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THIRD
SECTION
CASE OF LEJA v. LATVIA
(Application
no. 71072/01)
JUDGMENT
STRASBOURG
14 June
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Leja v. Latvia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis
López Guerra,
Kristina Pardalos, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 17 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 71072/01) against the Republic
of Latvia lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Latvian national, Mr Juris Leja (“the
applicant”), on 26 September 1998.
- The
Latvian Government (“the Government”) were represented by
their Agent, Mrs I. Reine.
- On
26 November 2004 the President of the Third Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
- On
16 September 2010 the President of the Chamber to which the case had
been allocated requested the respondent Government to submit certain
additional factual information and documents. On 28 October 2010 the
Government submitted additional information and informed the Court
that some of the documents pertaining to the information requested
could not be produced since they had been destroyed after the expiry
of the statutory storage period of archival documents. The applicant
provided his comments on 24 November 2010, without providing any
substantive additional information concerning the facts of the case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1946 and lives in Rīga.
A. The applicant’s pre-trial detention
- On
5 May 1995 the applicant was arrested by the police and subsequently
remanded in custody on suspicion of burglary and drunk driving. While
in detention, on 8 May and 11 May 1995 the applicant
was allegedly beaten, kicked and assaulted by policemen. The
applicant’s subsequent requests for criminal proceedings to be
instituted in respect of the alleged ill-treatment by the police
eventually remained unsuccessful; by a final decision of 29 March
1996 the Saldus District Public Prosecutor’s Office refused to
open a criminal investigation against the police officers.
B. The first set of criminal proceedings
- On 26 October 1995 the Saldus District Court convicted
the applicant of aggravated burglary and sentenced him to seven
years’ imprisonment. On 17 April 1996
the Kurzeme Regional Court fully upheld the judgment of the
first-instance court. On 30 May 1996 the Senate of the
Supreme Court by a final decision dismissed the applicant’s
appeal on points of law. The applicant’s repeated requests
to the Prosecutor General for supervisory review
of his conviction were dismissed on 30 June 1997
and on 12 November 1997 respectively.
C. The second set of criminal proceedings
8. On
4 September 1997 the Rīga City Kurzeme District
Court examined the drink-driving charges against the
applicant. The applicant was represented by defence counsel of his
choice. The applicant was found guilty of that offence and sentenced
to one year in prison. The court added to that sentence the sentence
imposed on the applicant by the judgment of 26 October 1995 and
imposed a final sentence of eight years’
imprisonment. On 15 January 1998 the Rīga Regional Court,
acting as a court of appeal, reduced the applicant’s final
sentence to seven years’ imprisonment. The applicant was
represented at the appellate court by defence counsel. The applicant
submitted an appeal on points of law. On 17 April 1998
the Senate of the Supreme Court refused leave to appeal,
finding that the arguments invoked by the applicant did not
constitute any valid ground for appeal in cassation according to the
Code of Criminal Procedure.
D. The applicant’s detention in Jelgavas prison
- On
an unspecified date the applicant was transferred to Jelgavas prison
to serve his sentence.
- In
June 1997, the applicant was subjected to disciplinary punishment in
the form of detention in a punishment cell for fifteen days on the
basis of a report that he had harassed another detainee. The
applicant began a hunger strike to protest against the allegedly
unjust penalty. On the tenth day of the hunger strike the
disciplinary penalty was lifted.
- On
8 October 1998 the applicant handed in to the prison administration a
letter addressed to the Secretariat of the European Commission of
Human Rights. It appears the application was not forwarded to the
addressee but instead was transmitted to the Parliament, which, in
turn, forwarded it to the Office of the Prosecutor General, which
dismissed the complaints contained in the letter as unfounded. No
letter of that date has been received by the Commission. On
9 February 1999 the applicant, having become aware that his
application of 8 October 1998 had not been sent to the intended
addressee, announced that he was going on hunger strike. The hunger
strike gave rise to a disciplinary sanction of fifteen days’
detention in a disciplinary cell. The applicant further alleged that
in response to his complaint a member of the prison administration
had threatened him with a transfer to a prison “from which [he]
will never come out”.
E. The applicant’s detention in Grīvas
prison
- On
19 February 1999 the applicant was transferred from Jelgavas prison
to Grīvas prison, located in Daugavpils. On 21 February 1999 the
applicant was placed in a punishment cell to serve the remainder of
the disciplinary penalty that had been imposed in Jelgavas prison.
- After
his release from the punishment cell, the applicant handed to the
prison administration a complaint addressed to the Prosecutor’s
Office for Places of Detention (Ieslodzījuma vietu
prokuratūra). According to the applicant, the prison
administration refused to accept his complaint for despatch. On an
unspecified date the applicant started a hunger strike to protest
against that refusal. As a result, on 10 March 1999 a new
disciplinary punishment of fifteen days’ detention in a
punishment cell was imposed on him.
- On
15 March 1999 the applicant’s complaint was transferred to the
Prosecutor’s Office for Places of Detention. On 30 March
1999 a prosecutor from that office dismissed the applicant’s
complaint as unsubstantiated. The applicant appealed to a
hierarchically superior prosecutor. However, the appeal was examined
by the same prosecutor who had examined the original complaint. He
dismissed that appeal on 19 April 1999, finding that the
substance of the applicant’s complaint had already been
examined once and that it had been dismissed for the reasons set out
in the letter of 30 March 1999. According to the applicant,
a further complaint he made to the Ministry of Justice was again
dealt with by the same prosecutor, who again informed him that the
matters complained of had already been examined.
- On
26 June 2000 the deputy director of the Prison Administration
(Ieslodzījuma vietu pārvalde) replied to a
complaint, which apparently concerned the conditions of detention in
Grīvas prison. The reply noted that a complex inspection had
been carried out in that prison from 22 to 24 May 2000 and no
violations of the Convention or the internal regulations mentioned in
the applicant’s complaint had been found.
- On
2 June 2000 the applicant handed a letter together with copies of
documents to the prison administration in order to have it despatched
to the Court. No such letter has been received at the Court. However,
in a letter of 11 September 2000 a prosecutor of the Specialised
Public Prosecutor’s Office (Specializētā vairāku
nozaru prokuratūra) wrote to the applicant, informing him,
inter alia, that his letter had been sent to Strasbourg on the
same day that it had been handed to the prison administration.
- On
3 September 2000 the applicant allegedly wrote to an unspecified
public prosecutor’s office, complaining about his ill-treatment
in Grīvas prison, the conditions of detention therein and the
allegedly unlawful character of the disciplinary penalties imposed on
him. The applicant asked for criminal proceedings to be instituted in
that regard. It appears that he did not receive any reply.
