(Application no. 71072/01)
14 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 Leja v. Latvia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis López Guerra,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 17 May 2011,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant’s pre-trial detention
B. The first set of criminal proceedings
C. The second set of criminal proceedings
8. On 4 September 1997 the Rīga City Kurzeme District Court examined the drink-driving charges against the applicant. The applicant was represented by defence counsel of his choice. The applicant was found guilty of that offence and sentenced to one year in prison. The court added to that sentence the sentence imposed on the applicant by the judgment of 26 October 1995 and imposed a final sentence of eight years’ imprisonment. On 15 January 1998 the Rīga Regional Court, acting as a court of appeal, reduced the applicant’s final sentence to seven years’ imprisonment. The applicant was represented at the appellate court by defence counsel. The applicant submitted an appeal on points of law. On 17 April 1998 the Senate of the Supreme Court refused leave to appeal, finding that the arguments invoked by the applicant did not constitute any valid ground for appeal in cassation according to the Code of Criminal Procedure.
D. The applicant’s detention in Jelgavas prison
E. The applicant’s detention in Grīvas prison
“serious conflicts [he was having] with the administrations of Grīvas and Jelgavas prisons[,] ... Grīvas prison director’s and staff’s unfair and prejudiced attitude towards [the applicant], [i]ncessant pressure put on [him, and] about corruption in the Grīvas prison administration, and about existing financial violations”
and other issues. The Prison Administration’s reply stated, inter alia, that on 24 January 2001 an inspection had been carried out in Grīvas prison and no breaches of prison rules on the part of the prison administration had been found.
F. The applicant’s detention in Daugavpils prison
G. Proceedings concerning the change of prison regime
II. RELEVANT LAW
A. Domestic law
Section 6 – Independence of the prosecutor
“(1) In his or her activities a prosecutor shall be independent of the influence of any other institution or official exercising State authority or administrative power, and shall be bound only by the law.
(2) The Parliament, the Cabinet of Ministers, State and local government institutions, State and local government civil servants, all types of enterprises and organisations, as well as all persons are prohibited from interfering in the work of prosecutors during the investigation of cases or during the performance of other functions of prosecutors.
(3) Prosecutors’ actions may be appealed against in the cases and in accordance with the procedures specified by this law and procedural laws. Complaints regarding questions which fall within the exclusive competence of prosecutors shall be submitted to a chief prosecutor of a hierarchically superior prosecutor’s office, but regarding the actions of a prosecutor of the Office of the Prosecutor General to the Prosecutor General. The decisions taken by the aforementioned officials shall be final.
(4) A prosecutor of a superior rank may take over any case file, but may not compel a prosecutor to carry out actions against his or her belief.
(7) Attempts to unlawfully exert influence on a prosecutor or to interfere with the work of a prosecutor’s office shall be prosecuted in accordance with law.”
“(1) Lawful orders of a prosecutor shall bind all persons in the territory of the Republic of Latvia.
(2) Persons shall be prosecuted in accordance with law for any failure to comply with the lawful orders of a prosecutor.”
Section 15 – Supervision of the execution of sentences of deprivation of liberty
“(1) In accordance with the procedures prescribed by law, prosecutors shall supervise the execution of court-imposed sentences of deprivation of liberty and supervise the places where persons arrested, detained or under guard are held, and shall take part in court hearings relating to changes in the specified length of sentences or the conditions of sentences.
(3) A prosecutor’s protest with regard to an unlawful penalty imposed on a person held in a place of deprivation of liberty shall suspend the execution of the penalty until the protest has been dealt with.”
“(1) Having received information concerning a breach of law, a prosecutor shall carry out an examination in accordance with the procedures prescribed by law if:
1) the information concerns a crime;
2) the rights and lawful interests of ...detainees ... have been violated.
(2) A prosecutor has the duty to take measures required for the protection of rights and lawful interests of persons and the State, if:
1) the Prosecutor General or a chief prosecutor recognises the necessity for such examination; ...
2) such a duty is provided for by other laws. ...
(3) A prosecutor shall also carry out an examination if a submission from a person regarding a violation of his or her rights or lawful interests is received and if this submission has already been reviewed by a competent state institution and it has refused to rectify the violation of law referred to in the submission or it has given no reply within the term specified by law. ...”
Section 17 – Powers of a prosecutor when examining an application
“(1) When examining an application in accordance with the law, a prosecutor has the right:
1) to request and to receive regulatory enactments, documents and other information from administrative authorities ..., as well as to enter the premises of such authorities without hindrance;
2) to order heads and other officials of ... institutions and organisations to carry out examinations, audits and expert-examinations and to submit opinions, as well as to provide the assistance of specialists in the examinations carried out by the prosecutor;
3) to summon a person and to receive from him/her an explanation on the breach of law...
(2) When taking a decision on a breach of law, the prosecutor, depending on the nature of the breach, has the duty:
3) to bring an action to the court;
4) to initiate a criminal investigation; or
5) to initiate [proceedings on] administrative or disciplinary liability.”
