FOURTH SECTION
DECISION
Application no. 11579/05
Aleksandrs KURGANOVS
against Latvia
The European Court of Human Rights (Fourth Section), sitting on 20 January 2015 as a Committee composed of:
Päivi Hirvelä, President,
Nona Tsotsoria,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 1 March 2005,
Having regard to the observations submitted by the respondent Government on 26 July 2010,
Having regard to the declaration submitted by the respondent Government on 14 September 2010 requesting the Court to strike part of the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Aleksandrs Kurganovs, is a Latvian national, who was born in 1978 and lives in Riga.
2. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine, who was succeeded by Mrs K. Līce.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Pre-trial proceedings
4. On 2 December 2002 the Security Police instituted criminal proceedings concerning abuse of official position and unauthorised acquisition and storage of narcotic substances.
5. On 3 December 2002 the applicant, who at the relevant time was a police officer, was arrested in connection with the aforementioned criminal proceedings. On 5 December 2002 a judge of the Riga City Latgale District Court (Rīgas pilsētas Latgales rajona tiesa) ordered the applicant’s detention for 30 days. On the following day the applicant appealed against the detention order. His appeal was received at the Riga Regional Court (Rīgas apgabaltiesa) on the same date but was never examined. On 27 December 2002, 26 February 2003, 28 April 2003, and 26 June 2003 the applicant’s detention was further extended by judges of the Riga City Latgale District Court and, following the applicant’s appeal, all these decisions were upheld by the Riga Regional Court.
6. On 22 April 2003 the applicant was charged with unauthorised acquisition and storage of narcotic substances for the purpose of sale, which had been committed in an organised group, as well as with repeated organising of bribery and abuse of official position. In the same proceedings charges were also brought against ten other persons. From 19 November 2003 through 11 March 2004 the applicant familiarised himself with the case file. On 18 March 2004 the final bill of indictment was served on the applicant and the co-accused and the case file was sent to the Riga Regional Court for adjudication. On 22 March 2004 the applicant and the other ten co-accused were committed for trial.
7. On 29 April 2003 a different set of criminal proceedings were instituted against the applicant, also concerning abuse of official position. On 20 May 2004 bill of indictment was served on the applicant and the case was sent to the Riga Regional Court for adjudication. On 28 May 2004 the court joined the two criminal proceedings.
2. First-instance proceedings
8. The examination of the case was initially set for 18 May-20 June 2005 but upon the request of an attorney of one of the co-accused it was postponed to 1 July 2005.
9. At the hearing of 1 July 2005 another co-accused was absent on health grounds. All parties, including the applicant, requested the hearing to be postponed. The court considered that it would not be practical to separate the proceedings and, therefore, postponed the hearing. In addition, the court released the applicant and the other co-accused who had also been detained from the custody pending trial.
10. The following hearing of 1 December 2005 was postponed, as three of the co-accused had failed to attend, two of them on health grounds, and all parties, including the applicant, had requested postponement. The subsequent hearings that were convened on 23 March 2006 and 28 March 2006 were adjourned as other three co-accused had failed to attend. The hearing of 7 April 2006 was postponed, as the applicant and one other co‑accused had been absent. In all of these occasions the absence of the co‑accused was justified on health grounds and all parties requested the hearings to be postponed. Moreover, at the hearing of 7 April 2006 the prosecutor advised the court to postpone the hearing for a longer period of time so that everyone could attend.
11. At the following hearing of 2 October 2006 the case was heard on its merits. All eleven co-accused pleaded guilty and requested the case to be adjudicated in a special procedure not requiring examination of the evidence in a hearing. In its judgment of 13 October 2006 the Riga Regional Court examined the involvement of the co-accused in 18 different episodes and convicted them of their respective charges. With regard to all of the co‑accused the court took into account the following mitigating circumstances: they had confessed and showed remorse; they had cooperated during the investigation of the crimes; since the beginning of the criminal proceedings a notable period of time, namely, almost four years, had passed; and over this period of time the co-accused had not committed new crimes. In light of these mitigating circumstances, the first-instance court found it possible to apply section 49 of the Criminal Law and to impose sentences below the statutory minimum. Accordingly, for all the counts the applicant was convicted of he was given a sentence of five years’ imprisonment with subsequent two-year period of police supervision, as well as confiscation of property.
