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LIGERES v. LATVIA - 17/02 [2011] ECHR 1052 (28 June 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1052.html
Cite as:
[2011] ECHR 1052
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FORMER
THIRD SECTION
CASE OF
LIĢERES v. LATVIA
(Application
no. 17/02)
JUDGMENT
STRASBOURG
28 June
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Liģeres v. Latvia,
The
European Court of Human Rights (Former Third Section), sitting as a
Chamber composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Ann
Power, judges,
and
Marialena Tsirli, Deputy
Section Registrar,
Having
deliberated in private on 31 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 17/02) against the Republic of
Latvia lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Latvian nationals, Mrs Valija Liģere
(“the first applicant”) and her daughter Ms Inta Liģere
(“the second applicant”), on 10 December 2001.
The
applicants, who had been granted legal aid, were represented by Mr L.
Liepa, a lawyer practising in Rīga. The Latvian Government (“the
Government”) were represented by their Agent, Mrs I. Reine.
The
applicants alleged, in particular, that the criminal proceedings in
which they were joined as civil parties and the ensuing civil
proceedings had been unreasonably long. They also complained that
there had been no effective domestic remedies in that regard.
On
23 June 2006 the President of the former Third Section decided to
give notice of the application to the Government. It was also decided
to rule on the admissibility and merits of the application at the
same time.
On
1 February 2011 the Court changed the composition of its Sections
(Rule 25 § 1). However, this case was retained by the former
Third Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1957 and 1986 respectively and live in Rīga.
A. Events giving rise to the applicants’ claim
for damages
On
3 December 1994 the second applicant, who at the time was eight years
old, was hit by a car driven under the influence of alcohol by P.S.
(“the driver”), an employee of a limited liability
company (“the company”). As a result the second applicant
sustained serious bodily injuries: abdominal bruising with abdominal
haemorrhage, rupture of the small and large intestine and liver, lung
contusion, bruising and fracture of both thighs, and serious shock.
She underwent numerous operations. Another person died as a result of
the incident.
B. Criminal proceedings against the driver, which the
company joined as a civil respondent
On
14 December 1994 criminal proceedings were opened in relation to the
incident. On 4 January 1995 the first applicant was joined as a
civil party (civilprasītājs)
and on 20 June 1995 the company was joined as a civil respondent
(civilatbildētājs) in
those criminal proceedings. On 29 June 1995 a final charge was
brought against the driver in relation to the incident.
On 19 July 1995 the first applicant, in her capacity as legal
guardian of her minor daughter, the second applicant in the present
case, submitted a civil claim in the amount of 5,968.13 Latvian lati
(LVL) within the criminal proceedings to the Rīga
City Centre District Court (Rīgas
Centra rajona tiesa). Her civil claim consisted of the
following items: LVL 63.90 for services in hospital, LVL 42.25 for
rehabilitation in a sanatorium, LVL 472.50 for additional
products, LVL 53 for damaged clothing, LVL 17.50 for damaged
clothing during recovery, LVL 20 for consultations and visits to
doctor, LVL 358.98 for transport and LVL 3,500 for disfigurement
(sakropļojums).
On
30 September 1996 the driver’s trial began at the Rīga
City Centre District Court. During that hearing the court heard
statements from the driver, the company managing director, an
indirect witness and the first applicant, who maintained her claim
for compensation. As three witnesses to the incident failed to appear
the hearing was adjourned. The district court requested that local
police forcibly convey (piespiedu atvešana) the
witnesses to the next hearing.
The
next hearing was held on 14 October 1996 and only one witness was
present. On that date the district court adjourned the hearing at the
parties’ request, as counsel for the first applicant could not
attend the hearing and had notified the court in advance.
The
next hearing was held on 4 June 1997 and two of witnesses were
forcibly conveyed, but counsel for the company was absent. The
district court adjourned the hearing and noted in its decision that
all witnesses not attending should be forcibly conveyed, and that
counsel for the company should attend.
On
3 December 1997, when the next hearing was held, the driver, counsel
for the company and all the witnesses failed to appear.
The
next hearing was held on 16 March 1998 and the driver and counsel for
the company were absent. The district court adjourned the hearing
once more and remanded the driver in custody. The first applicant was
present during all the above-mentioned hearings. The second applicant
was present during all the hearings except that which took place on
3 December 1997.
On
8 October 1998, following a hearing held on the same date in the
absence of counsel for the company, the driver was convicted and
sentenced to three years’ imprisonment, suspended. The
conviction was based on his confession, the testimony of the second
applicant, her brother, one witness and forensic evidence. The
district court did not examine the applicants’ claim for
damages. In that regard it ruled as follows:
“[The first applicant] has submitted a civil claim
in the amount of LVL 5,968.13, which consists of LVL 63.90 for
services in hospital, LVL 42.25 for rehabilitation in a sanatorium,
LVL 472.50 for additional products, LVL 53 for damaged clothing,
LVL 17.50 for damaged clothing during recovery, LVL 20 for
consultations and visits to a doctor, LVL 358.98 for transport and
LVL 3,500 for disfigurement.
As it is not possible to make a detailed calculation of
the civil claim, this issue would have to be determined by the civil
courts.
Having evaluated the evidence the court, in accordance
with section 307 of the Code of Criminal Procedure, leaves the civil
claim unexamined.”
On 23 October 1998, upon the applicants’ appeal,
the case was forwarded for examination to the Rīga Regional
Court (Rīgas apgabaltiesa). In her appeal the first
applicant contented that she had specified the incurred damage and
had submitted documents to prove that. On 27 April 1999 the court
adjourned the hearing due to the absence of counsel for the company.
