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CERNIKOVS v. LATVIA - 71071/01 [2011] ECHR 855 (31 May 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/855.html
Cite as:
[2011] ECHR 855
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THIRD
SECTION
CASE OF ČERŅIKOVS v. LATVIA
(Application
no. 71071/01)
JUDGMENT
STRASBOURG
31 May
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Čerņikovs
v. Latvia,
The
European Court of Human Rights (Third Section), sitting as a
committee composed of:
Ján Šikuta,
President,
Ineta Ziemele,
Kristina Pardalos,
judges,
and Marialena Tsirli,
Deputy Section Registrar,
Having
deliberated in private on 10 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
1. The
case originated in an application (no. 71071/01) 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 a permanently resident non-citizen of the
Republic of Latvia, Sergejs Čerņikovs (“the
applicant”), on 6 June 2001.
The
Latvian Government (“the Government”) were represented by
their Agent, Ms Inga Reine.
On 26 January 2005 the President of the Third Section
decided to give notice of the application to the Government. It was
also decided to examine the merits of the application at the same
time as its admissibility (former Article 29 § 3). In accordance
with Protocol No. 14, the application was subsequently allocated to a
Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1970 and lives in Rīga.
A. Pre-trial proceedings
On
30 August 1998 the applicant was taken into custody on
suspicion of murders and robbery.
On
2 September 1998 a judge of the Ogre District Court ordered
the applicant’s detention on remand.
On
21 October 1998 the Ogre District Court extended the
applicant’s detention until 30 November 1998. An
appeal lodged by the applicant was dismissed on 13 November 1998
by the Rīga Regional Court.
The
Ogre District Court further extended the term of the applicant’s
detention on the following dates: on 24 November 1998 until
30 January 1999; on 21 January 1999 until
30 March 1999; on 22 March 1999 until
30 May 1999; on 24 May 1999 until 30 July 1999;
on 22 July 1999 until 30 September 1999; on
24 September 1999 until 30 October 1999; on
26 October 1999 until 30 December 1999. All the
decisions contained an identical phrase which stated that the judge
had taken into account the severity of the crime the applicant
was suspected of, the danger of his possible absconding and the
possibility that he could impede the investigation. The applicant did
not appeal to the Rīga Regional Court against the aforementioned
decisions.
Meanwhile,
on 8 October 1999 the Latgale Regional Court sentenced the applicant
to one year and one month imprisonment for an unauthorised
acquisition and storage of weapons. The period of detention on remand
from 30 September 1998 to 8 October 1999 was included in the term of
the sentence, which the applicant served until 30 October 1999.
On
26 May 2000 the final indictment was presented to the
applicant, and on 30 May 2000 the judge of the Rīga
Regional Court remitted the criminal case for trial. The latter was
scheduled to take place on 3 January2002. By the same decision
the preventive measure was left unchanged without giving reasons or
setting a time-limit.
B. Criminal proceedings
In
November 2001 the applicant’s lawyer asked the Rīga
Regional Court to adjourn the proceedings. On 3 January 2002 the
proceedings were adjourned for an unlimited period.
On
6 March 2002 the court informed the applicant that the trial was
scheduled to take place on 25 September 2002.
On
1 October 2002, the court granted the request of a co-accused to
undergo a psychiatric examination, and stayed the criminal
proceedings.
At
the lower court’s request, on 1 November 2002 the
Senate, in absence of the applicant or his lawyer, extended the
applicant’s detention until 1 May 2003. The Senate
relied on the serious nature of the charges, and on the necessity to
ensure proper conduct of the court proceedings. The decision was not
subject to an appeal.
On
28 December 2002 the forensic experts asked for an
extension of fifteen days in order to complete their report.
On
27 January 2003 the Rīga Regional Court repeatedly requested the
Senate to extend the applicant’s detention on remand. It relied
on the fact that the case was particularly complex and that the
hearing had been scheduled to take place on 4 June 2003. The
Senate, in absence of the applicant or his lawyer, extended the
applicant’s detention until 1 July 2003.
From
4 to 11 June 2003 the hearings were repeatedly postponed due to
the absence of witnesses.
On
25 June 2003 the applicant was found guilty of two murders
and sentenced to sixteen years’ imprisonment. On 2 December
2003 the Rīga Regional Court dismissed the applicant’s
appeal, and on 20 August 2004 the Senate of the Supreme Court
dismissed the applicant’s appeal on points of law.
C. Civil proceedings brought by the applicant
During
the municipal election campaign, between 27 February and
11 March 2001, two private TV channels broadcasted an
advertisement sponsored by a political party in which B., the Prime
Minister at the material time, made statements that a candidate
promoted by the political party had been credited with tracking down
the applicant’s activities.