3. Appellate proceedings
12. The applicant and seven from the other ten co-accused lodged an appeal requesting mitigation of their respective sentences. On 15 February 2007 the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta) admitted the case for examination at the appellate level and set the hearing for 18 October 2007.
13. At the hearing of 18 October 2007 one of the co-accused was absent due to being hospitalised. His attorney requested the hearing to be postponed for an indefinite time. The appellate court granted this request despite the other co-accused and their attorneys, including the applicant, requesting separation of the criminal case and its speedier examination.
14. On 16 January 2008 the appellate court set the next hearing for 21-22 May 2008. However, on 16 May 2008 the prosecutor’s office informed the court that the prosecutor in charge of the case would not be able to attend, as she would need to go abroad for a business trip. Arguing that no other prosecutor could be assigned to the case due to its complexity, the prosecutor’s office requested the hearing to be postponed even further. In light of that, the appellate court set the next hearing for 18-19 February 2009.
15. On 10 February 2009 an attorney of two co-accused informed the court that she was on a vacation and would not return by 18 February 2009. At the hearing of 18 February 2009 the said attorney, as well as another attorney, the applicant and two other co-accused were not present. The reasons for their absence were not indicated in the minutes of the hearing. The minutes did, however, indicate that the prosecutor argued against suspension of the proceedings on the grounds that the illnesses of the co-accused did not appear to be protracted. She also argued against separation of the criminal case, as this action would take disproportionate amount of time owing to the volume of the case. Finally, the prosecutor noted that there was no information that the co-accused would be avoiding trial. The appellate court decided to postpone the hearing and set it for 28-29 October 2009.
16. On 18 August 2009 the appellate court granted a request of one of the co-accused to leave the country to take care of his ailing relatives.
17. On 1 September 2009 the appellate court informed the parties that the hearing had been rescheduled to 31 May-1 June 2010. The delay had occurred because the judge rapporteur had retired and the case had been assigned to a different judge.
18. At the hearing of 31 May 2010 one of the co-accused was not present due to being hospitalised. The prosecutor requested separation of the criminal case. The positions of the co-accused in this regard differed but the applicant and his attorney requested the hearing to be postponed. The appellate court decided to separate the case arguing that the appellate complaints only concerned the sanctions imposed and the separation of the case would not hamper its examination. Accordingly, the appellate court commenced examination of the case; however, during the hearing the applicant’s attorney experienced health complications and was hospitalised on account of a cardiac event. The appellate court inquired about the applicant’s position concerning the possibility to continue examination of the case. The applicant responded that he did not wish to be represented by a different attorney appointed by the court and requested the hearing to be postponed. Accordingly, the appellate court postponed the hearing and set it for 15-16 September 2010.
19. At the hearing of 15 September 2010 another co-accused was absent, again on health grounds. However, the co-accused who had been absent on 31 May 2010 was present. The appellate court separated the proceedings with regard to the absent co-accused, joined the case of the present co‑accused to the principal case, and examined the merits of the case. At this hearing the applicant and the other co-accused filed a motion requesting termination of the criminal proceedings due to their unreasonable length. In particular, they requested to be relieved from the obligation to serve the remainder of their sentences.