During this hearing the driver requested a lawyer, because the lawyer
who had represented him up to that point was not present. On 18 April
2000 the court adjourned the hearing because the driver had requested
that a lawyer be appointed. The first applicant was present at all
these hearings.
Finally, on 9 May 2000 the regional court upheld the
district court’s judgment refusing to examine the applicants’
claim for damages. The first applicant testified before the appellate
court that she had specified all sums of the damage and that they
were correct. She had given all the documents to her counsel, who had
prepared the civil claim, which she had signed later. She admitted
that a mistake in calculating the overall sum might have been made,
but all the heads of damage were correct in themselves. The regional
court noted the difference between the total amount of the civil
claim as requested (LVL 5,968.13) and the actual sum of all damage
claimed as enumerated (LVL 4,528.13). No particular expenses had
been specified for the difference between those sums (LVL 1,400). The
Court noted the following:
“For these sums no documents justifying damage
have been submitted (such documents might not exist for damaged
clothing and [as regards] compensation for disfigurement).
It can be seen that the following documents are present
in the case file:
signature
and application for transport in the amount of LVL 250 (in the civil
claim a sum of LVL 358.98 is mentioned);
extract
certifying that [the first applicant] had bought the necessary
material for the operation in the amount of LVL 13 (but a sum of LVL
63.90 is noted in the civil claim);
receipt
for lawyer’s services in the amounts of LVL 50 and LVL 40, but
these expenses have not been noted in the civil claim at all.”
For
these reasons, the regional court concluded that it was not possible
to make a detailed calculation of the civil claim, as rightly found
by the first-instance court. Finally, the claim was left unexamined,
with a note that the civil party had the opportunity to initiate
proceedings before the civil courts. The regional court’s
decision took effect on 20 May 2000, as none of the parties had
appealed on points of law.
C. The first set of civil proceedings against the
company
On
9 May 2001 the first applicant, in her capacity as the second
applicant’s legal guardian, lodged a civil claim against the
company with the Rīga Regional Court. They submitted that the
driver had been unlawfully employed as he was not capable of
performing such duties because of his state of health at the material
time. They claimed LVL 33,000 for medical expenses and damages
for the injuries, disfigurement and psychological suffering of the
second applicant caused by the incident and its consequences. In
order to assess the second applicant’s state of health
objectively, they requested that a medical and psychiatric expert
report be commissioned and that a public prosecutor participate in
the hearings. It was noted that the first applicant had attempted to
reach a friendly settlement with the company for LVL 10,000, in vain.
According to the applicants, in view of the company’s and the
(criminal) court’s unwillingness to act in the interests of a
child and in view of the protracted criminal proceedings, they had
suffered additional pecuniary and non-pecuniary damage. No invoices
or other documents that would prove the incurred expenses were added
to this claim.
The
Rīga Regional Court adjourned the hearing twice, first on
10 July 2001, due to the illness of counsel for the company, and
second on 24 September 2001, to enable the judge to examine
additional case materials that had been submitted by parties. On
5 October 2001 the applicants asked the court to request another
expert report, on the second applicant’s medical care. They
also asked that other witnesses be called – an expert and the
second applicant’s doctor.
On
10 December 2001 the Rīga Regional Court examined the civil
case. The applicants’ representative testified before the
regional court that they have not retained the evidence about medical
expenses; they only had two invoices dating from August 2001 for
LVL 13.85. The regional court upheld the applicants’ claim
in part and awarded them LVL 5,013.85, to be paid by the
company. This amount consisted of LVL 13.85 for medical expenses
and LVL 5,000 as compensation for bodily injuries.
The
applicants appealed against that judgment and noted that the awarded
sum was disproportionately low and maintained their civil claim in
full. They did not complain about the lower court’s refusal to
commission expert reports or to summon two witnesses.
On
23 May 2002 the Civil Chamber of the Supreme Court (Augstākās
tiesas Civillietu tiesu palāta) upheld the
applicants’ claim in part and awarded them LVL 10,013.85, to be
paid by the company. The chamber increased the non-pecuniary
compensation from LVL 5,000 to LVL 10,000 as the second applicant’s
injuries were not only bodily injuries but had amounted to
disfigurement of her body. The applicants submitted an appeal on
points of law against that judgment and required that the total
amount of compensation be increased to at least LVL 20,000. An
appeal on points of law was also submitted by the company.
On
9 August 2002 the Civil Department of the Senate of the Supreme Court
(Augstākās tiesas Senāta
Civillietu departaments) dismissed the applicants’
appeal on points of law and on 13 September 2001 it dismissed the
company’s appeal on points of law.
D. Enforcement of the 23 May 2002 judgment
On
29 August 2002 the first applicant submitted a writ of execution to a
bailiff. The writ contained an incorrect reference to the company’s
registration number. Therefore, on 29 October 2002 a new writ was
issued. Two days later the first applicant submitted it to the
bailiff.
On
two subsequent occasions, a month apart, on 17 September and 17
October 2002, the Civil Chamber of the Supreme Court rejected the
company’s application to pay damages in instalments.
Between
26 November 2002 and 30 April 2003 the first applicant received the
whole debt in four instalments.
E. Complaints about the enforcement of the 23 May 2002
judgment
Between 19 September and 17 December 2002 the first
applicant contacted the bailiff on three occasions with a view to
enquiring about the execution of the judgment. The bailiff responded
to her letters and informed about progress achieved in the
enforcement.
