by Dainis DAĢIS
The European Court of Human Rights (Third Section), sitting on 30 June 2009 as a Chamber composed of:
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 4 September 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the unilateral declaration submitted by the respondent Government on 24 October 2008,
Having deliberated, decides as follows:
1. The applicant, Mr Dainis Daģis, is a Latvian national who was born in 1961 and currently lives in Jāņupe (Rīga District). The Latvian Government (“the Government”) were represented by their Agent, Mrs. I. Reine.
1. Criminal proceedings against the applicant
2. On 9 August 2000 criminal proceedings were initiated for fraud.
3. On 4 September 2000 the applicant was apprehended on the basis of Section 120 of the Code of Criminal Procedure on suspicion of having committed aggravated fraud.
4. On 7 September 2000 a judge of the Rīga City Centre District Court (Rīgas Centra rajona tiesa) decided to detain him on remand. He was placed in the Matīsa prison. Upon subsequent requests by the prosecutor, his detention on remand was extended by the judge.
5. On 3 April 2001 the indictment was presented to the applicant. On 4 April 2001 the case was sent to the Rīga Regional Court (Rīgas Apgabaltiesa).
6. On 9 April 2001 the Rīga Regional Court decided to commit the applicant for trial and to retain the applicant in detention. On 28 May 2001 the judge informed the applicant that the date for the hearing had not been set.
7. On 31 August 2001, the Rīga Regional Court informed the applicant that the hearing on the merits of the case was scheduled for 12 February 2002.
8. On 10 December 2001 the applicant informed the Rīga Regional Court that he was receiving medical treatment in the prison hospital.
9. On 18 February 2002 the Rīga Regional Court convened to examine the merits of the case. Upon the applicant’s request, on the same date the court decided to release the applicant from custody on bail and adjourned the trial until the applicant had recovered. On 6 March 2002, following receipt of the bail, the applicant was released.
10. The merits of the case were finally examined by the Rīga Regional Court on 1 December 2003. The applicant was convicted of two episodes of fraud and sentenced to five years’ imprisonment.
11. On 16 November 2004 the Criminal Chamber of the Supreme Court (Augstākās Tiesas Krimināllietu tiesu palāta) specified the regime of imprisonment imposed by the first instance court but rejected the applicant’s appeal.
12. On 25 January 2005 the Senate of the Supreme Court (Augstākās Tiesas Senāts) reviewed the applicant’s appeal on points of law and rejected it.
13. On 7 September 2005 the applicant was transferred from the Matīsa prison to an open-type prison in Vecumnieki.
14. On 24 March 2006 the applicant was released on probation.
2. Applicant’s state of health and medical supervision
15. On an unspecified date in 1993 the applicant was injured in a domestic electricity accident.
16. On 28 September 1993 the State Health and Working Capability Expertise Medical Commission (Veselības un darbspēju ekspertīzes ārstu valsts komisija) examined the applicant. It granted the applicant a temporary second degree of disability until 1 October 1994. After a fresh examination, this was extended until 1 November 1995. It appears that the applicant did not apply to have recognition of his degree of disability extended thereafter.
17. On 4 September 2000 the applicant was arrested (see paragraph 3 above).
18. On 5 December 2000, he complained to the chief prosecutor attached to the Rīga Regional Court, asking to be “subject to a complex medical examination and [...] to receive medical assistance”. He received no reply. On 1 March 2001, he complained to the Prosecutor General. By a letter dated 22 March 2001, he was informed that his complaint of 5 December 2000 had not been received.
19. On 9 May 2001 the applicant applied to the Rīga Regional Court to obtain permission to undergo a medical examination by a qualified ophthalmologist.
20. On 21 May 2001 the Rīga Regional Court requested the Matīsa prison administration to examine the applicant and inform the court about his state of health. On 25 May 2001 the administration replied that the applicant had post-traumatic eyesight related problems and indicated the need for examination by an ophthalmologist.
21. On 9 July 2001 the applicant applied to the Rīga Regional Court to obtain permission to have consultation with an expert in the Matīsa prison. On 18 July 2001 the court granted that request.
22. On 31 July 2001 the applicant applied to the Minister of Welfare and requested appointments with an ophthalmologist, an otolaryngologist and a neurologist in the Matīsa prison. The applicant’s letter was forwarded to the Inspectorate of Quality Expertise of Medical Care and Working Capability (“the MADEKKI”).
