FIFTH SECTION

CASE OF OZOLS v. LATVIA

(Application no. 61257/08)

JUDGMENT

STRASBOURG

13 July 2017

This judgment is final but it may be subject to editorial revision.

In the case of Ozols v. Latvia,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	André Potocki, President,
	Mārtiņš Mits,
	Lәtif Hüseynov, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having deliberated in private on 20 June 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 61257/08) 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 Latvian national, Mr Jānis Ozols (“the applicant”), on 10 December 2008.
2.  The applicant was represented by Mr M. Krūmiņš, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Mrs K. Līce.
3.  On 19 February 2014 the complaint under Articles 6 §§ 1 and 3(d) of the Convention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejected it.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1970 and lives in Riga.
5.  In 2000 a criminal investigation was conducted into suspected irregularities in customs procedures with respect to the transit of vehicles. As a result of these unlawful activities, it had been possible for third persons to legalise foreign goods (the vehicles) in Latvia using falsified documents.
6.  Seven customs officials, including the applicant, were charged with exceeding their official powers or failing to fulfil their duties. Each of the officials had allegedly acted unlawfully at different stages of the customs procedures. The applicant was charged with negligence which had caused substantial harm to the State and public interest. This charge was brought in connection with the processing of documentation for a used semi-trailer.
7.  Several witnesses were questioned during the pre-trial stage, including witness E.A., a Latvian national residing in Latvia, who had purchased one of the vehicles.
Section 1.01	A.  First instance court proceedings
8.  On 16 December 2005 the Riga Regional Court, acting as the court of first instance, found the applicant guilty and imposed on him a fine to the amount of five minimum monthly salaries.
9.  With respect to the applicant, the court established that on 31 March 1999 at a customs control point he had acted contrary to the applicable regulations in the processing of documentation for the importation of the used semi-trailer.
10.  In particular, the applicant had accepted a transit declaration from a person who had not been a declarant’s authorised representative. He had not verified whether the person submitting a power of attorney had been the person to whom it had been issued. The applicant had not verified whether the used semi-trailer had been in the customs zone. Further, he had not issued an administrative violation record on the non-compliance with the forty-eight hour time-limit for the delivery to the customs office of the used semi-trailer. Furthermore, the documentation processed had been incomplete.
11.  The regional court relied on a report drawn up by the State revenue service, dated 24 March 2000. The report stated that the applicant had not complied with a number of applicable regulations.
12.  Further, the court referred to the pre-trial statement of witness E.A. who was summoned to a court hearing but could not attend due to his hospitalisation. The court took note of a medical certificate to that effect.
13.  E.A. had testified that he had purchased the semi-trailer at the beginning of 1999. He had come to the customs control point together with the vendor’s representative. The vendor’s representative had turned first to a customs representative and then to a customs officer who processed the documentation. The semi-trailer had not been at the customs warehouse and it could not have been inspected by the customs officer. According to the documentation, the customs clearance of the vehicle was carried out by the applicant.
After the statements were read out, the applicant’s defence asked the court to explain on what grounds a certified copy of the statements of E.A. was included in the case-file and where was its original. The request was upheld and the prosecutor provided a reply.
14.  The court relied on a set of documentary evidence attesting to the fact that the documentation for the semi-trailer in question had been processed by the applicant and that the semi-trailer had not entered the customs territory.
15.  The applicant appealed against the first instance court judgment.
Section 1.02	B.  Second instance court proceedings
16.  At the appellate hearing on 8 January 2007, E.A. could not be summoned to the hearing because he was abroad at the time. The applicant requested that E.A. be summoned to the appeal proceedings.
17.  The appellate court decided that this request be granted and E.A. was summoned to the hearings of September 2007 and February 2008. On both occasions E.A. asked the appellate court in writing to excuse his absence from the hearing on the grounds of hospitalisation (in September 2007) and his being abroad and having a technical problem with a car which had prevented him from coming to the hearing (in February 2008). He further asked the court to read out his pre-trial statements.
