Communicated on 20 May 2015
FOURTH SECTION
Application no. 28135/07
Guntars JEVDOKIMOVS
against Latvia
lodged on 16 June 2007
STATEMENT OF FACTS
1. The applicant, Mr Guntars Jevdokimovs, is a Latvian national, who was born in 1985 and lives in Jēkabpils.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Surrender proceedings
3. The Preiļi District Court (Preiļu rajona tiesa) in Latvia issued a warrant for the applicant’s arrest on 20 September 2005, following which it issued a European arrest warrant on 7 April 2006. The European arrest warrant concerned fourteen criminal offences (criminal case no. 11320017405). There were five offences of theft, under section 175(3) of the Criminal Law (Krimināllikums): theft of money and a bank card from B.C.’s apartment on 3 June 2005; theft of a mobile phone, a wallet and money from N.B.’s apartment on 4 July 2005; theft of money from S.O.’s apartment on 7 July 2005; theft of money from A.G.’s apartment on 7 July 2005; theft of jewelry from V.R.’s apartment on an unspecified date between 14 and 20 July 2005; and eleven offences of unlawful activities with means of payment, under section 193(4) of the Criminal Law: theft of a bank card from B.C.’s apartment and withdrawal of sums of money on seven occasions on 3 June 2005, and an attempt to withdraw a sum of money on 4 June 2005.
4. On 2 January 2007 the Preiļi District Court issued another European arrest warrant concerning three criminal offences: theft of a DVD player from the apartment of the applicant’s family on 23 April 2005, under section 175(2) of the Criminal Law (criminal case no. 32320006005); theft of money from A.R.’s apartment on 17 May 2005, under section 175(3) of the Criminal Law (criminal case no. 32320007105); and theft of a bank card from A.R.’s apartment on 17 May 2005, under section 193(2) of the Criminal Law (criminal case no. K25001906).
5. On 8 January 2007 the Latvian authorities transmitted both aforementioned European arrest warrants to the Cypriot authorities.
6. On 11 January 2007 the Cypriot police arrested the applicant pursuant to the first European arrest warrant dated 7 April 2006.
7. On 12 January 2007 a hearing was held before a Cypriot judicial authority for the applicant’s surrender. The applicant agreed to his surrender.
8. On 20 January 2007 the applicant was handed over to the Latvian authorities. He arrived in Latvia on 21 January 2007.
2. Criminal proceedings
9. On 30 January 2007 the applicant’s trial took place at the Preiļi District Court (criminal case nos. 32320006005, 32320007105 and K25001207). The applicant, who did not have a lawyer, agreed not to have the evidence examined in trial.
10. The same day the District Court found the applicant guilty of the criminal offences as described in the second European arrest warrant dated 2 January 2007. A prison sentence of one year and six months was imposed on the applicant.
11. The applicant lodged an appeal with the Latgale Regional Court (Latgales apgabaltiesa) and subsequently an appeal on points of law with the Criminal Cases Division of the Senate of the Supreme Court (Augstākās tiesas Senāta Krimināllietu departaments). He complained that he had been convicted of offences which were not specified in the request for his surrender in breach of section 689 of the Criminal Procedure Law (Kriminālprocesa likums) and that he had not been afforded an opportunity to prepare for the first instance hearing.
12. On 28 March 2007 the Latgale Regional Court upheld the judgment of the Preiļi District Court. It reasoned that the applicant had admitted his guilt and, as requested by the parties, the evidence had not been examined in trial. There were no grounds therefore to re-examine the applicant’s guilt. As regards his surrender to and trial in Latvia, those proceedings had been conducted “in compliance with Division Fourteen of the Criminal Procedure Law”. On 10 May 2007 the Criminal Cases Division of the Senate of the Supreme Court refused the review on points of law and the applicant’s conviction therefore became final.
13. On 2 April 2007 the applicant requested the prosecution to provide information about his surrender from Cyprus to Latvia. On 19 August and 6 September 2007 he requested the prosecution to re-open the aforementioned criminal proceedings. The applicant argued that on 14 May 2007 he had received from the prosecution the documents confirming that he had been surrendered from Cyprus to Latvia in relation to the criminal offences other than those for which he had been convicted.