- On
5 September 2000 the applicant started a hunger strike in order to
demonstrate to the authorities that the disciplinary penalties
imposed on him were unlawful, that his rights had been infringed and
to protest that his application of 8 October 1998 had not been
sent to Strasbourg. As a result, he was again penalised with fifteen
days’ solitary confinement in a punishment cell. According to
the applicant, a prison staff member, C., prepared a special cell for
this penalty, in order to intentionally increase the severity of the
punishment. The applicant alleges that a fan installed in the wall of
the cell was purposefully switched on, causing a flow of cold air
from the outside. A window was kept open at all times. As a result,
the air temperature inside the cell was approximately 0oC.
Before his removal to the punishment cell the applicant was made to
change his clothes to thinner ones, which did not provide sufficient
warmth. The equipment of the cell consisted of a single metal bed
with no mattress, blanket or bedding.
- During
his solitary confinement the applicant was subjected to full body
searches on several occasions. In his submission, during these
searches he was taken out of the punishment cell into a corridor and
forced to strip naked. According to the applicant, the only real
reason for conducting the searches had been to humiliate him.
- On
19 September 2000, which was the seventh day of his confinement, the
applicant was transferred to the medical department of the prison. On
21 September he discontinued the hunger strike for health reasons. On
22 September 2000 the applicant received a penalty of fifteen days’
solitary confinement for “failure to obey the rules of a hunger
strike”.
- After
his release from the punishment cell, the applicant allegedly
requested two staff members of the prison to forward his complaints
concerning his alleged ill-treatment and torture. However, the
applicant assumes that his complaints were never sent to the intended
addressees, since he did not receive any replies.
- On
11 December 2000 the applicant requested a member of the prison
administration to despatch a complaint concerning his ill-treatment.
On 22 January 2001 a prosecutor of the Specialised Public
Prosecutor’s Office replied to the applicant’s complaint
and noted, inter alia, that the applicant’s complaint
“that [he was] being tortured by representatives of prison
administration could not be verified”, and the prosecutor thus
considered that the applicant’s grievances consisted merely of
“unsubstantiated statements”. The prosecutor further
wrote to the applicant that “if you choose to damage your own
health by starvation, you are the only one to blame”. Finally,
it was noted that an appeal could be lodged against the response to a
hierarchically superior prosecutor of the same prosecutor’s
office. It appears that the applicant did not formulate such an
appeal.
- On
5 January 2001 the applicant was transferred from Grīvas prison
to Daugavpils prison.
- On
31 January 2001 he submitted a complaint to the Prison
Administration. On 5 March 2001 the Deputy Director of the Prison
Administration replied to the applicant’s complaint. The reply
summarised the applicant’s complaints as being about
“serious conflicts [he was having] with the
administrations of Grīvas and Jelgavas prisons[,] ... Grīvas
prison director’s and staff’s unfair and prejudiced
attitude towards [the applicant], [i]ncessant pressure put on [him,
and] about corruption in the Grīvas prison administration, and
about existing financial violations”
and other issues. The
Prison Administration’s reply stated, inter alia, that
on 24 January 2001 an inspection had been carried out in Grīvas
prison and no breaches of prison rules on the part of the prison
administration had been found.
- The
applicant alleges that in January and February 2001 he applied to the
Office of the Prosecutor General and to the President of the Supreme
Court, complaining, inter alia, about ill-treatment by the
Grīvas prison authorities. The complaints were subsequently
transferred to the Specialised Public Prosecutor’s Office. On
14 March 2001 a prosecutor of the Specialised Public Prosecutor’s
Office dismissed the applicant’s complaints addressed to the
Prosecutor General’s Office and to the President of the Supreme
Court as unsubstantiated.
- On
18 and 19 April 2001 the Prison Administration carried out a
regularly scheduled inspection in Grīvas prison, in the course
of which certain deficiencies were discovered. Specifically it was
found that problems existed with regard to the placement in cells of
active tuberculosis carriers, the execution of sentences of juvenile
criminals, and the adequacy of procedures for changing imprisonment
regimes. No other problems were noted.
F. The applicant’s detention in Daugavpils prison
- In
January 2001, upon arrival at Daugavpils prison, the applicant’s
personal belongings such as washing powder, shampoo, newspapers, shoe
polish, a hairbrush and certain items of stationery were seized by
the prison administration.
- In
April 2001 the applicant handed to the prison administration a letter
addressed to the European Court of Human Rights. The letter and the
attached documents had been placed in a hand-made envelope, since the
applicant lacked sufficient means to buy standard size envelopes.
However, on 27 April 2001 the letter was returned to the
applicant and he was informed that the postal service had refused to
despatch the letter because of the non-standard envelope size.
- On
3 March 2002 the applicant was transferred to Valmieras prison and on
3 May 2002 he was released from prison after serving his sentence.
G. Proceedings concerning the change of prison regime
- On
19 September 2000 the administrative commission of Grīvas prison
decided to transfer the applicant from the “higher” or
most lenient type of prison regime to the stricter “medium”
regime, due to his persistent breaches of the internal rules of the
prison. Neither the applicant nor his defence counsel were present at
the meeting of the administrative commission. The Government
indicated that immediately after the meeting the members of the
administrative commission, with a public prosecutor, visited the
applicant in the punishment cell where he was being held at that
time. The applicant refused to talk to them and refused to sign the
decision of the commission. According to the applicant, he was unable
to talk to the members of the commission because he “was lying
on the floor with a bleeding face”. The Government submitted
that the applicant’ right to appeal against that decision had
been explained to him. The applicant alleged that he was unable to
lodge an appeal, since in the punishment cell the use of writing
materials was forbidden by order of the director of Grīvas
prison. In a report of 11 January 2001 a prosecutor of the
Specialised Public Prosecutor’s Office noted that the applicant
had appealed against the administrative commission’s decision.
No documents in that regard were produced before the Court by either
of the parties.
- On
12 December 2000 the administrative commission decided to transfer
the applicant from the “medium” regime to the “lower”
or the strictest type of regime on the basis of persistent breaches
of the internal rules of the prison. The applicant alleged that the
director of the prison had rejected his request to ensure legal
representation. The applicant himself participated in the meeting of
the commission.
- On
8 February 2001 the Daugavpils Court examined the applicant’s
appeal against the decision of 12 December 2000 and dismissed it by a
final decision. The applicant participated in the hearing. According
to the applicant, in
his appeal he brought his complaints of ill-treatment to the
attention of the court but received no reply. The decision of the
court noted that the applicant had argued that the disciplinary
infractions that he was alleged to have committed had been
insignificant. In response, the court briefly indicated that the
applicant had systematically violated the internal rules of the
prison and therefore the decision of the administrative commission
was appropriate.
II. RELEVANT LAW
A. Domestic law
- Article
95 of the Constitution (Satversme) prohibits torture, as well
as any cruel, inhuman or degrading treatment or punishment.
