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Cite as: [2010] ECHR 2045
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THIRD SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
5032/02
by Aivars ZABLACKIS and Tatjana PIMČENKOVA
against
Latvia
The European Court of Human Rights (Third Section), sitting on 30 November 2010 as a Chamber composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Ineta
Ziemele,
Luis
López Guerra,
Ann
Power, judges,
and
Santiago Quesada, Registrar,
Having regard to the above application lodged on 21 January 2002,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Aivars Zablackis (the first applicant) and his wife Ms Tatjana Pimčenkova (the second applicant), are Latvian nationals who were born in 1950 and 1974 respectively and live in Rīga.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. Criminal proceedings against a police officer
On an unspecified date in 1999 the first applicant testified in criminal proceedings against police officer V.G. He had contacted the Organised Crime Enforcement Department (Organizētās noziedzības apkarošanas birojs) of the State Police with a view to reporting that police officers of the 7th section of the Economic Police of the Rīga City Police Department (Rīgas pilsētas Galvenās policijas pārvaldes Ekonomikas policijas 7. nodaļa) (7th police section) had attempted to extort a bribe from him. The attempt appears to have taken place over a period of time while the first applicant was working as a floor manager in a casino. On 14 May 1999 the first-instance court convicted V.G. of bribery and sentenced him to three years’ imprisonment. The police officer appealed. However, following his death from a tumour while in prison, these criminal proceedings were terminated on 26 October 1999. Another police officer of the 7th police section, B.M., was initially arrested in connection with these criminal proceedings, but was later released and not convicted.
B. Criminal inquiries that relate to the first applicant
It appears that on 29 June 1999 a criminal inquiry (the first inquiry) was opened into allegations of organised gambling without the appropriate permit in the period between 1 January 1998 and 29 June 1999; the first applicant was one of three suspected as the founder of a company whose activities were under investigation. During this inquiry the applicants’ home, the second applicant’s registered domicile and the business premises of the first applicant were searched and some of the applicants’ property was seized. In particular, at about 11 p.m. on 29 June 1999 allegedly fifteen plain clothes officers of the 7th police section, including B.M, entered the applicants’ home, where the second applicant was present at the time with her two young children, and carried out the search in a brutal and disrespectful manner. It appears that two neighbours were invited as witnesses to the search but they were not asked to sign the record of the search. The police officers were carrying guns in their hands and had a trained dog with them. The second applicant was pregnant at the time (10-11 weeks) and felt fear and anguish. She submitted that officer B.M. had threatened to use force on her but that he was prevented from doing so by his older colleague. According to her, she suffered from spasms that night and an ambulance was called at about 1.40 a.m. It arrived at about 2 or 3 a.m. The police officers did not allow her to go to hospital until the search was finished, at about 5 a.m. She also submitted that during this search her earrings were taken.
During a further search on 17 July 1999 two paintings belonging to the applicants were seized. During another search on 1 September 1999 unspecified property belonging to the applicants was again seized.
On 1 September 1999 the first applicant was detained in connection with the first criminal inquiry. A court order was issued the next day. On 10 September 1999 a security measure applied in respect of the first applicant was changed to police supervision and his release was ordered but he remained in detention on the ground of the detention order issued for the purposes of the second criminal inquiry (see paragraph 7 below). Following the first applicant’s complaint, on 21 December 2001 a supervising prosecutor lifted the security measure of police supervision, which had been effective until that day. It appears that on 17 June 2004 the first criminal inquiry was terminated for lack of crime.
On 10 September 1999 a criminal inquiry (the second inquiry) was opened into allegations of appropriation of funds. On the same date the first applicant was detained on suspicion in that regard. He appears to have been released on 27 September 1999. This inquiry was terminated on 28 April 2000 for lack of crime.
On 10 May 2000 a criminal inquiry (the third inquiry) was opened into allegations of fraud. This inquiry was terminated on 21 May 2001.
It appears that on 18 October 2001 the applicant was taken in by the police for questioning in connection with another set of criminal proceedings that related to an ongoing investigation into the murder of a prominent judge. The first applicant submitted that police officers had used force on him and attempted to extort false statements.
On 31 October 2001 a criminal inquiry (the fourth inquiry) was opened into defamation of an official with regard to the first applicant’s statements about the deceased judge. On 25 September 2002 a court terminated this criminal inquiry referring to section 58 of the Criminal Law, releasing the first applicant from criminal liability. On 30 July 2003 an appellate court quashed that decision following a prosecutor’s protest. The appellate court’s decision was final. There is no further information in the case file about this criminal inquiry.