On
20 March 2003 the first applicant complained to a prosecutor that the
company, contrary to the decisions of the Civil Chamber of the
Supreme Court, were paying damages in instalments. The prosecutor
replied that the company had not acted illegally, as it had paid the
whole amount, LVL 10,013.85.
On
4 June 2003 a superior prosecutor reviewed her further complaint. He
noted that in accordance with the Law on Civil Procedure a bailiff
had to submit an application to initiate administrative or criminal
proceedings if a debtor had provided false information. Having
reviewed the case material, that prosecutor found that the company
had paid almost every month since September 2002 and therefore they
had not deliberately obstructed the enforcement procedure.
F. Second set of civil proceedings against the company
On
19 August 2003 the first applicant lodged another civil claim against
the company with the Rīga City Ziemeļu District Court
(Rīgas pilsētas Ziemeļu rajona tiesa). She
submitted that a private person had granted her a loan over a period
of four years so that she could ensure proper care for her daughter,
the second applicant in the present case. The loan had to be repaid
by 31 December 2002. She did not have enough financial resources
to do so and thus she was also liable to pay a contractual penalty
for any delay. She claimed that the company was liable for her debt
as it had not paid her damages immediately after they were awarded in
the first set of civil proceedings against the company.
On
15 October 2003 the Rīga City Ziemeļu District Court found
against the first applicant. That court refused her request for three
witnesses to be summoned who could have confirmed the existence of
the loan agreement, as it was not disputed by the parties. She
appealed against that judgment. She required the appellate court to
question three witnesses, whom she would invite herself.
On
13 April 2005 the Rīga Regional Court examined the case and
upheld the lower court’s judgment. During the hearing, the
first applicant’s representative did not request any witnesses
to be summoned.
On
1 August 2005 the Supreme Court dismissed the first
applicant’s appeal on points of law.
G. Civil proceedings on child support payments
On
25 January 2002 the first applicant lodged a civil claim for child
support payments against the mother of her ex-husband (“the
respondent”) for her three children, including the second
applicant.
On
17 May 2002 the Rīga City Vidzeme District Court (Rīgas
pilsētas Vidzemes priekšpilsētas tiesa),
composed of a single judge, S.B., examined the case and decided in
favour of the first applicant. The first applicant was present at the
hearing. The respondent appealed against the judgment. Her appeal was
transmitted to the Rīga Regional Court in a letter dated 23 July
2002, and the first applicant was invited to submit her observations
in reply by 23 August 2002. On 2 October 2002 the Rīga
Regional Court quashed the judgment and found in favour of the
respondent; the first applicant was present at the hearing.
On 19 February 2003 the Senate of the Supreme Court, on an
appeal by the first applicant on points of law, upheld the judgment
of the appellate court.
On
15 August 2002 the first applicant submitted an appeal to the Rīga
City Vidzeme District Court against the 17 May 2002 judgment,
together with a request for an extension of the time-limit for her
appeal. Judge B.T. registered her appeal. Her request for an
extension of the time-limit was not put before a judge for decision
in timely fashion. On 25 October 2002 the first applicant
complained to the Rīga City Vidzeme District Court about it.
That court then sent her a letter dated 4 November 2002, to the
effect that a hearing on the matter would take place on the next day
and that she had been notified of it. On 5 November 2002 Judge
B.T., holding a hearing at which the first applicant was present,
decided not to allow her appeal against the 17 May 2002 judgement, on
the ground that she had been present at the hearing on 17 May, when
the judgment was delivered, read out in full and the appeals
procedure against it explained.
On
14 November 2002 the first applicant submitted an ancillary complaint
about the decision of 5 November 2002 and contended that at the
hearing of 17 May 2002 Judge S.B. had read out only the
operative part and had stated that the full judgment would be
available twenty days later. She also noted that on 7 June 2002, when
she had gone to the court, the full judgment had not yet been
available.
On
18 December 2002 the Rīga Regional Court upheld the decision of
5 November 2002, on the ground that she had been present at the 17
May 2002 hearing, and that the procedure for appeal had been
explained and the date determined when the full judgment would be
available. It referred to the case file, which contained the
information that the judgment had been sent to the other party on 22
May 2002 and thus rejected the first applicant’s argument that
on 7 June 2002 the full judgment had not yet been ready. The court
noted that there were no grounds to extend the time-limit, even
assuming that on 7 June 2002 the full judgment had not yet been
ready, as she had not inquired about it thereafter and had waited to
receive it by ordinary mail on 26 July 2002.
II. RELEVANT DOMESTIC LAW
A. Code of Criminal Procedure
According to section 101 of the former Code of
Criminal Procedure (Latvijas Kriminālprocesa kodekss),
in force until 1 October 2005, a civil claim could be submitted
by an individual who had suffered damage as a result of crime. A
civil claim could be submitted when criminal proceedings had been
opened, during the preliminary investigation and to the court prior
to the court’s investigation. It could be brought against an
accused or a person materially liable for the acts of the accused.
Section 307 read as follows:
“Upon delivery of a convicting judgment the court
shall satisfy the civil claim fully or in part, or dismiss it,
depending on whether or not the basis and the amount of the civil
claim have been proved.
In exceptional circumstances, when it is not possible to
perform a detailed calculation of the civil claim without adjourning
the proceedings or without additional documents, the court in a
convicting judgment may recognise the victim’s right to receive
redress for his/her claim and forward the claim for determination of
its amount in civil proceedings.”