- The
relevant parts of the Law on the Prosecutor’s Office
(Prokuratūras likums) as applicable at the material time
read as follows:
Section 6 – Independence of the prosecutor
“(1) In his or her activities a prosecutor shall
be independent of the influence of any other institution or official
exercising State authority or administrative power, and shall be
bound only by the law.
(2) The Parliament, the Cabinet of Ministers, State and
local government institutions, State and local government civil
servants, all types of enterprises and organisations, as well as all
persons are prohibited from interfering in the work of prosecutors
during the investigation of cases or during the performance of other
functions of prosecutors.
(3) Prosecutors’ actions may be appealed against
in the cases and in accordance with the procedures specified by this
law and procedural laws. Complaints regarding questions which fall
within the exclusive competence of prosecutors shall be submitted to
a chief prosecutor of a hierarchically superior prosecutor’s
office, but regarding the actions of a prosecutor of the Office of
the Prosecutor General to the Prosecutor General. The decisions taken
by the aforementioned officials shall be final.
(4) A prosecutor of a superior rank may take over any
case file, but may not compel a prosecutor to carry out actions
against his or her belief.
...
(7) Attempts to unlawfully exert influence on a
prosecutor or to interfere with the work of a prosecutor’s
office shall be prosecuted in accordance with law.”
Section 9 – Mandatory nature of a prosecutor’s
orders
“(1) Lawful orders of a prosecutor shall bind all
persons in the territory of the Republic of Latvia.
(2) Persons shall be prosecuted in accordance with law
for any failure to comply with the lawful orders of a prosecutor.”
Section 15 – Supervision of the execution of
sentences of deprivation of liberty
“(1) In accordance with the procedures prescribed
by law, prosecutors shall supervise the execution of court-imposed
sentences of deprivation of liberty and supervise the places where
persons arrested, detained or under guard are held, and shall take
part in court hearings relating to changes in the specified length of
sentences or the conditions of sentences.
...
(3) A prosecutor’s protest with regard to an
unlawful penalty imposed on a person held in a place of deprivation
of liberty shall suspend the execution of the penalty until the
protest has been dealt with.”
Section 16 – Protection of rights and lawful
interests of persons and the state
“(1) Having received information concerning a
breach of law, a prosecutor shall carry out an examination in
accordance with the procedures prescribed by law if:
1) the information concerns a crime;
2) the rights and lawful interests of ...detainees
... have been violated.
(2) A prosecutor has the duty to take measures required
for the protection of rights and lawful interests of persons and the
State, if:
1) the Prosecutor General or a chief prosecutor
recognises the necessity for such examination; ...
2) such a duty is provided for by other laws. ...
(3) A prosecutor shall also carry out an examination if
a submission from a person regarding a violation of his or her rights
or lawful interests is received and if this submission has already
been reviewed by a competent state institution and it has refused to
rectify the violation of law referred to in the submission or it has
given no reply within the term specified by law. ...”
Section 17 – Powers of a prosecutor when
examining an application
“(1) When examining an application in accordance
with the law, a prosecutor has the right:
1) to request and to receive regulatory enactments,
documents and other information from administrative authorities ...,
as well as to enter the premises of such authorities without
hindrance;
2) to order heads and other officials of ...
institutions and organisations to carry out examinations, audits and
expert-examinations and to submit opinions, as well as to provide the
assistance of specialists in the examinations carried out by the
prosecutor;
3) to summon a person and to receive from him/her an
explanation on the breach of law...
(2)
When taking a decision on a breach of law, the prosecutor, depending
on the nature of the breach, has the duty:
...
3) to bring an action to the court;
4) to initiate a criminal investigation; or
5) to initiate [proceedings on] administrative or
disciplinary liability.”
Section 20 – Application of a prosecutor
“... (3) If the requirements stated in an
application [of a prosecutor to an authority] are not complied with
or no reply to it is provided, the prosecutor is entitled to submit
to a court or to any other competent institution a request to subject
[the responsible] person to liability prescribed by law.”
- Section 130 of the Criminal Law (Krimināllikums)
reads as follows:
Section 130 – Intentional minor bodily injuries
“(1) For a person who intentionally inflicts [upon
another person] bodily injuries which have not caused damage to
health or the general ongoing loss of ability to work (minor bodily
injuries), as well as who intentionally [subjects another person] to
beating which has not caused the consequences mentioned, the
applicable sentence shall be custodial arrest, or community service,
or a fine not exceeding ten times the minimum monthly wage.
(2) For a person who intentionally inflicts [upon
another person] minor bodily injuries which cause temporary damage to
health or insignificant general ongoing loss of ability to work, the
applicable sentence shall be deprivation of liberty for a term not
exceeding one year, or custodial arrest, or community service, or a
fine not exceeding twenty times the minimum monthly wage.
(3) For a person who [subjects another person to]
systematic beating having the nature of torture, or any other kind of
torture, provided these acts have not [caused injuries of medium
severity or very severe injuries], the applicable sentence shall be
deprivation of liberty for a term not exceeding three years, or
custodial arrest, or community service, or a fine not exceeding sixty
times the minimum monthly wage.”
- According
to section 111(2) of the Code of Criminal Procedure in force at the
material time, the aforementioned offence belonged to the category of
private prosecution cases which had to be brought by the plaintiff
directly before the court with jurisdiction. The statutory limitation
period for this offence expired after six months (section 56(1) of
the Criminal Law). Section 111(4) provided that normally pre-trial
investigation was not conducted in private prosecution cases, except
if a court, a judge or a prosecutor decided to conduct one “in
order to protect the interests of the state or of society or rights
of certain persons”.
- Section
71 of the Sentence Enforcement Code (Sodu
izpildes kodekss) at the relevant
time provided that prison inmates may appeal against disciplinary
penalties to hierarchically superior staff members.
- The
Rules of the Prison Administration (Ieslodzījuma
vietu pārvaldes nolikums) that
were in force at the relevant time provided that the head of the
Prison Administration had the obligation to accept and reply to
complaints, enquiries and suggestions and had the right to quash
unlawful orders or decisions of any staff member of the Prison
Administration or prisons.
- At
the material time, the Code of Civil Procedure provided that civil
courts were competent to deal with, among others, cases arising from
actions or decisions of state or municipal agents where those had
impinged on private individuals’ rights (section 228). Chapter
24.A of that Code set out the rules and procedures to be followed in
such cases, from which it followed that civil courts could deal with
disputes for which the law did not provide for another settlement
mechanism.
B. The relevant documents of the Council of Europe
- The
relevant findings of the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (hereinafter
“the CPT”) read as follows:
Visit to Latvia of 24 September to 4 October 2002
“140. One of the most effective means of
preventing ill-treatment by prison officers lies in the diligent
examination of complaints of ill-treatment and the imposition
of suitable penalties. Prisoners should have avenues of complaint
open to them both within and outside the prison system, including the
possibility of confidential access to an appropriate authority.
