CASE OF VAŠČENKOVS v. LATVIA

FIFTH SECTION

CASE OF VAŠČENKOVS v. LATVIA

(Application no. 30795/12)

JUDGMENT

STRASBOURG

15 December 2016

FINAL

15/03/2017

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

In the case of Vaščenkovs v. Latvia,

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

Angelika Nußberger, President,
Erik Møse,
Khanlar Hajiyev,
Faris Vehabović,
Yonko Grozev,
Carlo Ranzoni,
Mārtiņš Mits, judges,

and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 15 December 2015 and on 22 November 2016,

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

PROCEDURE

1. The case originated in an application (no. 30795/12) 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 a Latvian national, Mr Maksims Vaščenkovs (“the applicant”), on 16 May 2012.

2. The applicant, who had been granted legal aid, was represented by Ms I. Nikuļceva, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Ms K. Līce.

3. Relying on Article 5 § 3 of the Convention, the applicant complained that, in deciding to extend his detention, the domestic courts had failed to provide sufficient reasons for the suspicion that he had committed robbery.

4. On 10 July 2014 the aforementioned complaint was communicated to the Government under Article 5 §§ 3 and 4 of the Convention, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1986. He died on 3 November 2015. Ms N. Zīmele, the applicant’s grandmother, informed the Court of her wish to pursue the proceedings on his behalf.

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

A. The applicant’s detention on suspicion of theft

7. In July and August 2011 the police opened four criminal investigations into three incidents of theft and an incident of robbery. On 29 August 2011 these investigations were joined.

8. On 12 August 2011 the police arrested the applicant on suspicion of robbery. He was held in custody on this basis until 14 August 2011, when he was placed under arrest on suspicion of theft.

9. On 15 August 2011 the police lodged an application with the Ludza District Court (Ludzas rajona tiesa) for the applicant’s pre-trial detention in relation to the theft investigation.

10. On 16 August 2011 an investigating judge granted the application. With regard to the suspicion of theft, he reasoned as follows:

“there are reasons to suspect that [the applicant] has committed the crime under section 175(3) of the Criminal Law (Krimināllikums) [theft] ... These suspicions are confirmed by the evidence gathered in the criminal case.”

11. On 18 August 2011 the applicant appealed against that decision.

12. On 2 September 2011 the Latgale Regional Court (Latgales apgabaltiesa) dismissed the appeal. With regard to the suspicion of theft, the judge stated:

“The ... suspicion that [the applicant] has committed the crime ... is confirmed by the information contained in the file.”

13. No appeal lay against the aforementioned decision.

B. The applicant’s detention after being charged

14. On 19 September 2011 the public prosecutor charged the applicant with robbery, theft, involving a minor in theft and petty theft on the basis of the facts as alleged.

15. On 26 September 2011 the applicant familiarised himself with the case material.

16. On 28 September 2011 the prosecutor transferred the case to the Ludza District Court for adjudication. She set out the case against the applicant and detailed the evidence upon which the prosecution intended to rely.

17. On 17 October 2011 the investigating judge decided to keep the applicant in detention. He gave the following reasoning:

“the accusation against [the applicant] of the crimes under sections 175(3) [theft], 176(2) [robbery], 180(2) [petty theft] and 172 [involving a minor in theft] of the Criminal Law ... is confirmed by the evidence gathered in the criminal case.”

18. No appeal lay against the aforementioned decision.

19. On 28 December 2011 and 23 April 2012 the applicant’s detention was extended. The judge stated as follows:

“[the applicant’s] detention is based on the suspicion that he has committed the crime under section 175(3) of the Criminal Law [theft]... in other criminal proceedings [he] has been declared a suspect in relation to crimes under sections 180(1) [petty theft] and 176(2) [robbery] ...

...

There has been no change in the reasons noted in the detention order of 16 August 2011 ... which had been re-examined in [the subsequent decisions]...”

20. On 3 February, 19 June and 6 August 2012, the applicant complained to the Ludza District Court that it had failed to assess his detention in relation to the alleged robbery.

21. On 6 August and 2 November 2012, and on 25 January 2013 the judge decided to continue the applicant’s detention, using largely the same wording as in the previous decisions. In addition, she noted that the twenty-four-month period allowed by section 277(7) of the Criminal Procedure Law (Kriminālprocesa likums) for detention had been observed because the applicant had also been accused of an especially serious offence, robbery, under section 176(2) of the Criminal Law.

22. The aforementioned decisions were not subject to appeal.

II. RELEVANT DOMESTIC LAW

23. The relevant provisions of the Criminal Procedure Law have been noted in Urtāns v. Latvia (no. 16858/11, §§ 19 and 20, 28 October 2014).