On 23 May 2001 the applicant brought a civil
defamation claim against B., the political party and owners of the TV
channels.
On
10 August 2001 the Rīga City Central District Court decided that
the case felt within the jurisdiction of the Ogre District Court,
which on 30 November 2001, following the defendants’
request, stayed the proceedings pending the outcome of the criminal
proceedings against the applicant.
According
to the information submitted by the Government, the next hearing had
been scheduled to take place on 11 May 2005, but had been
adjourned at the applicant’s request; the next one had been
scheduled to take place on 30 August 2005.
No
further information has been submitted by the parties in respect of
the above proceedings.
D. Alleged interference with the applicant’s
right to respect for his family life
On
17 December 1998 the applicant applied to the prosecutor
for permission to receive letters from his relatives. On
30 December 1998 the prosecutor dismissed the applicant’s
request, and the latter did not appeal. The applicant was allowed to
receive short-term visits with his relatives as from May 2000,
whereas on 31 August 2000 the Rīga Regional Court granted the
applicant a permission to exchange correspondence with his relatives.
II. RELEVANT DOMESTIC LAW
The
relevant provisions of the Code of Criminal Procedure (Latvijas
Kriminālprocesa Kodekss) applicable at the material time (in
force until 1 October 2005), and other relevant practice are
found in Estrikh v. Latvia (no. 73819/01, §§ 54-65;
81-82, 18 January 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF
THE CONVENTION
The
applicant complained that his detention on remand from 30 August 1998
to 25 June 2003 was excessive and in breach of
Article 5 § 3 of the Convention, which reads 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.”
The
Government contested that argument.
The
applicant did not submit any comments on the Government’s
observations.
A. Admissibility
The
Government submitted that the applicant failed to exhaust domestic
remedies. The Court refers to its earlier case law, where it has
dismissed identical preliminary objections raised by the Government,
and established that at the time when the present complaint was
invoked the applicant did not have effective remedies with respect to
excessive length of pre-trial detention (see, amongst, other,
Estrikh, cited above, §§ 95-104; Vogins
v. Latvia, no. 3992/02, §§ 25-35, 1 February
2007). Therefore the Government’s objection as to
non-exhaustion of domestic remedies must be dismissed.
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must,
therefore, be declared admissible.
B. Merits
The
Government argued that the period of the applicant’s detention
from 30 September 1998 to 30 October 1999 (see paragraph 9
above) falls outside the scope of examination under Article 5 § 3
of the Convention. In addition, the Government relied on the
complexity of the criminal case and the particularly grave
accusations brought against the applicant, which rendered necessary
his continued detention on remand.
The
Court agrees with the Government as to the period of detention which
falls within the scope of examination under Article 5 § 3
of the Convention, and establishes that the detention under
consideration lasted in total three years and nine months.
The
Court reiterates that there is a considerable case-law in respect of
Latvia as concerns the scope and the nature of the obligations
arising under Article 5 § 3 concerning length of detention,
where the Court has found a violation of Article 5 § 3 of the
Convention on the grounds of insufficient motivation and inadequate
proceedings in deciding on continued detention (see, in particular,
Svipsta v. Latvia, no. 66820/01, §§ 106-113, ECHR
2006 III (extracts); Moisejevs v. Latvia, no. 64846/01,
§§ 112-119, 15 June 2006; 72-76; Čistiakov v.
Latvia, no. 67275/01, §§ 63-68, 8 February 2007).
Besides, the Court recognized a systemic problem in relation
to the apparently indiscriminate application of detention as a
preventive measure in Latvia in the material time (Estrikh,
§ 127).
The
Court notes that the existing case-law against Latvia concerns the
same period of time and circumstances complained about in the present
case. In particular, the applicant’s detention from 30 August
1998 until 30 May 2000 was continuously extended by a decision
repeating the same motivation provided in order to justify the
initial detention (see paragraph 8 above), whereas as from
30 May 2000 until the adoption of the first-instance judgement
the applicant was detained on the basis of a decision which failed to
set a time-limit as well as to provide any motivation as to the
necessity of the continued detention (see paragraph 10 above).
The
foregoing considerations are sufficient to enable the Court to
conclude that the applicant’s continued detention was not
ordered in compliance with the safeguards enshrined by the
Convention.
There
has accordingly been a violation of Article 5 § 3 of
the Convention.
II. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF
THE CONVENTION
The
applicant complained that the length of the civil and criminal
proceedings had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of ...civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a ... hearing within a reasonable time by [a] ...
tribunal...”
