detained person is subject to immediate release. The period when the accused and his counsel have access to the case-file shall not be counted as part of the overall term of detention.

By virtue of Article 83, a preventive measure shall be terminated when it has been applied unlawfully or it ceases to be necessary, or else changed into a stricter or a milder one if the circumstances of the case so require. The termination or modification of detention on remand applied by the judge or the court during the preliminary investigation shall be effected by a reasoned order of the prosecutor, or it may be cancelled by a court decision in the cases provided for in Article 2221.

According to Article 88, the defendant has the right to request the court’s permission to examine the transcript of a hearing and, if he so wishes, to submit his comments regarding the correctness of the transcript.

Article 96 provides that defendant has the right to be represented before the first and appeal instance courts by a professional advocate.

Pursuant to Article 2221, all decisions given by a judge at the pre-trial stage ordering the detention on remand or having the effect of extending the applicant’s detention on remand can be appealed against to a higher court by the suspect, the accused or his counsel or representative. The submitter of the complaint and the prosecutor shall be present at the adjudication of the appeal. The appeal shall be dealt with within seven days of its receipt. The ruling is final and not subject to appeal.

(ii)  Trial stage

In deciding whether to commit the accused for trial, a judge individually shall determine whether the preventive measure has been selected appropriately (Article 225). A preliminary hearing shall be conveyed to rule on the request to vary such a measure if a judge considers that the request to alter such a measure is well-grounded. If necessary, the accused may be heard. The decision refusing the request to vary a preventive measure is not subject to appeal; however, the request can be renewed after the start of the trial (Article 226).

On 17 October 2002, the Saeima (Parliament) amended Article 77, part seven, of the Law by the following wording:

From the day of receiving the case at the court till the completion of its review at the first instance court, the duration of the preventive measure – arrest – shall not exceed one year and six months. At the end of the term the preventive measure – arrest – shall be revoked and the arrested person be immediately released. In exceptional cases, i.e. in criminal matters of especially grave crimes, if they are connected with violence or threat of violence, the duration of the preventive measure – arrest – may be prolonged by the Supreme Court Senate.”

The norm did not anticipate the right of appeal against the Senate decision. This legal norm took effect as of 1 November 2002.

On 27 June 2003 the Constitutional Court declared Article 77 (the third sentence of the seventh part) of the Law on Criminal Procedure incompatible with Article 92 of the Satversme (the Constitution) and null and void as of 1 October 2003.

As from 1 October 2003 the seventh part of Article 77 provides that in exceptional cases, i.e. in criminal matters of an especially serious nature, the duration of the preventive measure – detention on remand may be prolonged by a higher court after hearing the detained person and ascertaining whether grounds exist for the prolongation of the detention on remand pursuant to Article 72.

According to Article 4441 § 4 the judge in determining the matter for the appeal court to be adjudicated at an appellate instance court sitting, shall decide whether the preventive measure taken against the defendant is to be altered.

As from 1 April 1999, i.e. the date on which relevant amendments to the Law on Criminal Procedure entered into force, Articles 237, 248 and 465 provide that decisions ordering detention on remand or altering it, taken during the preliminary hearing or during the adjudication of the matter, may be appealed against to a higher court if a hearing is postponed for a term which exceeds one month. The higher court shall adjudicate the appeal on the terms provided for in Article 2221.

(a)  Calling of witnesses

According to Article 247, the defendant has the right to question witnesses, to submit evidence and to request the court to summon witnesses.

Pursuant to Article 285, the witness statements made at the pre-trial stage or in court may be read out in the court if the witness is prevented from appearing at the hearing or fails to appear for good reason.

Article 442 provides that the appeal court may summon witnesses who have testified before the first-instance court to give evidence before it if it deems it necessary.

Article 443 stipulates that parties to appeal proceedings have the right to request the service of witness summons on witnesses who have not been heard by the first-instance court. Such witnesses may be summoned on the appeal court’s own initiative.

(b)  Terms for the examination of cases

Article 241 stipulates that the case examination is required to start no later than twenty days and, under exceptional circumstances, no later than one month after the case reaches the court.

However, there is no provision explicitly providing remedies against inactivity on the part of the judiciary or the lack of a decision in the course of criminal proceedings.

2.  The Criminal Law (Krimināllikums) in force on 17 June 1998

Article 159 § 2 states inter alia that the applicable sentence for a person who has committed rape, if this person had previously committed rape, is deprivation of liberty for a term of not less than five years and not exceeding fifteen years, with or without police supervision for a term not exceeding three years.

