Sergejs KAPITONOVS v Latvia - 16999/02 [2007] ECHR 371 (5 April 2007)

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The European Court of Human Rights (Third Section), sitting on 5 April 2007 as a Chamber composed of:

Mr B.M. Zupančič, President,
Mr C. Bîrsan,
Mrs E. Fura-Sandström,
Mrs A. Gyulumyan,
Mr David Thór Björgvinsson,
Mrs I. Ziemele,
Mrs I. Berro-Lefèvre, judges,
and Mr S. Naismith, Deputy Registrar,

The applicant, Mr Sergejs Kapitonovs, is a Latvian national who was born in 1968 and lives in Riga.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 31 January 2000 the applicant was found guilty of an aggravated criminal offence and sentenced to a suspended sentence of three years’ imprisonment with a two years’ probation period. During the probation period the applicant was charged with other criminal offences, relating to several incidents.

On 9 February 2001 a judge of the Latgale District Court of the City of Riga (hereinafter referred to as “the Latgale District Court”), M., taking into account the severity of the offence the applicant was suspected of, his personality, occupation, age and state of health, decided to impose on him detention on remand as a preventive measure.

On 6 April 2001 a judge of the Latgale District Court, R., taking into account, inter alia, that the pre-trial investigation still had to be completed and the bill of indictment (apsūdzības raksts) had to be drafted and translated into Russian, the severity of the offence the applicant was suspected of, the danger of his absconding and the possibility that he could impede the investigation, extended the applicant’s detention on remand until 4 June 2001.

On 17 April 2001 the applicant’s legal counsel at the time, D., appealed against the decision of 6 April 2001 to the Riga Regional Court, stating inter alia that the applicant had a permanent work place and residence, and that he had never absconded or impeded the investigation.

On 24 April 2001 the Riga Regional Court, upon the appeal of 17 April 2001, upheld the decision of 6 April 2001. It considered that irrespective of the submissions of legal counsel D., who was present at the hearing, there was a danger of the applicant’s absconding and the possibility that he would impede the investigation.

On 11 June 2001 a prosecutor from the Riga Regional Public Prosecutor’s Office, G., informed the applicant that in the interests of the pre-trial investigation he was not allowed to meet his relatives or his minor son. This prohibition could only be revoked upon completion of the pre-trial investigation.

On 3 July 2001 prosecutor G. informed the applicant that his detention on remand and the deadline for the pre-trial investigation of his case had been extended. This was because the prosecutor’s office had to investigate an additional four cases involving criminal offences of which the applicant was suspected.

On 4 July 2001 prosecutor Č. informed the applicant that the prosecutor’s office communicated only in Latvian; the Administration of the Central Prison was responsible for translating documents into Russian for the applicant.

On 10 July 2001 prosecutor Č. informed the applicant that the prosecutor in charge of the investigation of his case had decided to restrict his right to receive visits and to correspond.

On 16 July 2001 prosecutor G. informed the applicant that a search of his home had been carried out by the police in accordance with a decision of the court. The documents taken were necessary for the pre-trial investigation. Moreover, the criminal offence, relating to five incidents, of which the applicant was suspected, had been joined with six other criminal offences.

On 8 August 2001 judge R., taking into account the fact that the applicant was suspected of a criminal offence relating to 14 incidents, committed during the probation period, the severity of the offence, the danger of his absconding and the possibility that he could impede the investigation, extended the applicant’s detention on remand until 8 October 2001.

On 28 August 2001 the Riga Regional Court, upon the applicant’s appeal, upheld the decision of 8 August 2001. The court took into account the submissions of the applicant, his legal counsel D. and public prosecutor K. It considered the severity of the criminal offence the applicant was suspected of and the possibility that he could impede the investigation. The applicant and his counsel were present at the hearing.

On 17 September 2001 the Head of the Riga Regional Prosecutor’s Office, D., informed the applicant that on 5 April 2001 prosecutor G. had charged him with another criminal offence. The decision was in Latvian but G. had interpreted the decision into Russian for the applicant. The applicant had not objected to this and had not ask for an interpreter. G. had nevertheless indicated that a person could be charged with an offence only in the presence of an interpreter. He had been requested to provide the applicant with a written translation of the decision.