A. Admissibility
1. Length of civil proceedings
The
Court notes that the period to be taken into consideration with
respect to civil proceedings began on 23 May 2001 when the applicant
lodged a claim aiming to institute defamation proceedings. At the
time of communication of the complaint to the Government the civil
proceedings had lasted four years before the first-instance court due
to the fact that the defamation proceedings were stayed pending the
criminal proceedings (see paragraph 21 above).
The
Government contended that the civil proceedings had been so far
adjudicated within reasonable time.
The
applicant did not submit any comments to the Government’s
observations, nor has provided further information concerning the
outcome of the aforementioned proceedings.
The
Court concludes that the applicant has not shown reasonable diligence
and has failed to provide the Court with the necessary information
needed to examine this part of the complaint under Article 6 of the
Convention. It follows that the complaint is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
2. Length of criminal proceedings
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
period to be taken into consideration with respect to criminal
proceedings began on 30 August 1998 and ended on 20 August
2004. It thus lasted five years and eleven months for three levels of
jurisdiction.
The
Government considered that the length of the criminal proceedings was
not excessive and that even if it has taken the trial court two years
and four months to commence the adjudication of the criminal case,
this delay could not be attributed solely to the national
authorities.
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 (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
In
addition to the fact that the particular criminal case was of certain
complexity, the Court also notes that on at least two occasions the
delays in the proceedings could be to some extent attributable to the
applicant or his co-accused (see paragraphs 11 and 13 above). It must
nevertheless be noted that after the applicant’s lawyer had
requested the postponement of the first hearing, the next hearing was
scheduled to take place ten months later. The Court also notes that
the applicant’s co-accused cannot be blamed for exercising his
defence rights (see, amongst others, Svetlana Orlova v. Russia,
no. 4487/04, § 46, 30 July 2009). Besides, the delay of
four months resulting from the above stay of the proceedings is not
significant.
Even
assuming that the aforementioned two periods of inactivity of
fourteen months were not attributable to the State but only to the
accused, the Court is of the opinion that the most significant delays
were caused by the fact that the hearings were not fixed at regular
intervals. In particular, even though the case was sent to trial
within a reasonable time, the first hearing was scheduled to take
place on 3 January 2002, namely one year and seven months later,
without this delay having been commented on by the Government.
Moreover,
even if the Government invited the Court to take into consideration
that a judge was allowed to hear only one criminal case at a time,
this argument has been already dismissed in examining identical
complaints (see, amongst other, Estrikh v. Latvia, cited
above, § 138).
Making
an overall assessment of the complexity of the case, the conduct of
the parties, the fact that throughout the criminal proceedings the
applicant was detained on remand, as well as the total length of the
proceedings, the Court considers that the latter could not be
considered reasonable. There has, therefore, been a violation of
Article 6 § 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant further complained of a violation of his right to respect
for his family life in that during his detention on remand he was
denied the right to correspondence with his family members. He relied
on Article 8 of the Convention.
“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 argued that that this part of the application was out of
time.
The
Court agrees that since May 2000 the applicant had been granted
family visits and that since 31 August 2000 he was authorized to
exchange correspondence with his family members (see paragraph 24
above). Moreover it is not aware of any circumstances which could
have interrupted the running of the six-month period, which has thus
expired in February 2001 (contrast Hilton v. United Kingdom,
no. 12015/86, Commission decision of 6 July 1988).
Since
the applicant submitted the above complaint only in June 2001, it
follows that it is inadmissible under Article 35 § 1
as submitted out of time.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicant also alleged violations under various other articles of
the Convention.
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 considers
that the remainder of the application does not disclose any
appearance of a violation of any of the above Articles of the
Convention. It follows that these complaints are inadmissible under
Article 35 § 3 as manifestly ill-founded and must be
rejected pursuant to Article 35 § 4 of the
Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed USD 5,000 in respect of pecuniary damage. He did
not submit any claim for non-pecuniary damage.
The
Government did not comment.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
B. Costs and expenses
The
applicant claimed USD 5,000 for the costs and expenses incurred
before the Court. His claim was not accompanied by any supporting
documents.
The
Government did not comment.
The
Court makes no award in this respect.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares admissible:
(a) the
complaint under Article 5 § 3 concerning the excessive length of
the applicant’s detention on remand;
(b) the
complaint under Article 6 § 1 concerning the unreasonable length
of criminal proceedings;
Declares the remainder of the application
inadmissible;
Holds that there has been a violation of Article
5 § 3 of the Convention;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Dismisses the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 31 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Ján Šikuta Deputy Registrar President