14. On 31 October 2007 the prosecution refused the re-opening of the criminal proceedings. The prosecution, following an additional enquiry, established that the Cypriot authorities had agreed to surrender the applicant based on the first European arrest warrant dated 7 April 2006. However, they had not refused his surrender based on the second European arrest warrant dated 2 January 2007. The Cypriot authorities had surrendered the applicant believing that the criminal offences indicated in the second European arrest warrant had been included in the first European arrest warrant. The applicant had therefore been convicted of criminal offences for which he had been surrendered.
B. Relevant European Union law
1. Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member States (2002/584/JHA) (“the Framework Decision”)
15. The Framework Decision provides for the execution in any member State (“the executing State”) of a judicial decision made in another member State (“the issuing State”) for the arrest and surrender of a person for the purpose of criminal proceedings (or the execution of a custodial sentence).
16. The Framework Decision provides in its relevant part as follows:
Article 27
Possible prosecution for other offences
“1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.
2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.
3. Paragraph 2 does not apply in the following cases:
...
(b) the offence is not punishable by a custodial sentence or detention order;
(c) the criminal proceedings do not give rise to the application of a measure restricting personal liberty;
(d) when the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty;
(e) when the person consented to be surrendered, where appropriate at the same time as he or she renounced the speciality rule, in accordance with Article 13;
(f) when the person, after his/her surrender, has expressly renounced entitlement to the speciality rule with regard to specific offences preceding his/her surrender. Renunciation shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State’s domestic law. The renunciation shall be drawn up in such a way as to make clear that the person has given it voluntarily and in full awareness of the consequences. To that end, the person shall have the right to legal counsel;
(g) where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4.
...”
2. Judgment of the Court of Justice of the European Communities (which on 1 December 2009 became known as the Court of Justice of the European Union) on the interpretation of the Framework Decision
17. By a judgment of 1 December 2008 (C-388/08 PPU Artur Leymann and Aleksei Pustovarov) delivered following a reference for a preliminary ruling from the Finnish Supreme Court (Korkein oikeus), the Court of Justice ruled on the interpretation of Article 27 of the Framework Decision (OJ C 44 from 21.02.2009, p.23). It noted as follows:
“43 Article 27(2) of the Framework Decision lays down the specialty rule, according to which a person who has been surrendered may not be prosecuted, sentenced or otherwise deprived of liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.
44 That rule is linked to the sovereignty of the executing Member State and confers on the person requested the right not to be prosecuted, sentenced or otherwise deprived of liberty except for the offence for which he or she was surrendered.”
18. The Court of Justice ruled in the operative part as follows:
“1. In order to establish whether the offence under consideration is an ‘offence other’ than that for which the person was surrendered within the meaning of Article 27(2) ... requiring the implementation of the consent procedure referred to in Article 27(3)(g) and 27(4) of that Framework Decision, it must be ascertained whether the constituent elements of the offence, according to the legal description given by the issuing State, are those in respect of which the person was surrendered and whether there is a sufficient correspondence between the information given in the arrest warrant and that contained in the later procedural document. Modifications concerning the time or place of the offence are allowed, in so far as they derive from evidence gathered in the course of the proceedings conducted in the issuing State concerning the conduct described in the arrest warrant, do not alter the nature of the offence and do not lead to grounds for non-execution under Articles 3 and 4 of the Framework Decision.
...”
C. Relevant domestic law
19. Division Fourteen of the Criminal Procedure Law governs the extradition proceedings. Its section 689(1) reads as follows:
“A person may only be prosecuted and tried for the criminal offence for which he or she has been extradited.”
COMPLAINT
20. Without referring to any particular provision of the Convention, the applicant complains that after his surrender from Cyprus to Latvia he was not informed of and tried for criminal offences for which he had not been surrendered to the Latvian authorities.
QUESTIONs TO THE PARTIES
1. Did the applicant have a fair hearing in accordance with Article 6 § 1 of the Convention?
Was the applicant informed prior to the first instance hearing of the criminal offences for which he had been surrendered from Cyprus to Latvia? Did the applicant have sufficient information enabling him to raise the rule of specialty at the first instance hearing?
Were the conclusions of the domestic courts on the compliance with the rule of specialty reasonable and free from arbitrariness?
2. Was the applicant informed promptly, in a language which he understood and in sufficient detail of the nature and cause of the accusation against him, as required by Article 6 § 3 (a) of the Convention? Was the applicant afforded adequate facilities to prepare his defence, as required by Article 6 § 3 (b) of the Convention?
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