On 25 September 2001, upon the decision of prosecutor G. and in accordance with the relevant provisions of the Criminal Procedure Code, a psychiatric examination of the applicant’s mental state of health was carried out by three psychiatric experts. They diagnosed that the applicant did not have any mental problems and thus could be held liable for the criminal offences of which he was suspected.

On 8 October 2001 a judge of the Latgale District Court, J., taking into account the severity of the offence the applicant was charged with, the danger of his absconding and the possibility that he could impede the investigation, extended the applicant’s detention on remand until 8 December 2001.The applicant’s legal counsel was present.

On 11 October 2001 prosecutor D. informed the applicant that it was not necessary to obtain his consent for the psychiatric examination he had to undergo in the course of the pre-trial investigation.

On 30 October 2001 prosecutor G. informed the applicant that the deadline for completion of the pre-trial investigation had been extended to 8 December 2001. There were no grounds for submitting the applicant to a medical examination, since the hospital of the Central Prison had stated that the applicant’s state of health was satisfactory. The keys of the applicant’s apartment which were included with the case materials were returned to his relatives.

On 9 November 2001 prosecutor D. informed the applicant that because of the pending pre-trial investigation it was necessary to prolong his detention on remand. Prosecutor G. had not delayed the pre-trial investigation intentionally, and the applicant would be informed of the precise number of incidents included in the case and of the criminal offences with which he would be charged when a decision was taken on the final indictment (galīgā apsūdzība).

On 16 November 2001 prosecutor G. questioned the applicant in the presence of his legal counsel D.

On 26 November 2001 prosecutor G. informed the applicant that detention on remand had been imposed on him and extended because the prosecution regarded it as necessary. Taking into consideration his personality and the circumstances of the criminal case, the prosecutor decided not to allow him to meet his relatives.

On 5 December 2001 judge J. explained to the applicant in writing that, with regard to a change of the preventive measure, this was within the competence of the public prosecutor in charge of the investigation. In order to participate in the court hearing concerning the extension of his detention on remand, the applicant had to apply in writing beforehand.

On 7 December 2001 a judge of the Latgale District Court, B., taking into account the severity of the offence the applicant was charged with, the danger of his absconding and the possibility that he would impede the investigation, extended the applicant’s detention on remand until 30 December 2001.

On 27 December 2001 judge R., taking into account the severity of the offence the applicant was charged with, the danger of his absconding and the possibility that he would impede the investigation, extended the applicant’s detention on remand until 30 January 2002. The applicant appealed against this decision.

Between 18 December 2001 and 27 February 2002 the applicant consulted the case materials. He was assisted by his legal counsel D. and an interpreter.

On 18 January 2002, upon the applicant’s appeal, the Riga Regional Court upheld the decision of 27 December 2001. The court took into account the submissions of the applicant and prosecutor I., who were present at the hearing. It considered the personality of the applicant, the fact that he had been convicted twice, the danger of his absconding and the possibility that he would commit new criminal offences.

On 29 January 2002 a judge of the Latgale District Court, V., taking into account the severity of the offence the applicant was charged with and his personality, the danger of his possible absconding and the possibility that he would commit new criminal offences, extended the applicant’s detention on remand until 28 February 2002. The applicant was not summoned for the hearing and he complained about this to the judge.

On 5 February 2002 judge V. replied that, in accordance with the Instruction on the coordination of work organisation, when deciding to impose or extend a preventive measure a judge could summon the person concerned if it was regarded as necessary. In the instant case, she regarded the presence of the applicant as unnecessary.

On 18 February and 25 March 2002 prosecutor G. informed the applicant that on 15 and 22 March respectively the accused in the case had started to consult the case file and that this period would not be included in the period of detention on remand.

On 19 February 2002, upon the applicant’s appeal, the Riga Regional Court upheld the decision of 29 January 2002. The court took into account the submissions of the applicant, who was present at the hearing, that there were no grounds to consider that he would abscond and commit new criminal offences. It considered the severity of the offence the applicant was charged with, the danger of his absconding and the possibility that he would commit new criminal offences.

On 28 February 2002 judge V., taking into account the severity of the offence the applicant was charged with and the fact that the offence related to sixteen incidents, the applicant’s personality and his two previous convictions, the danger of his absconding and the possibility that he could commit new criminal offences, extended the applicant’s detention on remand until 20 March 2002. The applicant’s legal counsel D. was present during the deliberations.