24. Pursuant to section 277(6), a person charged with serious offence may not be held in detention for more than twelve months. Pursuant to section 277(7), a person charged with an especially serious offence may not be held in detention for more than twenty-four months.

THE LAW

I. AS TO THE LOCUS STANDI OF MS N. Zīmele

25. The Court notes at the outset that the applicant died while the application was pending before the Court. His grandmother, Ms Zīmele, informed the Court that she wished to pursue the proceedings. She submitted that, since the applicant’s mother’s death in 2008, the applicant had lived with her and that she had been his only close family member, even though his father, her son, was still alive. According to Ms Zīmele, the applicant had had no contact with his father since his parents’ divorce when he was two years old. She also submitted that she had been directly affected by her grandson’s arrest, as she had worried a lot and had been left alone without his support. Recognition of a violation of his rights, even after his death, would mean a lot to her. Ms Zīmele also submitted that she maintained contact with the applicant’s father, her son, over the telephone, that she had informed him about the present case, and that he had no objections to her pursuing the application.

26. The Government submitted that the applicant’s closest living relative and heir, pursuant to the domestic law, was his father. Hence, Ms Zīmele could not be considered the applicant’s next of kin. Besides, Ms Zīmele had provided no evidence of the fact that the applicant’s father had no objections to her pursuing the application. Further, relying on the cases of Sanles and Sanles v. Spain ((dec.), no. 48335/99, 26 October 2000), and Biç and Others v. Turkey (no. 55955/00, 2 February 2006), the Government argued that rights under Article 5 of the Convention were of an eminently personal and non‑transferable nature. They disputed the contention that Ms Zīmele could have been affected by the applicant’s detention in any way. Thus, the Government objected to her locus standi.

27. In so far as the Government referred to Sanles and Sanles and Biç and Others v. Turkey (both cited above), the Court reiterates that it has differentiated between applications where the direct victim has died before the application was lodged with the Court, and those where he or she has died after the application was lodged, as in the present application, which was lodged by the applicant himself. In the latter cases, the Court has accepted that the next of kin, close family member or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014; Fartushin v. Russia, no. 38887/09, § 33, 8 October 2015; and Ivko v. Russia, no. 30575/08, § 67-70, 15 December 2015). It is not only material interests which the successor of a deceased applicant may pursue by his or her wish to maintain the application. Human rights cases before the Court generally also have a moral dimension, and persons near to an applicant may thus have a legitimate interest in ensuring that justice is done, even after the applicant’s death (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII). Thus, in cases where the direct victim has died after the application was lodged, the decisive factor is not whether the rights at issue are transferable to heirs willing to pursue an application, but whether the persons wishing to pursue the proceedings can claim a legitimate interest in seeking that the Court decide the case on the basis of the applicant’s desire to use his individual and personal right to lodge a case before the Court (see Ergezen v. Turkey, no. 73359/10, § 29, 8 April 2014, concerning a complaint under Article 5; see also § 27 of the judgment for further references to cases dealing with complaints under Article 5).

28. The Court accepts the Government’s argument that it is the applicant’s father who would be considered the applicant’s heir under the national law. However, the applicant’s father has expressed no interest in pursuing the proceedings before the Court. Hence, in the present case, it is not the late applicant’s heir but his grandmother – a person who claims to be his closest living relative – who wishes to pursue the application before the Court. As the Court has held before, it does not attach decisive importance to the fact that the person wishing to pursue an application is not the applicant’s next of kin or heir. What is important is that this person can claim a legitimate interest in having the proceedings in the applicant’s case pursued before the Court (see Malhous v. the Czech Republic (dec.), cited above, and Kozimor v. Poland, no. 10816/02, §§ 25-29, 12 April 2007).

29. The Court notes that the Government have not contested the submission that the applicant had been estranged from his father since he was two years old, and that, following his mother’s death in 2008, the applicant had lived with Ms Zīmele. On the contrary, the latter fact is confirmed by the documents submitted by both parties (see, a contrario, Brūzītis v. Latvia (dec.), no. 15028/04, §§ 48-49, 26 August 2014). In these circumstances, the Court sees no reason to contest the submission that it was Ms Zīmele, rather than the applicant’s father, who was more intimately affected by the applicant’s detention. The Court thus accepts that Ms Zīmele, as the applicant’s close relative who lived with him for numerous years and had with him family ties, has a legitimate interest in pursuing the proceedings on his behalf (see also Pisarkiewicz v. Poland, no. 18967/02, §§ 30-33, 22 January 2008; Isayeva v. Azerbaijan, no. 36229/11, § 60, 25 June 2015; Fartushin v. Russia, cited above, §§ 31-35; and Yaroshovets and Others v. Ukraine, nos. 74820/10, 71/11, 76/11, 83/11, and 332/11, § 67, 3 December 2015; for an example a contrario, see Thévenon v. France (dec.), no. 2476/02, ECHR 2006‑III, where the person wishing to purse the proceedings was not related to the deceased applicant).