18.  On 11 February 2008 the appeal proceedings were resumed.
19.  During the court hearing, the applicant’s defence and the court questioned a defence witness – a customs expert on the customs procedure and its application.
20.  E.A. did not appear at the court hearings on 11 and 12 February 2008. The prosecutor submitted that, by way of such conduct, E.A. avoided appearing in court and that this gave grounds for his testimony to be read out.
21.  The applicant’s defence counsel disagreed that E.A.’s testimony could be read out. At the same time, the defence counsel submitted that he
“[did] not need witness [E.A.] anymore ... the evidence [previously] given by the expert [was sufficient]. We do not uphold the request anymore. I consider that his statements should not be read out... I consider that there are no justifiable grounds for [E.A.] not appearing in court”.
22.  The appellate court ruled that E.A.’s testimony be read out in accordance with section 501 of the Criminal Procedure Law.
23.  After the testimony was read out, the applicant’s defence explicitly stated that they did not have any requests and that the court adjudication could be terminated.
24.  On 15 February 2008 the appeal court upheld the applicant’s conviction. It considered that the applicant had inadequately verified the power of attorney (see paragraph 10 above).
25.  The appellate court referred to the evidence of witness E.A., i.e., that the semi-trailer had not been at the customs warehouse and the customs officer could not have inspected it. It also relied on the logbook indicating that the semi-trailer had not entered the customs territory. The court also relied on the applicant’s statements in which he considered that the verification on the merits had been carried out by the customs broker and therefore those tasks fell outside his duties. The appeal court dismissed the applicant’s contention that he had inspected the semi-trailer.
26.  Furthermore, the appeal court held that the applicant had inadequately verified the payment documents. It reasoned that the payment orders in question had given the appearance that a transfer of funds had been made to the State. However, a bank report indicated that these orders had neither been registered nor confirmed by the bank.
27.  The appeal court found that the applicant had formally performed his official duties. However, it deemed that the applicant’s contention – that a customs broker and not a customs officer had been responsible for the truthfulness of the information – indicated that, in fact, the applicant had not verified anything.
28.  In his appeal on points of law the applicant argued that the appellate court had not ensured the attendance of E.A. He insisted that the evidence attested to the fact that he had verified the power of attorney and had compared the bank accounts indicated in the payment orders. No electronic database had existed at the time and the only way to check the payment documents had been to compare the bank accounts listed.
Section 1.03	C.  Final court decision upon appeal on points of law
29.  On 1 July 2008 the Senate of the Supreme Court dismissed the applicant’s appeal on points of law.
30.  It reasoned that the appellate court had verified the testimonies of witnesses in accordance with section 501 of the Criminal Procedure Law. Also, the appeal court had made efforts to establish E.A.’s whereabouts and to bring him to court. Therefore, the appeal court had done everything possible in order to call E.A. to court.
31.  This decision was final.
Article II.	II.  RELEVANT DOMESTIC LAW
32.  In accordance with section 501(3) of the Criminal Procedure Law, a person’s testimony given earlier may be read out in court if the person is not present at the court hearing due to a reason which makes attendance impossible. Section 501(4) of the law provides that a testimony may also be read out in court if the person avoids going to court or refuses to testify.
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLES 6 §§ 1 and 3 (d) OF THE CONVENTION
33.  The applicant complained that he and his defence counsel were deprived of the opportunity to question witness E.A. and that the domestic courts had not provided sufficient reasoning on his guilt, thus violating Article 6 §§ 1 and 3 (d) of the Convention, the relevant parts of which read as follows:
“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... .
3.  Everyone charged with a criminal offence has the following minimum rights:
(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”
Section 3.01	A.  Admissibility
34.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
(a)	1.  The parties