COMPLAINTS

1.  The applicant complains, without invoking any particular provision of the Convention, about the conditions of his detention and the treatment he was subjected to in the Grīva Prison.

2.  Invoking Article 3 of the Convention, the applicant complains that he has been subjected to torture and has been discriminated as he did not receive vacations and compensation for unused vacation for the time period of three years he has been working in the Riga Central Prison.

3.  The applicant alleges, relying on Article 5 § 1 (c) of the Convention, that the order for his detention was not based on a reasonable suspicion of his having committed an offence.

4.  The applicant complains under Article 5 § 3 of the Convention about the length of his pre-trial detention.

5.  Invoking Article 6 § 1 of the Convention, the applicant complains about the length of the criminal proceedings against him.

6.  The applicant complains under Article 6 § 2, taken alone and in conjunction with Articles 13 and 14 of the Convention, that, in breach of his right to be presumed innocent until proved guilty of the commission of an offence, the Riga Regional Court used the following wording in the factual part of its judgment: “Z, having previously committed rape, committed an act of sexual intercourse with a minor person by means of violence and threats.”

7.  The applicant alleges under Article 6 § 3 (a) of the Convention that the prosecution was not in a position to motivate the accusation against him and that, therefore, he was not informed satisfactorily of the nature and cause of the accusation.

8.  The applicant complains, without invoking any particular provision of the Convention, that he was not provided with a copy of the transcript of the appeal hearing.

9.  The applicant complains under Article 6 § 3 (c) of the Convention that he was not in a position to pay for legal assistance and was not granted free legal aid. Further, he submits that his officially appointed defence counsel defended him in an ineffective manner and that he was prevented from defending himself as he allegedly was interrupted by the courts.

10.  The applicant complains under Article 6 § 3 (d) of the Convention that he was denied a fair trial in that he was unable to obtain the attendance and examination of witnesses whose statements served as the basis of his conviction and of those who testified during the preliminary investigation, and that the courts refused, without any substantiation, to afford him a possibility to cross-examine the expert gynaecologist who produced an expert opinion and to call further expert witnesses, a gynaecologist and a psychiatrist, in order to hear them in connection with the expert opinions submitted.

11.  The applicant complains in general terms, under Article 6 in conjunction with Articles 13 and 14 of the Convention, that he was discriminated against in the enjoyment of his right to a fair trial and that he did not have an effective remedy in this respect.

12.  Invoking Article 7 of the Convention, the applicant states that the acts on account of which he has been convicted under Article 253 § 4 of the Criminal Law did not constitute a criminal offence.

13.  The applicant also alleges a violation of Article 8 and Article 1 of Protocol No. 1, each taken alone and in conjunction with Article 14 of the Convention, arguing that he has lost his rights to rent the flat he lived in before the conviction and that his property has been removed from the flat.

14.  The applicant complains under Article 3 of Protocol No. 1 that he was not allowed to vote in the European Union accession referendum.

THE LAW

1.  The complaint in substance under Article 3

The applicant complains, without invoking any particular provision of the Convention, about the conditions of his detention and the treatment he was subjected to in Grīva Prison. This complaint falls to be examined under Article 3 of the Convention, which provides:

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

The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system (see, among many other examples, Selmouni v. France [GC], § 74, ECHR 1999-VII). The Court notes that the applicant did not raise his complaints before any domestic authority.

It follows that this part of the application is inadmissible for non-compliance with the requirements of Article 35 § 1 of the Convention and that it must be rejected pursuant to Article 35 § 4 of the Convention. 

2.  The complaint under Article 3

Invoking Article 3 of the Convention, the applicant complains that he has been subjected to torture and has been discriminated against as he did not receive vacations and compensation for unused vacation time for three years he has been working in the Riga Central Prison.

The complaint concerning the alleged discrimination falls to be examined under Article 14, which provides that:

 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The complaint regarding the compensation falls to be examined under Article 1 of Protocol No. 1, whish states that:

 “Every natural ... person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law. ...”

The Court notes that the applicant failed to bring these complaints before the national courts and thus did not exhaust domestic remedies available to him as required by Article 35 § 1 of the Convention. Accordingly, this part of the application must be declared inadmissible pursuant to Article 35 § 4 of the Convention.

3.  The complaint under Article 5 § 1 (c)

The applicant complains that the order for his detention was not based on a reasonable suspicion of his having committed an offence. He alleges a breach of Article 5 § 1 (c) of the Convention, which in so far as relevant provides as follows:

 “1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

 ...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...”

