CASE OF ČAMANS AND TIMOFEJEVA v. LATVIA

FIFTH SECTION

CASE OF ČAMANS AND TIMOFEJEVA v. LATVIA

(Application no. 42906/12)

JUDGMENT

STRASBOURG

28 April 2016

FINAL

28/07/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Čamans and Timofejeva v. Latvia,

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

Angelika Nußberger, President,
Ganna Yudkivska,
Khanlar Hajiyev,
André Potocki,
Yonko Grozev,
Síofra O’Leary,
Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 22 March 2016,

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

PROCEDURE

1. The case originated in an application (no. 42906/12) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Latvian nationals, Mr Genādijs Čamans (“the first applicant”) and Ms Raisa Timofejeva (“the second applicant”), on 6 July 2012.

2. The applicants were represented by Mr V. Gargažins, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Ms K. Līce.

3. The applicants alleged that their rights under Article 5 § 1 of the Convention and Article 2 §§ 1 and 3 of Protocol No. 4 to the Convention had been violated during a site inspection of company M. by the tax authority.

4. On 23 October 2014 the aforementioned complaints were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1970 and 1956 respectively and live in Daugavpils.

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

A. Background to the case

7. In October 2011 the Bureau for the Prevention and Combating of Corruption (Korupcijas novēršanas un apkarošanas birojs – “the KNAB”) conducted an inquiry into suspected bribery. It obtained information giving rise to a suspicion that the bribery involved the trade of contraband tobacco and alcohol. The goods were stored on the premises of company M., which was owned by V.K. In November 2011 the KNAB transmitted this information to the State Revenue Service (Valsts ieņēmumu dienests – “the VID”).

8. On 16 November 2011 the VID dispatched officers to company M. in order to verify the information received with an inspection (apskate), under Article 2561 of the Code of Administrative Violations (Administratīvo pārkāpumu kodekss). According to the Government, V.K. was not present at the site himself, but was informed by telephone when the officers arrived.

9. At 3.40 p.m. they commenced the inspection of the commercial site used by company M. It covered an area of 7,000 square metres, which was surrounded by a concrete fence and consisted of seven large buildings and numerous containers. It was interrupted as the employees present refused to open a suspicious container, acting on orders given by V.K. over the telephone. The officers then obtained a prosecutor’s authorisation and resumed the inspection.

B. Measures against the applicants

10. According to the second applicant, who was an accountant at company M., the officers arrived at about 4 p.m. on 16 November 2011. Although she was informed that she was not under arrest, officer J.L. asked her not to leave the site. The second applicant stayed, but subsequently contacted the company’s lawyer, V.G., who advised her that she had a right to leave. She did so at about 7.30 p.m. At about 10 p.m. V.G. telephoned the second applicant, asking her to return to the site to find his power of attorney to act on behalf of company M. She arrived at about 10.30 p.m.

11. According to the Government, at 1.16 a.m. on 17 November 2011 V.K. telephoned the first applicant, a guard at company M., to find out how the inspection was progressing. V.K. telephoned him again at 2.37 a.m., this time asking him to follow his instructions. The first applicant was to go to the outbuilding of a furnace facility and open and press certain taps, valves, and buttons. The KNAB intercepted this conversation and informed the VID officers.

12. At 2.50 a.m. an investigator opened criminal proceedings and decided to conduct an inspection (apskate) of the crime scene. By the same decision, the administrative proceedings were discontinued. According to the Government, shortly thereafter officers arrived at the outbuilding, which smelled of spirits and was filled with large plastic tanks. They discovered the first applicant inside operating various taps and valves and asked him to stop what he was doing. As he refused, the officers handcuffed and removed him from the outbuilding. They placed him in the office building and seized his telephone, given his regular telephone contact with V.K.

13. According to the first applicant, however, at about 2.30 a.m. on 17 November 2011 he went to the outbuilding to switch on the heating. There was no smell of spirits or large plastic tanks. Shortly thereafter he was handcuffed by officers and his mobile telephone was taken off him. From that moment on, he was under the constant watch of the officers and was not permitted to use the telephone. No reasons were given for their actions.

14. According to the Government, officers found approximately ten tons of illegal alcohol in the furnace facility. They also discovered a secret passage leading to a nearby forest. In order to preserve the crime scene, they asked the employees present, including the first and second applicants, not to leave. As the second applicant had been observing their activities and contacting someone on a mobile telephone, the officers seized it from her. The first applicant was kept handcuffed until the furnace facility was sealed off and the commercial site secured. The first applicant submitted that he had remained handcuffed until about 8 a.m.

15. According to the second applicant, because it was so late, she was resting at the site. At about 3 a.m. on 17 November 2011 she was approached by an investigator, I.R. From that moment onwards, she was kept under guard by the officers and forbidden from using the telephone. She was prevented from leaving and ordered to participate in the inspection.

16. At 10 and 11 a.m. the first and second applicants were both questioned as witnesses.

17. At 12.10 p.m. the second applicant made a written request to I.R., stating that she was not feeling well and wanted permission to rest. At 12.23 p.m. I.R. allowed her to rest in the office premises.

18. At 7 p.m., according to the Government, the first applicant left the site. He stated that he had been given permission to leave.

19. According to the Government, at 7.15 p.m. the officers resumed the inspection. As the second applicant was present, the officers invited her to attend it with V.G. She did not refuse this invitation, nor made any remarks or complaints about it in the relevant record.

20. According to the Government, at 4.30 a.m. on 18 November 2011 the officers completed the second part of the inspection. It was then, according to the second applicant, that she was allowed to leave the site.

21. Subsequently, on 18 November 2011 the first applicant was arrested at his home and questioned as a suspect. He was released the same day.