23. On 31 October 2001, following a medical examination, the MADEKKI concluded that the applicant had to be examined immediately by an ophthalmologist and an otolaryngologist because he was suffering from retinopathy in his left eye and mesotympanitis in his left ear (mezotimpanīts). The sight in his right eye was deteriorating as well.
24. On 12 November 2001 the applicant was sent to the prison hospital, where he was examined by an ophthalmologist and an otolaryngologist. The applicant remained in the hospital until 13 December 2001.
25. On 10 January 2002 the applicant was sent to the prison hospital for medical treatment. On 17 January 2002 the Rīga Regional Court requested the prison administration to inform the court about the applicant’s state of health. The applicant was examined by an ophthalmologist, an otolaryngologist and a neurologist and received medical treatment in the prison hospital. On 30 January 2002 he was transferred back to the Matīsa prison.
26. From 15 to 22 February 2002 the MADEKKI conducted a further review of the applicant’s medical condition. It noted that as a result of the domestic incident in 1993 the applicant had sustained deep burns and that he had been repeatedly treated in the State Centre for Burns (Valsts apdegumu centrs) and the Latvian-American Eye Centre (Latvijas Amerikas acu centrs). He had had operations on both eyes. He had also had the lens of his left eye removed and had a secondary cataract.
27. The applicant was released from detention on 6 March 2002.
28. On 21 May 2002, upon the applicant’s request, the State Health and Working Capability Expertise Medical Commission examined him and granted him the third degree of disability for life on the ground of the domestic accident.
29. Following his conviction by the first instance court, the applicant was detained in the Matīsa prison on 5 December 2003.
30. On 6 May 2004 the applicant fell and injured his left shoulder in the prison. He was treated in relation to this injury in the prison hospital from 8 to 13 May 2004, from 10 to 17 June 2004 and from 23 December 2004 to 13 January 2005.
31. Invoking Article 3 of the Convention the applicant complained that his health had deteriorated during the detention on remand.
32. Invoking Article 5 § 3 of the Convention the applicant complained that he had not been entitled to a trial within a reasonable time after his arrest.
33. Invoking Article 6 § 1 of the Convention the applicant complained that the criminal proceedings against him had been unreasonably long. He also complained that the trial had not been commenced within the prescribed time-limit.
34. Invoking Article 1 of Protocol No. 4 to the Convention the applicant complained that he had been imprisoned solely because of his inability to fulfil a contractual debt.
35. Finally, invoking Article 3 of the Convention the applicant alleged that he had been apprehended before 4 September 2000 and ill-treated.
A. The complaints covered by the unilateral declaration
36. By a letter dated 24 October 2008 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by one part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
37. 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 applied to Dainis Daģis (hereinafter – the applicant), as well as total length of the criminal proceedings against the applicant 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 2,000 EUR ([approximately] 1,406 LVL), 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] Daģis v. Latvia (application no. 7843/02).
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.”
38. By a fax dated 8 November 2008 the applicant invited the Court to reject the unilateral declaration. The applicant did not provide any reasons for that.
39. The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
40. It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration submitted 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 v. Turkey (preliminary objection) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; Kapitonovs v. Latvia (striking out.), no. 16999/02, 24 June 2008, Ozoliņš v. Latvia (striking out) , no. 12037/03, 2 September 2008 and Borisovs v. Latvia (striking out) no. 6904/02, 2 September 2008).
41. As to whether it would be appropriate to strike out the present application on the basis of the unilateral declaration submitted by the Government, the Court points out that there is considerable case-law with respect to the respondent State as concerns the scope and the nature of their obligations arising under Article 5 § 3 and Article 6 § 1 of the Convention (see Svipsta v. Latvia, no. 66820/01, § 113, CEDH 2006 III (extracts); Estrikh v. Latvia, no. 73819/01, §§127 and 143, 18 January 2007; Moisejevs v. Latvia, no. 64846/01, §§ 119 and 142, 15 June 2006; Lavents v. Latvia, no. 58442/00, § 104, 28 November 2002; Freimanis and Līdums v. Latvia, nos. 73443/01, 74860/01, § 126, 9 February 2006; Kornakovs v. Latvia, no. 61005/00, § 130, 15 June 2006; and Čistiakov v. Latvia, no. 67275/01, § 81, 8 February 2007). The Court has repeatedly found a violation of these obligations and has awarded just satisfaction in accordance with the requirements of Article 41 of the Convention. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c)).