On 22 March 2002 the first applicant attempted to cross the State border for a business trip to Germany on a private bus, while still under the security measure of police control imposed on him for the purposes of the fourth criminal inquiry. According to him he had rented the bus not only for business purposes but also for his son’s school choir tour in Germany. Forty-six pupils were on that bus altogether. The bus was stopped at the border and the first applicant was ordered to get off the bus because the police were looking for him. Allegedly, he was then subjected to a full body search by state border guards, including one female officer. Eventually, the bus left with the pupils for their destination in Germany without the first applicant on board.
C. The second applicant’s state of health during and following the events of 29-30 June 1999 and review of the complaints
The second applicant submitted that an ambulance doctor who was called to her aid during the night of the search (see paragraph 4 above), had recommended that she be taken to hospital but that she had been prevented from going by the police officers until the search was finished.
On 30 June 1999 at an unspecified time the second applicant was admitted to hospital where she remained until 21 July 1999. Her hospital record notes that at the time of her admission she was complaining of bleeding, and pains in her stomach and head that had started during the night after a stressful situation. A course of therapy was started in an attempt to save the child but it was unsuccessful. The second applicant had a miscarriage with complications. Upon her release from hospital, anti-inflammatory treatment was prescribed.
The second applicant’s condition was further monitored by a gynaecologist. The doctor diagnosed her patient as having had a spontaneous abortion with inflammation. She had also suffered panic attacks. The second applicant remained on sick leave until October 1999.
The applicants addressed several authorities with a view to investigating the lawfulness and necessity of the search of 29-30 June 1999.
On 29 July 1999 the prosecutor’s office investigating financial and economic crime (Finansu un ekonomisko noziegumu izmeklēšanas prokuratūra) replied that no criminal activity on the part of the police officers who performed the search had been found. It was noted that the State had suffered significant damage as a result of the criminal activities and thus the search had been urgent and necessary and authorised by a prosecutor. The search had been carried out with a view to finding and seizing the crime-related documents and objects as well as objects that required a special permit for their storage. The applicants contend that the latter was not mentioned in the search warrant.
On 28 September 1999 a decision refusing to open criminal proceedings into the events of 29-30 June 1999 was adopted following an internal investigation. The decision was adopted by the Investigative Unit (Izziņas pārvalde) of the Rīga City Police Department. They noted that the search had been carried out with a view to finding and seizing the crime-related documents and objects. They found that the search had been carried out in breach of certain rules of criminal procedure (the record of the search had not contained all the relevant details, it had not been signed by all the relevant persons that had participated in the search, and it contained information that was not necessary for security purposes) but that overall the search had been carried out in accordance with law and in the presence of witnesses. The decision also included a reference to a forensic gynaecological report no. 30-k which had concluded that the second applicant’s miscarriage had not been directly caused by the search. Finally, it was noted that the police officers denied that they had taken the second applicant’s earrings during the search. Accordingly, no crime (exceeding official authority) was established.
On 7 December 1999 the second applicant lodged a complaint against this decision with a supervising prosecutor. She had never been invited to undergo a forensic examination and she did not agree with the conclusion reached in report no.30-k. She submitted her medical records to substantiate her complaint. She considered that official authority had been exceeded.
On 28 December 1999 the prosecutor’s office attached to the Rīga Regional Court replied that the decision refusing to open criminal proceedings had been adopted in accordance with law. It was explained that the forensic examination had been carried out on the basis of the second applicant’s medical records. Experts had concluded that the miscarriage had not been a direct causal consequence of the search. The reply also stated that: “A psycho-traumatic situation can be an aggravating factor for triggering a miscarriage”. They concluded that the decision had been substantiated and lawful.
On 24 August 2000 the second applicant lodged a complaint against this reply with a superior prosecutor. She expressed her disagreement with report no. 30-k on the grounds of the following. Firstly, during this forensic examination no records from the ambulance had been requested. According to the second applicant, on 30 June 1999 an ambulance doctor had noted a reaction to the situation after officer B.M. and his colleagues had threatened to punch her and her children. Secondly, the examination had been carried out before the second applicant’s course of therapy finished on 30 October 1999. Thus, the experts had not had at their disposal her full medical history. Thirdly, the experts had not examined the results of an ultrasound carried out on 18 June 1999, that is (to say), a few days before the events under investigation, which showed a normal course of pregnancy with no complications. Finally, she requested that a new forensic examination be carried out and that criminal proceedings for exceeding official authority be opened into the threats she had received on the night of the search.