C. Subsequent proceedings

22. By a decision dated 19 November 2011 the first applicant was declared a suspect. He was subsequently charged with failing to report a serious crime and attempting to conceal evidence of a crime. On 16 January 2013 the criminal proceedings against him were terminated for lack of corpus delicti in his actions. He had followed V.K.’s instructions, without being aware of the consequences of his actions.

23. On 26 July 2013 the VID completed the investigation and transferred the case to the prosecution service.

24. At the time the parties exchanged their observations, the criminal proceedings were still pending.

D. Review of the measures

1. Prosecution service

(a) Complaints

25. On 14 and 29 December 2011 the applicants lodged complaints with the prosecution service regarding the events of 16 to 18 November 2011. They alleged that the officers had breached Article 5 of the Convention and had also restricted their freedom of movement.

26. The first applicant stated that at about 2.30 a.m. on 17 November 2011 he had gone to the outbuilding to switch on the heating. The officers had entered shortly afterwards. They had handcuffed him and taken his mobile telephone. From that moment on, he had been under their constant watch and had not been permitted to use the telephone. At about 3 a.m. he had been ordered to participate in the inspection. He had remained handcuffed until about 8 a.m. At about 10 a.m. an investigator, V.V., had invited him to one of the offices for questioning. The first applicant had asked whether lawyer, V.G., could be present, to which he had received a negative reply. The first applicant had been allowed to leave the site at about 7 p.m. on 17 November 2011.

As regards his handcuffing, the first applicant submitted that when the officers had handcuffed him a criminal investigation had not yet been opened. Therefore, the VID officers could not have exercised their powers under sections 16(3) and 161 of the Law on the State Revenue Service (likums “Par Valsts ieņēmumu dienestu”). Furthermore, there had been no grounds under section 161(1) of the Law for his handcuffing and at no point had he actually been formally detained.

27. The second applicant stated that the VID officers had arrived at about 4 p.m. on 16 November 2011. Although she had been informed that she had not been placed under arrest, officer J.L. had asked her not to leave the site. The second applicant had stayed, but about 7.30 p.m. she had contacted V.G., who had advised her that unless she had been detained she had a right to leave. The second applicant had left, despite the officers’ threats. Another employee, T.K., had also left. At about 10 p.m. V.G. telephoned the second applicant, asking her to return to the site to find his power of attorney to act on behalf of company M. She had arrived at about 10.30 p.m. Later, the second applicant had gone to a lounge area to rest. At about 3 a.m. she had been approached by the VID officers, who had told her that V.G. had left and that the first applicant had been handcuffed. I.R. had seized her telephone and had ordered her to participate in the inspection, without informing her that she had a right not to participate. The second applicant had asked I.R. several times to allow her to stay on the office premises as she had been tired. I.R. had refused several times and had eventually told her that if she continued to make such requests I.R. would detain her for forty-eight hours and place her in isolation cell. She had therefore been compelled to participate in the inspection. Furthermore, she had been under the constant watch of the officers. At about 11 a.m. she had been questioned by V.V., who had not given her an opportunity to contact a lawyer. Although the second applicant had not been under arrest, she had not been allowed to leave the site and her brother had been prevented from seeing her. He had meanwhile contacted a lawyer, I.B., who had arrived at the site at about 9.30 p.m. The second applicant had been allowed to leave the site at about 4.30 a.m. the following morning, when the inspection had been completed.

(b) Decisions

28. On 30 December 2011 and 9 January 2012 prosecutor O.R. dismissed the applicants’ complaints.

29. He reasoned that between 2.50 and 9 a.m. on 17 November 2011 a VID investigator, I.R., had conducted an inspection, which had been resumed at 7.15 p.m. and completed at 4.23 a.m. the following morning. According to the inspection record the applicants and V.G., acting as a representative of company M., had all been present. They had signed the record, but none of them had noted in it that they had been compelled to participate or that they had not been informed of their rights.

30. There was therefore no reason to consider that the applicants’ presence at the inspection had been unlawful.

31. In so far as the applicants alleged that the VID officers had restricted their rights, their complaints were transmitted to the VID for disciplinary proceedings (see paragraphs 44-48 below).

(c) Appeals

32. On 12 and 18 January 2012 the applicants lodged appeals against the aforementioned decisions, arguing that they had not been informed of their right not to participate in the inspection. Furthermore, they had not been assisted by V.G. From about 9.30 p.m. on 17 November 2011 the second applicant had been assisted by I.B.

33. The fact that the first applicant had not made any remarks in the inspection record did not prove that there had been no violations. The second applicant had noted in the record that she had not known what her role in the inspection had been.

(d) Decisions on appeals

34. On 1 and 3 February 2012 prosecutor V.Š. dismissed the applicants’ appeals.

35. She reasoned that the inspection had been conducted in accordance with section 162 of the Criminal Procedure Law (Kriminālprocesa likums).

36. The applicants had been present at the site at the start of the inspection at 2.50 a.m. on 17 November 2011. I.R. had invited them to participate in it. There was no evidence suggesting that they had refused. As the applicants had not been involved in the criminal proceedings, there had been no obligation to inform them of their rights.

37. Furthermore, once the inspection had resumed at 7.15 p.m., the second applicant had had an opportunity to invite her lawyer, I.B. Neither I.B. nor the second applicant had noted in the inspection record that she had participated against her will.

(e) Further appeals

38. On 14 and 17 February 2012 the applicants appealed against the aforementioned decisions.

39. They maintained that I.R. had ordered them to participate in the inspection. The fact that they had not made notes in the record was irrelevant. They had had no information about their status in the proceedings until they had been questioned as witnesses.