42. The Court further notes that this decision constitutes a final resolution of this application only in so far as the proceedings before the Court are concerned. It is without prejudice to the use by the applicant of other remedies before the domestic courts to claim further compensation in respect of the length of the impugned proceedings.
43. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, 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 this part of the application (Article 37 § 1 in fine).
44. Accordingly, the case in relation to the complaints under Articles 5 § 3 and 6 § 1 should be struck out of the list.
B. The remaining complaints
1. The first complaint under Article 3
45. The applicant submitted that the Rīga Regional Court by detaining him on remand did not take into account the fact that he had a second degree disability and that he was in need of medical assistance that it was not possible to receive while being in the custody. He complained that his state of health had deteriorated since 7 September 2000 and that he had lost his ability to move independently, his left eyesight and his hearing. In this regard the applicant relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
46. The Government noted that the applicant had failed to submit any feasible evidence to support his allegations and that they contradict information at the disposal of the national authorities. The Government drew attention to the applicant’s letters addressed to national institutions where he noted that he had been injured in a domestic electricity accident in 1993 and subsequently he had almost lost his eyesight and his hearing and that his body coordination had been adversely impeded.
47. In relation to the applicant’s medical assistance in custody in Matīsa prison the Government replied that all complaints and requests for medical treatment were examined and replied to.
48. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Tekin v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, § 52).
49. The Court recalls that although Article 3 of the Convention cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example, by providing them with the requisite medical assistance (Mouisel v. France, no. 67263/01, § 40, ECHR 2002 IX, and Jalloh v. Germany [GC], no. 54810/00, § 69, ECHR 2006-IX). The Court has also emphasised the right of all prisoners to conditions of detention which are compatible with human dignity, so as to ensure that the manner and method of execution of the measures imposed do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and that, given the practical demands of imprisonment, their health and well-being are adequately secured by, among other things, providing them with the requisite medical assistance (Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI).
50. In the present case, the Court notes that prior to the applicant’s detention on remand he had been injured in a domestic accident which adversely affected his state of health. While he was in custody the requests in relation to the applicant’s state of health were reviewed by national authorities and medical assistance was provided. The applicant was examined in the prison around 25 May 2001 and twice by the MADEKKI, on 31 October 2001 and 22 February 2002. He was transferred to the Prison hospital twice and examined by an ophthalmologist and an otolaryngologist; he remained there from 12 November to 13 December 2001 and from 10 January to 17 January 2002. Taking into account the applicant’s state of health, he was released from custody on bail following a decision of 18 February 2002 and the trial was adjourned until his recovery. Finally, the Court notes that in relation to his injury of 6 May 2004, the applicant was treated in the prison hospital on three occasions.
51. Therefore, the Court cannot come to the conclusion that the national authorities did not ensure proper medical supervision of the applicant’s deteriorating state. The Court notes that the applicant failed to explain in a detailed and convincing manner why he considered that the medical treatment he received was inadequate or in any other way in breach of the guarantees provided for in Article 3 of the Convention.
52. 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.
2. The complaint under Article 1 of Protocol No. 4
53. The applicant complained that he had been detained on remand for the sole reason of his inability to repay a contractual debt and that it was in breach of Article 1 of Protocol No. 4, which reads as follows:
“No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation.”
54. The Court notes that the applicant was apprehended on the basis of Section 120 of the Code of Criminal Procedure on suspicion of having committed aggravated fraud and remanded in custody by a decision of a judge of 7 September 2000. Subsequently, his detention on remand was reviewed by the judge on several occasions and extended within the criminal proceedings that had been instituted against him.
55. The Court considers 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.
3. The second complaint under Article 3
56. In his observations sent to the Court and received on 17 October 2007, the applicant introduced a new complaint under Article 3, alleging that he had been apprehended before 4 September 2000 and ill-treated. The Court notes that this complaint has been submitted almost seven years after the alleged events. Accordingly, this complaint is submitted too late.
57. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the complaints under Articles 5 § 3 and 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it relates to the above complaints in accordance with Article 37 § 1 (c) of the Convention;
Declares inadmissible the remainder of the application.
Santiago Quesada Josep Casadevall