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You are here: BAILII >> Databases >> European Court of Human Rights >> DAVIDSONS AND SAVINS v. LATVIA - 17574/07 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 5 (07 January 2016)
URL: http://www.bailii.org/eu/cases/ECHR/2016/5.html
Cite as: [2016] ECHR 5
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    FIFTH SECTION

     

     

     

     

     

     

     

    CASE OF DĀVIDSONS AND SAVINS v. LATVIA

     

    (Applications nos. 17574/07 and 25235/07)

     

     

     

     

     

     

     

     

     

    JUDGMENT

     

     

    STRASBOURG

     

    7 January 2016

     

     

     

     

     

     

    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 Dāvidsons and Savins v. Latvia,

    The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

              Angelika Nußberger, President,
              Ganna Yudkivska,
              André Potocki,
              Faris Vehabović,
              Síofra O’Leary,
              Carlo Ranzoni,
              Mārtiņš Mits, judges,
    and Claudia Westerdiek, Section Registrar,

    Having deliberated in private on 1 December 2015,

    Delivers the following judgment, which was adopted on that date:

    PROCEDURE

    1.  The case originated in two applications (nos. 17574/07 and 25235/07) 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, Mr Raitis Dāvidsons and Mr Ruslans Savins (“the applicants”), on 5 April 2007 and 20 July 2007 respectively.

    2.  The applicant in the first application (“the first applicant”) was represented by Ms A. Bērzkalne, a lawyer practising in Rīga. The applicant in the second application (“the second applicant”), who had been granted legal aid, was represented by Mr A. Zvejsalnieks, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Mrs K. Līce.

    3.  The applicants alleged, in particular, that the composition of the trial court bench that had heard their criminal cases had been unlawful - namely, the same judges had, at an earlier stage of the criminal proceedings, decided on their pre-trial detention. This had undermined the impartiality of the trial court, in breach of Article 6 § 1 of the Convention.

    4.  On 21 January 2010 and 10 April 2012 respectively the applications were communicated to the Government.

    THE FACTS

    I.  THE CIRCUMSTANCES OF THE CASE

    5.  The first applicant was born in 1974 and lives in Vecumnieki. The second applicant was born in 1980 and lives in Riga.

    6.  The facts of each individual case, as submitted by the parties, are summarised below.

    A.  As regards the first applicant (application no. 17574/07)

    7.  On 20 January 2005 a judge of the Valmiera District Court issued a detention order authorising the pre-trial detention of the first applicant for a duration of two months. The applicant was suspected of the sale of narcotics and of providing unauthorised objects to imprisoned prisoners. The decision stated that the first applicant’s whereabouts were unknown, that he had absconded from the pre-trial investigation and that there was a risk that he might abscond even after his whereabouts were established. The order was executed on 26 August 2005 when the police arrested the applicant. The applicant appealed.

    8.  On 16 September 2005 the decision concerning the detention order was upheld by a panel of the Vidzeme Regional Court composed of three judges who were presided over by Judge G.K. The decision stated that the applicant had previously absconded and that, given the seriousness of the charges against him and the fact that he had no permanent place of residence, the court was not persuaded that he would not seek to abscond again.

    9.  On 5 December 2005 a panel of the Vidzeme Regional Court, composed of two lay judges and presided over by Judge G.K., commenced the adjudication of the applicant’s criminal case. Relying on section 52(4)(1) of the Criminal Procedure Law, which prevented a judge from adjudicating a criminal case if he or she had previously been involved in the criminal proceedings, the defence challenged the participation of Judge G.K. The court, presided by the challenged judge, rejected the challenge, arguing that Judge G.K. had reviewed the applicant’s detention order prior to the enactment of the Criminal Procedure Law[1], so her previous participation in the criminal proceedings could not serve as grounds for her recusal.

    10.  On 7 December 2005 the Vidzeme Regional Court convicted the applicant of the sale of narcotics and of providing unauthorised objects to imprisoned prisoners. In his appeal the applicant complained, inter alia, that section 52(4)(1) of the Criminal Procedure Law precluded Judge G.K. from adjudicating on his criminal case.

    11.  On 7 September 2006 the appeal was dismissed by the Criminal Division of the Supreme Court. Concerning the complaint of partiality, the court stated the following:

    “Judge G.K. reviewed the detention order at the time the Code of Criminal Procedure was in force. The adjudication of this [criminal] case was commenced after the Criminal Procedure Law had come into force, therefore the Court does not recognise a conflict of interests [of the judge] in that it cannot be concluded that G.K. had previously participated in any capacity in the criminal proceedings at issue”.

    12.  On 24 October 2006, following an appeal on points of law lodged by the first applicant, the Senate of the Supreme Court dismissed the complaint concerning the allegedly unlawful composition of the first-instance court due to the participation of Judge G.K. The Senate upheld the lower courts’ findings that when Judge G.K. had participated in the review of the applicant’s detention order the Code of Criminal Procedure was in force, which authorised a judge to examine a criminal case even if he or she had previously taken decisions concerning preventive measures in the criminal case at issue. Observing that the criminal case was adjudicated on the merits after the new Criminal Procedure Law had come into force, the Senate concluded that Judge G.K. had not participated in the criminal proceedings at an earlier stage in any capacity.

    B.  As regards the second applicant (application no. 25235/07)

    13.  On 1 April 2005 the second applicant was detained on suspicion of robbery. On 4 April 2005 a judge of the Rēzekne Court authorised his pre-trial detention. The second applicant appealed.

    14.  On 18 April 2005 the second applicant’s appeal was dismissed by a panel of the Latgale Regional Court composed of three judges - J.D. (the presiding judge), D.S., and J.V. The court noted that in his appeal the second applicant had indicated that he had confessed to the offence and that he would not evade the investigation because he had to repay a bank loan. The applicant also indicated his intention to start a family. The court established, inter alia, that the applicant had four prior convictions, including one for robbery. It went on to state:

    “Despite having served a prison sentence, [the second applicant] does not learn any lessons and is once again suspected of having committed an identical crime. He commits such acts regardless of the considerations included in his own appeal, [such as] a bank loan, an intention to start a family, a permanent job and a place of residence...

    [The applicant’s] personality and tendency to commit crimes are to be seen as exceptional grounds for [applying pre-trial detention]”.

    15.  On 4 December 2006 the Rēzekne Court convicted the applicant of robbery and of theft of personal identity documents and sentenced him to a prison term of eight years. The applicant appealed.

    16.  On 2 February 2007 the applicant’s appeal was examined by a panel of the Latgale Regional Court composed of judges J.V. (the presiding judge), J.D. and D.S., the same judges who had previously examined his appeal against the decision of 4 April 2005. The applicant’s appeal was dismissed.

    17.  The applicant submitted an appeal on points of law, in which he complained, among other things, about the composition of the appeal court. According to the applicant, the composition had been unlawful because of the three judges’ prior involvement in the same criminal proceedings. He stated that “the court could not be impartial”.

    18.  On 19 April 2007 a single judge of the Senate of the Supreme Court informed the applicant that his appeal on points of law had not been accepted for adjudication on the merits in the Senate. With regard to the complaint about the composition of the appeal court, the judge referred to an earlier decision of the Senate (see Relevant domestic law and practice, paragraph 27 below) in which no violation of the applicable procedural law had been found in a situation identical to that of the applicant.

    II.  RELEVANT DOMESTIC LAW AND PRACTICE

    A.  On the imposition of “preventive” measures

    19.  Article 68 of the Code of Criminal Procedure (in force until 30 September 2005) states that a prosecutor and court (a judge) have the right to impose on the accused person one of the preventive measures specified in the Code, provided that there is “sufficient probability” that the accused person, if at liberty, would evade the investigation or trial, or impede the establishment of the truth in the criminal case, including by threatening or influencing witnesses in the criminal case, or would continue his or her criminal activity (noziedzīgu darbību).