40. In addition, the second applicant had had no opportunity to seek legal assistance, as her mobile telephone had been taken off her. Her relatives had invited I.B., who had arrived at about 9.30 p.m. on 17 November 2011, eighteen hours after the start of the inspection, when it had been nearing its end. The second applicant had been unaware that her rights had been violated and had not known what information to provide to I.B.

(f) Final decision

41. On 13 and 14 March 2012 chief prosecutor A.S. dismissed the applicants’ appeals and upheld the lower prosecutors’ decisions.

42. Between 2.50 and 9 a.m. on 17 November 2011 I.R. had conducted an inspection. The first and second applicants and V.G. had attended. The applicants had familiarised themselves with the inspection record and had signed it. While the first and second applicants had made some remarks in the record, they had not noted that they had participated against their will. The second applicant had also attended the second part of the inspection between 7.15 p.m. on 17 November 2011 and 4.23 a.m. on 18 November 2011. From 8.45 p.m. on 17 November 2011 she had been assisted by I.B. Neither I.B. nor she had noted in the inspection record that she had participated against her will or that she had not known her rights in the criminal proceedings.

43. There was no reason to conclude that the applicants had not known their rights, including the right to be present at the inspection, to familiarise themselves with and write remarks in the inspection record and to make complaints.

2. VID

44. On 16 and 17 January 2012 the VID concluded that there were no grounds for opening disciplinary proceedings against its officers.

45. Between 17 and 18 November 2011 I.R. had conducted an inspection in accordance with sections 139(1), 159, 160 and 162 of the Criminal Procedure Law. Under section 9(1) of that legislation everyone had a duty to comply with the requests of an official authorised to conduct criminal proceedings and with the procedure provided by law.

46. During the inspection on 17 November 2011 the first applicant had opened taps so that spirits could start flowing into the pipes. There had been a suspicion that he had tried to conceal evidence of a crime and therefore had attempted to commit a criminal offence. He had been handcuffed to protect the crime scene and to prevent him from committing further criminal acts, namely, to stop him failing to comply with lawful requests. Immediately after completion of the inspection, the applicant’s handcuffs had been removed. Their use had therefore been lawful.

47. Referring to section 12 of the Criminal Procedure Law, the VID stated that the restrictions on the first and second applicants’ freedom of movement between 17 and 18 November 2011 had been proportionate to the public interest in crime prevention.

48. Furthermore, during the inspection the first and second applicants had been assisted by two lawyers. None of them had noted down in the relevant record any objections as regards the course of the inspection, thereby confirming its lawfulness.

3. The Ombudsperson (Tiesībsargs)

49. On 13 March 2013 the Ombudsperson issued conclusions on the first applicant’s complaint.

50. At 3.40 p.m. on 16 November 2011 VID officers had commenced a “control” (pārbaude) in administrative proceedings.

51. At quarter past midnight on 17 November 2011 they had commenced an “inspection of an area inaccessible to the public” (publiski nepieejamas teritorijas apskate) under Article 2561 of the Code of Administrative Violations, based on a prosecutor’s authorisation.

52. At about 2.30 a.m. the first applicant had gone to the furnace facility. The officers had asked him to stop what he was doing and handcuffed him.

53. At about 2.50 a.m. a decision had been made to open criminal proceedings and conduct an inspection under sections 162 and 163 of the Criminal Procedure Law.

54. Between 9.57 and 10.56 a.m. the first applicant had been informed of his rights and questioned as a witness.

55. At 10.10 a.m. on 18 November 2011 he had been detained and later the same day questioned as a suspect.

56. There was no dispute that under the Law on the State Revenue Service, officers could use restraint measures in the circumstances provided for by law. In view of the information received from the VID, the first applicant had been handcuffed under section 161(1)3) and 4) of that legislation on the grounds that he had failed to comply with lawful requests made by the VID officers and to protect an object under guard from unlawful threat.

57. At the same time, there was no information in the case material regarding lawful requests made by the VID officers which the first applicant had failed to fulfil. Similarly, there was no information that the VID officers had guarded the furnace facility. Accordingly, there had been no legal or factual obstacles preventing him from entering it.

58. Also, there was no objective reason why less restrictive measures could not have been used to prevent obstruction of the criminal investigation. In view of this, the use of handcuffs had not been necessary.

59. As a result of the handcuffing, the first applicant’s freedom of movement and right to liberty had been restricted. At the same time, during an inspection under section 163 of the Criminal Procedure Law the rights of those present could not be restricted. The procedure for arrest was laid down in the Code of Administrative Violations and the Criminal Procedure Law, which provided that a record of arrest had to be drawn up. The first applicant had not been detained under Article 253 of the Code of Administrative Violations, and in the criminal proceedings he had only been detained at 10.10 a.m. on 18 November 2011. A record of his arrest had not been drawn up with regard to the restriction on his right to liberty during the inspection on 17 November 2011. This had therefore not been in accordance with the procedure prescribed by law. There had been a violation of Article 5 of the Convention.

60. There was no dispute that VID officers could invite anyone to participate in the inspection. However, in accordance with section 163(3) of the Criminal Procedure Law, such persons were not under an obligation to participate. At the same time, in its judgment of 14 November 2006 (in case no. SKA-454/2006) the Administrative Cases Division of the Senate of the Supreme Court (Augstākās tiesas Senāta Administratīvo lietu departaments) stated that a request made by a police officer in the performance of his or her official duties was regarded as binding on the person concerned. The Ombudsperson was therefore of the view that the person concerned was prevented from refusing to comply with a request made by an investigating authority, unless informed of the right to do so. In the present case, the first applicant had not been informed of the right to refuse to participate in the inspection. This had not been examined by the prosecution service.