In all prisons visited, prisoners could, in principle,
submit a complaint to the establishment’s Director. In
addition, complaints could be addressed to the Regional Prosecutor
and the National Human Rights Office.
However, the CPT is concerned by the manner in which
prisoners’ complaints were processed in practice. Many
prisoners interviewed in the establishments visited indicated that
they did not have any trust in the current complaints system, since
they were obliged to hand their complaint - even those addressed to
judicial authorities – in an unsealed envelope to a prison
officer. Not surprisingly, only a few complaints were recorded in the
establishments visited. Means must be found of enabling complaints to
be submitted to the Regional Prosecutor and the National Human Rights
Office in a truly confidential manner.”
Visit to Latvia of 5 to 12 May 2004
“77. As in 2002, the confidentiality of
external complaints was not always guaranteed (i.e. prisoners
were obliged to hand complaints in an unsealed envelope to the prison
administration or to give an oral explanation to members of the
Security Department on the reasons for lodging a complaint). The
CPT reiterates its recommendation that steps be taken to enable
prisoners to submit complaints to the Regional Prosecutor and the
National Human Rights Office in a truly confidential manner.”
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
- The
Government submitted that the applicant could not claim to be a
victim of a violation of the Convention within the meaning of Article
34 of the Convention. In this regard, they referred to a document
issued by the director of the medical department of Grīvas
prison, which indicated that the applicant had been diagnosed with a
“paranoid personality disorder with a querulous tendency”.
Taking this information into account, the Government submitted that
the present application to the Court was “one of the numerous
complaints submitted by the applicant, containing imaginary
information and facts since the applicant has a tendency to see
himself as a victim”. In conclusion, the Government requested
the Court to declare the application incompatible ratione
personae with the
provisions of the Convention, within the meaning of Article 35 §
3.
- The
applicant submitted that the document concerning his diagnosis was
forged and that he was not suffering from any mental illness.
- The
Court does not find it necessary to analyse the accuracy of the
information about the applicant’s mental health which was
submitted by the Government. It suffices to note that the reliability
and truthfulness of the applicant’s complaints are questions
that are related to the merits of the case. The mere fact that a
potential applicant to the Court might be suffering from a mental
illness does not preclude him from petitioning the Court. Accordingly
the Court dismisses the Government’s preliminary objection.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that, taking into account the conditions created
in the punishment cell in Grīva Prison while he was under the
disciplinary penalty imposed on him on 5 September 2000, he had been
subjected to inhuman treatment and torture. He furthermore alleged
that there had been no effective investigation in that respect. He
relied on Article 3 of the Convention,
which reads as follows:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- With
regard to the applicant’s alleged ill-treatment in the
disciplinary cell in Grīvas prison, the Government submitted
that the applicant’s complaint ought to be declared
inadmissible for non-exhaustion of domestic remedies within the
meaning of Article 35 § 1 of the Convention. In that regard they
referred to three alternative remedies that ought to have been
exhausted – private prosecution criminal proceedings, a
complaint about an administrative act, and an appeal to a
hierarchically superior prosecutor.
- The
Court reiterates that, in the event of there being a number of
domestic remedies which an individual can pursue, that person is
entitled to choose a remedy which addresses his or her essential
grievance. In other words, when a remedy has been pursued, use of
another remedy which has essentially the same objective is not
required (see Moreira Barbosa v. Portugal (dec.), no.
65681/01, ECHR 2004-V, and Jeličić v. Bosnia and
Herzegovina (dec.), no. 41183/02, 15 November 2005). However, for
the reasons of clarity, the Court will evaluate
all inadmissibility grounds raised by the Government, taking into
account the following criteria that have been established in its
case-law.
- At
the outset, the Court notes that the purpose of the exhaustion rule
contained in Article 35 of the Convention is to afford the
Contracting States the opportunity of preventing or putting right the
violations alleged against them before those allegations are
submitted to the Convention institutions (see Selmouni v. France
[GC], no. 25803/94, § 74, ECHR 1999 V). Considering the
subsidiary role of the Convention machinery, Article
35 § 1 of the Convention obliges applicants to use remedies
which relate to the breaches alleged and at the same time are
normally available and sufficient in the domestic legal system to
enable them to obtain redress for the breaches alleged. The existence
of the remedies must be sufficiently certain, in practice as well as
in theory, failing which they will lack the requisite accessibility
and effectiveness. Article 35 § 1 does not require that recourse
should be had to remedies which are inadequate or ineffective (see
Aksoy v. Turkey,
18 December 1996, §§ 51-52, Reports 1996-VI, and Selmouni,
cited above, § 75).
- The
Court furthermore reiterates that in the area of the exhaustion of
domestic remedies there is a distribution of the burden of proof. It
is incumbent on the Government claiming non-exhaustion to satisfy the
Court that the remedy was an effective one available in theory and in
practice at the relevant time, that is to say that it was accessible,
was capable of providing redress in respect of the applicant’s
complaints, and offered reasonable prospects of success (see
Soldatenko v. Ukraine, no. 2440/07, § 48, 23
October 2008). However, once this burden
of proof has been satisfied it falls to the applicant to establish
that the remedy advanced by the Government had in fact been made use
of or was for some reason inadequate and ineffective in the
particular circumstances of the case, or that there existed special
circumstances absolving him or her from this requirement. In this
regard the Court notes that it has previously
held on multiple occasions that the existence of mere doubts as to
the prospects of success of a particular remedy which is not
obviously futile is not a valid reason for failing to exhaust
domestic remedies (see, for example, Sejdovic
v. Italy [GC], no. 56581/00,
§ 45, ECHR 2006 II;
Milošević v. the Netherlands
(dec.), no. 77631/01, 19 March 2002; and Pellegriti
v. Italy (dec.), no. 77363/01,
26 May 2005).
- On
the other hand, the Court also notes that one reason that could
absolve an application from the obligation to exhaust domestic
remedies could consist of the national authorities’ remaining
totally passive in the face of serious allegations of misconduct or
infliction of harm by State agents, for example where they have
failed to undertake investigations or to offer assistance. In such
circumstances it can be said that the burden of proof shifts once
again, so that it becomes incumbent on the respondent Government to
show what they have done in response to the scale and seriousness of
the matters complained of (see Selmouni, cited above, § 76).
- Lastly,
the Court emphasises that Article 35 § 1 must be
applied with some degree of flexibility and without excessive
formalism. The rule of exhaustion is neither absolute nor capable of
being applied automatically; for the purposes of reviewing whether it
has been observed, it is essential to have regard to the
circumstances of the individual case. This means, in particular, that
the Court must take realistic account not only of the existence of
formal remedies in the legal system of the Contracting State
concerned but also of the general context in which they operate, as
well as the personal circumstances of the applicant. It must then
examine whether, in all the circumstances of the case, the applicant
did everything that could reasonably be expected of him or her to
exhaust domestic remedies (see Akdivar and Others v.
