Information Note on the Court’s case-law No. 180
December 2014
Larionovs and Tess  v. Latvia (dec.) - 45520/04 and 19363/05
Decision 25.11.2014 [Section IV]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Constitutional complaint on retroactivity of criminal provision on genocide: inadmissible
Facts – The applicants were former officials of the then Soviet Socialist Republic of Latvia. In 2003, pursuant to a provision inserted into the Latvian Criminal Code in 1993, they were convicted of crimes contrary to Article 681 of the Criminal Code for having actively participated in the large-scale deportation of wealthy farmers, known as kulaks, from the Baltic countries in March 1949. They were sentenced to prison terms of five and two years respectively, in consideration of their age and poor health. In their applications to the European Court, the applicants complained of a violation of Article 7 of the Convention as they had been convicted of a crime which had not existed in Latvian law at the time of the impugned acts. The Government objected that their complaints were inadmissible for failure to exhaust domestic remedies in that they had not lodged a complaint with the Constitutional Court. (For a more detailed summary of the facts of the first applicant’s case, see Information Note 105).
Law – Article 35 § 1
(a)  Scope of review by the Latvian Constitutional Court – In previous cases, the Court had noted that a complaint to the Latvian Constitutional Court was an effective remedy only if the alleged violation resulted from a statutory provision, not from the erroneous application or interpretation of the law by the judicial or administrative authorities. The applicants had been convicted of offences under the Criminal Code which transposed the relevant provisions of the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, which was directly applicable in Latvia. The Court therefore rejected the applicants’ contention that their complaint could not be the subject of constitutional review.
As to whether the provisions under which the applicants had been convicted could be called into question as being incompatible with human rights enshrined in the Constitution, the Court noted that the Latvian Constitution, as interpreted by the Constitutional Court, included the principle of nullum crimen, nulla poena sine lege and required that criminal-law provisions be clear and foreseeable. Furthermore, Article 89 of the Constitution sought to ensure harmony of the constitutional provisions on human rights with international human-rights law and contained the principle of protection of human rights as such. It was also the practice of the Constitutional Court to examine the compatibility of legal provisions not only with the Constitution itself, but also with the Convention. Thus, the relevant domestic-law provisions concerning retroactive application of the criminal law and the scope of the crime itself could be challenged before the Constitutional Court as being contrary to human rights enshrined in the Constitution. Indeed, the fact that the applicants had lodged several constitutional complaints throughout their proceedings and requested the criminal courts to obtain preliminary rulings from the Constitutional Court indicated that they had actually considered it an effective remedy.
(b)  Form of redress provided by constitutional review – Under the domestic law, a Constitutional Court ruling could abolish a legal provision binding on all domestic authorities and natural and legal persons which had been found incompatible with the Constitution, could invalidate the impugned legal provision from a particular date, and could define the scope of persons affected by such invalidation. The author of a successful constitutional complaint could then request the reopening or review of his case on the basis of newly discovered circumstances. Since in the fresh examination of the case the authorities would be bound by the Constitutional Court’s judgment and interpretation of the impugned provision, the remedy envisaged under Latvian law could be considered capable of providing redress in the circumstances of the applicants’ case. As to the prospects of success, if a question as to the constitutionality of a provision of criminal law were to arise, the Constitutional Court could exercise its jurisdiction on that matter once properly seized of it. Furthermore, the guarantee enshrined in Article 7 of the Convention was an essential element of the principle of the rule of law, also an issue which could be examined by the Constitutional Court. The Court thus concluded that, by not lodging a constitutional complaint once their respective criminal trials had come to an end, the applicants had failed to exhaust an effective remedy provided for by Latvian law.
Conclusion: inadmissible (failure to exhaust domestic remedies).
(See, in particular, Kononov v. Latvia [GC], 36376/04, 17 May 2010, Information Note 130; Liepājnieks v. Latvia (dec.), 37586/06, 2 November 2010, Information Note 135; Nagla v. Latvia, 73469/10, 16 July 2013, Information Note 165; and, more generally, the Court’s Practical Guide on Admissibility Criteria)

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