Under
section 308, paragraph 2 if a civil claim in the criminal proceedings
had been left unexamined, the victim had a right to lodge the claim
in civil proceedings.
Pursuant
to section 241, adjudication of a case in a hearing was to be
commenced within twenty days (in exceptional cases within a month) of
the date the case is received at the court. A case could only be
adjudicated in the absence of the accused if he was not in the
country’s territory and was evading proceedings (section 247).
Finally, under section 253 a case could be adjudicated in the absence
of a civil respondent.
B. Law of Civil Procedure
According
to section 7, paragraph 1 of the Law of Civil Procedure (Civilprocesa
likums), in force since 1 March 1999, claims for pecuniary
or non-pecuniary damages in criminal matters can be brought before
civil courts if they have not been submitted or adjudicated within
criminal proceedings. Under section 96, paragraph 3 a judgment
adopted in criminal proceedings is binding in civil proceedings to
the extent that it concerns the crime perpetrated and the liability
of the perpetrator.
Pursuant
to section 204, a judgment is executed upon its entry into force,
except in cases where it is to be executed without delay. Under
section 205, paragraph 1, part 4 the court can, at the request of one
of the parties, order that a judgment be executed without delay in
cases concerning compensation for disfigurement or other injury to
health. Such a decision must be expressly contained in the writ of
execution (section 538). In accordance with section 541, the court
draws up a writ of execution after the judgment’s entry into
force; in cases of immediate execution this must be done immediately
after delivery of the judgment. It further provides that a court
issues the writ of execution to the creditor upon request. Under
section 556 the enforcement procedure is commenced following a
ten-day period for voluntary execution.
Under
section 632, paragraph 1, a bailiff’s actions concerning
enforcement can be appealed against by submitting an application to a
district (city) court within ten days of the impugned actions.
With regard to trial, section 10 provides that parties
exercise their procedural rights in adversarial proceedings,
including by providing explanations, submitting evidence, and
questioning witnesses and experts. Under the rules of evidence
contained in section 94 the court allows only relevant evidence.
Under section 199 a judge delivers the judgement in a courtroom,
reads it out and explains its contents, the procedure and the
time-limits for appeal. Under section 208 a copy of the judgment is
sent to the absent party.
With regard to appellate proceedings, under section
415 an appeal must be submitted to the first-instance court within
twenty days of the delivery of its judgment. After checking that the
appeal complies with all requirements, a judge of the first-instance
court informs the other party without delay and sets a time-limit for
their observations in reply. After expiry of the time-limit for
appeal, the judge sends the case materials, together with any appeal,
to the appellate court without delay (section 422). Under sections
423-242 the other party has a right to submit their observations or
counter-appeal (pretapelācijas sūdzība)
directly to the appellate court within thirty days of receiving an
appeal submitted by the first party.
C. Law on Bailiffs
Under
section 15 of the Law on Bailiffs (Tiesu izpildītāju
likums), in force since 1 January 2003, sworn bailiffs bear
disciplinary, civil and criminal liability for their activities.
In
particular, sworn bailiffs are under an obligation to insure
themselves against possible risk of loss related to their
professional activities (section 33). Any damage caused by a sworn
bailiff’s activities performed while fulfilling his official
duties, irrespective of disciplinary or criminal liability, should be
covered by an insurance policy (section 39). Claims for losses shall
be brought to the regional court under whose supervision the sworn
bailiff is.
With
regard to disciplinary liability, sections 53 and 54 provide that the
Latvian Council of Sworn Bailiffs and the Minister of Justice can
initiate disciplinary proceedings against a bailiff. They can do so,
inter alia, upon a complaint received from an individual.
D. Other relevant laws
The relevant sections of the Civil Law, which was
adopted on 28 January 1937, as in force at the material time,
read as follows:
Section 1635
“Every wrongful act as such shall give the
person who has suffered damage the right to claim compensation from
the wrongdoer, in so far as he or she may be held culpable of such an
act.
Note: The term act is used here within the widest
meaning, including not only acts, but also failure to act, that is,
inaction.”
Section 1775
“All damage that is not incidental shall be
compensated for.”
Section 1779
“Everyone shall have a duty to compensate for
damage he or she has caused through his or her acts or failure to
act.”
Under
section 1 of the Law on Disciplinary Responsibility of Judges a judge
may be subject, inter alia, to disciplinary responsibility for
intentional violation of the law during the adjudication of a case,
failure to perform his or her duties of employment, dishonourable
actions and administrative violations.
In accordance with section 13, paragraphs 5 and 6 of
the Law on the Judiciary a judge shall not be financially liable for
damage incurred by a person who participates in a case, as a result
of an unlawful or unfounded judgment of a court. In cases provided
for by law, damages shall be paid by the State. A person who
considers that a judgment of a court is unlawful or unfounded may
appeal against it in accordance with the procedures provided by law,
but may not make a claim in court against the judge who has
adjudicated the matter.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF LENGTH OF PROCEEDINGS
The
applicants complained under Article 6 § 1 of the Convention that
the domestic proceedings where their damage claim was adjudicated was
unreasonably long. Article 6 § 1 in its relevant part
provides:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal ...”
A. Admissibility
The
Government submitted observations in relation to the criminal
proceedings against the driver and the first set of civil proceedings
against the company separately. They argued that the complaint about
the criminal proceedings, which were terminated on 9 May 2000 when
the Rīga Regional Court delivered its judgment, was submitted
outside the six-month time-limit. In the alternative, they argued
that this complaint was manifestly ill-founded. The complaint about
the civil proceedings, they maintained, was also manifestly
ill-founded.
The
applicants disagreed. They maintained that the criminal proceedings
against the driver and the first set of civil proceedings against the
company were to be regarded as one. They argued that outcome of the
criminal proceedings was decisive for their civil claim on two
accounts. Firstly, the applicants could not submit their claim in the
civil courts before the trial in the criminal court ended, as there
was a possibility that the criminal court (the Rīga
Regional Court) would satisfy their
civil claim. Secondly, they considered that the conviction of a
perpetrator was a prerequisite for a successful claim in the civil
courts. Accordingly, their complaint had been introduced in time.
The
Court reiterates that the right to institute criminal proceedings and
to secure the conviction of a third party is not a right which is
included among the rights and freedoms guaranteed by the Convention
(see Perez v. France [GC], no. 47287/99, § 70, ECHR
2004 I, and, more recently, Gorou v. Greece (no.
2) [GC], no. 12686/03, § 24, ECHR
2009 ...). Article 6 § 1 may nevertheless apply to
those proceedings where the civil limb remains so closely linked to
the criminal limb that the outcome of the criminal proceedings may be
decisive for civil claims (see, for example, Calvelli and Ciglio
v. Italy [GC], no. 32967/96, § 62, ECHR 2002 I,
and Codarcea v. Romania,
no. 31675/04, § 82, 2 June 2009).
Turning
to the facts of the present case, the Court notes at the outset that
the applicants lodged their civil claim against the company in the
course of criminal proceedings and sought compensation for injuries
inflicted on the second applicant, which was the subject of the
criminal trial. When the criminal court left their claim unexamined,
a decision, which under domestic law could be adopted only in
exceptional circumstances (see paragraph 40 above), it advised the
applicants to address their claim to the civil courts. The Court is
thus satisfied that the criminal proceedings were decisive for the
applicants’ civil right to claim compensation (contrast Plotiņa
v. Latvia (dec.), no. 16825/02, 3 June 2008; and Blūmberga
v. Latvia, no. 70930/01, § 68, 14 October
2008) and accordingly they fall within the ambit of Article 6 of the
Convention. Both sets of proceedings were closely linked and the
Court therefore considers that it would be inappropriate to separate
them and to assess their length in isolation (see Torri v. Italy,
1 July 1997, §§ 20 and 21, Reports of Judgments and
Decisions 1997 IV).
In
view of the above considerations, the Court considers that this
complaint was introduced within the six-month time-limit. It follows
that the Government’s objection in this regard must be
rejected.
The
Court considers that the applicant’s complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention, nor inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The period to be taken into consideration
The
Government argued that the length of the criminal and civil
proceedings had to be calculated separately. In any event, as regards
the criminal proceedings, the relevant period began on 27 June 1997,
when the Convention entered into force in respect of Latvia.
The
applicants maintained that both proceedings were to be regarded as
one and that a period of five years, one month and thirteen days
came within the Court’s temporal jurisdiction.
The
Court considers that the period to be taken into consideration did
not begin when the first and second applicants were joined in the
criminal proceedings, but only on 27 June 1997, when the Convention
entered into force in respect of Latvia. However, in assessing the
reasonableness of the time which had elapsed after that date, account
must be taken of the state of proceedings at the time (see Lavents
v. Latvia, no. 58442/00, § 86, 28 November 2002).
On 27 June 1997 the proceedings had been already pending for two
years, six months and thirteen days.
The
period in question ended on 9 August 2002, when a final decision
in respect to the applicants was taken in the civil proceedings.
Even though the proceedings were opened on 14 December
1994, the Court will take into consideration the period between 27
June 1997 and 9 August 2002, excluding the period from 20 May
2000 to 9 May 2001, when no proceedings were pending (see Codarcea
v. Romania, cited above, § 86, and
Koziy v. Ukraine, no. 10426/02, §
28, 18 June 2009). Accordingly, the period to be taken into
consideration is four years, one month and twenty-five days in five
instances before the civil and criminal courts.
2. Reasonableness of the length of proceedings
The
Government submitted that the hearings before the Rīga City
Centre District Court had been adjourned because on one occasion
counsel for the applicants did not attend and on another the second
applicant was absent. Three more hearings were adjourned due to the
absence of the driver and several witnesses. They further argued that
the applicants had protracted the overall length of proceedings by
submitting an appeal against the first-instance court’s
judgment in the criminal proceedings. Finally, they considered that
the hearings before the first-instance civil court had been scheduled
at appropriate intervals.
The
applicants disagreed. They considered that their use of the right to
appeal could not be held against them.
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96,
§ 43, ECHR 2000-VII, and Estrikh v. Latvia, no.
73819/01, § 137, 18 January 2007).
The
Court considers that the case was not complex. It involved a traffic
incident and ensuing civil liability. However, the Court considers
that regard must be had to the fact that a claim for damages by a
civil party is not the only issue to be determined in the criminal
proceedings, but is accessory to the issue of criminal liability,
which must be determined in the same set of proceedings.
As regards the conduct of the applicants, the Court
first notes that it does not share the Government’s view that
that the applicants should be held responsible because they had
submitted an appeal (see Kolomiyets v. Russia,
no. 76835/01, § 29, 22 February 2007). On the other hand,
the Court notes that the applicants did not provide sufficient
documentary evidence in support of their civil claim and that for
that reason the domestic criminal courts decided to leave their claim
unexamined (see paragraph 17 above). In this respect, the Court
recalls that it is not its role to assess the facts or evidence which
have led a national court to adopt one decision, rather than another,
unless there is clear evidence of arbitrariness (see Sisojeva and
Others v. Latvia [GC], no. 60654/00, § 89, ECHR
2007 II), and notes that it does not discern in the present case
any arbitrariness in the decision to leave the civil claim unexamined
within the criminal proceedings. In fact, the domestic judicial
system provided a favourable possibility for the applicants to submit
and substantiate their claim before the civil courts. Finally, the
Court notes that the applicants lodged their claim with the civil
courts one year after the completion of the criminal proceedings.
Even if the Court does not consider this period as a part of the
overall length of proceedings in the present case (see paragraph 65
above), it nevertheless considers that this period contributed to the
protracted determination of the applicants’ civil claim.
As
to the conduct of the domestic authorities, the Court observes that
there were certain periods of inactivity. The Court shall therefore
ascertain whether they were justified, taking into account the
particular circumstances of the case and, in particular, in view of
what was at stake for the applicants (see paragraph 75 below).
As
regards the criminal trial before the Rīga City Centre District
Court after 27 June 1997, when the Convention entered into force in
respect of Latvia, three hearings were held in regular intervals in
less than one year. Taking into account that the hearings were
adjourned due to the absence of the driver, witnesses and counsel for
the company, and that the district court took appropriate measures to
avert further protraction of the trial, the Court does not consider
this period excessive.
Turning
to the appeal proceedings before the Rīga Regional Court, the
Court observes that three hearings were held. Even though the
one-year gap between those two hearings is regrettable, the Court
finds that a period of one year, eight months and sixteen days for an
appellate court to adjudicate a case does not contravene the
requirement of timely examination of the case.
As
regards the proceedings before the civil courts, the Court finds no
delays attributable to the authorities. The civil proceedings were
completed in less than one and a half years at three levels of
jurisdiction. The Court is therefore satisfied that the domestic
courts paid particular regard to the importance of the issues at
stake during all stages of those proceedings.
As to what was at stake for the applicants, the Court
notes that the proceedings concerned a very important issue, namely
compensation for serious injuries in a road incident sustained by the
second applicant, who at the time was eight years old. The second
applicant underwent several operations and received medical
treatment, the costs of which the first applicant could not fully
cover herself and thereby she was obliged to obtain a loan. However,
the Court has already found that the applicants themselves were
partly responsible for the delays caused, in particular as regards
the fact that they did not submit sufficient documentary evidence
within the criminal proceedings, thereby causing their civil claim to
be left unexamined. The Court has also found that the applicants
waited one full year to lodge their claim with the civil courts (see
paragraph 70 above), a protraction which could have been avoided,
given that a judgment in their favour would have certainly remedied,
at least in part, their difficult financial situation caused by the
incident.
In the light of the foregoing, the Court finds that
the “reasonable time” requirement laid down in Article 6
§ 1 of the Convention has been complied with in the present
case. There has therefore been no breach of that provision.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
CONCERNING THE LACK OF EFFECTIVE DOMESTIC REMEDY FOR EXCESSIVE LENGTH
OF PROCEEDINGS
The
applicants, invoking Article 13 of Convention, complained that they
did not have an effective domestic remedy to complain about the
length of domestic proceedings adjudication upon their damage claim.
Article
13 reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
Admissibility
The
Government submitted that there existed effective domestic remedies.
They relied, first of all, on sections 1635, 1775 and 1779 of the
Civil Law to argue that the applicants could claim compensation for
infringement of their rights from the responsible judges. Secondly,
they claimed that under section 1 of the Law on Disciplinary
Responsibility of Judges the applicants could have invoked
disciplinary measures against judges who had failed to ensure
compliance with the applicants’ rights contained in Article 6 §
1 of the Convention. In support of their arguments the Government
relied, in particular, on the letter from the Ministry of Justice of
the Republic of Latvia, in which it was argued that these remedies
were effective.
The
applicants disagreed. They relied on section 13, paragraphs 5
and 6 of the Law on the Judiciary to argue that under Latvian law a
judge is not financially liable for damage incurred by the parties.
They further considered that disciplinary measures against a judge
are not an effective remedy in their case.
The
Court reiterates that Article 13 of the Convention guarantees
the availability at national level of a remedy to enforce the
substance of Convention rights and freedoms, in whatever form they
may happen to be secured in the domestic legal order. The effect of
Article 13 is thus to require the provision of a domestic remedy to
deal with the substance of an “arguable complaint” under
the Convention and to grant appropriate relief (see McFarlane v.
Ireland [GC], no. 31333/06, § 108, 10 September 2010).
In
view of the above finding (see paragraph 76 above) the Court
concludes that the applicants did not have an arguable claim to a
remedy for the Article 6 § 1 complaint under Article
13 of the Convention.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention
III. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF
THE CONVENTION ON ACCOUNT OF DELAYED ENFORCEMENT OF A JUDGMENT AND
LACK OF EFFECTIVE DOMESTIC REMEDY
The
applicants complained that there had been a two-fold violation of
Article 6 § 1 of the Convention. Firstly, in that
the enforcement of the 23 May 2002 judgment had been
unreasonably long. Secondly, in that the compensation had been paid
in instalments, contrary to what had been adjudicated. The applicants
also alleged that contrary to Article 13 of the Convention they did
not have effective remedies available at the domestic level in those
respects.
Admissibility
1. Delayed enforcement of the judgment
The
Government submitted that this complaint should be dismissed as
manifestly ill-founded. They submitted that the bailiffs’
office had commenced enforcement proceedings without any delay after
the writ of execution against a private company had been submitted to
them.