    20.  Article 72 provides that when deciding whether to apply a preventive measure and choosing which type of measure to apply, the investigator, prosecutor and court (judge) must take into consideration the seriousness of the crime, the personality of the accused person, the likelihood that, if at liberty, the person would evade the investigation and the court or impede the establishment of the truth (including threatening or influencing witnesses in the criminal case), as well as the occupation, age, state of health, family situation and other circumstances of the person.

    B.  On the circumstances in which a judge may be disqualified from participating in the adjudication of a criminal case

    21.  Article 27 § 2 of the Code of Criminal Procedure (in force until 30 September 2005) specifically provided that a judge’s prior involvement in decisions concerning preventive measures in criminal proceedings was not valid grounds for disqualifying that judge from the adjudication of the merits of the same criminal case.

    22.  Section 52(4)(1) of the Criminal Procedure Law (in force as from 1 October 2005) provides that a judge may not participate in the adjudication of a case if he or she has previously participated in the criminal proceedings in any capacity.

    23.  Section 55 of the Criminal Procedure Law regulates applications for a judge’s recusal and, so far as relevant, provides that a defence lawyer may challenge an official on the basis of the circumstances which prevent him or her from taking part in the criminal proceedings. A challenge may not be raised more than once on the same grounds and it must not be motivated by the actions taken by the judge in the particular criminal proceedings. The action is amenable to appeal in accordance with the law.

    C.  On the review of judgments and decisions which have entered into force (chapter 63 of the Criminal Procedure Law)

    24.  Section 662 of the Criminal Procedure Law provides that a decision or judgment which has entered into force may be examined de novo if it has not been examined in cassation proceedings. Under section 663 an application for a fresh examination of a judgment or decision must be submitted to the Senate of the Supreme Court by a defense lawyer specially authorised by the convicted person, whereas the Prosecutor General may submit an appeal (protests) on his or her own initiative or following a request from the accused person.

    25.  Section 665 provides that the above-mentioned appeal may be submitted if: (1) a judgment or a decision has been adopted by an unlawfully composed court; (2) one of the judges was absent during the court deliberations; or (3) breaches of the procedural and material provisions of the Criminal Law have exacerbated the situation of the convicted person.

    26.  There is no time-limit for lodging the above-mentioned appeal (section 667).

    D.  Case-law of the Senate of the Supreme Court on conditions preventing a judge from participating in the adjudication of a criminal case

    27.  On 27 April 2006 the Senate of the Supreme Court (case no. SKK-268/06) examined an appeal on points of law, in which one of the arguments that had been raised concerned the composition of an appeal court panel of which two judges had previously examined the legality of the accused person’s pre-trial detention. The Senate found that section 52 (4) (1) of the Criminal Procedure Law did not disqualify judges from examining the merits of a case if their previous involvement in the case (that is, in the adoption of a decision concerning the preventive measure) had taken place at the time when the Code of Criminal Procedure was still in force, because the Code of Criminal Procedure did not contain a provision equivalent to section 52(4)(1) of the Criminal Procedure Law. The Senate further noted that the applicant had not applied for a recusal of the judges and that in any event there had been no bias or subjective partiality on the part of the impugned judges.

    THE LAW

    I.  JOINDER OF THE APPLICATIONS

    28.  The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.

    II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

    29.  The applicants complained of the unlawful composition of the trial courts owing to the judges’ prior involvement in the criminal proceedings which, according to the applicants, undermined the impartiality of these courts. They relied on Article 6 of the Convention, which reads as follows:

    “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

    A.  Admissibility

    1.  In relation to the first applicant (application no. 17574/07)

    30.  The Government argued that the first applicant had failed to exhaust domestic remedies. In particular, they argued that he had not lodged a constitutional complaint contesting the constitutionality of section 52 (4) (1) of the Criminal Procedure Law.