The Court notes that the applicant did not appeal against his initial detention order – a possibility provided for under Article 2221 of the Law on Criminal Procedure – and therefore failed to comply with the requirement under Article 35 § 1 of the Convention to exhaust domestic remedies. Moreover, the reasonable suspicion referred to in Article 5 § 1 (c) of the Convention does not mean that the suspected person’s guilt must at that stage be established (see Talat Tepe v. Turkey, no. 31247/96, § 59, 21 December 2004). In the instant case, having regard to the materials of the case-file, the Court considers that the applicant was lawfully arrested on a reasonable suspicion that he might have committed the offence. It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

4.  The complaint under Article 5 § 3

The applicant complains about the length of his pre-trial detention. He alleges a violation of Article 5 § 3 of the Convention, which reads as follows:

 “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the application. It is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

5.  The complaint under Article 6 § 1 concerning the length of the criminal proceedings

The applicant complains that the criminal proceedings against him were excessively lengthy and thus in breach of Article 6 § 1 of the Convention, the relevant part of which is worded:

 “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the application. It is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

6.  The complaints under Article 6 § 2, taken alone and in conjunction with Articles 13 and 14

The applicant complains under Article 6 § 2, taken alone and in conjunction with Articles 13 and 14 of the Convention, that, in breach of his right to be presumed innocent until proved guilty of the commission of an offence, the Riga Regional Court used the following wording in the factual part of its judgment: “Gunārs Žurila, having previously committed rape, committed an act of sexual intercourse with a minor person by means of violence and threats.”

Article 6 § 2 stipulates:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

Article 13 states:

“Everyone whose rights and freedoms as set forth in this 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.”

Article 14 provides:

 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court recalls that the presumption of innocence guaranteed by Article 6 § 2 requires, inter alia, that when carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offence charged; the burden of proof is on the prosecution, and any doubt should benefit the accused (see Barberà, Messegué and Jabardo v. Spain judgment of 6 September 1988, Series A no. 146, p. 33, § 77). Further, according to the Court’s case-law, the presumption of innocence will be violated if, without the accused having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty (see Minelli v. Switzerland, judgment of 25 March 1983, Series A no. 62, § 37). The Riga Regional Court, in the presentation of the facts of the case in its judgment, referred to the applicant’s previous criminal convictions since he had been previously repeatedly sentenced for rape. This was necessary to demonstrate the recidivism of the applicant’s actions leading to criminal responsibility, an element in the determination of a sentence for the applicant, pursuant to Article 159 § 2 of the Criminal Law. Thus, the Court finds no indication of any preconceived idea on the part of the Riga Regional Court and, subsequently, no infringement of the presumption of innocence established in connection with this part of the application, which is accordingly manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It must therefore be rejected pursuant to Article 35 § 4.

As to the applicant’s complaint that he had no effective remedy at his disposal in respect of his complaints under Articles 6 § 2 of the Convention, the Court recalls that Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).  The Court has found above that the applicant’s complaint under Article 6 § 2 is manifestly ill-founded. The applicant does not have an arguable claim and Article 13 is therefore inapplicable to his case.

It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

As regards Article 14 read in conjunction with Article 6 § 2 of the Convention, the Court notes that the applicant does not make any specific complaint or provide any explanation in this connection. Moreover, no appearance of discrimination can be found on the basis of the evidence produced by the applicant. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

7.  The complaint under Article 6 § 3 (a)

The applicant claims that a breach of Article 6 § 3 (a) of the Convention resulted from the fact that the prosecution was not in a position to substantiate his accusation and that therefore he was not duly informed of the nature and cause of his accusation. This provision reads as follows:

“3. Everyone charged with a criminal offence has the following minimum rights:

(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; ...”

The Court notes that Article 6 § 3 (a) affords the defendant the right to be informed not only of the “cause” of the accusation, that is to say the acts he is alleged to have committed and on which the accusation is based, but also the legal characterisation given to those acts. That information should be detailed (see Dallos v. Hungary, no. 29082/95, § 47, ECHR 2001-II). As regards the circumstances of the present case, the Court observes that the applicant was formally charged with criminal offences on 31 May 2001. He had been given a copy of the bill of indictment which contained information related to the basic elements of the charges brought against him, namely the dates, places and context of his acts, the identification of the victim, and that it invoked the relevant substantive provisions of the Criminal Law. The fact that the applicant disagreed with the reasons for such an accusation or that he considered them to be insufficient does not raise an issue under Article 6 § 3 (a) as that issue was to be determined by courts in the ensuing criminal proceedings. That being so, the Court considers that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

8.  The complaint in substance under Article 6 § 3 (b)

The applicant complains, without invoking any particular provision of the Convention, that he was not provided with a copy of the transcript of the appeal hearing. The Court considers that this complaint falls to be examined under Article 6 § 3 (b) of the Convention, according to which:

 “3. Everyone charged with a criminal offence has the following minimum rights: ...

b) to have adequate time and facilities for the preparation of his defence; ....”

