European Court of Human Rights

THIRD SECTION

DECISION

Application no. 15043/04
by Mihails ĻISOVECS
against Latvia

The European Court of Human Rights (Third Section), sitting on 4 November 2008 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura-Sandström,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 2 April 2004,

Having regard to the Government's submissions and their request to strike the case out of its list of cases and the text of unilateral declaration made with a view to resolving the issue raised by the application,

Having regard to the applicant's response to the Government's unilateral declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mihails Ļisovecs, is a Latvian non-citizen (permanent resident) who was born in 1973 and is serving his prison sentence in the Valmiera Prison. The Latvian Government (“the Government”) are represented by their Agent, Mrs I. Reine.

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

On 26 March 1999 the applicant was detained on suspicion of having committed aggravated robberies.

On 29 March 1999 the applicant was brought before a judge of the Ziemeļu District Court of the City of Riga who decided to detain him on remand.

On 18 May, 23 July, 24 September and 25 November 1999 a judge of the Ziemeļu District Court of the City of Riga extended the applicant's detention on remand until 26 July, 26 September and 26 November 1999 and 26 January 2000 respectively. The applicant appealed against the decision of 25 November 1999.

On 21 December 1999 the Criminal Chamber of the Riga Regional Court (hereinafter – the Riga Regional Court) dismissed the applicant's appeal.

On 25 January 2000 a judge of the Ziemeļu District Court of the City of Riga prolonged the applicant's detention on remand until 26 March 2000. The applicant appealed against this decision.

On 11 February 2000 the Riga Regional Court dismissed the applicant's appeal.

On an unspecified date, after the pre-trial investigation of the applicant's case was completed, the applicant took cognisance of the case file documents. Thereafter, on 25 April 2000 the investigating prosecutor refused the applicant's request to alter the preventive measure imposed on him. On an unspecified date the applicant's case was transferred to the Riga Regional Court for adjudication.

On 28 June 2000 a judge of the Riga Regional Court committed the applicant for trial and decided that his “remand shall remain unchanged”.

On 1 November 2002, on the request of a judge of the Riga Regional Court, the Criminal Chamber of the Supreme Court prolonged the applicant's detention on remand until 5 January 2003.

On 3 December 2002 the Riga Regional Court found the applicant guilty of aggravated robberies and sentenced him to ten years' imprisonment.

On 27 May 2004 the Criminal Chamber of the Supreme Court upheld the judgment of the first instance court.

On 4 November 2004 the Senate of the Supreme Court quashed the judgment of 27 May 2004 and remitted the case to the Criminal Chamber of the Supreme Court for adjudication de novo.

On 30 March 2006 the Criminal Chamber of the Supreme Court upheld the judgment of 3 December 2002.

On 15 January 2007 the Senate of the Supreme Court dismissed the applicant's cassation appeal.

COMPLAINTS

THE LAW

On 13 December 2007 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the applicant. They further requested the Court to terminate the proceedings accordingly.

The declaration provided as follows:

“The Government of the Republic of Latvia (hereinafter – the Government) represented by [their] Agent Inga Reine admit that the length of pre-trial detention, which was applied to Mihails Ļisovecs (hereinafter – the applicant), as well as the length of the criminal proceedings in the applicant's criminal case, did not meet the standards enshrined in Article 5, paragraph 3 and Article 6, paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention). Being aware of that, the Government undertake to adopt all necessary measures in order to avoid similar infringements in future.

Taking into account that the parties have failed to reach a friendly settlement in this case, the Government declare that they offer to pay ex gratia to the applicant compensation in the amount of 3,200 euro[s] ([approximately LVL 2,240]), this amount being the global sum and covering any pecuniary and non-pecuniary damage together with any costs and expenses incurred, free of any taxes that may be applicable, with a view to [terminating] the proceedings pending before the European Court of Human Rights (hereinafter – the Court) in the case [of] Ļisovecs v. Latvia (application no. 15043/04).

The Government undertake to pay the above compensation within three months from the date of delivery of the decision/judgment by the Court pursuant to Article 37 of the Convention. In the event of failure to pay this sum within the said [three-month] period, the Government undertake to pay simple interest on the amount, as established in the decision/judgment by the Court. The above sum shall be transferred to the bank account indicated by the applicant.

This payment will constitute the final resolution of the case.”

The applicant requested the Court to reject the Government's proposal on the basis that the amount proposed was not adequate. He asked EUR 30,000

The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. However, as it has stated in earlier cases (see, in particular, Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, § 74, ECHR 2003 VI, and Venera-Nord-Vest Borta A.G. v. Moldova, 13 February 2007, § 28), a distinction must be drawn between, on the one hand, declarations made in the context of strictly confidential friendly settlement proceedings (Article 38 § 2 of the Convention and Rule 62 § 2 of the Rules of Court) and, on the other hand, unilateral declarations made by a respondent Government in public and adversarial proceedings before the Court. In accordance with Article 38 § 2 of the Convention and Rule 62 § 2 of the Rules of Court, the Court will proceed on the basis of the Government's unilateral declaration and the applicant's statement in respect thereof submitted outside the framework of friendly-settlement negotiations, and will disregard the parties' statements made in the context of exploring the possibilities for a friendly settlement of the case and the reasons why the parties were unable to agree on the terms of a friendly settlement (see Estate of Nitschke v. Sweden, 27 September 2007, § 36).

The Court notes that under certain circumstances it may strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law (see, in particular, Tahsin Acar, cited above, §§ 75-77, Swedish Transport Workers Union v. Sweden (striking out), 18 July 2006, and Van Houten v. the Netherlands (striking out), no. 25149/03, ECHR 2005 IX, and also Kapitonovs v. Latvia (striking out), 24 June 2008).

As to whether it would be appropriate to strike out the present application on the basis of the unilateral declaration made by the Government, the Court points out that there is a considerable case-law with respect to the respondent State as concerns the scope and the nature of their obligations arising under Articles 5 § 3 (trial within reasonable time after arrest) and 6 § 1 (reasonable time) of the Convention (see, in particular, Estrikh v. Latvia, 18 January 2007, §§ 118-127 and 136-143; and Svipsta v. Latvia, 9 March 2006; Moisejevs v. Latvia, 15 June 2006; Lavents v. Latvia, 28 November 2002; Freimanis and Līdums v. Latvia, 9 February 2006; Kornakovs v. Latvia, 15 June 2006; and Čistiakov v. Latvia, 8 February 2007). The Court has repeatedly found violations of those obligations and has awarded just satisfaction in accordance with the requirements of Article 41 of the Convention.

Having regard to the specific circumstances of the case, the Government's admission to violation of Articles 5 § 3 and 6 § 1 of the Convention with respect to the applicant, as well as their acknowledgment of the general problem and their readiness to tackle it through the adoption of “all necessary measures” with a view to preventing similar violations of the Convention in the future, and the amount of compensation proposed to the applicant, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)) (see, for the relevant principles, Tahsin Acar, cited above, Haran v. Turkey, no. 25754/94, judgment of 26 March 2002 and Kapitonovs, cited above).

The Court further notes that this decision constitutes a final resolution of this application only insofar as the proceedings before the Court are concerned. It is without prejudice to the applicant's right to use other remedies before the domestic courts to claim further compensation in respect of the impugned issues.

In the light of all the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine). Accordingly, the application should be struck out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Santiago Quesada Josep Casadevall
Registrar President