    31.  The applicant disagreed.

    32.  According to the Court’s case-law in relation to Latvia, an individual constitutional complaint can be lodged against a legal provision only where an individual considers that the provision in question infringes his or her fundamental rights as enshrined in the Constitution (see Liepājnieks v. Latvia (dec.), no. 37586/06, § 73, 2 November 2010). Turning to the instant case, the first applicant has not claimed that the alleged infringement of his right to a fair trial derived from section 52(4)(1) of the Criminal Procedure Law. Rather, he contests the interpretation of the above provision by the national courts when examining his challenge against the judge who had previously taken part in his criminal case. Bearing in mind the scope of individual constitutional complaints in Latvia in cases where the alleged violation resulted only from an erroneous application or interpretation of a legal provision which, in its content, was not unconstitutional, the Court notes that it has already rejected similar objections in a number of its judgments (see Savičs v. Latvia, no. 17892/03, § 115, 27 November 2012, and Petrova v. Latvia, no. 4605/05, § 69, 24 June 2014). The Court considers that these objections must be rejected in the instant case for the same reasons.

    2.  In relation to the second applicant (application no. 25235/07)

    33.  The Government claimed that the second applicant had not requested the prosecutor to lodge an appeal (protests) against the judgment of 2 February 2007, as provided for under chapter 63 of the Criminal Procedure Law, and that he had therefore failed to exhaust domestic remedies.

    34.  The second applicant considered that the procedure invoked by the Government did not provide for an effective remedy, as it had not been directly accessible to him.

    35.  The Court refers to its extensive case-law to the effect that an application for a supervisory review or similar extraordinary remedy cannot, as a general rule, be taken into account for the purposes of applying Article 35 § 1 (see Sakhnovskiy v. Russia [GC], no. 21272/03, § 42, 2 November 2010). An exception could be granted in certain instances where the proceedings, although characterised as “extraordinary” or “exceptional” in domestic law, were deemed to be similar in nature and scope to ordinary appeal proceedings (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 47-49, ECHR 2015 and the cases cited there).

    36.  In the present case the Court takes note of the relevant provisions of the domestic law (see Relevant domestic law and practice, paragraphs 24-26 above). It observes, firstly, that the judgment of 2 February 2007 had become final and, secondly, that the review procedure invoked by the Government was not directly accessible to the applicant, because the reopening of the case was at the discretion of the judges or prosecution officials (unlike the position in, for example San Leonard Band Club v. Malta, no. 77562/01, §§ 41-48, where the domestic authorities did not exercise any discretionary power). Furthermore, recourse to that procedure was without any time-bars, thus rendering nugatory the six-month rule (see Sakhnovskiy, cited above, §§ 42-43).

    37.  In the light of the above, the Court concludes that the review procedure enshrined in chapter 63 of the Criminal Procedure Law constituted an extraordinary remedy. Given that it could not be considered as a normal appeal “in disguise”, recourse to that procedure cannot be taken into account for the purposes of Article 35 § 1 of the Convention. The Government’s objection must therefore be rejected.

    3.  In relation to both applicants’ complaints about allegedly unlawful composition of their respective courts

    38.  The Court observes that the applicants’ allegations to the effect that their criminal cases were heard by unlawfully composed trial court benches are related to the allegation that the judges who had previously participated in the pre-trial phase of their respective criminal proceedings were not impartial. In this relation the Government submitted that according to the domestic courts’ interpretation of section 52 of the Criminal Procedure Law, the judges had not been precluded from sitting on the trial court bench if they had adopted procedural decisions at the pre-trial stage of the same criminal proceedings before 1 October 2005, namely before the new Criminal Procedure Law came into force. The first applicant did not comment on that and the second applicant disagreed with the Government’s argument about the interpretation of the domestic law.

    39.  The Court sees no reason to call into question the manner in which the Latvian courts interpreted the contested provision (see paragraph 27 above) or to pronounce in abstracto on this question. Notably, in the context of an alleged breach by a tribunal of domestic legal provisions relating to the establishment and competence of judicial organs, the Court will not question the interpretation of the domestic courts on the matter, unless there has been a flagrant violation of domestic law (see Biagioli v. San Marino, (dec.), no. 8162/13, §§ 71-75, 8 July 2014).