II. RELEVANT DOMESTIC LAW

A. Civil Law

61. Section 1635 stipulates that any infringement of rights or unlawful activity gives a person who has suffered damage, including non-pecuniary damage, the right to claim compensation from the wrongdoer, to the extent that the latter may be held liable for that act. Under section 1779, everyone has a duty to compensate for losses caused by their actions or failure to act (see A.K. v. Latvia, no. 33011/08, § 54, 24 June 2014).

B. Criminal Procedure Law

1. Principles of criminal procedure

62. Under section 9(1), in criminal proceedings everyone has a duty to comply with the procedural requests made by an official authorised to conduct criminal proceedings and with the procedure provided by law.

63. Under section 12(1), criminal proceedings must be conducted in such a manner that there is no disproportionate interference with the person’s life. Section 12(2) provides that human rights may be restricted only in cases where such a restriction is required for reasons of public safety and only in accordance with the procedure provided by the Criminal Procedure Law, according to the nature and danger of the criminal offence.

2. Officials authorised to decide complaints

64. In accordance with section 26(3) a judge, prosecutor, heads of judicial, prosecutorial, and investigative institutions and heads of their departments have the authority to decide complaints.

3. Investigative activities and inspection

65. Section 139(1) provides that investigative activities should normally be carried out between 8 a.m. and 8 p.m., and may be carried out without delay if their deferral could lead to a loss of evidence and jeopardise criminal proceedings. Section 139(2) provides, inter alia, that, at the start of investigative activities, an investigating officer shall inform anyone involved in the proceedings of their rights and obligations.

66. Section 159 defines what is meant by the term “inspection” for the purposes of the legislation. Section 160(1) provides that anyone involved in criminal proceedings may be invited to participate in one. Under section 160(2) in order to preserve an object of inspection (apskates objekts) it may be placed under guard.

67. Under section 162(1), a site may be inspected on the basis of information that a crime has been committed and if there is reason to believe that it was committed or being continued there. Section 163 lays down the rules for the inspection of areas of land, premises, vehicles and objects, with section 163(3) requiring that they should, wherever possible, be inspected in the presence of their owners or those in possession or their representatives.

4. Summoning for questioning

68. Section 146(1) provides that a person may be called for questioning by summons or in any other way, indicating, inter alia, the case in which the person is invited to give evidence and the consequences of failure to appear. Section 330(1) provides that a person must be summonsed no less than two days before the time indicated. If a procedural act is unplanned or it cannot be deferred, a summons may be issued immediately before arrival.

5. Arrest record

69. Under section 266(1), arresting officers must immediately draw up a record of arrest at the place of arrest or after the person arrested has been taken to a detention facility. The record of arrest must include, inter alia, the date, time, place, grounds and reasons for the arrest.

C. Law on the State Revenue Service

70. Under section 131, officers of the VID Customs Criminal Department investigating customs-related criminal offences have the authority set out in sections 16(3) and 161 of the Law.

71. Under section 16(3)4), in order to uncover and prevent criminal offences or other violations of the law, they could administratively detain offenders in the circumstances and in accordance with the procedure provided for by law. Under section 16(3)5) they have the right to detain persons who have committed an administrative offence or are suspected or accused of a criminal offence.

72. Under section 161(1), the officers have the right to use handcuffs and other measures of restraint to:

“...

3) prevent intentional non-compliance with lawful requests made by [officers] in the performance of their official duties;

4) protect an object under guard (apsardzes objekts) from unlawful or other types of threats.”

D. Code of Administrative Violations

73. Under Article 253, a record of administrative arrest must be drawn up and must include, inter alia, the date, time, place and reasons for the arrest.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

74. The applicants complained that the deprivation of their liberty during the inspection by the VID had been unlawful, contrary to Article 5 § 1 of the Convention. The applicants also relied on Article 2 of Protocol No. 4 to the Convention.

75. Being the master of the characterisation to be given in law to the facts of the case (see Margaretić v. Croatia, no. 16115/13, § 75, 5 June 2014), the Court considers that the applicants’ grievances fall to be examined solely under Article 5 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:

...

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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;

...”

A. Admissibility

1. No significant disadvantage

(a) The parties’ submissions

76. The Government submitted that the complaints were inadmissible because the applicants had not suffered a significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention. They explained that the alleged restrictions on their rights had lasted for only a few hours. Neither the applicants nor V.G. had made any complaints during the inspection.

77. The applicants replied that during the period of time at issue, they had suffered from exposure to low temperatures and lack of sleep and food. They had been unable to contact their families and the VID officers had kept them under guard. Given the lack of information about their status in the proceedings, they had suffered anxiety.

(b) The Court’s assessment

78. The Court refers to its interpretation of the de minimis principle summarised in another case brought against Latvia (see Bannikov v. Latvia, no. 19279/03, §§ 57-58, 11 June 2013), namely that the Court will first examine whether the applicant has suffered a significant disadvantage; second, whether respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits; and third, whether the case has been duly considered by a domestic court (see also Zwinkels v. the Netherlands (dec.), no. 16593/10, § 24, 9 October 2012).

79. The severity of a violation should be assessed taking account of both the applicant’s subjective perceptions and what is objectively at stake in a particular case (see Gagliano Giorgi v. Italy, no. 23563/07, § 55, ECHR 2012 (extracts)).

80. The Court takes into account the fact that the present case concerns a matter of principle for the applicants, namely their right under Article 5 § 1 of the Convention not to be deprived of their liberty. The Court has reiterated on many occasions the importance of personal liberty in a democratic society (see Stanev v. Bulgaria [GC], no. 36760/06, § 120, ECHR 2012, and Storck v. Germany, no. 61603/00, § 102, ECHR 2005‑V).