35.  The applicant alleged that witness E.A. avoided appearing before the domestic courts without justified reasons and that the domestic court did not make efforts to ensure his attendance. He further submitted that even though at the final stages of court adjudication he had not insisted on the attendance of E.A., he had been constantly against the reading out of his statements at the trial. Finally, he stated that his trial could not be considered as fair because the judgment failed to indicate why it preferred some evidence but did not trust other.
36.  The Government contended firstly, that the applicant had waived his right to summon witness E.A. (see paragraph 21 above). Secondly, they argued that the authorities had shown that they had made efforts to summon the witness. Thirdly, it was argued that the testimonies of witness E.A. could not be considered sole or decisive and that, finally, the applicant had been found guilty on the basis of hard evidence and that the domestic courts had provided detailed reasoning thereof.
(b)	2.  The Court
37.  The Court reiterates that the guarantees in paragraph 3(d) of Article 6 of the Convention are specific aspects of the right to a fair hearing set forth in paragraph 1 of that Article which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see Schatschaschwili v. Germany [GC], no. 9154/10, § 101, ECHR 2015). The principles to be applied when a witness does not attend a public trial were set in the case of Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 119-147, ECHR 2011), and further clarified in Schatschaschwili, cited above, § 107 and §§ 111‑131. These principles have been recently summarised in the case of Seton v. the United Kingdom, (no. 55287/10, § 59, 31 March 2016), as follows:
“... [T]he absence of good reason for the non-attendance of a witness could not, of itself, be conclusive of the lack of fairness of a trial, although it remained a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3(d). Furthermore, given that its concern was to ascertain whether the proceedings as a whole were fair, the Court should not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant’s conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but nevertheless was satisfied that it carried significant weight and its admission might have handicapped the defence. The extent of the counterbalancing factors necessary in order for a trial to be considered fair would depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors would have to carry in order for the proceedings as a whole to be considered fair.”
38.  The Court will apply the above principles in turn.
(i)	(a)  Whether there was a good reason for the non-attendance of witnesses E.A. at the trial
39.  With regard to the first question as to whether there was a good reason for the non-attendance of E.A. at the trial, the Court reiterates that the need for all reasonable efforts on the part of the authorities to secure the witness’s attendance at the trial implies careful scrutiny by the domestic courts of the reasons given for the witness’s inability to attend trial, having regard to the specific situation of each witness (see Schatschaschwili, cited above, § 122).
40.  In the present case the Court observes that on several occasions the first-instance court and the appellate court attempted to secure the attendance at the trial of witness E.A. who was absent either due to his hospitalisation or being abroad and having technical problems with his car preventing him from appearing at the court hearings (see paragraphs 12 and 17 above). Even though the absence on health grounds can be considered as a valid justification for non-appearance of a witness (see, for instance, Bobeş v. Romania, no. 29752/05, § 39, 9 July 2013), a failure to comply with the court summons due to E.A. being abroad could have been overcome by the court compelling the witness to appear at the hearing, which was not the case here.
41.  Being required to have regard to the specific situation of each case, the Court notes, however, that before discontinuing compelling E.A. to attend a hearing, the appellate court consulted the applicant’s counsel who explicitly revoked the request that witness E.A. be summoned to trial (see paragraph 21 above). In this regard the Court reiterates that before an accused can be said to have waived an important right under Article 6 of the Convention, it must be shown that he could reasonably have foreseen the consequences of his conduct in this regard (see Idalov v. Russia [GC], no. 5826/03, § 172, 22 May 2012). Taking note of the defence’s views that the presence of E.A. was not needed and of the legislative provisions on the processing of statements of absent witnesses (see paragraph 32 above), the applicant must have been aware that the domestic court might decide to read out E.A.’s testimony.
42.  To sum up, even though the appellate court could have shown more efforts in summoning witness E.A. to the trial, it should be weighed against the applicant’s waiver of the right to summon this witness. The Court therefore concludes that in these circumstances the absence of witness E.A. should not weigh heavily in the balance in the examination of the overall fairness of the proceedings.