    4.  Conclusions

    40.  The Court concludes, first, that as far as the applicants complained about the partiality of the judges of their respective courts, the applicants’ complaints under Article 6 § 1 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

    41.  Second, the Court concludes that the applicants’ complaints about allegedly unlawful composition of the trial court are manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.

    B.  Merits

    1.  Arguments of the parties

    42.  In relation to the first applicant, the Government emphasised that the detention order had been adopted and upheld exclusively on the grounds that the applicant might abscond. The first applicant had made no submissions in that regard.

    43.  As regards the second applicant, the Government drew the Court’s attention to the significant amount of time - almost two years - that had passed since the panel of judges had adopted the first decision in the relevant criminal proceedings. Furthermore, they underlined that the trial court bench had been composed of three judges which, in their view, had provided sufficient guarantees against any bias on the part of the judges. The Government added that in any event the applicant had not used his right to call for the recusal of a judge just before the hearing.

    44.  The first applicant did not submit observations on the merits. The second applicant alleged that the appellate court judges had already established an opinion on the defendant’s personality and had expressed the view that he had a tendency to commit criminal offences. He further alleged that during the pre-trial stage and the trial, the court had been composed of exactly the same three judges. In the applicant’s opinion, there was no way in which that could have provided any safeguards against bias. Furthermore, the applicant considered as irrelevant the amount of time which had passed since the same judges had examined his detention order, because the decision had been added to the criminal case file and had therefore been available to the trial judges.

    45.  Lastly, according to the second applicant, if at the end of the criminal proceedings he were found innocent, then the period he had spent in pre-trial detention would have to be considered to be unfounded. In such a case, the trial judges would have to concede that their previous decision concerning the applicant’s detention had been wrong.

    2.  The Court’s assessment

    46.  Before examining separately in each of the applications whether the involvement of the judges at the pre-trial stage could cast doubt on the impartiality of the trial court, the Court reiterates that impartiality, within the meaning of Article 6 § 1 of the Convention, normally denotes the absence of prejudice or bias. There are two tests for assessing whether a tribunal is impartial: the first consists in seeking to determine a particular judge’s personal conviction or interest in a given case (subjective test); and the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (objective test). In the first test, the impartiality of a judge must be presumed until there is proof to the contrary. The second test determines whether there are ascertainable facts which may raise doubts as to the impartiality of a body sitting as a bench. In this respect, even appearances may be of some importance, but what is decisive is whether the fear can be held to be objectively justified (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, §§ 75 - 77, ECHR 2007-IV).

    47.  However, there is no watertight division between subjective and objective impartiality since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer but may also go to the issue of his or her personal conviction, therefore in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Morice v. France [GC], no. 29369/10, § 75, 23 April 2015, and cases cited therein).

    48.  The Court also reiterates that according to its case-law, in a legal system where at the pre-trial stage the judge carries out his or her functions independently and is not responsible for preparing the case for trial or deciding whether the accused should be brought to trial, the mere fact that a trial judge or an appeal judge has also made pre-trial decisions in the case, including those concerning pre-trial detention, cannot in itself be held as justifying fears as to his impartiality (see Hauschildt, cited above, § 50). Nevertheless, special circumstances in a given case may be such as to warrant a different conclusion (ibid., § 51, see also Chesne v. France, no. 29808/06, § 38, 22 April 2010).

    (a)  The first applicant

    49.  The Court notes that it is not disputed that on one occasion Judge G.K. chaired the panel of three judges which reviewed and upheld the decision on the applicant’s pre-trial detention (see paragraph 8 above). However, that decision concerned the evidence that the applicant had previously absconded and that he still had no permanent place of residence. Based on that evidence, the domestic court was persuaded that the applicant would probably abscond again during the investigation and trial. Moreover, there is insufficient evidence that at the time of reviewing the detention order the judge engaged in any assessment of evidence establishing the applicant’s guilt (see Sutyagin v. Russia (dec.), no. 30024/02) or that she expressed any other view which would cause misgivings and raise legitimate reasons for fear of impartiality.