Turkey, 16 September 1996, § 69, Reports of Judgments and
Decisions 1996 IV, and Aksoy,
cited above, §§ 53 and 54).
A. Private prosecution under the Code of Criminal
Procedure
- The
Government submitted that the applicant should have used a remedy
provided by section 111(2) of the Code of
Criminal Procedure, namely, a private prosecution with regard
to his alleged ill-treatment in the punishment cell in Grīvas
prison.
- The
applicant noted that such a remedy was merely illusory and in
practice unavailable to a person without specialised legal education
and without the financial means to secure representation by a
competent lawyer. In support of his arguments he referred to the
Court’s judgments Remli v. France (23 April 1996,
§ 33, Reports of Judgments and Decisions 1996 II),
and Włoch v. Poland (no. 27785/95, § 89, ECHR
2000 XI).
- The
Court observes that according to section 111(2) of the Code of
Criminal Procedure a private prosecution could only be initiated in
cases concerning – in so far as could be relevant to the
present case – intentional infliction of minor bodily injuries
(with or without damage to health) or torture. The Government failed
to specify what actions – and by whom – ought to have
been the subject of a private prosecution. The Court notes that in
his application to the Court the applicant has not specifically
complained about infliction of any bodily injuries. While referring
to the relevant time spent in the punishment cell in Grīvas
prison the applicant mentioned that he “was lying on the floor
with a bleeding face” (see paragraph 30 above), however, he has
failed to establish any causal link between his allegations
concerning his treatment and the conditions in that cell and the
“bleeding”. The Court fails to see such a link and
accordingly concludes that no bodily injuries were inflicted on the
applicant as a result of his detention in the disciplinary cell after
5 September 2000. It follows that the only basis for a private
prosecution could have been section 130(3) of the Criminal Law, which
provides for a punishment in cases of systematic beating or “any
other kind of torture”.
- In
this regard, the Court cannot but express surprise at the fact that
such a serious offence as torture at the relevant time was only
prosecutable at the initiative of a victim. Be that as it may, the
Court’s task is to evaluate whether a private prosecution in
situations such as the present one is a sufficiently accessible and
effective remedy.
- In
this regard, the Government noted that a victim of a crime listed in
section 130 of the Criminal Law could make representation to a court
within six months of the alleged offence. The courts normally had an
obligation to examine such representations within ten days of the
date of its submission and to decide on whether or not to institute
criminal proceedings or to forward the representation to the
competent authority. In order to make a decision, a judge was
entitled to request the necessary documents and experts’
opinions (section 109 of the Code of Criminal Procedure). If the
judge decided not to institute criminal proceedings, such a decision
was amenable to appeal.
- The
Government submitted that the extensive investigative powers given to
an independent judge, who had an obligation to adopt a reasoned
opinion in response to requests to initiate private prosecution
cases, meant that the private prosecution procedure was adequate for
dealing with complaints such as the applicant’s and affording
redress. According to the Government, the fact that the private
prosecution procedure was described in the Code of Criminal
Procedure, which was published and readily available to the
applicant, meant that this procedure was also accessible.
- The
Court notes that the applicant disputes that the procedure of private
prosecution was accessible to someone like himself who had no legal
training. In this regard it should be noted that private prosecution
is conducted in the field of criminal law, in which the domestic
authorities are obliged to guarantee the observance of the procedural
rights of the person who is accused of committing an offence. Among
other things it means that the accused person should be clearly
informed of the charges against him. The Court observes that the
peculiarity of private prosecution proceedings is that the charges
are brought by the victim of a crime. While it is true that a judge
of the first-instance court is authorised to demand documents and
experts’ opinions to establish the veracity of those charges,
the charges themselves are to be formulated by the victim, and
nothing in the Code of Criminal Procedure authorises the competent
judge, a prosecutor or anyone else to amend those charges, other than
in a situation when a prosecutor makes an exceptional decision to
intervene in the proceedings in accordance with section
111(4) of that Code.
- It
follows that if the applicant had wished to initiate a private
prosecution against C., he would have had to know certain personal
data of C.’s that would allow a court to identify the accused
person (personal identity code, home address or similar). Secondly,
he would have to precisely identify his treatment as “any other
kind of torture” mentioned in section 130(3) of the Criminal
Law and to submit a relatively complete legal analysis of the
circumstances of the case to a court, which could be considered
adequate and sufficiently comprehensible “charges”
against C. The Court is thus inclined to add credence to the
applicant’s argument that he would have encountered significant
difficulties in attempting to initiate criminal proceedings by way of
a private prosecution while in prison without any access to legal
assistance.
- Lastly,
the Court notes that the Government have not provided any examples of
domestic practice showing the effectiveness of the given remedy (see
a similar requirement in Estrikh v. Latvia, no. 73819/01, §
98, 18 January 2007). The Government’s submissions remain very
general stating the relevant provision in the law. No specific
examples of successfully initiated private prosecution have been
provided. In particular, the Government have failed to prove that a
prison inmate could realistically be expected to successfully
initiate a private prosecution against a member of a prison
administration. It follows that the applicant could not reasonably
have been expected to initiate a private prosecution against C. (see
also Sakık and Others v. Turkey, 26 November 1997, §
53, Reports of Judgments and Decisions 1997 VII, and
Micallef v. Malta [GC], no. 17056/06,
§ 56, ECHR 2009 ...). In the light of the above, the Court
considers that the Government’s claim of non-exhaustion of
domestic remedies for reasons of failure to initiate private
prosecution should be dismissed.
B. Complaint about an administrative act
- The
Government next reminded that remedies to be exhausted did not
necessarily need to be judicial for them to be considered effective.
In this regard they referred to the Akdivar and Others
judgment (cited above, § 66).
Keeping that in mind, the Government noted that both the Prison
Administration and the Prison Administration’s Inspector
General’s Office of the Ministry of Justice (Tieslietu
ministrijas Ieslodzījuma vietu pārvaldes Ģenerālinspektora
birojs) were administrative authorities whose decisions with
regard to prisoners were considered administrative acts. Accordingly
the applicant could appeal against “the decision of the Prison
[Administration]” to the above-mentioned Office, whose decision
could then have been appealed against to courts of general
jurisdiction.
- The
applicant did not provide any comments concerning this ground of
inadmissibility.
- At
the outset the Court notes that the Government has not identified any
specific decision of the Prison Administration that should have been
appealed against in accordance with administrative law. It is true
that at the relevant time the Rules of the Prison Administration
provided that the head of the Prison Administration was authorised to
quash any unlawful order or decision adopted by, among others, staff
of prisons (see paragraph 38 above). Thus, had the applicant been
subjected to disciplinary punishment unlawfully, it appears that the
avenue suggested by the Government could have been open to him.