20. With its decision of 15 September 2010 the appellate court upheld the judgment of the first-instance court. In response to the complaint about the length of the criminal proceedings the appellate court, first, pointed to the size of the case, which comprised 19 volumes. Concerning the pre-trial proceedings the appellate court found that they had been conducted within “reasonable time”. Further, the appellate court accepted that the first hearing at the first-instance court had been set with a delay on account of the court’s work load. However, the appellate court stressed that the following hearings had been postponed due to the co-accused’s failure to be present. Having denounced the co-accused’s attitude towards their duties, as they had failed to attend the hearings, sometimes even without valid reasons, the appellate court did not consider that the first-instance proceedings exhibited unreasonable delays. Furthermore, the appellate court stressed that the applicants had, in fact, benefited from their negligent attitude towards their duty to attend the hearings, as the length of the criminal proceedings had been the decisive factor for application of section 49 of the Criminal Law and imposition of sanctions below the statutory minimum. With regard to the appellate proceedings, having noted the causes for the postponements, the appellate court concluded that there had been no unjustified delays. Finally, having observed that the appellate proceedings were already completed, the appellate court considered that there was no reason to believe that the criminal proceedings as a whole could not be completed within “reasonable time”. Accordingly, the appellate court held that there was no reason to terminate the criminal proceedings on account of their length.
21. Additionally, the court noted that with the amendments to the Criminal Law that came into force on 23 December 2009 the sanctions for some of the crimes had been reduced. Due to that, the sentences given to the co-accused by the first-instance court had come to fall within the sanction margin set by the amended Criminal Law. Considering the gravity of the crime and the fact that, according to the appellate court, the co-accused had shown no remorse or understanding of the harm caused by their crime, the appellate court left the sanctions unaltered. For that reason the appellate court removed the reference to section of 49 of the Criminal Law, which had been applied by the first-instance court in light of the length of the proceedings.
4. Cassation proceedings
22. The applicant and the seven co-accused filed appeals on points of law. They all argued, inter alia, that the appellate court should have terminated the criminal proceedings, as it no longer had been possible to complete them within “reasonable time”.
23. On 15 March 2011 the Criminal Cases Division of the Senate of the Supreme Court (Augstākās tiesas Senāta Kriminallietu departaments) dismissed the appeals on points of law and upheld the decision of the appellate court. In relation to the complaint about the length of the criminal proceedings the Senate of the Supreme Court reasoned as follows:
“Section 14(1) of the Criminal Procedure Law states that everyone has a right to have criminal proceedings completed within reasonable time, i.e., without unjustified delays.
The law includes an explicit reference to unjustified delays, that is, situations when the length of the proceedings cannot be explained with objective circumstances.
The appellate court’s decision shows that the court thoroughly analysed the course of the criminal proceedings from the moment of their initiation until the completion of the appellate-instance proceedings and concluded that there were no grounds to terminate the criminal proceedings on account of unjustified delays or failure to complete the proceedings within reasonable time.
Section 14(1) of the Criminal Procedure Law indicates the aspects relevant for the completion of the criminal proceedings within reasonable time. Those are: volume of the case, legal complexity of the case, variety of the procedural actions, attitude of the involved persons towards compliance with their obligations, other objective circumstances.
The cassation-instance court acknowledges that the appellate-instance court has taken into account the requirements of section 14 of the Criminal Procedure Law and finds that there are no grounds for applying section 379(1)(4) of the Criminal Procedure Law, which states that the court may terminate criminal proceedings, if they cannot be completed within reasonable time.”
B. Relevant domestic law and practice
24. Section 14 of the Criminal Procedure Law sets out the right to completion of the criminal proceedings within “reasonable time.” Section 14(5) further specifies that the non-observance of the “reasonable time” requirement may serve as the grounds for termination of criminal proceedings. The amendments to the Criminal Procedure Law that became effective on 1 July 2009 and 1 January 2011 respectively further clarified the procedure for implementation of the aforementioned right. The relevant legal provisions and the domestic case-law have been summarised in the case of Trūps v. Latvia ((dec.), no. 58497/08, §§ 16-33, 20 November 2012).
25. Further, section 49 of the Criminal Law, as in force at the material time, provided that a court could, taking into account various mitigating circumstances and the character of the offender and setting out its reasons in the judgment, impose a shorter sentence than the statutory minimum for the relevant criminal offence or impose a less severe form of punishment.
COMPLAINTS
26. The applicant complained under Article 5 § 1 (c) of the Convention that on 3 December 2002 he had been arrested without any legal grounds. Under Article 5 § 3 of the Convention he complained about the unlawfulness and length of the pre-trial detention. Under Article 5 § 4 of the Convention the applicant complained about the quality of the judicial supervision of his detention.