On 19 March 2002 the applicant was presented with the case materials. He refused to take cognisance of them, which was duly recorded. Legal counsel D. took cognisance of the documents herself.

On an unspecified date the case was transferred to the Riga Regional Court for adjudication. The Riga Regional Court received the case on 2 April 2002.

On 3 April 2002 a judge of the Riga Regional Court, K., without holding a hearing, in accordance with Article 223 of the Criminal Procedure Code, decided to commit the applicant for trial. The applicant was not summoned and the preventive measure imposed on him was left unchanged.

On 10 April 2002 judge K., in reply to the applicant’s complaint, stated that, according to documentary evidence, he had refused to take cognisance of the case file. Besides, neither he nor his legal counsel had submitted any requests in that respect.

On 12 April 2002 prosecutor Č. informed the applicant that between 15 and 20 March 2002 the applicant and his co-accused had taken cognisance of the case materials and that this period, in accordance with Article 77 of the Criminal Procedure Code, was not included in the period of pre-trial detention.

On 17 May 2002 judge K., in reply to the applicant’s complaint, stated that there had been no grounds to hold a hearing on 3 April 2002. This decision was not subject to appeal, in accordance with Articles 237 and 465 of the Criminal Procedure Code. She stated that, having regard to the order of the cases assigned for a hearing, the criminal offence the applicant was charged with could not be adjudicated within the time-limit provided for by Article 241 of the Criminal Procedure Code.

On 17 May 2002 judge K. informed the applicant’s mother that, in order to receive permission to attend services in the prison church, the applicant had to submit a request himself.

On 4 June 2002 the applicant received a notebook which had been taken from him on 21 March 2002 in the context of the pre-trial investigation.

On 4 July 2002 a prosecutor at the Prosecutor General’s Office reminded the applicant that his legal counsel had taken cognisance of the case materials in March 2002. The consultation of the case materials had taken place over eight days, as one of his co-accused had started to take cognisance of the case materials on 15 March 2002. This period, according to Article 77 of the Criminal Procedure Code, was not included in the pre-trial detention. On 28 March 2002 the case had been transferred to the Riga Regional Court and the court had received it on 2 April 2002, as 29, 30 and 31 March and 1 April 2002 were public holidays. On 18 July 2002 the Prosecutor General confirmed this information.

On 16 July 2002 judge K. informed the applicant that he was entitled to consult the case file and take notes. He would be provided with that possibility but could not be provided with copies of all documents.

On 3 September 2002 judge K., in reply to the applicant’s complaints, informed him that a hearing in his case was scheduled for 3 February 2003. It was not possible to observe the time-limit under Article 241 of the Criminal Procedure Code because of the court’s workload. Regarding the applicant’s detention on remand, there were no grounds for changing it. That question had been decided on 3 April 2002. The applicant could raise the issue concerning a change of the preventive measure imposed on him during the hearing on 3 February 2003. The Latvian Council of Sworn Advocates (Latvijas Zvērinātu advokātu Padome) was asked to assign legal counsel for the applicant in due time to enable him to take cognisance of the case file and to meet the applicant before the hearing. The applicant received permission to attend the church of the Central Prison (Centrālcietuma baznīca).

It appears that on an unspecified date the applicant’s case was transferred to the Vidzeme Regional Court for adjudication.

On 16 December 2002 a judge of the Vidzeme Regional Court, L., replied to the applicant that the issue concerning the preventive measure imposed on him had been decided and that there were no grounds to revoke it.

On 27 December 2002 judge L. informed the applicant that his case would be adjudicated on 24 March 2003.

On 10 January 2003 judge L., in reply to the applicant’s complaint, explained to him that the hearing could be scheduled only for 24 March 2003 because of the court’s workload.

On 30 January 2003 judge L. informed the applicant that his detention between 15 and 22 March 2002 could not be included in the period of his detention on remand, in accordance with Article 77 of the Criminal Procedure Code.

On 24 March 2003 judge L. wrote to the applicant, noting that during the pre-trial investigation he had been assisted by legal counsel D., who had been informed that the case would be adjudicated in May 2003. In the event that she would not be able to participate in the hearing, the applicant would be provided with another legal counsel.

