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Cite as: [2010] ECHR 1014

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THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37862/02
by Aivars EPNERS-GEFNERS
against Latvia

The European Court of Human Rights (Third Section), sitting on 25 May 2010 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 2 October 2002,

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 requesting the Court to strike the application out of the list of its cases and the applicant's reply to that declaration;

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Aivars Epners-Gefners, is a Latvian national who was born in 1964 and lives in Liepāja. The Latvian Government (“the Government”) are represented by their Agent, Mrs I. Reine.

A. The circumstances of the case

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

1. Proceedings against the applicant

On 1 October 1999 the applicant was arrested on suspicion of aggravated robbery.

On 31 December 1999 the applicant's criminal case was sent to the Rīga Regional Court for adjudication. The applicant was committed for trial on 17 January 2000 but the first hearing was not scheduled.

On 30 January 2001 the applicant was informed that the hearing in the case had not yet been scheduled. On 14 September, upon the applicant's enquiry into the progress of the criminal proceedings against him, the Rīga Regional Court informed him that the hearing in the case had been scheduled for 3 March 2002.

On 12 December 2001 the Criminal Chamber of the Supreme Court decided that the case would be adjudicated by the Kurzeme Regional Court in order to expedite the proceedings. The first hearing was scheduled for 23 January 2002.

On 11 April 2002 the Kurzeme Regional Court convicted the applicant of aggravated robbery and sentenced him to six years and one month's imprisonment. In establishing the applicant's guilt, the court relied on the incriminating statements made by three witnesses and on documentary evidence.

On 5 June 2002, on the applicant's appeal, the Criminal Chamber of the Supreme Court upheld in substance the judgment of the first-instance court.

On 20 September 2002 the Senate of the Supreme Court dismissed the applicant's appeal on points of law in a preparatory meeting.

On 23 August 2004 the Jelgava Court decided to apply a pre-release scheme to the applicant and ordered his release before the end of his sentence.

2. Family visits during the applicant's pre-trial detention

On 18 May 2000 the applicant's wife gave birth to a son. The applicant submitted that he had not been allowed to receive long-term family visits from the day of his arrest until the final decision of the Senate of the Supreme Court on 20 September 2002.

According to the Government, the applicant had received two short-term visits from his wife during his pre-trial detention: on 16 November 2000 and 20 November 2001. They also submitted that on four occasions the applicant's aunt had visited him during his pre-trial detention: on 8

January, 10 April, 23 October and 20 December 2001.

3. Dental treatment during the applicant's detention

According to the Government, the applicant first complained about his dental care on 29 June 2000 during his pre-trial detention in Central prison in Rīga. The doctor prescribed some medication and advised him to consult a dentist. On 18 August 2000 he saw a dentist but refused the recommended treatment. The Government did not specify what kind of treatment was offered to the applicant.

On 25 October 2001 while in pre-trial detention in Brasa prison in Rīga the applicant saw a dentist following repeated recommendations from a prison psychiatrist. He was diagnosed with periodontitis and his treatment was commenced. The Government does not specify what kind of treatment the applicant received. It appears from the applicant's submissions that several dental roots were extracted.

On 26 November 2001 the applicant complained about the conditions of his detention to the General Inspector's Office (Ģenerālinspektora birojs), which at the material time was the institution in charge of organising the execution of criminal sentences and the probation system and was supervised by the Ministry of Justice. It appears he complained that he was not receiving appropriate dental care and that he was in need of dental prosthetics. The applicant's complaint was transferred to the Prison Administration for examination.

On 11 December 2001 the Prison Administration informed the applicant that, following his requests, a dentist had extracted several dental roots. This service had been free of charge. It had been established that the applicant had eight teeth left. It was presumed that he had not taken appropriate care of his teeth prior to his imprisonment. The applicant was informed that dental prosthetics could be provided only at his own expense and that the Ministry of Finance did not allocate any funds to the Prison Administration or Brasa prison for this purpose.

On 27 December 2001 the applicant submitted a complaint to the Chancery of the President of Latvia (Latvijas Valsts prezidenta kanceleja) about his dental care. The applicant's complaint was transferred to the Ministry of Justice and from there to the General Inspector's Office for examination, which transferred the complaint to the Prison Administration.