81. Under these circumstances, the applicants suffered a disadvantage which cannot be considered as insignificant. It is therefore not necessary to examine the two “safeguard clauses” (see Dmitrijevs v. Latvia, no. 49037/09, § 36, 16 December 2014).

82. Accordingly, the Court dismisses the Government’s objection.

2. Non-exhaustion of domestic remedies

(a) The parties’ submissions

83. The Government submitted that the applicants had not exhausted domestic remedies, as they had not had recourse to the civil courts. They could have relied on sections 1635 and 1779 of the Civil Law and claimed compensation for pecuniary and non-pecuniary damage from the State on account of the VID officers’ allegedly unlawful actions.

84. Referring to the cases of Blumberga v. Latvia (no. 70930/01, § 68, 14 October 2008) and Y v. Latvia (no. 61183/08, § 71, 21 October 2014), the Government argued that the outcome of the criminal proceedings did not determine the success of compensation proceedings. They noted the examples of domestic case-law which they had provided to the Court in the case of Y v. Latvia (cited above).

85. The applicants submitted that they had wanted compensation for the damage suffered. The civil courts, however, did not have the jurisdiction to review the lawfulness of the VID officers’ actions, which had been taken in criminal proceedings. Such an assessment fell within the jurisdiction of the domestic authorities enumerated in section 26(3) of the Criminal Procedure Law. As they had not found that the VID officers had acted in breach of the law, a civil claim in the domestic courts had had no prospects of success.

(b) The Court’s assessment

86. It is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It should not take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation. The rule is therefore an indispensable part of the functioning of this system of protection (see Vučković and Others v. Serbia (preliminary objection) [GC], no. 17153/11 and 29 other cases, § 69, 25 March 2014).

87. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (ibid., §§ 71 and 74, and Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 116, 23 February 2016).

88. In the area of exhaustion of domestic remedies, the burden of proof is distributed. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was effective and available both in theory and in practice at the relevant time, that is to say that it was accessible, capable of providing redress in respect of the applicant’s complaints, and offered reasonable prospects of success. However, once this burden has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact 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 the requirement. 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 Zikovs v. Latvia (dec.), no. 17689/14, § 33, 30 June 2015, with further references).

89. The Court would distinguish at the outset the circumstances of the present case and those in the case of Y v. Latvia relied on by the Government. While the present case concerns the possibility of seeking damages at the domestic level for allegedly unlawful deprivation of liberty, Y v. Latvia concerned compensation for damage resulting from an alleged violation of Article 3 of the Convention specifically (see Y v. Latvia, cited above, §§ 60 and 70). The Court’s findings in that case as to the availability of a civil-law remedy for such allegations cannot therefore be considered of relevance in the case at hand (see, mutatis mutandis, Zikovs, cited above, § 34).

90. The Court’s case-law indeed suggests that adjudication of civil matters without a final judgment in criminal proceedings giving rise to those civil matters is possible (see Y v. Latvia, cited above, § 71; Blumberga, cited above, § 68; and Plotiņa v. Latvia (dec.), no. 16825/02, §§ 62 and 63, 3 June 2008). At the same time, the crux of the applicants’ complaints in the present case is the unlawful nature of the deprivation of their liberty as a result of measures taken in criminal proceedings (see paragraphs 35 and 45 above). In the case of Zikovs, the Court accepted that a claim in the domestic courts in civil proceedings was an effective remedy with regard to a measure which had been taken in connection with criminal proceedings (cited above, §§ 6, 22, 35 and 38). However, unlike in the case at hand, in Zikovs the domestic courts in the criminal proceedings had acknowledged that the measure had been taken in breach of the Criminal Procedure Law (cited above, §§ 10, 22, 23 and 35). The Court notes that there was no such finding in the present case.

91. In the absence of any specific examples of domestic case-law to evidence the application of sections 1635 and 1779 of the Civil Law in comparable circumstances, the Court is unable to accept that the domestic courts would have examined in substance the matters of criminal procedure while adjudicating in the framework of civil proceedings and, furthermore, reconsidered in substance the findings made by the prosecution service as to compatibility of the VID officers’ actions with the Criminal Procedure Law. With regard to the Ombudsperson’s conclusions on the first applicant’s complaint, the Court notes that the domestic courts are not bound by its findings (see Loyko v. Latvia (dec.), no. 27388/05, § 44 in fine, 8 December 2015).

92. Accordingly, the Court concludes that the Government have not demonstrated that a claim for damages under section 1635 and 1779 of the Civil Law was an effective remedy, in that it offered reasonable prospects of success.

93. The Court therefore rejects the Government’s objection concerning the exhaustion of domestic remedies.

94. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicants

95. The applicants argued that the VID officers had ordered them to participate in the inspection, and that they had not been allowed to leave. As the first applicant’s shift had ended at 8 a.m. on 17 November 2011, he would not normally have stayed. Had the second applicant had freedom to act she would not have asked I.R. for permission to rest (see paragraph 17 above). Transcripts of various intercepted telephone calls did not show that V.K. had instructed the applicants to remain at the site. The fact that the first applicant had left the site at 7 p.m. on 17 November 2011 and the second applicant at 4.30 a.m. the next morning was inconsistent with the Government’s allegation that they had stayed acting upon V.K.’s instructions. The applicants had not been summonsed to their interviews on 17 November 2011, nor did the records show that the interviews had been urgent. The VID officers had exercised control over the applicants as regards their location and actions at the site. They had been kept under guard and prevented from talking to one another and contacting anyone outside the site. Furthermore, the restrictions imposed had been confirmed by the VID and the Ombudsperson.