On 9 April 2003 judge K. informed the applicant that the adjudication of his case had been postponed because of the retirement of the judge who was in charge of his case. The hearing had been rescheduled for 26 May 2003 and another judge would be appointed.

On 30 April 2003 the Supreme Court forwarded the applicant’s complaint to the Vidzeme Regional Court, informing him that questions concerning preparation of a case for adjudication by the first instance court were outside its competence.

On 8 May 2003 judge L. confirmed to the applicant that a hearing was scheduled for 26 May 2003 and that he would be provided with legal counsel.

On 12 May 2003 the Supreme Court informed the applicant that all questions concerning preparation of a case for adjudication by the first instance court (determination of date and place, etc.) could be decided exclusively by the first instance court in charge of the case, i.e. the Vidzeme Regional Court.

Between 26 May and 9 June 2003 the Vidzeme Regional Court examined the applicant’s case. It remitted the case for additional investigation to the public prosecutor at the Riga Regional Court. The court changed the preventive measure – detention on remand – imposed on the applicant to a prohibition on changing his residence, which he had to acknowledge by his signature (paraksts par dzīves vietas nemainīšanu). The applicant was present at the hearing and requested that the case be transmitted for additional investigation. He was assisted by legal counsel and an interpreter throughout the proceedings.

The applicant submitted remarks concerning the minutes of these proceedings. The Vidzeme Regional Court found them to be well-founded and attached them to the minutes.

On 31 July 2003 the Criminal Chamber of the Supreme Court, on the public prosecutor’s appeal (prokurora protests), upheld the decision of the Vidzeme Regional Court of 9 June 2003. The applicant was present at the hearing and assisted by an interpreter. According to the minutes of the hearing, the applicant did not request the court to summon or examine any witness and did not ask for legal assistance.

On 6 August 2003 the Criminal Chamber of the Supreme Court replied to the applicant that he could take cognisance of the minutes of the court proceedings in the court.

On 14 January 2004 a prosecutor of the Prosecutor General’s Office informed the applicant that the case materials would be presented to him upon completion of the pre-trial investigation.

On 14 January 2004 a prosecutor of the Riga Region, Z., decided to change the preventive measure imposed on the applicant – the prohibition on changing his residence – to a more severe one – police supervision. The change was based inter alia on the fact that the applicant had changed his residence without notifying the authorities and had not presented himself to the prosecutor when he was summoned.

On 9 February 2004 the prosecutor of the Riga Region, B., confirmed the information provided on 14 January 2004.

On 23 March 2004 the Latvian Council of Sworn Advocates examined the applicant’s complaint about his legal counsel at the time, S., and found it to be unfounded.

On 25 March 2004 prosecutor Z. decided to charge the applicant with fraudulent acquisition of property, relating to 18 incidents, and forgery of documents.

On 6 April 2004 prosecutor Z. informed the applicant that as of 3 February 2004 his legal counsel had been P. In the event that he was dissatisfied with her services, he could complain to the Latvian Council of Sworn Advocates.

On 7 April 2004 prosecutor Z. found the applicant’s request to dismiss his legal counsel P. to be unfounded. It was established that P. conformed to the requirements of the Criminal Procedure Law. The applicant had not asked for appointment of another counsel and had not waived his right to have one. Thus, it was decided that he should take cognisance of the case materials with the assistance of legal counsel P.

On 19 April 2004 prosecutor Z. informed the applicant that as from 14 April 2004 his legal counsel had been R.

On 19 April 2004 prosecutor Z. wrote to the applicant, noting that on 6 April and 8 April 2004 the applicant had stated in writing that he would take cognisance of the case materials without legal counsel’s assistance. As from 14 April 2004, his legal counsel was R. It was explained that he could take notes or make copies of the materials but that it was not part of the obligations of the public prosecution to provide him with copies of all case materials. As to the applicant’s concerns about the competence of the interpreters, he was assured that their interpretation was professional and correct.

On 21 April 2004 prosecutor Z. informed the applicant of a decision of 15 April 2004 refusing his requests, in particular to change the preventive measure – police supervision – imposed on him to a prohibition on changing his residence.