The
applicants disagreed.
The
Court notes that in the present case less than eight months passed
between the date when 23 May 2002 judgment took effect and 30 April
2003, when the applicants received the last payment following the
enforcement procedure. The Court notes that a bailiff, who is a State
officer responsible for the enforcement, commenced the procedure
without undue delay after receiving a writ of execution from the
first applicant on 29 August 2002. Throughout the enforcement
procedure, the bailiff kept the first applicant informed about the
activities within those proceedings (see paragraph 27 above).
In
the circumstances of the case, taking into account that the
enforcement proceedings were opened and completed within less than
one year, the Court considers that the period of enforcement in the
present case complies with the requirements of the Convention.
It
follows that the first part of this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
Given
the finding in the above paragraph, the Court considers that the
applicants did not have an arguable claim, and accordingly their
complaint under Article 13 in this regard is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
2. Payment of compensation in instalments
The
Government argued that the applicants’ reference to section 205
of the Civil Procedure Law was not relevant, as it provided an option
for a party to request that a judgment be executed without delay. As
the applicants had not requested it, the 23 May 2002 judgment did not
contain such an obligation. In as far as the applicants’
complaint under Article 13 of the Convention was concerned the
Government submitted that the domestic law provided for effective
remedies. They referred to section 632 of the Civil Procedure Law (a
civil remedy) and sections 15 (civil, criminal and disciplinary
remedies), 53 and 54 (a disciplinary remedy) of the Law on Bailiffs.
The
applicants disagreed.
The
Court agrees with the Government’s assertion that the
applicants did not request that the domestic court rule that the
judgment should be executed without delay. Therefore, a writ of
execution did not contain such an indication.
However,
the Court notes that the Supreme Court on two occasions, on 17
September and 17 October 2002, explicitly refused the debtor
company’s request for payment by instalments to be authorised.
Therefore, the Court has to determine if any issues arise under the
Convention in such circumstances. The Court will now consider this
issue together with the applicants’ complaint under Article 13
of the Convention in that regard.
The
Court can accept the applicants’ dissatisfaction with the fact
that the award was paid in instalments rather than as a single
payment. However, the Court notes that the applicants could have used
the domestic remedies if they considered that payment in instalments
violated their rights or inflicted additional damage on them.
The
Court considers that the applicants had at least two avenues to avail
themselves of if they considered their rights violated or if, as a
result of the bailiff’s actions in the enforcement proceedings,
they had incurred additional damages. First of all, the applicants
could have complained under section 632 of the Civil Procedure Law to
a domestic civil court about the bailiff’s activities or
omissions that concerned the execution of judgment. Secondly, the
Court notes that bailiffs in Latvia are obliged under a compulsory
insurance scheme to insure their activities, and irrespective of the
disciplinary or criminal liability, damage caused by them is to be
covered under the insurance policy under sections 33 and 39 of the
Law on Bailiffs. Thus, the applicants could have applied to a
competent domestic civil court to recover their losses, if they had
indeed suffered any at the hands of the bailiff. Finally, the Court
need not rule on the third remedy proposed by the Government, namely
disciplinary proceedings against a bailiff, since it has already
established that the applicants did not exhaust either the first or
the second remedy proposed by the Government.
It
follows that these complaints must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF FAIRNESS IN OTHER CIVIL PROCEEDINGS
The
first applicant further complained that the second set of civil
proceedings against the company was unfair. She alleged that she did
not have a reasonable opportunity to present her case, including her
evidence, when the Rīga City Ziemeļu District Court on
15 October 2003 and the Rīga Regional Court on 13 April
2005 refused to summon witnesses. She relied on Article 6 § 1 of
the Convention in that regard.
The
first applicant also complained about the civil proceedings on child
support payments in that her appeal against the judgment of
17 May 2002 was never heard on merits. She further
complained that it was Judge B.T. who had refused to extend the
time-limit for her appeal. She relied on Article 6 § 1 of the
Convention in that regard.
Admissibility
1. As concerns the second set of civil proceedings
against the company
The
Government considered the complaint manifestly ill-founded.
Concerning the Rīga City Ziemeļu
District Court hearing on
15 October 2003 they submitted that the witnesses would
only testify about existence of a loan agreement, a matter which was
not disputed. Concerning the Rīga Regional Court hearings on
13 April 2005 they contested the first applicant’s
argument that the witnesses were not summoned. The Government noted
that in her appeal the first applicant stated that she would invite
the witnesses herself to the appellate hearings. Furthermore, during
the hearings her representative did not request the court to summon
any witnesses. Finally, the first applicant did not include the issue
of witnesses in her appeal on points of law.
The
first applicant did not provide any further submissions in this
regard.
The
Court notes that even though the first applicant applied to the
appellate court for additional witnesses to be examined, which the
first-instance court had refused to do, she did not pursue her
application throughout the appellate proceedings. At first, in her
appeal she noted that she would invite the witnesses herself. The
Court finds that in the context of civil proceedings this fact in
itself did not have the effect of putting the first applicant at a
substantial disadvantage vis-à-vis the other party.
Further, when the appellate hearings took place the witnesses were
not present. During the hearing her representative did not apply to
have any witnesses questioned or summoned.