    50.  It follows that there has been no violation of Article 6 § 1 of the Convention.

    (b) The second applicant

    51.  The Court notes at the outset that in their observations on the merits the Government argued that the second applicant had not called for a recusal of the appellate court judges under section 55 of the Criminal Procedure Law. Even though the Government have not argued that by failing to challenge the composition of the appellate court the applicant had implicitly waived his rights under Article 6, the Court will nevertheless examine this issue. According to the Court’s case-law, a waiver of a right guaranteed by the Convention must be established in an unequivocal manner (see Colozza v. Italy, 9024/80, 12 February 1985, § 28, Series A no. 89). Furthermore, in the case of procedural rights, in order for a waiver to be effective for Convention purposes, it requires minimum guarantees commensurate to its importance (see Pfeifer and Plankl v. Austria, 25 February 1992, § 37, Series A no. 227).

    52.  The Court observes that the applicant’s principal objection regarding the composition of the appellate court bench was essentially based on its previous involvement in his criminal case. Looking at the wording of section 55 of the Criminal Procedure Law invoked by the Government (see Relevant domestic law and practice, paragraph 23 above), it is not evident that a challenge against a judge in the particular circumstances would have fallen within the scope of that provision.

    53.  The Court will next assess the impartiality of the “tribunal” that tried the second applicant. Applying the above-mentioned principles (see paragraphs 46 - 47 above) and reiterating that there is no watertight division between subjective and objective impartiality, the Court shall look at both tests together.

    54.  First, the Court will examine the nature and extent of the competence of the court that reviewed the decision on the applicant’s pre-trial detention and the wording of that decision. Article 68 of the Code of Criminal Procedure (see paragraph 19 above) requires “sufficient probability” that the person, through his activities, will obstruct the establishment of the truth in the criminal proceedings. When imposing the measure, the domestic court takes into account various circumstances, as provided for in Article 72 of the Code (see paragraph 20 above). In examining the second applicant’s appeal against the initial detention order, the appellate court relied heavily on his personality and his tendency to commit crimes. In this connection, the Court has stated that a reference to the particular circumstances of the charges, indicating the gravity of the offences and the applicant’s previous convictions, could not be seen as going beyond what should be regarded as an objective and reasonable evaluation of the situation for the purposes of deciding the question of his pre-trial detention (see Jasiński v. Poland, no. 30865/96, § 56, 20 December 2005; see also Dragojević v. Croatia, no. 68955/11, § 118, 15 January 2015).

    55.  Second, the Court will examine a number of aspects of the judges’ conduct capable of raising an issue under the subjective test (see Kyprianou v. Cyprus [GC], no. 73797/01, §§ 130 - 133, ECHR 2005-XIII). In the instant case the domestic court also stated that “[the second applicant] does not learn any lessons and is once again suspected of having committed an identical crime”. The above assertion was directly followed by the statement, “He commits such acts regardless of the considerations included in his own appeal [for the review of the detention order]”. The court made no reference in the wording quoted above to the existence of mere reasonable suspicions. The phrase “he commits such acts” suggests that the court was referring to the criminal offence which the applicant was suspected of having committed in the criminal proceedings. The language used could be perceived as going beyond the examination of the existence of a suspicion against the applicant (compare with Hauschildt, cited above; see also Mironenko and Martenko v. Ukraine, no. 4785/02, § 71, 10 December 2009) and running counter to the requirement of the judicial authorities to abstain from taking a stance on the outcome of the case and to express any suggestions in that regard (see Lavents v. Latvia, no. 58442/00, § 119, 28 November 2002). In light of the above, the Court considers that the judges had made statements at the pre-trial stage which called into question subjective impartiality on their part.