27. Further, under Article 6 § 1 of the Convention the applicant complained about the length of the criminal proceedings against him.
THE LAW
A. Complaints under Article 5 of the Convention
28. The applicant argued that his detention that had commenced on 3 December 2002 had been contrary to Article 5 §§ 1 (c), 3 and 4 of the Convention.
29. On 26 July 2010 the Government submitted their observations, which, inter alia, covered the complaint under Article 5 § 1 (c). However, on 14 September 2010 the Government submitted a unilateral declaration, which reads as follows:
“The Government of the Republic of Latvia (hereinafter – the Government) represented by their Agent Inga Reine admit that the course of detention on remand in respect of Aleksandrs Kurganovs (hereinafter – the applicant) did not meet the standards enshrined in Article 5, paragraph 1(c), paragraph 3 and paragraph 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention). Being aware of that, the Government undertake to adopt all necessary measures in order to avoid similar infringements in future.
The Government hereby declare that they offer to pay to the applicant the compensation in the amount of 4,000 EUR (2,812 LVL), this amount being the global sum and covering any pecuniary and non-pecuniary damage together with any costs and expenses incurred, free of any taxes that may be applicable, with a view to terminat[ing] the proceedings pending before the European Court of Human Rights (hereinafter – the Court) in the case [of] Kurganovs v. Latvia (application No. 11579/05).
The Government undertake to pay the above compensation within three months from the date of notification of the decision/ judgment by the Court pursuant to Article 37 of the Convention. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on the amount, as established in the decision/judgment by the Court. The above sum shall be transferred to the bank account indicated by the applicant.
This payment will constitute the final resolution with respect to the present applicant’s complaints.”
30. With a letter of 15 October 2011 the applicant informed the Court that he agreed to the terms of the Government’s unilateral declaration, which he referred to as a “friendly settlement proposal”. The applicant also noted that he wished the Court to examine his complaint and to find what kind of violations had been committed.
31. The Court considers that the applicant’s express agreement to the terms of the unilateral declaration made by the Government can be considered as a friendly settlement between the parties (see Cēsnieks v. Latvia (dec.), no. 9278/06, § 34, 6 March 2012).
32. Accordingly, the Court takes note of the friendly settlement reached between the parties and is satisfied that the settlement is based on respect for human rights as defined in the Convention and its protocols. The Court finds no reasons to justify a continued examination of this part of the application (Article 37 § 1 in fine of the Convention).
33. In view of the above, it is appropriate to strike the complaints under Articles 5 of the Convention out of the list of cases in accordance with Article 39 of the Convention.
B. Complaint under Article 6 of the Convention
34. The applicant complained that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which, as far as relevant, provides:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
35. The Government raised two preliminary objections under this head. First, they submitted that the applicant had not exhausted the available domestic remedies, as he had not complained about the length of the proceedings before the domestic courts. In this respect the Government referred to the Court’s findings in the case of Trūps v. Latvia (cited above). Second, the Government argued that the applicant’s complaint was manifestly ill-founded. Even though the Government admitted that the delay between 18 March 2004 and 1 July 2005 before the first-instance court had been attributable to the national authorities, the total length of the criminal proceedings had been caused by the circumstances, which could not be imputed to the State. Namely, the hearings, which had been scheduled with due intervals, had been postponed numerous times due to health-related issues of the co-accused, their failure to attend, and several leaves of the attorneys. Accordingly, the Government argued that due to their nature these delays had been “clearly beyond the scope of control of the national authorities, which could not therefore be held responsible for overall delay of the criminal proceedings.”