43.  At the same time, observing the defence counsel’s clear objections against reading out E.A.’s testimony, the Court will continue assessing whether the reading out of these statements had a negative impact on the overall fairness in the criminal case. In this regard the Court will apply the above-mentioned principles (see paragraph 37 above).
(ii)	(b)  Whether the evidence of the absent witnesses E.A. was the sole or decisive basis for the applicant’s conviction
44.  As to the weight of the absent-witness’ evidence, the Court cannot conclude that it had a sole and decisive role. The Court observes that the applicant’s guilt was established on the basis of a set of evidence, including the applicant’s own statements and of documentary evidence attesting to the fact that he had failed to comply with his duties (see paragraphs 25-27 above). In addition, the applicant’s complaints to the domestic courts do not show that he had at any time considered that E.A.’s statements were decisive for his conviction. Nevertheless, given the need under Article 6 to assess the fairness of the proceedings taken as a whole, the Court still needs to determine whether there were sufficient factors counterbalancing any handicaps that the admission of that evidence might have entailed for the defence (see Seton, cited above, § 64).
(iii)	(c)  Whether there were sufficient counterbalancing factors
45.  On the existence of counterbalancing factors, the Court observes that, taking note of the relatively less important weight of E.A.’s statements, the possibility for the applicant to state his own account of the facts and to point out to any incoherence in the statements of E.A. could have counterbalanced any potential difficulties imposed on the defence (see in this regard Aigner v. Austria, no. 28328/03, § 43, 10 May 2012). The Court observes, firstly, that the applicant was at all times represented by counsel who effectively carried out the applicant’s defence by, inter alia, questioning another witness (see paragraph 19 above). Secondly, the first‑instance court had ordered the prosecutor to provide further information with regard to the recording of the statements of witness E.A. (see paragraph 13 above, compare with the case of Schatschaschwili, cited above, § 149), and the applicant did not raise further objections in that regard. Even though counsel objected to E.A.’s statements being read out during the hearing, at no moment did the applicant submit that those statements had been untrue.
46.  Other significant safeguards are domestic court’s cautious approach to the untested evidence (see Schatschaschwili, cited above, § 126) and the availability at the trial of corroborative evidence supporting the untested witness statement (ibid., § 128). In the present case the appellate court’s judgment shows that it had recourse to a number of evidence (see paragraph 25 above). It derives from the appellate court’s reasoning that E.A.’s statements were used to support the other evidence (ibid.; see also in this regard Mariana Marinescu v. Romania, no. 36110/03, § 79, 2 February 2010). The Court therefore considers that the appellate court treated E.A.’s statements in a careful manner.
47.  Next, the Court has considered that another safeguard is the possibility offered to the defence to put its own questions to the witness indirectly (see Schatschaschwili, cited above, § 129, with case-law cited there). The Court observes that the applicant was afforded an effective opportunity to come up before the appellate court with comments on E.A.’s statements or with any additional questions thereof, but that he did not exercise this right (see paragraph 23 above).
48.  Finally, as regards the reasoning of the domestic court’s decision, the Court reiterates that, although Article 6 § 1 of the Convention obliges courts to give reasons for their decisions, it cannot be interpreted as requiring a detailed answer to every argument (see Van de Hurk v. the Netherlands, no. 16034/90, 19 April 1994, §§ 59 and 61, Series A no. 288). In the present case, it is demonstrated by the documents submitted to the Court that the domestic courts gave sufficient arguments to enable the applicant to understand the reasons for his conviction (see to the contrary, for example, Caka v. Albania, no. 44023/02, § 110, 8 December 2009).
49.  The foregoing considerations are sufficient to enable the Court to conclude that the fact that the applicant could not question witness E.A. did not affect the overall fairness of the criminal case and that there is no arbitrariness in the reasoning of the domestic courts.
There has accordingly been no violation of Article 6 §§ 1 and 3 (d) of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the application admissible;

2.  Holds that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention.
Done in English, and notified in writing on 13 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Anne-Marie Dougin	André Potocki
	Acting Deputy Registrar	President