30. Accordingly, the Court considers that Ms Zīmele has standing to continue the proceedings before the Court in the applicant’s stead, and that the Government’s objection should be dismissed. The text of this judgment will continue to refer to the late Mr Maksims Vaščenkovs as “the applicant.”

II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

31. The applicant complained under Article 5 § 3 of the Convention that, in deciding to extend his detention, the domestic courts had failed to provide sufficient reasons for the suspicion that he had committed the robbery.

32. While this complaint was also communicated under Article 5 § 4, it falls to be examined under Article 5 § 3, which reads as follows:

“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

A. Admissibility

33. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

34. Firstly, the applicant argued that his complaint under Article 5 § 3 of the Convention also concerned his detention in relation to the allegation of theft. It included the period prior to 16 August 2012 when the twelve-month time-limit allowed for detention on suspicion of theft had elapsed. He had complained about this to the domestic courts.

35. Secondly, he maintained that the domestic courts had failed to provide reasons in their decisions for the suspicions raised against him. They had simply referred to the evidence gathered without giving any details. As in Svipsta v. Latvia (no. 66820/01, § 132, ECHR 2006‑III (extracts)), their reasoning had been vague.

(b) The Government

36. Firstly, the Government observed that the applicant did not complain about his detention on suspicion of theft, but about how his detention following the charge of robbery (which increased the permissible time-limit for his detention from twelve to twenty-four months) had no proper basis. In their view, this complaint concerned the applicant’s detention after 16 August 2012.

37. Secondly, unlike in Urtāns (cited above, § 33), in all their decisions after the investigations had been joined, the domestic courts had assessed whether or not there was a reasonable suspicion that the applicant had committed the robbery based on the available case material. The fact that the case had been referred for adjudication also confirmed that a reasonable suspicion had existed. Furthermore, on 26 September 2011 the applicant had familiarised himself with the case material and had therefore been aware of the evidence gathered. It had not been for the investigating judge to assess this evidence, as such an assessment fell within the jurisdiction of the trial court.

38. Lastly, unlike in the case of Jėčius v. Lithuania (no. 34578/97, § 101, ECHR 2000‑IX), the domestic courts had examined the applicant’s complaints.

2. The Court’s assessment

(a) General principles

39. The Court reiterates that a person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the person’s continued detention. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Tase v. Romania, no. 29761/02, § 40, 10 June 2008).

40. The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention (see Ilgar Mammadov v. Azerbaijan, no. 15172/13, § 90, 22 May 2014, and Stettner v. Poland, no. 38510/06, § 75, 24 March 2015). Furthermore, an extension order must show that there was genuinely “a reasonable suspicion” (see Miladinov and Others v. the former Yugoslav Republic of Macedonia, nos. 46398/09, 50570/09 and 50576/09, § 54 in fine, 24 April 2014). Also, there comes a moment when the existence of reasonable suspicion is no longer enough and other grounds must be given by the judicial authorities to justify the deprivation of liberty (see Stettner, cited above, §§ 75 and 76, and Miladinov and Others, cited above, § 46).

41. While the present case is not being examined under Article 5 § 4 of the Convention (see paragraph 32 above), it is relevant to note that according to the case-law regarding that provision, the court with jurisdiction has to examine not only compliance with the procedural requirements of domestic law, but also the reasonableness of the suspicion underpinning the arrest, and the legitimacy of the purpose pursued by the arrest and the ensuing detention (see Stašaitis v. Lithuania, no. 47679/99, § 90, 21 March 2002, and Grauslys v. Lithuania, no. 36743/97, § 53, 10 October 2000).

(b) Application in the present case

42. In response to the Government’s argument that the detention orders contained some reasoning, the Court notes that, in contrast to Urtāns (cited above, § 21), this complaint is not being examined from the perspective of Article 5 § 1 of the Convention, in which context the absence of any grounds in the decisions given by the judicial authorities to authorise detention for a prolonged period of time is incompatible with the principle of protection from arbitrariness enshrined in that provision (see Mooren v. Germany [GC], no. 11364/03, § 79, 9 July 2009; Urtāns, cited above, § 28; and Stašaitis, cited above, § 67 in fine).

43. In the present case, the reasons relied on by the domestic courts are discussed with reference to Article 5 § 3 (see Khodorkovskiy v. Russia, no. 5829/04, § 161, 31 May 2011).