96. In addition, the first applicant maintained that he had been handcuffed prior to the inspection under the Criminal Procedure Law, which had started at 2.50 a.m. on 17 November 2011. As V.K. had last talked to him at 2.37 a.m., his rights had been restricted from that moment onwards.

97. The VID’s letters of 16 and 17 January 2012 had not specified the statutory provisions based on which their rights had been restricted. Under the Criminal Procedure Law, VID officers did not have the right to prevent persons present during an inspection from leaving, walking around or talking to others. It was only during a search under section 182(4) of the Criminal Procedure Law that persons present could be prohibited from leaving.

98. The first applicant maintained that at no time had he actually been formally detained. As a criminal investigation had not yet been opened, the VID officers could not have exercised their powers under sections 16(3) and 161 of the Law on the State Revenue Service. Furthermore, there had been no grounds under section 161(1) of the Law for his handcuffing. It was unclear what lawful requests he had failed to comply with.

(b) The Government

99. The Government submitted that restrictions imposed on a person present at a crime scene could not be equated with deprivation of liberty. A clear distinction had to be drawn between deprivation of liberty based on the suspicion of a person having committed an offence and the imposition of restrictions to preserve a crime scene. The applicants had not been deprived of their liberty within the meaning of Article 5 § 1 between 16 and 17 November 2011. The notes which they had made in “the respective procedural records” proved that they had not been forced to participate in the inspection.

100. The Government further argued that the applicants had been under a duty as witnesses to attend their interviews between 10 and 11 a.m. and 11 a.m. and 12 noon respectively, periods of time which should not therefore be taken into account. The initial inspection of the crime scene had by then been completed and the applicants’ presence had not been required. V.K. had instructed them to stay to observe the VID officers’ activities. The first applicant had also had to stay to perform his duties as a guard. He had remained there until the end of his shift at 7 p.m. on 17 November 2011.

101. As the second applicant had herself chosen to remain at the site, the VID officers had invited her to attend the second part of the inspection, which had commenced at 7.15 p.m. on 17 November 2011 and ended at 4.30 a.m. the next morning. No remarks or complaints had been written by her, I.B. or V.G. in the record.

102. In support of their observations, the Government did not provide any procedural records containing information about the events in question. They stated that the main investigative activities had been videotaped and that, if required, this footage could be provided to the Court.

103. The Government submitted that, once invited to attend the inspection, the applicants had been under an obligation to remain present at a particular place at the inspection site until its examination had been completed. Inviting the applicants to participate had constituted an important procedural safeguard against arbitrariness. They had been under a procedural obligation to attend, following a lawful request issued by the VID officers in accordance with the “relevant provisions of the Criminal Procedure Law”. The prosecution service had not established any violations of that legislation. Furthermore, the applicants had not been forced to participate.

104. The “respective provisions of the Law on the State Revenue Service and the Criminal Procedure Law” had given the VID officers the power to remove the first applicant – who had disobeyed their orders and had been suspected of an offence – from the outbuilding and handcuff him. This had been confirmed by the Ombudsperson. From 2.50 a.m. on 17 November 2011 the premises of company M. had become an active crime scene and, by virtue of the Law on the State Revenue Service and the Criminal Procedure Law, the VID officers had been empowered to impose restrictions on the applicants to preserve the crime scene and gather evidence.

105. Involving the applicants in the procedural activities and the use of handcuffs in respect of the first applicant had been necessary and proportionate. The domestic authorities had been faced with unique and distinct challenges. What had started off as administrative offence proceedings had turned into a large-scale operation, in view of the size of the site and the extent of the crime scene, which had an unknown number of hideouts and a secret passage. Some of the restrictions imposed on the applicants’ freedom of movement had therefore been inevitable in the interests of crime prevention. The use of handcuffs, for example, had been as a result of the first applicant’s conduct.

2. The Court’s assessment

(a) Whether the applicants were deprived of their liberty

106. In the present case the parties disagree on whether or not the applicants’ situation during the operation conducted by the VID amounted in practice to a deprivation of liberty. The Government dispute the applicability of Article 5 § 1 of the Convention.

107. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5 § 1, the starting point must be his actual situation, and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is one of degree or intensity, and not of nature or substance (see Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 57, ECHR 2012).

108. The characterisation or lack of characterisation given by a State to a factual situation cannot decisively affect the Court’s conclusion as to the existence of a deprivation of liberty (see Creangă v. Romania [GC], no. 29226/03, § 92, 23 February 2012). The fact that both the national authorities and subsequently the respondent Government considered that an applicant had not been arrested and detained does not therefore automatically mean that he was not deprived of his liberty (see Valerian Dragomir v. Romania, no. 51012/11, § 67, 16 September 2014).

109. The Court further points out that Article 5 § 1 may apply to deprivations of liberty of a very short duration, where applicants are stopped for a search for a period not exceeding thirty minutes (see Gillan and Quinton v. the United Kingdom, no. 4158/05, § 57, ECHR 2010 (extracts)), or where the length of time during which an applicant is held at a police station does not exceed forty-five minutes (see Shimovolos v. Russia, no. 30194/09, §§ 48-50, 21 June 2011).

(i) The first applicant

110. The Court notes that the first applicant was at the site voluntarily when the VID officers arrived. It also appears that he was able to move freely as he went to the furnace facility (see paragraph 13 above).

111. However, it appears indisputable to the Court that whilst in the furnace facility he was handcuffed by the VID officers (see paragraphs 12, 14, 46 and 52 above). It cannot be said that after being handcuffed he had a real choice as to whether or not to stay at the site, or that he remained there voluntarily. He had his telephone taken from him. Furthermore, there was a suspicion that he had tried to conceal evidence of a crime and by doing so had attempted to commit a criminal offence (see paragraph 46 above).