It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
2. As concerns the civil proceedings on child support
payments
The
Government explained that under domestic law the judgment of 17 May
2002 was sent only to the respondent, as she was absent on the date
of its delivery. As the first applicant was present during the
delivery hearing, she did not receive the judgment’s copy by
post. Accordingly, the first applicant was given an equal opportunity
to present her case upon appeal. They agreed that her application for
renewal of the time-limit was examined with a delay but that it was
not significant. Finally, they pointed out that under domestic law
the first applicant was entitled to submit observations or a
counter-appeal (see paragraph 47 above).
The
first applicant did not provide any further submissions in this
regard.
The
Court notes that the first applicant was present during the hearing
of 17 May 2002, when the judgment was delivered, read out and the
appeals procedure was explained to her. Irrespective of whether or
not the judgment or its operative part was read out during the
hearing of 17 May 2002, the first applicant was aware from
that date that her claim was satisfied in the amount of LVL 10 per
month. Thus, she was not put at a disadvantage vis-à-vis
the respondent, because she was aware of the contents of the
judgment. She also did not exercise her right to submit observations
in reply to the respondent’s appeal directly to the appellate
court or a counter-appeal to contest the amount of the allowance.
Therefore, it cannot be said that domestic authorities did not offer
her a reasonable opportunity to present the case. The Court concludes
that the first applicant could present her case under the same
conditions as the respondent party.
In
so far as her complaint relates to the fact that it was Judge B.T.
who examined her application to extend the time-limit for appeal, the
Court does not find any indication that Judge B.T. lacked
impartiality when ruling on this issue.
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.
V. OTHER COMPLAINTS
The
applicants further complained under different Articles of the
Convention about various 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
Declares unanimously the applicants’
complaint under Article 6 § 1 of the Convention concerning the
length of proceedings admissible;
Declares unanimously the remainder of the
application inadmissible;
Holds by six votes to one that there has been no
violation of Article 6 § 1 of the Convention.
Done in English, and notified in writing on 28 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Josep Casadevall
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge Ziemele
is annexed to this judgment.
J.C.M.
M.T.
DISSENTING OPINION OF JUDGE ZIEMELE
I
voted against the finding that there had been no violation in this
case. I can accept that in general a period of just over four years
in criminal and civil proceedings falling within the ratione
temporis jurisdiction of the Court is not excessive and that it
was about time that the Court became more pragmatic in its assessment
of the length of domestic proceedings compared to its previous
case-law.
It
is true, however, that the proceedings in the applicants’ case
started as far back as 1994, that is, before Latvia ratified the
Convention, and thus took almost seven years. The Court stated in the
case of Lavents v. Latvia (no. 58442/00, 28 November
2002) that it will keep in mind in such cases the time a person has
already spent in court proceedings before the entry into force of the
Convention in the country concerned. This has to be balanced against
the particular circumstances of the case such as the fact that, at
the time of the car accident, the second applicant was only eight
years old and that the injuries were such as to require extensive
medical treatment and thus financial resources which the mother did
not have. In the case of Gheorghe and Maria Mihaela Dumitrescu
v. Romania (no. 6373/03, 29 July 2008), the Court found that
the length of proceedings for damages lasting for just over three
years, in circumstance where the car accident led to paralysis of the
lower limbs of a five-year-old girl, was in breach of Article 6.
In
the case in issue the majority considered that since there were two
sets of proceedings and the applicants waited for one year before
lodging their civil claim for damages and, in fact, seemingly failed
to submit their civil claim in the criminal proceedings in the proper
manner, a considerable portion of responsibility for the length of
the proceedings should be imputed to them. I believe that the civil
claim that the applicants submitted within the criminal proceedings
was of sufficient quality (see paragraph 17 of the judgment). The
only difficulty was that the total amount of the claim did not
correspond to the heads of damages claimed. In this respect the
applicants readily admitted a possible mistake in the final
calculation. It is therefore perplexing that the criminal courts left
the claim unexamined, given the urgency of the matter in view of the
child’s state of health. I cannot agree with the majority that
this fact, when compared to the many delays in the proceedings caused
by the absences of the respondent and witnesses (see paragraphs 13,
14 and 16) should weigh against the applicants. Furthermore, there is
nothing unusual in the fact that it took the applicants one year to
lodge a civil claim (see paragraph 70), given the circumstances in
which they found themselves after the car accident. The applicant,
who is not a lawyer, had to attend to the needs of her daughter and
mount a case in the civil courts. That is no simple matter in
practice. I also note that in the civil proceedings the hearing
finally took place on 10 December 2001 whereas the claim was lodged
on 9 May 2001 (see paragraphs 19-20). In sum, I do not agree that the
applicants’ behaviour was such as to outweigh the various
delays caused in this case before the national courts, taking into
consideration the interests at stake, namely, compensation for
physical injury following a car accident involving the second
applicant, an eight year-old child. I do not think that this was
a good case in which to start pursuing a more pragmatic judicial
policy as regards Article 6 § 1 complaints regarding the length
of proceedings, bearing in mind that the application was lodged with
the Court in 2002.
Finally,
a point on the Article 13 complaint raised by the applicants. They
are right. At the relevant time there certainly existed no remedy in
the Latvian legal system enabling individuals faced with delays in
different types of court proceedings to speed up those proceedings.
Today, there is some remedy in criminal proceedings, as provided for
by section 14 of the Criminal Procedure Act 2005. However, this will
most likely not be particularly relevant or even helpful to the
victims of a crime. It is therefore, and despite the outcome in this
case, of great importance that the respondent State review the state
of the legal mechanisms available with a view to ensuring compliance
with the Article 13 requirements as articulated by the Court in Kudła
v. Poland ([GC], no. 30210/96, ECHR 2000 XI).