44. Initially, the domestic courts justified the applicant’s detention on suspicion of theft (see paragraphs 9, 10 and 12 above). However, the Court will not examine this reasoning, because the applicant’s complaint, as formulated in the application form, concerns his detention in relation to suspected robbery (see paragraph 31 above).

45. In the detention order of 17 October 2011 and consistently thereafter, the domestic courts referred to an allegation of robbery (see paragraphs 17, 19 and 21 above).

46. In particular, in his decision relating to the detention order of 17 October 2011, the judge stated that the accusation of robbery was confirmed by the case material, without giving reasons as to the “reasonable suspicion” against the applicant (see paragraph 17 above).

47. In general, the “state of the evidence” may be a relevant factor when considering the existence and persistence of serious indications of guilt (see Gökçe and Demirel v. Turkey, no. 51839/99, § 43, 22 June 2006). Nevertheless, such reference in the present case, even if it was contained in the detention order of 17 October 2011 (see paragraph 46 above), was not sufficient for the purposes of authorising the applicant’s continued detention.

48. The Court notes that the parties agreed that the applicant could be detained on suspicion of theft until 16 August 2012 (see paragraphs 34 and 36 above) even though he had been arrested more than twelve months prior to that date (see paragraph 8 above). In the detention orders relevant to the period of time beyond 16 August 2012, namely of 6 August 2012, 2 November 2012 and 25 January 2013 the domestic courts justified the time-limit allowed for the applicant’s detention by reference to robbery charge. While the applicant’s continued detention was therefore justified by suspected robbery, the domestic courts reiterated continuously that he was detained on the basis of suspicion of theft (see paragraphs 19 and 21 above). It is not clear how the suspicion of theft was relevant to the applicant’s continued detention in relation to the robbery charge.

49. The Court cannot agree with the Government’s assertion that the suspicion against the applicant was confirmed by the referral of the case for adjudication. It is only by giving a reasoned decision that there can be public scrutiny of the administration of justice (see Tase, cited above, § 41).

50. Furthermore, the applicant had complained to the domestic courts that they had failed to assess his detention based on the robbery charge (see paragraph 20 above). Not only did they fail to justify the “reasonable suspicion” in that regard, but they also appear to have continued the detention on the basis of the initial detention on suspicion of theft, which was authorised on 16 August 2011 (see paragraphs 19 and 21 above), even though the applicant could not be held in detention on suspicion of theft for more than twelve months.

51. The Court concludes that by justifying the time-limit allowed for the applicant’s continued detention by reference to the robbery charge, failing to address “the reasonable suspicion” in that regard, and relying instead on the suspicion of theft, the domestic courts failed to give “relevant and sufficient” reasons to justify his continued detention at least beyond 16 August 2012.

52. Without going further into the reasons given by the domestic courts for the applicant’s detention, the foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 5 § 3 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

53. 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

54. The applicant claimed 12,500 euros (EUR) in respect of non‑pecuniary damage. This claim was maintained by Ms Zīmele.

55. The Government contested this claim. They submitted that the applicant had failed to prove a causal link between non-pecuniary damage and the violation alleged. They also deemed the claimed amount to be excessive. Further, referring to the case of Kalló v. Hungary (no. 30081/02, 11 April 2006), the Government argued that when the persons pursuing an application were not the applicant’s parents or children, they could not be deemed to have suffered any significant non-pecuniary damage. Accordingly, in the circumstances of the present case, they invited the Court to decide that a finding of a violation in itself would constitute sufficient just satisfaction for any non-pecuniary damage sustained.

56. The Court notes that the case of Kalló v. Hungary (cited above) concerned a complaint about the length of civil proceedings. Hence, the Court’s findings with regard to the award of non-pecuniary damage in that case cannot be directly applied here (see Hannu Lehtinen v. Finland, no. 32993/02, § 57, 22 July 2008). The Court considers that the applicant must have suffered distress as a result of the violation of Article 5 § 3 found, which cannot be sufficiently compensated by the finding of a violation of the Convention. Hence, in accordance with its own case-law and ruling on an equitable basis, the Court awards EUR 3,000 in respect of non-pecuniary damage (compare Pisarkiewicz v. Poland, cited above, § 54; Jėčius v. Lithuania, cited above, § 109; and Isayeva v. Azerbaijan, cited above, § 100).

B. Default interest

57. 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. Holds that Ms N. Zīmele has standing to continue the present proceedings in the applicant’s stead;

2. Declares the complaint concerning Article 5 § 3 of the Convention admissible;

3. Holds that there has been a violation of Article 5 § 3 of the Convention;

4. Holds

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

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

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

Done in English, and notified in writing on 15 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident

 

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