FIFTH SECTION
DECISION
Application no. 47018/11
Mareks FJODOROVS
against Latvia
The European Court of Human Rights (Fifth Section), sitting on 8 October 2019 as a Committee composed of:
André Potocki, President,
Mārtiņš Mits,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 25 July 2011,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Mareks Fjodorovs, is a Latvian national who was born in 1980 and lives in Kalncempju pagasts. He was represented before the Court by Ms A. Kalēja, a lawyer practising in Riga.
2. The Latvian Government (“the Government”) were represented by their Agent, Ms K. Līce.
3. The applicant complained, in particular, that the appellate court, which had quashed a judgment by which he had been acquitted and convicted him, had refused his request that the main witness be summoned to the appeal hearing.
4. On 20 March 2014 the Vice-President of the Section decided to give notice of this complaint to the Government and, sitting in a single‑judge formation, to declare the remainder of the application inadmissible.The circumstances of the case
5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. At around 9.30 p.m. on 12 April 2010 N.N. encountered two men outside a building in Alūksne. One of the men physically assaulted N.N. and the other took a bottle of beer and a mobile phone from him.
7. On 14 April 2010 the applicant and K.V. were detained on suspicion of aggravated robbery perpetrated against N.N.
8. By a judgment of 14 September 2010 the Alūksne District Court (Alūksnes rajona tiesa) established that the co-accused, K.V., had hit N.N. twice and that the applicant had taken the victim’s belongings. The court held that as the actions of the two perpetrators had not been coordinated, their conduct had not constituted robbery. Accordingly, it acquitted K.V. but found the applicant guilty of theft and sentenced him to six months’ imprisonment. The prosecution lodged an appeal.
9. On 7 April 2011 at a hearing before the Vidzeme Regional Court (Vidzemes apgabaltiesa) the applicant and his defence counsel requested that the injured party, N.N., be summoned before the court. They argued that N.N. had testified in the applicant’s favour before the first-instance court. The appellate court refused that request on the grounds that N.N.’s testimony before the first-instance court had been very thorough and fully consistent with his pre-trial statements. It dismissed the assertion that N.N. had testified in the applicant’s favour; rather, he had been invited to comment on issues that he was not legally qualified to testify about, such as the legal classification of the accused’s conduct.
10. On 7 April 2011 the Vidzeme Regional Court quashed the first-instance court’s judgment, having found that the evidence had been incorrectly assessed. The appellate court concluded that the actions of the applicant and K.V. had been coordinated and found them both guilty of aggravated robbery. The applicant was sentenced to four years’ in prison, with two years’ police supervision.
11. The applicant lodged an appeal on points of law. He submitted that the appellate court had breached subsections (1) and (2) of section 574 of the Criminal Procedure Law and subsection (5) of section 575 of the Criminal Procedure Law. He also argued that his conviction had been based only on assumptions.
12. On 14 June 2011 the Criminal Cases Division of the Senate of the Supreme Court declined to examine the applicant’s appeal on points of law.Relevant domestic law
13. The relevant part of section 574 of the Criminal Procedure Law reads:
“The following constitute a violation of the Criminal Law:
(1) an incorrect application of sections of the General Part of the Criminal Law;
(2) an incorrect application of a section, subsection or paragraph of the Criminal Law when classifying a criminal offence ...”
14. The relevant part of section 575 of the Criminal Procedure Law reads:
“(1) The following constitute substantial violations of the Criminal Procedure Law that bring about the revocation of a court judgment:
...
(5) the accused was not given the opportunity to make a defence speech or to have the last word ...”
COMPLAINT
15. The applicant complained under Article 6 of the Convention that the appellate court had refused his request to have the main witness in the case, the injured party N.N., examined in court. N.N. had testified in favour of the applicant in the proceedings before the first-instance court, stating that the applicant had not inflicted any physical pain on him and that he had intervened in the fight between N.N. and K.V. in order to separate them.
THE LAW
16. In his application form the applicant complained, in substance under Article 6 §§ 1 and 3(d) of the Convention, of the domestic courts’ refusal to have his requested witness examined in the appeal proceedings.
17. The Government submitted that with respect to this complaint the applicant had failed to exhaust the available domestic remedies, as in the appeal on points of law he had only argued that the contested judgment had been based on assumptions. The complaint about the refusal to summon N.N. had not been explicitly raised. In the alternative, the Government argued that the complaint was manifestly ill-founded, as the applicant had had the opportunity to cross-examine N.N. at the pre-trial proceedings and before the first-instance court; N.N.’s testimony had constituted neither the sole nor decisive evidence; and the appellate court had adduced solid reasons for refusing to summon N.N.
18. In response to the Government’s observations, the applicant submitted that the nature of his complaint had been interpreted incorrectly. His right to a fair trial had been breached by the fact that the appellate court had ruled on the legal classification of the crime on the basis of the same evidence that had been presented before the first-instance court. Additionally, he maintained that the refusal to summon N.N. had denied him the possibility of presenting his evidence to the appellate court. Furthermore, he reiterated his complaints about the levels of appeal and the medical care which had already been declared inadmissible at the communication stage.
19. The Court reiterates that the scope of a case “referred to” the Court in the exercise of the right of individual application is determined by the applicant’s complaint or “claim” (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 108-09 and 120-22, 20 March 2018). Allegations made after the respondent Government have been given notice of the case can be examined by the Court only if they constitute an elaboration of the applicant’s original complaint to the Court (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).
20. In the present case, the complaint about the change of the legal classification of the criminal offence cannot be considered as an elaboration of the applicant’s original complaint concerning the refusal to summon N.N. to the appeal hearing. The new complaint not having been raised until after the Government had been notified of the case, it is not part of the case referred to the Court and will not be examined in the context of the present application. Additionally, the Court is also precluded from addressing the complaints that have already been declared inadmissible at the communication stage of the proceedings.
21. With respect to the complaint about the refusal to have the requested witness examined in the appeal proceedings, Article 35 § 1 of the Convention requires that complaints intended to be subsequently brought before the Court should have been made to the appropriate domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see Akdivar and Others v. Turkey, 16 September 1996, §§ 66 and 69, Reports of Judgments and Decisions 1996‑IV). Having analysed the applicant’s appeal on points of law (see paragraph 11 above), the Court is unable to conclude that the complaint concerning the refusal to summon the witness N.N. was, at least in substance, raised before the Supreme Court. Accordingly, it upholds the Government’s objection. This complaint must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 31 October 2019.
Milan BlaškoAndré Potocki
Deputy RegistrarPresident
Full & Egal Universal Law Academy