Apparently on 22 April 2004 the additional investigation of the applicant’s case was completed and applicant’s case was transferred to the court for adjudication. The preventive measure imposed on him was extended.

On an unspecified date in April 2004 the Riga Regional Court received the applicant’s case.

On 27 April 2004 a judge of the Riga Regional Court, S., decided to examine the case at hearings scheduled for 2 December 2004 to 12 January 2005. The preventive measure imposed on the applicant was extended. This decision was not subject to appeal.

On 6 May 2004, upon the applicant’s complaint of 28 April 2004, judge S. replied that the preventive measure had been imposed on him correctly (pareizi) and that there were no grounds to take new decisions in that respect.

On 31 May 2004 judge S. informed the applicant that he was in charge of his case. The applicant could consult the case file and take notes in the Riga Regional Court on Thursdays between 9 a.m. and 5 p.m.

On 17 June 2004 the applicant, when consulting his case file, discovered that several documents were missing. He informed the court personnel.

On 1 July 2004 judge S. informed the applicant that all documents connected with his case were in the file and that he could consult them. He could also receive copies of the documents he required.

On 13 July 2004 judge S. informed the applicant that the hearing in his case had been scheduled in the light of the workload of the judges and the order in which cases were received.

On 6 August 2004 the Criminal Chamber of the Supreme Court informed the applicant that his case had apparently not been adjudicated by the Riga Regional Court within the time-limit provided for by Article 241 of the Criminal Procedure Code because of its huge workload. At his stage he could not appeal against the replies provided by the Riga Regional Court.

On 14 January 2005 the Riga Regional Court found the applicant guilty of aggravated fraud and forgery of documents and sentenced him, taking into account his conviction by the Talsu District Court of 31 January 2000, to twelve years’ imprisonment and confiscation of property. His pre-trial detention between 8 February 2001 and 9 June 2003 was counted towards his sentence. The applicant was represented by legal counsel R. and assisted by interpreters throughout the proceedings. In establishing the applicant’s guilt, the court relied on the incriminating statements made by three co-accused and forty-three witnesses, on seven expert opinions and on documentary evidence.

On 26 January 2005 the judge of the Riga Regional Court, S., informed the applicant that there was no prohibition on corresponding with or meeting his family members. As regards his request to replace his legal counsel R., the applicant was asked to indicate the legal counsel he wanted to represent him. The applicant was informed that he could take cognisance of the minutes of the hearing of 14 January 2005 and would be assisted by an interpreter. The judgment in Russian would be given to him upon its translation.

On 4 February 2005 judge S. confirmed his reply of 26 January 2005. He informed the applicant that he would be allowed to submit comments regarding the minutes within three days after taking cognisance of them. He would be able to appeal against the judgment within ten days after receiving the translation.

Between 16 February and 23 February 2005 the applicant took cognisance of the case. He was assisted by an interpreter. On 22 February 2005 the translation of the judgment was sent him.

On an unspecified date the applicant appealed against the judgment of 14 January 2005. Copies of his appeal were sent to the parties to the proceedings, including victims and civil claimants.

On 17 May 2005 the Criminal Chamber of the Supreme Court carried out an initial examination of the applicant’s appeal. His legal counsel R. was present throughout the deliberations. The applicant himself was not present. The court established that the applicant had duly been able to take cognisance of all case documents. He had been assisted by an interpreter and legal counsel throughout the first instance court proceedings on 14 January 2005. Besides, during that hearing he had not complained that he could not get access to the documents but had stated that he had been informed of the case and the documents. The court rejected this part of the applicant’s appeal as unsubstantiated and decided to transfer the remainder of the complaints for adjudication at the appeal hearing. This decision was translated into Russian and was not subject to appeal.

On 22 June 2005 a judge of the Criminal Chamber of the Supreme Court, K., decided to schedule an appeal hearing for 21 to 24 February 2006. She considered that the preventive measure imposed on the applicant had been chosen according to his personality and the criminal offence he had been charged with.

On 12 September 2005 judge K. replied to the applicant that he had taken cognisance of the case documents from 16 to 23 February 2005, during which period he had been assisted by an interpreter.

On 21 February 2006 the Criminal Chamber of the Supreme Court commenced the hearing in the appeal proceedings. The applicant was represented by legal counsel K. He requested dismissal of his legal counsel and informed the court that he wished to appoint another legal counsel of his own choice. The court accepted the applicant’s request and postponed the hearing.