112. The Court considers that there was an element of coercion, which in its view is indicative of a deprivation of liberty within the meaning of Article 5 § 1 (see, for example, Foka v. Turkey, no. 28940/95, §§ 74-79, 24 June 2008, and M.A. v. Cyprus, no. 41872/10, §§ 186-193, ECHR 2013 (extracts)). The Court therefore finds that the first applicant was deprived of his liberty at about 2.40 a.m. on 17 November 2011.

113. As to how long his deprivation of liberty lasted, the Court reiterates that measures of restraint, such as handcuffing, do not constitute a decisive factor in establishing the existence of a deprivation of liberty (see M.A. v. Cyprus, cited above, § 193 in fine). However, having regard to the specific context and circumstances surrounding the restrictions imposed on the first applicant (see Austin and Others, cited above, § 59, and Nada v. Switzerland [GC], no. 10593/08, § 226, ECHR 2012), it does not find it established that he was deprived of his liberty after his handcuffs had been removed, for the following reasons.

114. The first applicant was handcuffed and had his mobile telephone taken from him in connection with what he had been doing in the outbuilding of the furnace facility (see paragraphs 12, 13, 26, 46 and 52 above). Furthermore, two days later he was declared a suspect and was subsequently charged with attempting to conceal evidence of a crime (see paragraph 22 above). As stated by him in his complaint to the domestic authorities, he remained handcuffed until about 8 a.m. on 17 November 2011 (see paragraph 26 above), which broadly coincided with the time when the first part of the inspection was completed (see paragraph 29 above). Also, the Government argued that he had been handcuffed until the furnace facility had been sealed off (see paragraph 14 above).

115. It therefore transpires that the first applicant’s deprivation of liberty was linked to his alleged attempts to interfere with evidence in the outbuilding of the furnace facility. While it appears that there was a record of the inspection (see paragraphs 29, 33, 37, 39 and 42 above), it was not furnished to the Court. Nor did the Government provide other official documents as to when the respective evidence was secured. In these circumstances, the benefit of the doubt should be given to the first applicant, and it should be assumed that he did not try to interfere with the evidence (see Baisuev and Anzorov v. Georgia, no. 39804/04, § 52, 18 December 2012, with further references). The Court thus accepts that he was deprived of his liberty until about 8 a.m. on 17 November 2011.

116. As regards the period of time thereafter, the Court notes that according to the findings of the domestic authorities, while the first applicant signed the inspection record, he did not note in it that he had been compelled to remain present (see paragraphs 29 and 42 above). He did not dispute that he had made no such remarks (see paragraphs 33 and 39 above). Furthermore, it appears that he had made some other remarks in the inspection record (see paragraph 42 above). In addition, the Court notes that from his complaint to the domestic authorities, it transpires that when questioned as a witness he had been informed of his status in the proceedings (see paragraph 39 above). In so far as he argued that he had not been assisted by V.G., the Court observes that in his complaint to the domestic authorities, he alleged that he had asked for V.G. to be present at his interview (see paragraph 26 above).

117. In the circumstances of the case, including the fact that the inspection took place at the first applicant’s workplace (see, mutatis mutandis, Miķelsons v. Latvia, no. 46413/10, § 61, 3 November 2015) the Court does not find it established that he had been compelled to remain present. It cannot be said that the first applicant was deprived of his liberty within the meaning of Article 5 § 1 of the Convention after about 8 a.m. on 17 November 2011.

(ii) The second applicant

118. The Court notes that having at first left the site, the second applicant returned and decided to stay there voluntarily (see paragraphs 10, 15 and 27 above).

119. As to whether or not she was compelled to remain at the site from about 3 a.m. on 17 November 2011 onwards, when she was approached by an investigator, I.R. (see paragraph 15 above), the Court notes that according to the findings of the domestic authorities, she signed the inspection record, without noting in it that she had been compelled to remain present (see paragraphs 29 and 42 above). This was not disputed by her (see paragraphs 33 and 39 above). Her allegation that she had been unaware of her right not to participate in the inspection is doubtful as she had earlier been advised by V.G. that she had a right to leave (see paragraph 10 above). In addition, the Court notes that from her complaint to the domestic authorities, it transpires that when questioned as a witness she had been informed of her status in the proceedings (see paragraph 39 above). Furthermore, she had subsequently been assisted by I.B., who had also signed the inspection record without noting in it that her client had been compelled to remain at the site (see paragraph 42 above).

120. In the circumstances of the case, including the fact that the second applicant worked for company M. (see, mutatis mutandis, Miķelsons, cited above, § 61), the Court does not find it established that she had been compelled to remain present. It cannot be said that she was deprived of her liberty within the meaning of Article 5 § 1 of the Convention.

(b) Whether the first applicant’s deprivation of liberty from about 2.40 to 8 a.m. on 17 November 2011 was compatible with Article 5 § 1 of the Convention

121. Turning to the first applicant’s deprivation of liberty from about 2.40 to 8 a.m. on 17 November 2011, the Court reiterates that sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which people may be deprived of their liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see Austin and Others, cited above, § 60). Where the “lawfulness” of somebody’s detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof (see Bozano v. France, 18 December 1986, § 54, Series A no. 111, and Wassink v. the Netherlands, 27 September 1990, § 24, Series A no. 185‑A).

122. In their observations, the Government’s submissions on the first applicant’s complaint under Article 5 of the Convention were limited to maintaining that he had not been detained; they did not seek to argue that the deprivation of his liberty had been in accordance with the provisions set out in the sub-paragraphs of Article 5 § 1. In any event, the Court notes that his deprivation of liberty did not fall under sub-paragraphs (a), (d), (e) or (f) thereof.