However, the gist of the applicant’s complaint before the Court
does not concern the legality of the disciplinary penalty but rather
the allegedly intentional aggravation of the conditions prevailing in
the disciplinary cell. The Court is not persuaded, and the Government
have not submitted any examples to the contrary, that at the material
time such aggravation of conditions was to be considered an
administrative act which would be amenable to appeal to the Prison
Administration, the Inspector General and subsequently to the civil
courts according to Chapter 24.A of the Code of Civil Procedure (see
paragraph 39 above). The lex specialis in that regard appears
to have been the Law on the Prosecutor’s Office, which will be
discussed below. Therefore the Court considers that the Government’s
non-exhaustion claim about the applicant’s failure to use the
remedies allegedly offered by administrative law should be dismissed.
C. Appeal to a hierarchically superior prosecutor
- The
Government noted that under section 6 of the Law on the Prosecutor’s
Office the applicant had the opportunity to appeal against the reply
of a prosecutor of the Specialised Public Prosecutor’s Office
of 22 January 2001 (see paragraph 22 above). The Government
pointed out that no such appeal was ever lodged.
- In
reply, the applicant insisted that he had “pointed out the
violations of rights guaranteed by laws and by the Convention to
prosecutors at all levels”. He did not provide any more
specific information on that alleged communication with prosecutors.
The applicant further argued that an appeal against the reply of 22
January 2001 to a hierarchically superior public prosecutor would
have been futile, since prosecutors had no legal authority to award
monetary or equivalent compensation even if a violation of the
applicant’s rights were to be established. He furthermore
referred to a “well-established practice” of not
investigating complaints about violence in prisons and remarked that
prosecutors themselves, along with other state officials, were
responsible for his ill-treatment. Lastly, the applicant noted that a
remedy such as a hierarchical appeal to another prosecutor was merely
illusory and in practice was unavailable to a person without
specialised legal training and without the financial means to secure
representation by a competent lawyer.
- Despite
the applicant’s assertion that he had complained to prosecutors
at all levels, the Court is not in possession of any copies or
summaries of such alleged complaints. Furthermore, the applicant has
neither provided the dates of the alleged complaints nor has he
stated to which prosecutors’ offices the complaints were
allegedly addressed. Lastly, none of the multiple letters from
various prosecutors to the applicant contains any indication that the
applicant has appealed against the reply of 22 January 2001 or has
raised complaints about the alleged events of September 2000.
- Turning
to the question of whether a hierarchical appeal to a higher-level
prosecutor was a remedy that was available in theory and practice,
the Court notes that the possibility of an appeal was explicitly
mentioned in the reply of 22 January 2001 and also provided for in
section 6(3) of the Law on the Prosecutor’s Office. It was thus
accessible in theory.
- As
to its availability in practice, the Court notes that the Government
in their observations have merely referred to the procedures
described in the domestic laws. They have not provided any examples
of their functioning in practice. However it is difficult or
virtually impossible to make any further analysis concerning the
practical availability of a hierarchical appeal in the circumstances
of the present case, where the applicant has failed to inform the
Court of the contents or any other details of his alleged complaints
to various prosecutors, including the complaint which was replied to
on 22 January 2001.
- It
remains to be established whether the applicant’s failure to
appeal against the prosecutor’s reply of 22 January 2001 was
motivated by the existence of mere doubts on
his part as to the prospects of success of a particular remedy which
is not obviously futile, which, as has been indicated before (see
paragraph 48 above) is not a valid
reason for failing to exhaust domestic remedies.
The Court considers that the applicant’s reference to
a “well-established practice” of not investigating
complaints about violence against prisoners is not sufficiently
supported by any real-life examples, from his own experience or
elsewhere. With regard to the applicant’s argument that
his lack of legal qualifications and lack of resources to obtain
legal representation constituted an impediment to appealing against
the reply from 22 January 2001, the Court observes that the Law on
the Prosecutor’s Office does not require an appeal to be lodged
in any particular form. Neither is it required to contain any legally
substantiated arguments. It would have been sufficient for the
applicant to merely submit to a hierarchically superior prosecutor
his account of the events of September 2000 and to explain his
disagreement with the reply of 22 January 2001. Furthermore, no fee
is payable for lodging a hierarchical appeal. Thus, while the Court
recognises that adequate legal substantiation would have given
additional weight to the applicant’s appeal, his purported
inability to secure legal representation does not constitute an
insurmountable obstacle to at least attempting to lodge a
hierarchical appeal. Lastly, taking into account the fact that no
hierarchical appeal was ever lodged, the applicant’s argument
concerning the prosecutor’s purported inability to award
compensation is to be considered “mere doubts”. The Court
is thus unable to examine properly the effectiveness of a
hierarchical appeal in the absence of any attempt on the part of the
applicant to avail himself of this remedy.
- It
follows that the applicant has not pursued the remedy of hierarchical
appeal merely because of having doubts as to the prospects of its
success. Accordingly the Court concludes that the applicant has not
exhausted domestic remedies as required by Article 35 §
1 of the Convention and declares the complaint under Article 3
pertaining to the conditions in the disciplinary cell in Grīvas
prison inadmissible in accordance with Article
35 § 4 of the Convention.
- Taking
into account that conclusion, the Court does not consider it
necessary to decide whether the investigation into the applicant’s
allegations was effective, since from the documents submitted by the
parties it is impossible to determine whether the applicant raised an
arguable claim that he had been ill-treated in his complaint that
gave rise to the prosecutor’s reply of 22 January 2001.
Therefore it is not possible to conclude that the Government had a
procedural obligation under Article 3 of the Convention to
investigate the applicant’s allegations (see Kuralić
v. Croatia, no. 50700/07,
§ 36, 15 October 2009).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Articles 3 and 13 of the Convention that
he had been ill-treated by the police during his detention in 1995,
and that the domestic authorities had refused to investigate his
grievances in that regard. He also complained, without invoking any
particular provision of the Convention, about the fairness and
outcome of the first set of criminal proceedings against him, which
were terminated by a decision of the Senate of the
Supreme Court, adopted on 30 May 1996. The Court observes
that the events underlying those complaints occurred during the
period prior to 27 June 1997, which is the date of entry into force
of the Convention with respect to Latvia. Accordingly the Court finds
that this part of the application is incompatible ratione
temporis with the Court’s jurisdiction
(see Blečić v. Croatia [GC], no. 59532/00, §
81, ECHR 2006 III). The same conclusion applies to
the applicant’s complaint, formulated under Article 5 §
1 of the Convention, about the allegedly unlawful character of his
detention subsequent to the adoption of the Saldus District Court’s
judgment of 26 October 1995.