On 6 March 2006 the Supreme Court informed the applicant that the appeal proceedings would take place between 4 and 6 October 2006.

On 22 March 2006 the Latvian Council of Sworn Advocates examined the applicant’s complaint about legal counsel R. It established that she had lawfully represented the applicant during the court proceedings on 17 May 2005 as he had not withdrawn her mandate.

On 4 October 2006 the Criminal Chamber of the Supreme Court commenced the hearing in the appeal proceedings. The applicant was present and legal counsel C. was appointed as his legal counsel. The applicant refused assistance by C., alleging that he was inefficient. The applicant requested appointment of another legal counsel. This, according to the letter of the Supreme Court, was the reason the appeal proceedings were stopped on 5 October 2006.

On 23 January 2007 the Supreme Court informed the applicant that on 5 October 2006 the appeal proceedings had been postponed and that they would be held between 29 May and 1 June 2007.

The applicant was examined by the prison doctor on 12 and 19 April, 9 July, 6 and 15 August, 6 and 17 September, 1, 22 and 25 October and 12 November 2001. On 13 February 2001 it was diagnosed that he was “in a good state of health” (praktiski vesels). On 30 August 2004 the applicant was diagnosed with superficial gastritis.

The applicant submitted five photographs as proof of the allegedly poor conditions of his detention between 9 February 2001 and 9 June 2003.

On 26 April 2001 the Tukuma District Court approved the results of a public auction of 1 March 2001 that had been conducted by sworn bailiff V. It was established that the auction had been conducted in accordance with the requirements of the relevant law. The applicant was not present at the hearing.

On 30 April 2001 a judge of the Central District Court of the City of Riga, in the course of administrative proceedings, imposed on the applicant an administrative fine in the amount of LVL 50. The fine was imposed on a company of which the applicant was director, for failure to submit information to the state authorities and for tax debts. The applicant was not present at the hearing.

On 7 June 2004 the Latvian Council of Sworn Bailiffs advised the applicant to contact V. regarding his complaint that he had not been duly informed about the auction.

On 9 July 2004 V. replied to the applicant that he had been informed of the auction and of the place and time it was to be carried out. This was certified by the signatures of the applicant and his employees.

On 11 October 2004 the Economic Police of the Tukuma District Police Department decided not to initiate criminal proceedings requested by the applicant. The applicant complained about the auction of 1 March 2001, alleging that he had not been informed thereof and that it was thus unlawful. It was established that he had been informed of the auction since, according to documentary evidence, he had been present when the property sold was acknowledged and listed. He had been informed of the time and place of auction two weeks in advance.

On 17 December 2004 the Zemgale Region Public Prosecutor’s Office upheld the reply of the Economic Police of 11 October 2004. It was also established that the applicant had been informed of the auction on 17 January 2001 and that the information had been published in the official gazette “Latvijas Vēstnesis” on 17 and 15 January 2001. Besides, R. was in charge of the applicant’s property on the basis of a power of attorney issued by the applicant on 21 November 2000. The applicant was informed that he could ask the court to renew the deadline for appeal against the court’s judgment.

1. The Criminal Procedure Code (Latvijas Kriminālprocesa Kodekss), applicable at the material time (in force until 1 October 2005)

The relevant part of Article 77 provided that the maximum term of detention on remand during the investigation of a criminal case could not exceed two months. If it was not possible to complete the investigation of the case within that period and there were no grounds for altering a preventive measure, a judge could extend the period of detention for up to one year and six months. If necessary, the detained person and his defence counsel could be heard. Extension of detention beyond one year and six months was not allowed and the detained person was entitled to immediate release.

Paragraph 7 of Article 77 (in force between 1 November 2002 and 1 October 2003) provided that in exceptional cases the Senate of the Supreme Court could extend detention beyond one year and six months.

Paragraph 7 of Article 77 (in force from 1 October 2003) provided that in exceptional cases a higher court could extend detention beyond one year and six months. The arrested person had to be given a possibility to state his/her opinion regarding the extension.

Paragraph 5 of Article 77 provided that the time taken for all defendants to take cognisance of the documents in the investigation file was not taken into account in calculating the length of detention pending trial.