On 12 February 2002 the Prison Administration informed the applicant that he had already received an answer on 11 December 2001 as regards his complaint of 26 November 2001. It reiterated that dental prosthetics could not be provided free of charge in prisons. The applicant was informed that meals in prisons were prepared from soft products and as such were not difficult to eat (soups, porridge, mashed potatoes, macaroni, boiled vegetables, minced meat etc.).

B. Relevant domestic law

1. Pre-trial detention and trial

The relevant part of section 77 of the former Code of Criminal Procedure applicable at the material time (in force until 1 October 2005) provides that the maximum term of pre-trial detention during the investigation of a criminal case may not exceed two months. If it is not possible to complete investigation of the case within that period and there are no grounds for altering a preventive measure, a judge may extend the period of detention for up to one year and six months. If necessary, the detained person and his defence counsel may be heard. Extension of detention beyond one year and six months is not allowed and the detained person is subject to immediate release.

Section 77, paragraph 7 (enacted on 17 October 2002 and in force since 1 November 2002) provides that in exceptional cases the Senate of the Supreme Court may extend detention beyond one year and six months.

Section 241 sets time-limits for the examination of a case and provides that the examination of a case before a court must start no later than twenty days, or, under exceptional circumstances, no later than one month, after the case has been received by the court.

2. Medical assistance in custody

Cabinet Regulations no. 358 (1999), in force at the material time and until 28 March 2007, provided as follows:

“2. Convicted persons shall receive the minimum standard of health care free of charge up to the amount established by the Cabinet of Ministers. In addition, the Prison Administration, within its budgetary means, shall provide the convicted persons with:

2.1. primary, secondary and tertiary (in part) medical care;

2.2. emergency dental care;

2.3. examination of health conditions;

2.4. preventive and anti-epidemic measures;

2.5. medication and injections prescribed by a doctor of the institution;

2.6. medical accessories.

3. Detained persons shall receive medical care in accordance with Article 2 of these regulations, excluding planned in-patient treatment .... Detained persons shall be sent to receive in-patient treatment only in acute circumstances.”

3. Regulations on remand prisoners

Until 14 May 2001 the situation of persons detained in remand prisons was governed by the “Instruction on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons” (Instrukcija par aizdomās turamo, apsūdzēto, apcietināto un notiesāto turēšanas kārtību izmeklēšanas cietumos), approved by the Minister of the Interior on 30 April 1994 (“the Instruction”).

Rule 26 of the Instruction provided that detainees placed in investigation prisons were allowed to receive short-term visits upon approval from the authority conducting the criminal proceedings (that is, either from the investigating authorities or the court, depending on the stage reached in the proceedings).

Rule 32 of the Instruction stipulated that detainees placed in investigation prisons might be allowed to receive one short-term visit (up to one hour) per month from family members and other persons only with written permission from the person or body dealing with the particular criminal case.

In 2001 the penitentiary institutions were passed over from the supervision of the Ministry of the Interior to the Ministry of Justice. On 9 May 2001 the Minister of Justice issued an order enacting new regulations (“the Transitional Provisions”) – the “Transitional Provisions on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons” (Pārejas noteikumi par aizdomās turamo, apsūdzēto, apcietināto un notiesāto turēšanas kārtību izmeklēšanas cietumos). These regulations entered into force on 14 May 2001.

Rule 25 of the Transitional Provisions provided that detainees may be allowed to receive one short-term visit per month with written permission from the authority dealing with the particular criminal case.
The Transitional Provisions referred to the Regulations of Internal Order, adopted on 9 May 2001 by the Prison Administration, to establish that receiving food parcels was not allowed; the detainees were allowed to keep only a limited assortment of food products bought in a prison shop.

The relevant part of the Constitutional Court's judgment of 19 December 2001 in case no. 2001-05-03 on the compliance of the Transitional Provisions with Satversme (the Constitution) reads as follows:

“...The Constitutional Court established:

1. The Transitional Provisions have been enacted referring to section 15, paragraph 1, part 2 of the Law on Structure of the Cabinet of Ministers, under which [a member of the Cabinet of Ministers] may issue instructions that are binding for the subordinate institutions if the respective issue has not been regulated by law or Cabinet Regulations. [The order with which the Transitional Provisions were enacted] envisages that the personnel of the Prison Administration and the institutions subordinate to it shall become acquainted with the Transitional Provisions. Neither the Transitional Provisions nor the Regulations of Internal Order have not been made public.