36. The applicant did not respond to the Government’s observations.
37. With regard to the Government’s first preliminary objection the Court notes that the Government’s observations were filed on 26 July 2010 when the criminal proceedings against the applicant were still pending. Subsequently, the applicant raised the issue of the length of the proceedings before the appellate court, as well as reiterated this complaint in his appeal on points of law. In response, the potential infringement of the applicant’s right to trial within “reasonable time” was addressed by both the appellate and the cassation court. Hence, the Court concludes that the applicant did exhaust the domestic remedy referred to by the Government. It follows that this preliminary objection must be dismissed.
38. In relation to the Government’s second preliminary objection the Court recalls its well-established case law that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant (see, amongst many other authorities, McFarlane v. Ireland [GC], no. 31333/06, § 140, 10 September 2010). In addition, only delays attributable to the State may justify a finding of a failure to comply with the “reasonable time” requirement (see Idalov v. Russia [GC], no. 5826/03, § 186, 22 May 2012 and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 49, ECHR 2004-XI).
39. The Court considers that the case was of a considerable complexity and volume – the proceedings concerned eighteen different episodes of organised crime involving eleven co-accused. With regard to the trial stage the Court must note, however, that all co-accused pleaded guilty and agreed to a procedure that did not require examination of the evidence at a hearing. Accordingly, the appellate and the cassation proceedings only concerned the sentences imposed on the co-accused.
40. The period to be taken into account commenced on 3 December 2002 when the applicant was arrested. The final decision in the criminal proceedings against him was taken on 15 March 2011. The applicant has not indicated that any other date should be taken into account in determining the length of the proceedings. Accordingly, the criminal proceedings lasted eight years, three months and twelve days in three levels of jurisdiction.
41. From this period, however, the time corresponding to delays caused by the applicant’s non-availability for justice cannot be attributed to the State. In particular, the applicant failed to attend the hearings of 7 April 2006 and 18 February 2009, arguably on health grounds. As the Court has previously found, the delays caused by the applicant’s state of health cannot be attributed to the State (see Sergey Timofeyev v. Russia, no. 12111/04, § 89, 2 September 2010 and Bordikov v. Russia, no. 921/03, §§ 102-103, 8 October 2009). After deducting this period from the overall length, the remaining period is around seven years.
42. Further, the Court notes that six hearings set at the first-instance level were postponed due to the failure of some of the co-accused or their attorneys to attend them. Three hearings at the appellate level were postponed for the same reason. In almost all cases the co-accused invoked health reasons to justify their absence. The Court recalls that the delays caused by the state of health of the co-accused are not attributable to either of the parties (see Sorokins and Sorokina v. Latvia, no. 45476/04, § 120, 28 May 2013; see also Veliyev v. Russia, no. 24202/05, §§ 171-179, 24 June 2010). However, the Court observes that the applicant did not object to the persistent decisions of the domestic courts to postpone the hearings on these grounds (see, mutatis mutandis, Sergey Timofeyev, cited above, § 91). On the contrary, save for the hearing of 18 October 2007, the applicant or his attorney always explicitly requested the hearings to be postponed. They maintained this request even at the hearing of 31 May 2010, at which point the proceedings had already lasted more than seven and a half years and the Court had communicated the present application to the Government. It is relevant to note that, as far it is evident from the documents submitted, none of these requests for postponement concerned an exercise of the defence rights – an action that could not have been attributable to the applicant (see Svetlana Orlova v. Russia, no. 4487/04, § 46, 30 July 2009 and Čerņikovs v. Latvia [Committee], no.71071/01, § 46, 31 May 2011). Further, with the exception of the hearing of 17 October 2007, the applicant or his attorney persistently argued against separation of the case. Similarly, the applicant or his attorney voiced no concerns about the length of the proceedings to the domestic courts, save for the motion lodged at the very end of the appellate proceedings containing a request to be absolved from the duty to serve the remainder of the sentence.
43. The Court further observes the critical tone taken by the appellate court in its assessment of the co-accused’s compliance with their obligation to attend the hearings. In particular the appellate court stressed that the co-accused had been negligent towards their duties and had, in fact, benefitted from this attitude (see paragraph 20 above). This assessment was upheld also at the cassation level. In light of the aforementioned, the Court is not convinced that the applicant exercised his procedural rights with due diligence (see, mutatis mutandis, Idalov v. Russia, cited above, § 189).