After a judge had committed an accused person for trial, a court had to decide in a preliminary hearing on the question of preventive measures. A decision concerning committal of an accused person for trial had to be taken within 14 days of receipt of the case file by the court (Article 223).

In deciding whether to commit an accused person for trial, a judge or a court had to determine whether the preventive measure applied was appropriate (Article 225).

When committing an accused person for trial, a judge should hold a preliminary hearing to rule on the request to alter a preventive measure if the judge considered that the request was well-founded. The decision refusing the request to alter a preventive measure could not be appealed against (Article 226).

Articles 237 and 465 provided that the decisions of a court ordering detention on remand or altering it, taken during the preliminary hearing or during the adjudication of the matter, could be appealed against to a higher court.

Article 241 set time-limits for examination of a case and provided that the examination of a case by a court had to start not later than within twenty days or, under exceptional circumstances, no later than within one month, after the case was received by the court.

A judgment of the first instance court entered into force and became final after expiry of the time-limit provided for appeal against this judgment, if the judgment had not been appealed against. A judgment of an appellate court entered into force and became final after expiry of the time-limit provided for cassation appeal against this judgment, if the judgment had not been appealed against. If a cassation appeal had been submitted, the judgment became final after its examination by the cassation court, if the court did not quash the judgment (Article 357).

Until 14 May 2001 the situation of persons detained in remand prisons was governed by the “Instruction on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons” (Instrukcija par aizdomās turamo, apsūdzēto, apcietināto un notiesāto turēšanas kārtību izmeklēšanas cietumos), approved by the Minister of the Interior on 30 April 1994 (hereinafter referred to as “the Instruction”).

Rule 26 of the Instruction provided that sentenced persons and arrested persons placed in investigation prisons were allowed to send letters and to receive short-term visits with the approval of the authority conducting the criminal proceedings (i.e. either by the investigating authorities or the court, depending on the stage reached in the proceedings).

Rule 32 of the Instruction stipulated that arrested persons placed in investigation prisons might be allowed to receive one short-term visit (up to one hour) per month from family members and other persons only on the basis of written permission from the person or the body dealing with the particular criminal case.

Rule 35 of the Instruction provided that visits to investigation prisons should take place in the presence of a prison authority.

In 2001 the penitentiary institutions were transferred from the supervision of the Ministry of the Interior to the Ministry of Justice. On 9 May 2001 the Minister of Justice approved new “Transitional Provisions on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons” (Pārejas noteikumi par aizdomās turamo, apsūdzēto, apcietināto un notiesāto turēšanas kārtību izmeklēšanas cietumos) which were in force from 14 May 2001 until 30 April 2003 (hereinafter referred to as “the Transitional Provisions”).

Rule 25 of the Transitional Provisions provided that sentenced persons and arrested persons might be allowed to receive one short-term visit per month on the basis of a written permission from the authority dealing with the particular criminal case.

Rule 39 of the “Provisions on Internal Order in Remand Prisons” (Izmeklēšanas cietumu iekšējās kārtības noteikumi) (in force from 1 May 2003 until 1 April 2004) stated that arrested persons might be allowed to receive visitors one hour per month on the basis of written permission from the authority dealing with the particular criminal case.

The Transitional Provisions [the Transitional Provisions on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons] have been passed in compliance with Article 15 of the Cabinet of Ministers Structure Law, determining that individual ministers may issue instructions binding on the institutions subordinate to them if the respective issue has not been regulated by law Cabinet of Ministers Regulations. Instruction No. 1-1/187 envisages that the personnel of the Department of Imprisonment Places and the institutions subordinated to it shall be acquainted with the Transitional Provisions. Neither the Transitional Provisions nor the Regulations of Internal Order [Provisions on Internal Order in Remand Prisons] have been published for common knowledge.

Thus the Transitional Prohibitions and regulations of Internal Order are internal normative acts... .”