72. The
applicant complained under Article 3 of the Convention about
the degrading effect of the allegedly arbitrarily imposed
disciplinary penalties in Jelgavas, Grīvas and Daugavpils
prisons. The Court observes that even though it seems that the
applicant has on occasion challenged the legal and factual basis of
the individual penalties (see, for example, paragraphs 13 and 17
above) and his complaint in that regard has been dealt with, albeit
summarily, by the Daugavpils Court on 8 February 2001 (see above,
paragraph 32), it appears that the first time he raised a complaint
about their degrading effect was in his application to the Court. The
applicant having failed to show that he has tried to approach
national authorities with any comparable complaint, the Court cannot
speculate as to the existence or lack of national remedies.
Accordingly it declares the applicant’s complaint about the
allegedly degrading effect of the disciplinary penalties inadmissible
for non-exhaustion of domestic remedies.
- The applicant complained under Article 13 of the
Convention that the Prosecutor General had refused his requests for a
supervisory review of his conviction in the first set
of criminal proceedings. The Court reiterates that no
provision of the Convention guarantees the right to the reopening of
proceedings which have been closed by a final judgement (see Mumladze
v. Georgia, no. 30097/03, § 35, 8 January 2008, and the
jurisprudence cited therein). It follows that the
applicant’s complaint is incompatible ratione
materiae with the provisions of the Convention within the
meaning of Article 35 § 3 and must be rejected in
accordance with Article 35 § 4.
- In
respect of the second set of criminal proceedings against him, the
applicant complained under Article 6 § 1 that his right to have
a “hearing within a reasonable time” had not been
respected. The period to be taken into consideration did not begin in
May of 1995, when the charges were brought, but only on 27
June 1997, when the Convention came into force in respect of Latvia.
However, the stage of proceedings reached on that date is to be taken
into account (see, for example, Kikots
and Kikota v. Latvia (dec.),
no. 54715/00, 6 June 2002). The second criminal proceedings
against the applicant lasted for approximately three years and
three months, of which nine months and twenty days occurred
after 27 June 1997. Taking that into account, the Court does not
consider that such a length of proceedings is unacceptable within the
meaning of Article 6 § 1. Accordingly the applicant’s
complaint is manifestly ill-founded within the meaning of Article
35 § 3 and it is thus declared inadmissible pursuant
to Article 35 § 4 of the Convention.
- The
applicant invoked Article 6 § 3 (c) and complained about
the quality of the services rendered to him by his defence counsel in
the context of the second criminal proceedings. The Court observes
that the applicant has failed to explain in any detail his
dissatisfaction with the work of his counsel. In any case, the Court
notes that the applicant did not invoke this alleged violation of his
defence rights in his submissions to the domestic courts. Accordingly
the Court declares this complaint inadmissible in accordance with
Article 35 § 4 of the Convention because of
non-exhaustion of domestic remedies within the meaning of Article 35
§ 1.
- In
the context of the second criminal proceedings the applicant also
referred to Article 2 of Protocol No. 7 and complained in substance
that the Senate of the Supreme Court’s refusal of leave to
appeal on points of law had infringed his right to appeal against his
conviction. The Court observes that the criminal case against the
applicant was reviewed by courts at two levels of jurisdiction, and
his appeal to a third level was rejected because it sought to dispute
facts and evaluation of evidence rather than points of law. Taking
into account the principles set forth in Krombach v. France
(no. 29731/96, § 96, ECHR 2001 II), the Court
considers this complaint manifestly ill-founded within the meaning of
Article 35 § 3 and accordingly declares it
inadmissible pursuant to Article 35 § 4 of the
Convention.
- By
a reference to Article 6 the applicant complained about the allegedly
arbitrary nature of the decisions of the administrative commission of
Grīvas prison and Daugavpils Court, under which on two occasions
he was transferred to a more severe prison regime. It does not appear
from the materials in the case file that the decision-making
procedure had been in any way arbitrary. Instead the Court considers
that the applicant is dissatisfied with the outcome of the
proceedings. In that regard, the Court notes that it is not its task
to review alleged errors of fact and law committed by the domestic
judicial authorities and that, as a general rule, it is for the
national courts to assess the evidence before them and to apply
domestic law. The Court’s task is to ascertain whether the
proceedings as a whole were fair (see, inter alia, Bernard
v. France, judgment of 23 April 1998, no. 22885/93, §
37, ECHR 1998-II). In the present case, the Court does not see any
reason to believe that the proceedings as a whole were conducted
unfairly. Accordingly the applicant’s complaint is manifestly
ill-founded and inadmissible pursuant to Article 35 §§ 3
and 4 of the Convention.
- Lastly,
the applicant invoked Article 14 of the Convention and alleged that
he had been discriminated against on the basis of his social origin
and financial situation. In this regard, the Court reiterates that
Article 14 of the Convention has no independent existence, since
it has effect solely in relation to the rights and freedoms
safeguarded by the other substantive provisions of the Convention and
its Protocols (see Kafkaris v. Cyprus [GC], no. 21906/04,
§ 159, ECHR 2008 ...). In the present case the applicant
has not invoked that article in combination with any other
substantive provision. It follows that his complaint is manifestly
ill-founded and inadmissible pursuant to Article 35 §§ 3
and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
- The
applicant further complained that he was hindered in the effective
exercise of his right to make an application to the Convention
organs. In this respect he noted that his letters of 8 October 1998
and 2 June 2000 had not been sent to Strasbourg. He relied on
Article 34 of the Convention. Referring to the same article, he
alleged that he lacked the means to buy envelopes and stamps to send
correspondence to the Court. Finally, he alleged that he could not
obtain copies of certain documents necessary to support his
application. Article 34 of the Convention reads as follows:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
- The
Government contested that argument. They firstly submitted that the
applicant had failed to exhaust domestic remedies. The Government
noted that the applicant ought to have lodged complaints with a
prosecutor’s office or with the Prison Administration. In this
regard, the Court observes that a complaint
under Article 34 of the Convention is of a procedural nature and
therefore does not give rise to any issue of admissibility under the
Convention (see Ponushkov v. Russia, no. 30209/04, §
78, 6 November 2008). The Government’s
objection as to non-exhaustion of domestic remedies is therefore
misconceived.
- As
to the merits of the applicant’s complaint, the Government
argued that the applicant’s letter of 2 June 2000 had in fact
been sent to the addressee. In this regard the Government referred to
the 11 September 2000 letter of a prosecutor of the
Specialised Public Prosecutor’s Office (see paragraph 16
above). They further argued that in general there were no reasons to
suspect the administrations of Grīvas and Daugavpils prisons of
interfering with the applicant’s communications with the Court,
since nine other letters sent by the applicant from those prisons had
been received by the Court without any problems or improper delays.
- The
applicant indicated that it had not been disputed that his letter of
8 October 1998 had not been sent to the Commission but instead had
been forwarded to the Office of the Prosecutor General. He further
affirmed his belief that his letter of 2 June 2000 had intentionally
not been despatched to the Court.