The Court notes that Article 6 § 3 (b) guarantees the accused “adequate time and facilities for the preparation of his defence” and therefore implies that the accused must have the opportunity to organise his defence in an appropriate way and without restrictions as to the possibility to put all relevant defence arguments before the court and thus to influence the outcome of the proceedings. The provision is violated only if this is made impossible (see, mutatis mutandis, Can v. Austria, no. 9300/81, Commission’s report of 12 July 1984, Series A no. 96, § 53). Turning to the circumstances of the present case, the Court observes that Article 88 of the Law on Criminal Procedure entitled the applicant to request the appeal court’s permission to examine the transcript of the appeal hearing and, if he so wished, to submit his comments regarding the correctness of the transcript. However, the applicant has failed to avail himself of the remedy which was available and sufficient to afford redress for the alleged breach. It follows that the condition as to the exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention has not been complied with by the applicant and that this part of the application, therefore, is inadmissible by virtue of Article 35 § 4 of the Convention.

9.  The complaints under Article 6 § 3 (c)

Under Article 6 § 3 (c) of the Convention the applicant asserts that, although he had no sufficient means to pay for legal assistance, he was not granted free legal aid. Further, he submits that his officially appointed defence counsel defended him in an ineffective manner and that his right to defend himself was infringed in that he was allegedly interrupted by the courts. The applicant also complains, invoking Article 6 § 3 (b), that he was not allowed adequate time to prepare the defence as he had meetings with his defence counsel only shortly before the court hearings. The Court notes that the latter complaint is limited to the applicant’s dissatisfaction with the manner in which the defence counsel prepared his defence. The applicant does not allege that the Latvian authorities restricted the exercise of his right to communicate with the defence counsel and therefore it falls to be examined under Article 6 § 3 (c). The provision at issue reads as follows:

“3.  Everyone charged with a criminal offence has the following minimum rights:

...

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

...”

Regarding the applicant’s allegations that his defence counsel defended him in an ineffective manner, the Court recalls that the conduct of a lawyer does not per se engage the responsibility of the State and that the competent authorities are only required to intervene when failure by legal aid counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way (see Kamasinski v. Austria, judgment of 19 December 1989, Series A no. 168, § 65). The Court notes that the applicant was represented before both the first and appeal instance court by a professional advocate, a member of the Latvian Bar Association as required by Article 96 of the Law on Criminal Procedure. Further, even assuming that the applicant exhausted domestic remedies in respect of the facts complained of, nothing in the documents submitted supports the applicant’s allegations that he was not provided with adequate assistance, or that he was forced to accept a legal representative who acted contrary to his interests in some way. The applicant’s general apprehensions are not sufficient to cast doubt on the effectiveness of his representation and engage the State’s responsibility under Article 6 § 3 (c). It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Articles 35 §§ 3 and 4 of the Convention.

Insofar as the applicant complains that he was interrupted by the courts, the Court observes that the applicant failed to submit any concrete facts that he was unable - either himself or through his lawyer - to address the courts, to submit any comments he wished, or to put forward any submissions on the matters which he regarded as pertinent to or relevant for the outcome. The Court has no information that would indicate that the Latvian authorities restricted the exercise of the applicant’s right to defend himself in a way which is incompatible with Article 6 § 3 (c).  It concludes therefore that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

As to the applicant’s complaints that free legal assistance was not granted, the Court notes that the applicant never asked the courts to provide free legal aid and therefore he failed to discharge his obligation under Article 35 § 1 of the Convention. It follows that this part of the application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 § 4 of the Convention.

10.  The complaints under Article 6 § 3 (d)

The applicant complains under Article 6 § 3 (d) of the Convention that he was denied a fair trial in that he was unable to obtain the attendance and examination of witnesses whose statements served as the basis of his conviction and also those who testified during the preliminary investigation and that the courts refused – without any explanation of the reasons for the refusal - to call for cross-examination the expert gynaecologist who produced an expert opinion and further expert witnesses, a gynaecologist and a psychiatrist, in order to hear them in connection with the expert opinion submitted. Article 6 provides, insofar as relevant:

 “1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

3.      Everyone charged with a criminal offence has the following minimum rights:

...