44. The Court now turns to the assessment of the conduct of the State authorities.
45. First, no periods of unjustified delays have been noted with regard to the pre-trial proceedings, which lasted from 3 December 2002 through 22 March 2004. Concerning this stage of the proceedings the Court draws particular attention to the volume and complexity of the case.
46. Further, the Court observes the Government’s acknowledgment that the delay of more than one year at the first-instance court following the receipt of the case was imputable to the national authorities.
47. Next, the Court notes that the hearings before the first-instance court were set with sufficiently regular intervals (see, mutatis mutandis, Dementjeva v. Latvia (dec.), no. 17458/10, § 25, 13 March 2012). However, with regard to the appellate proceedings the Court observes that the hearing dates were fixed with intervals of seven to nine months, even when the hearings were being merely rescheduled and despite the fact that the proceedings had already been protracted (see Kornakovs v. Latvia, no. 61005/00, § 129, 15 June 2006 and Sorokins and Sorokina, cited above, § 120, where irregular scheduling of hearings was criticised). Further, the delay of seven months caused by the judge rapporteur’s retirement and a delay of nine months caused by the business trip of the prosecutor cannot be considered to be of a force majeure nature and, therefore, are attributable to the State (compare Moisejevs v. Latvia, no. 64846/01, § 139-140, 15 June 2006 and contrast Gaļins v. Latvia (dec.), no. 13295/02, 22 November 2007).
48. However, the Court notes that the conduct of the authorities has to be assessed having regard to all the circumstances of the case. In particular, the Court bears in mind the conduct of the applicant and other co-accused, analysed above, as well as the critical assessment of this conduct in the rulings of the appellate and the cassation courts. Moreover, the Court notes that throughout the proceedings the domestic courts addressed the issue of the length of the proceedings (see paragraphs 11, 20, 21 and 23 above).
49. Concerning to the remainder of the proceedings the Court observes that at the hearing of 31 May 2010 the appellate court separated the case with regard to an absent co-accused and commenced its examination. This hearing was interrupted due to a cardiac event experienced by the applicant’s attorney. The Court appreciates the appellate court’s initiative in offering to provide the applicant with another attorney. However, in these particular circumstances and at that late stage of the proceedings the Court can understand the applicant’s reluctance to be represented by a different attorney. Accordingly, the Court considers that this delay was of a force majeure nature and cannot be imputed to either of the parties (see Lavents v. Latvia, no. 58442/00, § 100, 28 November 2002). At the following hearing of 15 September 2010 the appellate court, after having joined the case of the previously absent co-accused and having separated the case with regard to another absent co-accused, examined the case and pronounced its ruling. The decision of the cassation-instance court was taken without any unjustified delays on 15 March 2011.
50. In assessing what was at stake for the applicant, the Court observes that on 1 July 2005, at the first hearing of the first-instance court, the applicant and other co-accused were released from detention. Accordingly, practically over the whole trial stage of the proceedings the applicant was no longer in custody (to the contrary see Kudła v. Poland [GC], no. 30210/96, § 130, ECHR 2000‑XI; Estrikh v. Latvia, no. 73819/01, § 141, 18 January 2007; and Čerņikovs, cited above, § 141). The Court finds it also of some relevance that the applicant had pleaded guilty and at the appellate level, where most of the delays occurred, had only contested the sentence given to him.
51. Making an overall assessment of the complexity of the case, the conduct of all concerned, what was at stake for the applicant, the domestic courts’ attention to this issue, as well as the total length of the proceedings, the Court cannot conclude that the latter went beyond what may be considered reasonable in the circumstances of this particular case.
52. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases insofar as it concerns the complaints under Article 5 of the Convention;
Declares inadmissible the complaint about the excessive length of the criminal proceedings under Article 6 of the Convention.
Done in English and notified in writing on 12 February 2015.
Fatoş AracıPäivi Hirvelä
Deputy RegistrarPresident
Full & Egal Universal Law Academy