Thus the Transitional Provisions and the Regulations of Internal Order are internal normative acts...

2. ... Regulation of the relations between the state and the imprisoned persons by internal normative acts is permissible only if the consequences of the above regulation are not unfavourable to the imprisoned persons.
...

6. ...By forbidding the detained persons to receive food parcels the Prison Administration, which is an executive institution, has groundlessly "broken into" the sector of legislation and violated Article 64 of the Satversme, which determines that the right of legislation shall belong to both the Saeima and to the People, within the procedure and extent provided for in the Satversme...

Thus, limitation of the fundamental rights of the imprisoned persons is permissible only by law or on the basis of the law.

....”

COMPLAINTS

The applicant complained under Article 5 § 3 of the Convention about the excessive length of his pre-trial detention and the proceedings against him. He also complained that he had not been able to have long-term family visits, including by his wife and newborn son, for more than two years.

The applicant complained, without invoking any Article of the Convention, that during his detention he had not received appropriate dental treatment and as a consequence many of his teeth had had to be extracted. The applicant could not eat properly and asked for dental prosthetics, which were refused.

Finally, the applicant complained under Article 6 § 1 of the Convention that he had been deprived of a fair trial.

THE LAW

The complaint covered by the unilateral declaration

The applicant complained about the length of his pre-trial detention. He relied on Article 5 § 3 of the Convention which, in so far as relevant, provides as follows:

“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. Release may be conditioned by guarantees to appear for trial.”

On 17 June 2009 the Government made the following unilateral declaration:

“The Government of the Republic of Latvia (hereinafter – the Government) represented by their Agent Inga Reine admit that the length of the pre-trial detention applied to Aivars Epners-Gefners (hereinafter – the applicant) did not meet the standards enshrined in [Article 5 § 3] 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 the above mentioned, the Government declare that they offer to pay the applicant compensation of [2,500] euros ([1,758 Latvian lati]), 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 Epners-Gefners v. Latvia (application no. 37862/02).

The Government undertake to pay the above compensation within three months from the date of notification of the decision/judgment taken 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 it, 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 shall constitute the final resolution with respect to the mentioned complaint.”

The applicant commented that he agreed to the unilateral declaration submitted by the Government.

The Court reiterates 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”.

In certain circumstances, the Court may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration submitted by a respondent Government. 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).

As to whether it would be appropriate to strike out the present application on the basis of the unilateral declaration submitted by the Government in so far as it relates to the complaint under Article 5 § 3 of the Convention, the Court points out that there is considerable case-law with respect to the respondent State as concerns the scope and the nature of its obligations arising under this Article (see, for example, Estrikh v. Latvia, no. 73819/01, §§ 113-120, 18 January 2007, and Lavents v. Latvia, no. 58442/00, §§ 70-71, 28 November 2002). 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)).

Moreover, in the 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).

The Court notes that this decision constitutes a final resolution of this part of the 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.

Accordingly, the case in relation to the complaint under Article 5 § 3 of the Convention should be struck out of the list.

Complaint under Article 3 of the Convention

The applicant complained of the domestic authorities' refusal to provide him with dental prosthetics, as well as a lack of proper dental treatment while he was being held in custody. The Court will examine this complaint under Article 3 of the Convention, which provides as follows:

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

The Government raised a preliminary objection of non-compliance with the six-month time-limit as prescribed in Article 35 § 1 of the Convention. They submitted that the final decision rejecting the applicant's complaint at domestic level was adopted on 12 February 2002, that is, more than six months before the complaint was lodged with the Court.

The Court reiterates, at the outset, that the object of the six-month time-limit is to promote legal certainty by ensuring that cases raising issues under the Convention are dealt with in a reasonable time, and past judgments are not continually open to challenge. Further, the rule also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see Worm v. Austria, 29 August 1997, § 32, Reports of Judgments and Decisions, 1997 V, and Keenan v. the United Kingdom, no. 27229/95, Commission decision of 22 May 1998).