    56.  Third, the Court will examine the Government’s argument that the number of judges sitting on the panel of the appellate court and the passage of time since the adoption of the decision at the pre-trial stage provided sufficient safeguards against any possible bias. The Court first observes that the panel examining the applicant’s appeal in the criminal case was composed of the same three judges who took the decision on detention at the pre-trial stage. This gave the applicant legitimate reason to fear a lack of impartiality on the part of the whole bench of the appellate court (contrast with, for example, Garrido Guerrero v. Spain ((dec.) no. 43715/98, ECHR 2000-III), where only one judge of a five-judge bench was affected by the partiality plea). Furthermore similarly as in the case of Kyprianou, cited above, § 134, the applicant’s misgivings in the present case were not remedied by the higher court (see paragraph 18 above).

    57.  As for the allegedly significant time-lapse - nearly two years since the earlier involvement of the judges in the same proceedings - the Court notes that this aspect is not of decisive importance (see, for example, HIT d.d. Nova Gorica v. Slovenia, no. 50996/08, § 34, 5 June 2014, where the passage of almost eight years did not prevent the Court from establishing a violation). In the present case the Court does not accept that a two-year gap between the judges’ involvement in the case could amount to a safeguard against partiality, given that the fear of partiality derived from the particular wording of the first decision.

    58.  The Court concludes that the second applicant’s misgivings about the impartiality of the appellate court are justified both with reference to the subjective and the objective tests taken together - the misgivings were raised by the wording of the decision concerning the applicant’s pretrial detention and they were reinforced by the fact that the panel of the same judges later dismissed his appeal.

    59.  There has accordingly been a violation of Article 6 of the Convention.

    III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

    60.  Lastly, the applicants also made numerous other complaints under Articles 5 § 1, 6, 14 and 17 of the Convention as well as Article 2 of Protocol No. 7 and Article 1 of Protocol No. 12 to the Convention. These complaints were not communicated to the Government.

    61.  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 applications does not disclose any appearance of a violation of any of the Articles of the Convention relied on. It follows that these complaints are inadmissible under Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4 of the Convention.

    IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

    62.  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

    63.  The second applicant claimed 70 euros (EUR) for every day he had spent in prison in respect of non-pecuniary damage. Alternatively, he claimed just satisfaction in an amount to be decided by the Court.

    64.  The Government disagreed with the claim. They contended that the second applicant had failed to demonstrate that he had sustained any non-pecuniary damage. Alternatively, the Government submitted that if the Court were to find a violation, that in itself would constitute sufficient just satisfaction. However, should the Court decide to make an award for the violation found under Article 6 of the Convention, the Government invited it to award compensation on an equitable basis, taking into account the existing socio-economic circumstances in Latvia and the Court’s case-law under which, according to the Government, the amount of compensation should not exceed EUR 3,000.

    65.  Having regard to the nature of the violation found in the present case and deciding on an equitable basis, the Court awards the second applicant EUR 3,000 (three thousand euros) in respect of non-pecuniary damage.

    B.  Default interest

    66.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

    FOR THESE REASONS, THE COURT, UNANIMOUSLY,

    1.  Decides to join the applications;

     

    2.  Declares the applicants’ complaints under Article 6 of the Convention concerning the partiality of the judges of the respective courts admissible, and the remainder of the applications inadmissible;

     

    3.  Holds that there has been no violation of Article 6 of the Convention with regard to the first applicant;

     

    4.  Holds that there has been a violation of Article 6 of the Convention with regard to the second applicant;

     

    5.  Holds

    (a)  that the respondent State is to pay the second applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

    (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

     

    6.  Dismisses the remainder of the second applicant’s claim for just satisfaction.

    Done in English, and notified in writing on 7 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Claudia Westerdiek                                                           Angelika Nußberger
           Registrar                                                                              President

     


    [1].  The former Code of Criminal Procedure was repealed as from 1 October 2005 when the new Criminal Procedure Law came into effect.

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