- The
Court reiterates that it has previously held that the failure to
provide a prisoner with resources required for carrying out
correspondence with the Court may contribute to a finding of the
respondent State’s failure to comply with its obligations under
Article 34 of the Convention (see, for example, Cotleţ v.
Romania, no. 38565/97, § 71, 3 June 2003).
However, in the present case the Court considers that the applicant
has failed to sufficiently make out his complaints about the alleged
lack of resources for communication with the Court as well as about
the alleged refusal of the national authorities to provide copies of
documents necessary to support his application. However, the Court
considers that it is not necessary to make any definitive ruling
concerning this particular aspect of the applicant’s complaint,
given that the respondent Government has in any case violated the
guarantees of Article 34 for the reasons given below.
- Turning
to the applicant’s allegations that his letters were not
despatched to the Court, the Court considers that the Government have
failed to provide any plausible explanation as to why the applicant’s
letter of 8 October 1998 was forwarded to the Office of the
Prosecutor General instead of being dispatched to the Court.
Furthermore, the Court notes that the CPT has identified significant
shortcomings in the way Latvian prisons, at the relevant time and
also subsequently, treated prisoners’ complaints to national
authorities (see paragraph 40 above). The Government have not
identified any guarantees in domestic law or practice which would
mandate any different treatment of prisoners’ correspondence
with the Court. In such circumstances the Court accepts the
applicant’s version of the events as true.
- Failure
to despatch a letter addressed to the Court by itself constitutes an
example of hindrance with effective exercise of the right to petition
the Court (see, for example, Kornakovs v. Latvia,
no. 61005/00, § 166, 15 June 2006, or Poleshchuk v.
Russia, no. 60776/00, § 28, 7 October 2004).
Taking that into account, the Court considers that the
respondent State has failed to comply with its obligations under
Article 34 of the Convention. In view of the foregoing, the Court
does not consider it necessary to determine the destiny of the
applicant’s letter of 2 June 2000, which never reached its
addressee in Strasbourg.
86. As
regards the fact that the Government was unable to furnish to the
Court the documents that were requested from it (see above, paragraph
4), the Court reiterates that it has interpreted Article 34 of the
Convention in conjunction with Article 38 § 1 (a) in the
version in force prior to the entry into force of Protocol 14 to the
Convention (essentially the same language is now contained in Article
38 of the Convention) in such a way that the Contracting States are
required to furnish all necessary facilities to the Court to enable
it to examine applications before it (see generally Tahsin Acar
v. Turkey [GC], no. 26307/95, §§ 253-254, ECHR
2004 III). The Court emphasises that in certain situations the
destruction of documents pertinent to a case pending in Strasbourg
could not only give rise to the drawing of inferences as to the
well-foundedness of applicants’ allegations but also could be
seen as the respondent State’s failure to comply with its
obligations under Article 38 of the Convention. The fact that the
documents were destroyed very soon after the application was
communicated to the Government raises serious concerns. However, in
view of the finding of a violation of Article 34, the Court does not
consider it necessary to rule further on this question in the present
case.
- In
conclusion, the Court holds that the Latvian authorities have
violated the guarantees of Article 34 by failing to despatch the
applicant’s letter of 8 October 1998 to its intended recipient,
the Commission.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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. Pecuniary damage
- The
applicant claimed 11,000 Latvian lati (approximately 15,652 euros
(EUR)) in respect of pecuniary damage caused by loss of earnings
during his imprisonment and afterwards.
- The
Government argued that the applicant’s imprisonment had been
lawful and that he had furthermore failed to substantiate his claim
that the alleged breaches of the Convention were somehow related to
his inability to gain income after his release from prison.
- The
Court does not discern any causal link between the violation of
Article 34 found and the pecuniary damage alleged; it therefore
rejects the claim under this head.
B. Non-pecuniary damage
- The
applicant claimed that he had suffered non-pecuniary damage. He
indicated that his rights had been violated as a result of
intentional and deliberate actions on the part of the Latvian
authorities, as a result of which he felt constant fear, depression
and hopelessness. The applicant indicated that it was impossible to
place a monetary value on his suffering and therefore left the
precise sum to be awarded to the Court’s discretion.
- The
Government argued that a finding of a violation of the applicant’s
Convention rights would constitute adequate compensation. For support
of this statement, they referred to the Court’s conclusion in
the case of Lavents v. Latvia (no. 58442/00, 28 November
2002). As an alternative, the Government submitted that in any case
the compensation for non-pecuniary damage should not exceed EUR
5,000.
- The
Court considers that the circumstances that have led it to find a
violation of Article 34 must have caused certain distress to the
applicant. Therefore, ruling on an equitable
basis, it awards the applicant EUR 1,000 in respect of non-pecuniary
damage.
C. Costs and expenses
- The
applicant also claimed LVL 20,000 (approximately EUR 28,490) for
the legal costs and “at least” LVL 100 (approximately EUR
142) for postal expenses incurred before the domestic authorities and
the Court. He further claimed LVL 39 (approximately 56 EUR) for
translation expenses incurred when obtaining a translation of a
letter of the Court containing the statement of facts of the case and
questions to the parties prepared by the Court’s Registry. In
support of his claims, the applicant submitted copies of receipts for
postal expenses, from which it appears that he spent LVL 5.25 on
letters sent to the Court and LVL 1.60 – to a “petition
committee of the European Parliament”. He furthermore submitted
receipts attesting to the payment of LVL 39 for translation expenses.
- The
Government first noted that according to Rule 60 § 2 of the
Rules of Court the applicant had to submit itemised particulars of
all his claims under Article 41 of the Convention. They further noted
that costs and expenses had to be actually and necessarily incurred
and reasonable as to quantum. The Government thus noted that the
applicant’s legal costs had not been actually incurred, since
he had been representing himself. With regard to the postal expenses,
the Government submitted that the applicant had only provided
receipts justifying expenses for correspondence with the Court in the
amount of LVL 4.45. Lastly, the Government disputed the applicant’s
allegation that the translation expenses had been necessarily
incurred, since what had been translated was the Court’s letter
that had been primarily addressed to the Government and had contained
questions that the Government had been requested to answer.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 64 plus any tax that
may be chargeable to the applicant for postal and translation
expenses.
D. Default interest
- The
Court considers it appropriate that the default interest 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
- Holds that there has been a violation of Article
34 of the Convention with regard to the failure
to despatch the applicant’s letter of 8 October 1998 to the
Commission;
- Declares the remainder of the application
inadmissible;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention,
(i)
EUR 1,000 (one thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage, to be converted into Latvian lati
at the rate applicable on the date of settlement;
(ii)
EUR 64 (sixty-four euros), plus any tax that may be chargeable, in
respect of costs and expenses, to be converted into Latvian lati at
the rate applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