The Court further reiterates that Article 35 § 1 of the Convention provides that the Court may only deal with a matter if it has been introduced within six months from date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to the applicant, the time-limit expires six months after the date of the acts or measures complained of, or after the date of knowledge of that act or its effect or prejudice on the applicant (see Younger v. the United Kingdom (dec.), no. 57420/00, ECHR 2003 I). This approach is especially appropriate in circumstances where it is clear from the outset that no effective remedy was available to the applicant in respect of the act or decision complained of within the relevant domestic law (see Keenan, cited above).

In the case of a continuing situation, meanwhile, the time-limit expires six months after the end of the situation concerned (see, among many other authorities, Agrotexim Hellas S.A. and Others v. Greece, no. 14807/89, Commission decision of 12 February 1992, Decisions and Reports 72, and, more recently, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 159 and seq., ECHR 2009 ...). Similarly, in respect of a complaint about the absence of a remedy for a continuing situation, the time-limit under Article 35 § 1 of the Convention also expires six months after the end of that situation – for example, when an applicant is released from custody (see Ječius v. Lithuania, no. 34578/97, § 44, ECHR 2000 IX).

The Court notes that the applicant complained to the Court shortly after 20 September 2002 when his conviction entered into force. The applicant's initial introduction of his complaints dates from 2 October 2002 and he subsequently submitted a completed application form on 21 November 2002.

The Court observes that, in the present case, the applicant complained of a continuing situation to which he had been subjected while in custody – the impossibility of acquiring dental prosthetics and thus proper dental treatment since the domestic law specified that costs for the type of medical care needed in the applicant's case were to be borne by the persons in custody themselves. The Prison Administration had informed him accordingly with a letter of 12 February 2002. The applicant continued to be affected, that is, barred from receiving medical assistance in the form of dental prosthetics, after 12 February 2002.

Therefore, on the date his complaint was introduced under Article 3 of the Convention the applicant continued to be affected by the restriction on receiving dental prosthetics and thus he introduced his complaint on time in accordance with Article 35 § 1 of the Convention.

Accordingly, the Court dismisses the Government's preliminary objection in that regard.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.

Complaint under Article 8 of the Convention

The applicant complained that he had not been able to have long-term family visits while being held in custody, in particular, by his wife and newborn son. The Court will examine this complaint under Article 8 of the Convention, which reads as follows:

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

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.”

The Government submitted that there had been no interference with the applicant's right to respect for private or family life since he never expressed his wish to exercise that right and thus considered this part of the application manifestly ill-founded. They submitted that under domestic law, in particular Article 32 of the Instruction (see paragraph 25 above) and Article 25 of the Transitional Provisions (see paragraph 27 above), short-term visits were allowed and that on two occasions the applicant had exercised his right to receive short-term visits from his wife. In relation to long-term visits, the Government did not quote or provide any legal ground that could serve as a basis for the applicant's request to exercise that right. Together with their written observations they submitted a letter signed by the State Secretary to the Ministry of Justice, where it was expressly stated that under domestic law detainees did not enjoy the right to receive long-term visits.

The Court finds that the scope of domestic law in respect of long-term visits is closely related to the merits of the applicant's complaint under Article 8 of the Convention. Hence, to avoid prejudging the merits of the case, the Court holds that this issue should be joined to the merits and reserved for consideration at a later stage. The Court concludes, therefore, that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.

Complaints under Article 6 § 1 of the Convention

The applicant complained about the length of the criminal proceedings against him. He also complained about the fairness of these criminal proceedings. He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:

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

With regard to the first part of the applicant's complaint, namely, the length of the criminal proceedings, the Government submitted that the proceedings had not been unreasonably long.

The Court observes that the criminal proceedings against the applicant lasted for two years, eleven months and twenty days at three levels of jurisdiction. The Court finds that, in the circumstances of the present case, such a period does not raise any issues under the Convention.

It follows that this part of the applicant's complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

With regard to the second part of the applicant's complaint, namely, the fairness of the criminal proceedings against him, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the applicant's complaint is manifestly ill-founded and must be rejected in 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 and 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 complaint under Article 5 § 3 of the Convention, in accordance with Article 37 § 1 (c) of the Convention;

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares admissible, without prejudging the merits, the applicant's complaints under Article 3 of the Convention and Article 8 of the Convention concerning long-term visits;

Declares inadmissible the remainder of the application.

Santiago Quesada Josep Casadevall
Registrar President