by Viktors USTINOVS
The European Court of Human Rights (Third Section), sitting on 1 September 2009 as a Chamber composed of:
Boštjan M. Zupančič,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 4 March 2003,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
The applicant, Mr Viktors Ustinovs, is a Latvian national who was born in 1965 and lives in Rīga. He was represented before the Court by Mrs L. Ustinova, a lawyer practising in Rīga. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 August 2002 criminal proceedings were initiated against the applicant, who was a sworn advocate, concerning large-scale fraud allegedly committed by him. The applicant was suspected of fraudulently obtaining 10 000 lati and 35 000 US dollars from a client.
On 23 August 2002 a judge of the Rīga City Vidzeme District Court (Rīgas pilsētas Vidzemes priekšpilsētas tiesa) issued a decision to detain the applicant on remand. The decision was typed and included the applicant’s personal data and information about the alleged crime. However, the judge’s name was inserted in the decision by means of a rubber stamp in the blank space left for this purpose. The document had two alternative titles – a decision to apply/refuse to apply detention on remand, neither of which was underlined or crossed out. Furthermore, there was an option for the judge to choose whether there was (or was not) a risk of absconding, risk of obstructing the investigation and risk of committing other crimes. In this case, the judge had chosen to underline the word “is”. In addition, the decision indicated that the gravity of the crime that had been committed and the suspect’s personality, occupation, state of health, and other circumstances had been taken into account.
On 27 August 2002 the applicant’s lawyer appealed against that detention order. In his complaint he inter alia indicated that the detention order had been formalistic and unreasoned.
On 3 September 2002 the Rīga Regional Court (Rīgas apgabaltiesa) dismissed the appeal against the detention order, pointing out that there existed a contradiction between the testimonies of the applicant and the victim.
In the meantime, on 20 September 2002 the applicant was officially charged with large scale fraud and incitement to bribery.
On 16 October 2002 a judge of the Rīga City Vidzeme District Court decided to prolong the applicant’s detention on remand until 22 December 2002. In the decision it was pointed out that the investigation in the criminal case had not yet been completed – experts’ conclusions had not yet been received and contradictions existed between the testimonies of the applicant, the victim and the witnesses and therefore it was concluded that the applicant could interfere with the investigation.
On 17 October 2002 the applicant’s lawyer appealed against that detention order. In this appeal he pointed out that there was no indication that the applicant would obstruct the investigation and that there were more lenient means to ensure such non-obstruction. The complaint also touched upon the applicant’s health problems that required surgery.
On 22 October 2002 the Rīga Regional Court dismissed the appeal against the detention order, holding that the Vidzeme District Court had correctly assessed the circumstances of the case.
On 19 December 2002 a judge of the Rīga City Vidzeme District Court decided to prolong the applicant’s detention on remand until 22 February 2003, pointing out that there were sufficient grounds to believe that the applicant would obstruct the investigation, without specifying those grounds.
On 20 December 2002 the applicant appealed against that detention order. He pointed out the lack of any reasoning in the Vidzeme District Court’s decision and indicated that the expected experts’ reports had been received by the public prosecutor and that he had expressed willingness to collaborate with the prosecution.
On 27 December 2002 the Rīga Regional Court dismissed the appeal against the detention order, holding that it was possible that the applicant would obstruct the investigation by influencing the other participants in the case, but without specifying anything further.
On 10 February 2003 the applicant’s wife requested the public prosecutor in charge of the case to free him on bail.
On 13 February 2003 a judge of the Rīga City Vidzeme District Court decided to prolong the applicant’s detention on remand until 22 April 2003, pointing out that there was a realistic possibility that the applicant would obstruct the investigation, considering the nature of the crime that had been committed. No other reasoning was offered.
Taking into account that order, on 14 February 2003 the investigating public prosecutor rejected the applicant’s wife’s request to free him on bail.
On 25 February 2003 the applicant’s wife submitted a request to the head of the Rīga Regional Court, requesting immediate release of the applicant.
It appears that on 14 April 2003 the applicant was released from detention on bail. During the entire time of the applicant’s pre-trial detention he was questioned on two occasions.
The applicant complained under Article 5 § 3 of the Convention about the length of his pre-trial detention on remand.
The applicant complained under Article 5 § 4 of the Convention about the lack of effective judicial review of the lawfulness of his detention on remand. He pointed out that the courts did not sufficiently take into account the substance of his lawyer’s complaints, used very short and abstract argumentation and did not evaluate the possibility to release him on bail, instead mentioning some of the criteria provided for by law, without explaining how those criteria were applicable to the applicant’s situation.
On 28 April 2009 the Court received the following declaration signed by the applicant’s representative:
“I, Lidija Ustinova, note that the Government of Latvia are prepared to pay ex gratia the sum of 2 000 euros to Mr Viktors Ustinovs with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into Latvian lati at the rate applicable on the date of payment, and will be free of any taxes that may be applicable, and payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. 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.
Having consulted my client, I would inform you that he accepts the proposal and waives any further claims against Latvia in respect of the facts giving rise to this application. He declares that this constitutes a final resolution of the case.”
On 24 June 2009 the Court received the following declaration from the Government:
“I, Inga Reine, Agent for the Government of the Republic of Latvia, declare that the Government of Latvia offer to pay ex gratia 2 000 euros to Mr Viktors Ustinovs with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into Latvian lati at the rate applicable on the date of payment, and free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case 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