123. As established by the Court, the first applicant’s deprivation of liberty was linked to his alleged attempts to interfere with evidence in the outbuilding of the furnace facility (see paragraph 115 above). In this connection, the VID indicated that he had been handcuffed in order to stop him failing to comply with lawful requests made by the VID officers (see paragraph 46 above). His deprivation of liberty might therefore potentially fall under sub-paragraph (b).

124. The Court reiterates that detention is authorised under this provision only to “secure the fulfilment” of the obligation prescribed by law. It follows that, at the very least, there must be an unfulfilled obligation incumbent on the person concerned and the detention must be for the purposes of securing its fulfilment and not punitive in nature (see Osypenko v. Ukraine, no. 4634/04, § 57, 9 November 2010, and Ostendorf v. Germany, no. 15598/08, §§ 92-94, 7 March 2013, with further references).

125. In the present case, however, according to the findings of the Ombudsperson there was no information in the case material that the first applicant had failed to fulfil lawful requests made by the VID officers (see paragraph 57 above). Given these conclusions and in the absence of any convincing evidence to the contrary, the Court is unable to discern which specific order he failed to fulfil.

126. As it has not been proven by the Government that there was an unfulfilled obligation incumbent on the applicant and given the fact that he was deprived of his liberty for about five hours and twenty minutes (see paragraph 121 above), the Court considers that his detention was not covered by sub-paragraph (b). It thus remains to be determined whether it fell within the ambit of sub-paragraph (c).

127. It appears that he had engaged in activity that might have obstructed the investigation (see paragraphs 12 and 46 above). The VID indicated that there had been a suspicion that he had tried to conceal evidence of a crime and therefore had attempted to commit a criminal offence (see paragraph 46 above). He was subsequently charged with failing to report a serious crime and attempting to conceal evidence of a crime (see paragraph 22 above). It was therefore possible that the VID officers considered that he had committed or was about to commit an offence. His detention thus could be justified under sub-paragraph (c) of Article 5 § 1 of the Convention.

128. The Court cannot, however, overlook the fact that to comply with section 266(1) of the Criminal Procedure Law or, as the case might have been, Article 253 of the Code of Administrative Violations, a record of the first applicant’s arrest should have been drawn up, specifying the reasons for his arrest (see paragraphs 69 and 73 above). The Court notes that according to the findings of the Ombudsperson no record of the first applicant’s arrest had been drawn up with regard to the restriction on his right to liberty on 17 November 2011 (see paragraph 59 above).

129. The Court has had occasion to hold that the absence of an arrest record must in itself be considered a most serious failing, as it has been the Court’s constant view that unrecorded detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a most grave violation of that provision. The absence of a record of such matters as the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see, for example, Nagiyev v. Azerbaijan, no. 16499/09, §§ 57 and 64, 23 April 2015; Rakhimberdiyev v. Russia, no. 47837/06, § 35, 18 September 2014; and Venskutė v. Lithuania, no. 10645/08, § 80, 11 December 2012).

130. The Court therefore finds that the deprivation of the first applicant’s liberty from about 2.40 to 8 a.m. on 17 November 2011 was not compatible with Article 5 § 1.

(c) Conclusion

131. There has, accordingly, been a violation of Article 5 § 1 of the Convention in respect of the first applicant with regard to the period of time from about 2.40 to 8 a.m. on 17 November 2011, and no violation of Article 5 § 1 with regard to the remaining period of time.

132. There has been no violation of Article 5 § 1 of the Convention in respect of the second applicant.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

133. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

134. The first applicant claimed 14,228.72 euros (EUR) in respect of non-pecuniary damage.

135. The Government contested this claim. They submitted that the first applicant had failed to prove he had suffered non-pecuniary damage and a causal link between that and the violation alleged. They also submitted that the amount claimed was excessive, and that if the Court were to find a violation of the Convention, this would in itself constitute adequate and sufficient just satisfaction.

136. The Court considers that the first applicant must have suffered non-pecuniary damage that cannot be sufficiently compensated by the mere finding of a violation of Article 5 § 1. Ruling on an equitable basis, it awards him EUR 1,000 in respect of non-pecuniary damage.

B. Costs and expenses

137. The first applicant also claimed EUR 227.94 for translation costs and EUR 907.50 for legal costs, corresponding to fifteen hours of legal work at an hourly rate of EUR 50. He referred to invoices for translation and legal services and contract for his legal representation. He also provided the corresponding payment receipts.

138. The Government contested the first applicant’s claim and maintained that it was excessive. They argued that his representative should have had sufficient knowledge of one of the Court’s official languages, English or French. They also noted that the contract for legal representation had been concluded after communication of the complaints. In addition, the first applicant had failed to meet the requirements of Rule 60 § 2 of the Rules of Court, as he had not submitted a detailed breakdown of the legal services rendered.

139. 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 1,135.44 to the first applicant in respect of the translation and legal costs, plus any tax that may be chargeable to him.

C. Default interest

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints concerning Article 5 § 1 of the Convention admissible;

2. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the first applicant with regard to the period of time from about 2.40 to 8 a.m. on 17 November 2011;

3. Holds that there has been no violation of Article 5 § 1 of the Convention in respect of the first applicant with regard to the remaining period of time;

4. Holds that there has been no violation of Article 5 § 1 of the Convention in respect of the second applicant;

5. Holds

(a) that the respondent State is to pay to the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,135.44 (one thousand one hundred and thirty-five euros and forty-four cents), plus any tax that may be chargeable to the first applicant, in respect of costs and expenses;

(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;

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

Done in English, and notified in writing on 28 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekAngelika Nussberger
RegistrarPresident

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