(d)      to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints. It is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of these complaints to the respondent Government.

11.   The complaint under Article 6 in conjunction with Articles 13 and 14

The applicant complains that he was discriminated against in the enjoyment of his right to a fair trial and that he did not have an effective remedy in this respect. The Court observes that the applicant did not make any specific complaint or provide any explanation in this connection. Accordingly, the purported complaints formulated in such an unsubstantiated manner must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4.

12.  The complaint under Article 7

The applicant states that the acts on account of which he has been convicted under Article 253 § 4 of the Criminal Law did not constitute a criminal offence as he was carrying narcotic substances in his pocket and these acts, in his opinion, were not covered by the definition of the offence at issue. The applicant invokes Article 7 of the Convention, which, insofar as relevant, provides as follows:

 “1.  No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed ...”

The Court reiterates that Article 7 embodies the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to the detriment of an accused, for instance by analogy. From these principles it follows that an offence must be clearly defined in the law. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable (see S.W. v. the United Kingdom, judgment of 22 November 1995, Series A no. 335-B, §§ 34-36). In the light of the above principles concerning the scope of the Court’s supervision, it observes that it is not the Court’s task to rule on the applicant’s individual criminal responsibility or the facts disputed by the applicant, those being primarily matters for the assessment of the domestic courts. It must rather consider, from the standpoint of Article 7 § 1, whether the applicant’s acts, at the time when they were committed, constituted an offence defined with sufficient accessibility and foreseeability by domestic law (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 51, ECHR 2001-II). The applicant was convicted, under Article 253 § 4 of the Criminal Law as it stood at the material time, for unauthorised acquisition, storage and conveyance of narcotic substances in large amounts. The wording of this provision clearly stated which acts were punishable and thus it was possible to know from the wording of the provision at issue which acts would result in criminal liability. Further, the Court considers that nothing suggests that the Latvian courts interpreted the provision at issue abusively or in such a way as to make punishable acts which would otherwise have remained outside the scope of the relevant criminal law. Consequently, there is no appearance of a violation of Article 7 of the Convention and, thus, this part of the application must be rejected pursuant to Article 35 § 4 of the Convention.

13.  The complaint under Article 8 of the Convention and Article 1 of Protocol No. 1 in conjunction with Article 14

The applicant also alleges a violation of Article 8 of the Convention and Article 1 of Protocol No. 1, each taken alone and in conjunction with Article 14 of the Convention, arguing that he has lost his rights to rent the flat he lived in before the conviction and that his property has been removed from the flat. Article 8 of the Convention reads in its relevant parts as follows:

 “1.  Everyone has the right to respect for his private and family life, his home ... .

 2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 1 of Protocol No 1, in so far as relevant, provides:

 “Every natural ... person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law. ...”

The Court notes that, even presuming that the applicant’s allegations were substantiated, he failed to bring his complaints before any national authority; therefore the applicant failed to exhaust available domestic remedies as required by Article 35 § 1 of the Convention. Accordingly, this part of the application must be declared inadmissible pursuant to Article 35 § 4 of the Convention.

14.  The complaint under Article 3 of Protocol No. 1

The applicant complains that he was not allowed to vote in the referendum on Latvia’s accession to the European Union, which took place on 20 September 2003. He invokes Article 3 of Protocol No. 1 to the Convention, which reads as follows:

 “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

In this connection the Court reiterates that the obligations imposed on the Contracting States by Article 3 of Protocol No. 1 are limited to parliamentary elections and do not apply to referendums (see Bader v. Austria, no. 26633/95, Commission decision of 15 March 1996). It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and its additional protocols within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints under Article 5 § 3 about the length of his detention on remand, Article 6 § 1 concerning the length of the criminal proceedings against him and Article 6 §§ 1 and 3 (d) concerning the unmotivated refusal of the courts to ensure the attendance and examination of witnesses whose statements during the preliminary investigation served as the basis for his conviction and the unmotivated refusal to call the expert gynaecologist who had produced an expert opinion and to call further expert witnesses;

Declares the remainder of the application inadmissible.

Vincent Berger Boštjan M. ZupanČiČ 
 Registrar President

Ž. v. LATVIA DECISION


Ž. v. LATVIA DECISION