On 6 December 2000 a new decision refusing to open criminal proceedings into the events of 29-30 June 1999 was given by a prosecutor, who held that the search had been lawful and necessary. It appears from that decision that another forensic examination had been carried out and that according to report no. 53-k her pregnancy had terminated on 7 July 1999 and had not been a direct consequence of the events under investigation. Thus, following a repeat investigation, no crime (exceeding official authority) had been established; the search had been authorised by a prosecutor and, accordingly, the police officers had had authority to carry it out. There was no evidence that the police officers had threatened the second applicant.
On 1 February 2002 a supervising prosecutor of the General Prosecutor’s Office replied to the second applicant stating that the decision of 6 December 2000 had been substantiated and lawful. He explained that experts commissioned for the forensic medical examination had taken into account her medical history (a miscarriage in 1998) and her specific medical conditions. Again, no evidence of having exceeded official authority or of having issued threats on the part of the police officers was found.
On 27 February 2002 a superior prosecutor replied that the decisions of 28 September 1999 and 6 December 2002 had been lawful and that there were no grounds to overturn them or to open criminal proceedings. He considered that the second applicant’s allegation that the search had been carried out in revenge for V.G.’s conviction did not hold true. He noted that even though some procedural rules had not been complied with during the search (the record of the search had been incorrectly prepared since there was no mention of the start time, not all persons that had participated or been present had been listed and signed the record, the presence of dogs had not been noted and the second applicant’s obstruction had also not been noted) it had been lawful. The prosecutor pointed out that the question of a causal link had been explained to her in previous letters on the basis of two forensic reports and results of a review. The prosecutor also explained that the first criminal inquiry had been opened in accordance with law. The fact that it had later been terminated could not in itself signify that it had been opened unlawfully.
On 27 March 2002 another prosecutor found, in reply to the second applicant’s complaint, that the first criminal inquiry had been opened in accordance with law. The prosecutor did find, however, that the investigation for that inquiry had lasted an unreasonably long period of time. A working group to expedite the investigation was established. He also noted that it had been repeatedly explained to the second applicant that in order to regain possession of the items seized during the searches she should address the investigators.
COMPLAINTS
In their first letter to the Court, posted on 21 January 2002, both applicants complained in a general manner about the consequences of the first applicant’s testimony in the criminal proceedings against V.B. They submitted that several false criminal inquiries had been opened in respect of the first applicant and that as a result the first applicant’s business had suffered and the applicants and their family had been exposed to constant stress, fear and depression. In particular, they complained under Articles 3, 8 and 13 of the Convention that the search of 29-30 June 1999 had been unlawful and carried out with disregard for the interests of their children. They further complained that the second applicant had had a miscarriage as a result of the manner in which the search had been carried out. The first applicant also relied on Article 5 § 1 (c) of the Convention in a complaint about his detention between 1 and 27 September 1999.
On 27 June 2002 in his further correspondence with the Court the first applicant maintained his previous complaints and submitted several new complaints. In particular, he alleged that the search of 17 July 1999 had been unlawful and that his paintings had been seized without a court order. He also complained about his detention on 18 October 2001. He further submitted that his detention on 22 March 2002 had been unlawful and that he had been subjected to a full body search in the presence of a female officer. He relied on Articles 1, 3, 4, 5, 8 and 13 of the Convention in that regard.
On 27 July 2002 in her further correspondence with the Court the second applicant maintained her previous complaints and elaborated on them. She relied on Articles 1, 6, 8 and 13 of the Convention in that regard.
On 5 September 2002 the first applicant submitted a complaint under Article 8 of the Convention that he had been mentioned in the public media in relation to the criminal proceedings about the judge’s murder and that on 18 October 2001 he had been beaten up by police officers. He further complained that the fourth criminal inquiry had been fabricated.
In subsequent correspondence the first applicant continued to inform the Court about other events and criminal inquiries, but he did not elaborate any Convention complaints in that regard.
THE LAW
A. Legality of the search of 29-30 June 1999
The applicants’ complained about the legality of the search of their home on 29-30 June 1999 and that the search had disregarded the interests of their children. 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 Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
B. The miscarriage
The applicants complained that the second applicant had suffered a miscarriage owing to the manner in which the search was carried out. The Court will examine this complaint under Articles 3 and 8 of the Convention, which read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 8
“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 Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
C. Other complaints
The applicants further complained under various Articles of the Convention of numerous violations of their Convention rights.
However, 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 application 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
Decides to adjourn the examination of the applicants’ complaint concerning the legality of the search of 29-30 June 1999, its disregard for the interests of their children and the miscarriage of a child under Article 8, and the second applicant’s complaint concerning the miscarriage under Article 3 of the Convention;
Declares the remainder of the application inadmissible.
Santiago Quesada Josep Casadevall Registrar President