The applicant complained under Article 5 §§ 1 and 5 of the Convention about the lawfulness of his detention on remand after 20 March 2002. The lawfulness of the pre-trial detention should be examined under Article 5 § 1 (c) of the Convention, which, in the relevant part, reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the application. It is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

The applicant complained that he was deprived of a trial within a reasonable time. The complaint falls to be examined under Article 6 § 1 of the Convention, which, in the relevant part, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The applicant complained about the length and lawfulness of his detention on remand. The complaint falls to be examined under Article 5 § 3 of the Convention, which, in the relevant part, reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and 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 applicant complained about the prohibition on corresponding and on receiving family visits during his pre-trial detention. The complaint falls to be examined under Article 8 of the Convention, which reads as follows:

“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 applicant complained that the decision of the Tukuma District Court of 26 April 2001 was contrary to the requirements of Articles 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention, as he was not informed of the court proceedings. The complaint falls to be examined under Article 6 § 1 of the Convention, which, in the relevant part, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Court finds, having regard to the fact that both the Economic Police on 11 October 2004 and the Public Prosecutor’s Office on 17 December 2004 established that the applicant had been duly informed of the proceedings, that this complaint is unsubstantiated and must be dismissed as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

The applicant complained that the decision of the Central District Court of the City of Riga of 30 April 2001 was contrary to the requirements of Article 6 of the Convention, as he was not informed of the court proceedings. The complaint falls to be examined under Article 6 § 1 of the Convention.

The Court finds, however, that the proceedings of 30 April 2001 concerning the imposition of an administrative fine did not “entail the determination of ... civil rights and obligations or of any criminal charge against ...” the applicant. Article 6 § 1 is therefore inapplicable. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

The applicant complained that he did not receive adequate medical assistance during his imprisonment and that he was refused medical assistance on 4 January 2002. The complaint falls to be examined under Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court notes that the applicant did not submit any evidence supporting his allegations. Having regard to the fact that he was examined by the prison doctor regularly in 2001 and to the medical diagnosis of 13 February 2001, it finds that this complaint is unsubstantiated. Furthermore, the mere fact that on 30 August 2004 the applicant was diagnosed with superficial gastritis does not suffice to find a violation of Article 3 in this respect. This part of the application must therefore be dismissed as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

The applicant complained under Article 3 of the Convention about the psychiatric examination he had to undergo in the course of the criminal proceedings against him.

The Court finds that, according to the information submitted by the applicant, the examination in question did not amount to torture or inhuman or degrading treatment or punishment within the meaning of Article 3. Therefore, this complaint should be dismissed as being manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

The applicant complained that not all documents of his case were translated into Russian and thus he was not informed of the nature and cause of the accusation against him. This complaint falls to be examined under Article 6 § 3 (a) of the Convention, which, in the relevant part, reads as follows:

“3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;”.

The Court notes that during the pre-trial investigation the applicant had access to the documents in his case. Thus, between 18 December 2001 and 27 February 2002, with the assistance of his legal counsel D. and an interpreter, he consulted the case file. Throughout the period between 9 February 2001 and 9 June 2003, the applicant was assisted by legal counsel, who consulted the case file when the applicant refused to do so on 19 March 2002. The Court further observes that, according to the information submitted by the applicant, he did not complain to the domestic authorities that he had not been provided with a translation of the documents during this period. As to the remaining period of the pre-trial investigation, the applicant was assisted by legal counsel and, according to the answer of the public prosecutor of 19 April 2004, also by interpreters. The applicant was also assisted by interpreters throughout the court proceedings. In these circumstances, the Court does not consider that the fact that the applicant was not provided with written translations of all the case documents raises an issue under Article 6 § 3(c) of the Convention (see, mutatis mutandis, Buitrago Montes and Perez Lopez v. the United Kingdom (dec.), Commission decision of 2 December 1992). This part of the application must therefore be dismissed as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

The Court has examined the remainder of the applicant’s complaints and, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention and its Protocols. These complaints must therefore be dismissed as being manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

Decides to adjourn the examination of the applicant’s complaints concerning the lawfulness of his detention on remand between 20 March 2002 and 9 June 2003, the length of his pre-trial detention, the length of the criminal proceedings against him and the restrictions on his right to correspond and to receive visits during his pre-trial detention;

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You are here: BAILII >> Databases >> European Court of Human Rights >> Sergejs KAPITONOVS v Latvia - 16999/02 [2007] ECHR 371 (5 April 2007) URL: http://www.bailii.org/eu/cases/ECHR/2007/371.html Cite as: [2007] ECHR 371