Section 20 – Application of a prosecutor
“... (3) If the requirements stated in an application [of a prosecutor to an authority] are not complied with or no reply to it is provided, the prosecutor is entitled to submit to a court or to any other competent institution a request to subject [the responsible] person to liability prescribed by law.”
Section 130 – Intentional minor bodily injuries
“(1) For a person who intentionally inflicts [upon another person] bodily injuries which have not caused damage to health or the general ongoing loss of ability to work (minor bodily injuries), as well as who intentionally [subjects another person] to beating which has not caused the consequences mentioned, the applicable sentence shall be custodial arrest, or community service, or a fine not exceeding ten times the minimum monthly wage.
(2) For a person who intentionally inflicts [upon another person] minor bodily injuries which cause temporary damage to health or insignificant general ongoing loss of ability to work, the applicable sentence shall be deprivation of liberty for a term not exceeding one year, or custodial arrest, or community service, or a fine not exceeding twenty times the minimum monthly wage.
(3) For a person who [subjects another person to] systematic beating having the nature of torture, or any other kind of torture, provided these acts have not [caused injuries of medium severity or very severe injuries], the applicable sentence shall be deprivation of liberty for a term not exceeding three years, or custodial arrest, or community service, or a fine not exceeding sixty times the minimum monthly wage.”
Visit to Latvia of 24 September to 4 October 2002
“140. One of the most effective means of preventing ill-treatment by prison officers lies in the diligent examination of complaints of ill-treatment and the imposition of suitable penalties. Prisoners should have avenues of complaint open to them both within and outside the prison system, including the possibility of confidential access to an appropriate authority.
In all prisons visited, prisoners could, in principle, submit a complaint to the establishment’s Director. In addition, complaints could be addressed to the Regional Prosecutor and the National Human Rights Office.
However, the CPT is concerned by the manner in which prisoners’ complaints were processed in practice. Many prisoners interviewed in the establishments visited indicated that they did not have any trust in the current complaints system, since they were obliged to hand their complaint - even those addressed to judicial authorities – in an unsealed envelope to a prison officer. Not surprisingly, only a few complaints were recorded in the establishments visited. Means must be found of enabling complaints to be submitted to the Regional Prosecutor and the National Human Rights Office in a truly confidential manner.”
Visit to Latvia of 5 to 12 May 2004
“77. As in 2002, the confidentiality of external complaints was not always guaranteed (i.e. prisoners were obliged to hand complaints in an unsealed envelope to the prison administration or to give an oral explanation to members of the Security Department on the reasons for lodging a complaint). The CPT reiterates its recommendation that steps be taken to enable prisoners to submit complaints to the Regional Prosecutor and the National Human Rights Office in a truly confidential manner.”
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Private prosecution under the Code of Criminal Procedure
B. Complaint about an administrative act
C. Appeal to a hierarchically superior prosecutor
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
72. The applicant complained under Article 3 of the Convention about the degrading effect of the allegedly arbitrarily imposed disciplinary penalties in Jelgavas, Grīvas and Daugavpils prisons. The Court observes that even though it seems that the applicant has on occasion challenged the legal and factual basis of the individual penalties (see, for example, paragraphs 13 and 17 above) and his complaint in that regard has been dealt with, albeit summarily, by the Daugavpils Court on 8 February 2001 (see above, paragraph 32), it appears that the first time he raised a complaint about their degrading effect was in his application to the Court. The applicant having failed to show that he has tried to approach national authorities with any comparable complaint, the Court cannot speculate as to the existence or lack of national remedies. Accordingly it declares the applicant’s complaint about the allegedly degrading effect of the disciplinary penalties inadmissible for non-exhaustion of domestic remedies.
IV. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
86. As regards the fact that the Government was unable to furnish to the Court the documents that were requested from it (see above, paragraph 4), the Court reiterates that it has interpreted Article 34 of the Convention in conjunction with Article 38 § 1 (a) in the version in force prior to the entry into force of Protocol 14 to the Convention (essentially the same language is now contained in Article 38 of the Convention) in such a way that the Contracting States are required to furnish all necessary facilities to the Court to enable it to examine applications before it (see generally Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 253-254, ECHR 2004 III). The Court emphasises that in certain situations the destruction of documents pertinent to a case pending in Strasbourg could not only give rise to the drawing of inferences as to the well-foundedness of applicants’ allegations but also could be seen as the respondent State’s failure to comply with its obligations under Article 38 of the Convention. The fact that the documents were destroyed very soon after the application was communicated to the Government raises serious concerns. However, in view of the finding of a violation of Article 34, the Court does not consider it necessary to rule further on this question in the present case.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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. Pecuniary damage
B. Non-pecuniary damage
C. Costs and expenses
D. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention,
(i) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Latvian lati at the rate applicable on the date of settlement;
(ii) EUR 64 (sixty-four euros), plus any tax that may be chargeable, in respect of costs and expenses, to be converted into Latvian lati at the rate applicable on the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 14 June 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall