by Romualds DOBROVOĻSKIS
European Court of Human Rights (Third Section), sitting on
5 May 2009 as a Chamber composed of:
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 15 January 2003,
Having regard to the declaration submitted by the respondent Government on 31 October 2008, requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
The applicant, Mr Romualds Dobrovoļskis, is a Latvian national who was born in 1967 and is currently serving his prison sentence in the Central Prison of Rīga (Rīgas Centrālcietums). He was represented before the Court by Mr K. Zandbergs, 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 12 July 1999 the applicant was arrested on suspicion of having committed several aggravated criminal offences and criminal proceedings were initiated against him. On the same date a judge of the Jēkabpils District Court decided to detain the applicant on remand until 12 September 1999. The applicant was brought before the judge.
Thereafter, the applicant’s detention on remand was consecutively extended until 4 July 2001 when, upon completion of the pre-trial investigation, the Rīga Regional Court received the case for adjudication and committed the applicant for trial, deciding not to alter his detention on remand. The applicant was not brought before the court.
On 27 December 2002 and 3 March 2003 the Senate of the Supreme Court, upon requests the Rīga Regional Court, by final decisions decided to extend the applicant’s detention on remand until 6 March and 1 April 2003 respectively. The applicant was not brought before the court.
On 31 March 2003 the Rīga Regional Court found the applicant guilty of aggravated robbery and murder and sentenced him to fifteen years’ imprisonment. In establishing the applicant’s guilt, the court relied on incriminating statements made by four co-accused and twenty-eight witnesses and on documentary evidence. Seven witnesses were present at the hearing. The statements of other witnesses were read out. The applicant appealed, without requesting to summon any additional witness.
On 17 June 2004 the Criminal Chamber of the Supreme Court upheld the judgment of the first instance court in part, reducing the applicant’s sentence to thirteen years’ imprisonment.
On 21 October 2004 the Senate of the Supreme Court in a preparatory meeting dismissed the applicant’s appeal on points of law.
A. Length of detention on remand and proceedings
The applicant complained about the length of his detention on remand and the criminal proceedings against him. He relied on Articles 5 § 3 and 6 § 1 of the Convention which, in so far as relevant, read as follows:
Article 5 § 3
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial.”
Article 6 § 1
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
On 31 October 2008 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue 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 represented by their Agent Inga Reine (hereinafter – the Government) admit that the total length of the [applicant’s] detention, as well as the criminal proceedings initiated against the applicant did not meet the standards enshrined in Article 5 and Article 6 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 2,500 euros ([approximately LVL 1,758]), 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 Dobrovoļskis v. Latvia (application no. 2233/03).
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-months 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.”
A copy of the declaration was sent to the applicant’s representative on 4 November 2008 and then again on 11 February 2009. The applicant or his representative did not submit any comments.
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, no. 31535/03, § 28, 13 February 2007), 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, no. 6301/05, § 36, 27 September 2007).
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), no. 53507/99, 18 July 2006, and Van Houten v. the Netherlands (striking out), no. 25149/03, ECHR 2005 IX, and also 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).
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 and 6 § 1 of the Convention as regards the length of pre-trial detention and the guarantee of the right to a trial within a reasonable time (see, in particular, Estrikh v. Latvia, no. 73819/01, 18 January 2007; and Svipsta v. Latvia, no. 66820/01, 9 March 2006; Moisejevs v. Latvia, no. 64846/01, 15 June 2006; Lavents v. Latvia, no. 58442/00, 28 November 2002; Freimanis and Līdums v. Latvia, nos. 73443/01 and 74860/01, 9 February 2006; Kornakovs v. Latvia, no. 61005/00, 15 June 2006; and Čistiakov v. Latvia, no. 67275/01, 8 February 2007). The Court has repeatedly found a violation of this obligation 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 and 6 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, Kapitonovs, Ozoliņš and Borisovs, 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, this part of the application should be struck out of the list.
B. Remaining complaints
The applicant complained that between 4 July 2001 and 31 March 2003 he could not take court proceedings to contest the lawfulness of his detention and that the courts extended the detention in his absence. He invoked Article 5 § 4 of the Convention, which, in its relevant part, reads as follows:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
The Court observes that the applicant’s detention on remand was reviewed only twice during the period of time between 4 July 2001 and 31 March 2003 and that happened without him being present. The Court further notes that the applicant, however, did not request the Rīga Regional Court or the Senate of the Supreme Court to reassess the lawfulness and reasonableness of his detention throughout the aforementioned period. He did not request the courts to provide his presence at the hearings on his detention, did not make any written submissions, and did not complain about not being present at the hearings on 27 December 2002 or 3 March 2003. Thus the applicant failed to exhaust domestic remedies and this part of the application must therefore be dismissed pursuant to Article 35 §§ 1 and 4 of the Convention.
2. The complaint under Article 6 §§ 1, 2 and 3
The applicant complained that he was deprived of a fair trial and that the Riga Regional did not summon unspecified witnesses and breached the presumption of innocence. He invoked Article 6 §§ 1, 2 and 3 of the Convention, which, in its relevant part, reads as follows:
“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ....
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
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; ....”
As to the fairness of the proceedings and the presumption of innocence, the Court considers that this complaint lacks substantiation and as such is manifestly ill-founded. As to the presence of witnesses at the Rīga Regional Court’s hearing, the Court notes that the applicant did not request the court to summon any additional witness. Neither did he ask the appeal court to summon any witnesses. In any event, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds the applicant was convicted on the basis of substantive evidence and there is no indication that the absence of the persons concerned at the hearing impaired his rights under Article 6 § 3 (d), or, more generally, under Article 6 § 1. It follows that this part of the application is manifestly ill-founded and must be rejected accordance with Article 35 §§ 3 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 the remainder of the application inadmissible.
Santiago Quesada Josep Casadevall