Communicated on 10 July 2014
FOURTH SECTION
Application no. 46413/10
Kārlis MIĶELSONS against Latvia
lodged on 9 August 2010
STATEMENT OF FACTS
1. The applicant, Mr Kārlis Miķelsons, is a Latvian national, who was born in 1959 and lives in Riga. He is represented before the Court by Mr E. Rusanovs, a lawyer practising in Riga.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s arrest
3. The applicant was a chairperson of the State-owned joint stock company “L.”. On 14 June 2010 the Bureau for the Prevention and Combating of Corruption (Korupcijas novēršanas un apkarošanas birojs) opened a criminal investigation into possible unlawful activities of its officials.
4. On 15 June 2010, between 7.40 a.m. and 10.40 a.m. the Bureau searched the applicant’s place of residence. The applicant was allowed to make a one phone call only, to his lawyer. He contacted his lawyer, who arrived at the place of search at 9.38 a.m.
5. According to the applicant, during the search, officers of the Bureau for the Prevention and Combating of Corruption controlled his movement and he could not leave the apartment.
6. The same day, at 11.15 a.m. the applicant was formally informed about being placed under arrest, even though the search had not revealed any evidence attesting to his involvement in the alleged criminal activity. That day seven other suspects were arrested.
7. Between 11.21 a.m. and 11.34 a.m. the minutes on the applicant’s arrest were drawn up. In the minutes it was recorded that the applicant had been arrested on 15 June 2010, at 11.15 a.m. on the suspicion of abuse of official position with the intent to obtain material benefit and the suspicion of support of legalisation of unlawfully obtained funds. The applicant signed the minutes indicating that no grounds existed for his arrest.
2. The applicant’s placement under pre-trial detention
(a) Authorisation of pre-trial detention
8. On 17 June 2010, at 9.00 a.m. the Investigator of the Bureau for the Prevention and Combating of Corruption, A.R., served on the applicant a decision declaring him a suspect in the investigation. That decision gave further details of the allegations against the applicant. In particular, it specified the period of time during which the alleged offences had been committed. It also indicated the names of other alleged co-perpetrators and the particular construction projects in relation to which the applicant had allegedly secured the favourable decisions.
9. The same day, after 9.00 a.m., A.R. served on the applicant her motion, addressed to the Riga City Centre District Court (Rīgas pilsētas Centra rajona tiesa), on the applicant’s placement under pre-trial detention.
10. The same day, at 9.20 a.m., the applicant’s lawyer, referring to Article 5 § 4 of the Convention, requested A.R. to provide him with the material in support of the aforementioned motion by the start of the detention hearing. That request was refused.
11. The same day, at 10.04 a.m. the applicant was brought for a detention hearing before the Investigating Judge of the Riga City Centre District Court, R.S.
12. The applicant’s lawyer again requested the material in support of the motion for the applicant’s pre-trial detention. That request was refused.
13. He further argued that the minutes on the applicant’s arrest had not been drawn up immediately upon his arrest. The lawyer noted that arrest was permitted for up to forty-eight hours. He also proposed that a more lenient measure be applied with respect to the applicant, such as his release on bail.
14. R.S. authorised the applicant’s pre-trial detention.
(i) Reasonable suspicion
15. As to the suspicion that the applicant had committed the alleged offences, R.S.’s reasoning read as follows:
“...the information about facts gathered in the criminal proceedings, namely, the search minutes, inspection minutes, statements [and] other material of the criminal proceedings cause grounded suspicion that [the applicant] has committed the offences in relation to which the criminal proceedings have been opened...”
(ii) Risk presented by the applicant
16. R.S. found that there was a risk that the applicant would obstruct the criminal proceedings and commit further offences. On the other hand, R.S. rejected the risk that the applicant would evade the proceedings, argued by the investigator.
(iii) Other more lenient measure
17. The Investigating Judge of the Riga City Centre District Court, R.S., deemed that only the measure of detention on remand would ensure the normal course of the pre-trial proceedings.
(b) Appeal against pre-trial detention
18. On 21 June 2010 the applicant’s lawyer appealed against the aforementioned ruling to the Riga Regional Court (Rīgas apgabaltiesa). On 5 July 2010 he supplemented the appeal.
19. In the appeal the applicant’s lawyer requested that the Regional Court grant, prior to the appeal hearing, access to the material so that he could challenge the applicant’s pre-trial detention effectively. That request was not granted.
20. On 6 July 2010 the appeal hearing was held before the Judge of the Riga Regional Court, G.K.
21. With regard to the access to case material she reasoned as follows:
“An official in charge of criminal proceedings presents to an investigating judge and to a higher judge the case material in order to assess grounds of pre-trial detention. This material is examined by the investigating judge and the higher judge ... and this information is the investigation secret as for the parties who are not conducting the proceedings.”
22. G.K. refused the appeal and upheld the impugned ruling.
(i) Reasonable suspicion
23. With regard to the suspicion that the applicant had committed the offences in issue, G.K. gave the following reasoning:
“The case material was provided to the court. [It] had sufficient time for their assessment. The court, like [the lower court], concludes that concrete information about facts has been obtained in the criminal proceedings, which cause grounded suspicion that [the applicant] has committed the offences incriminated to him. The court has reached that conclusion after having acquainted with the material in the case file, minutes of the investigative activities [and] witnesses’ statements, and paying special attention to the information obtained through special investigative activity, which had been carried out long before the opening of criminal proceedings.”
(ii) Risk presented by the applicant
24. G.K. upheld that there was a risk that the applicant could obstruct the criminal proceedings. She, however, excluded the risk of further offences.
(iii) Other more lenient measure
25. G.K. endorsed the investigating judge’s finding that no other measure could offset the risk of obstruction of the investigation presented by the applicant.
26. No appeal was available against the aforementioned ruling.
B. Relevant domestic law
27. The Criminal Procedure Law with regard to the time-limit of arrest provides as follows:
Section 263 Arrest
“Arrest is deprivation of a person’s liberty for ... up to forty-eight hours without the decision of investigating judge...”
Section 268 Time-limit of arrest
“...
(3) If an arrested person is declared a suspect or an accused ... [and] the chosen security measure is related to deprivation of his/her liberty, the person may be held in a short-term detention facility until being brought before an investigating judge, observing the forty-eight-hour time-limit from the moment of his/her factual arrest.”
Section 269 Release of arrested person
“(1) An arrested person shall be released immediately if:
...
4) the time-limit for arrest prescribed by law has expired.
...”
28. Section 272(1) of the Criminal Procedure Law in so far as relevant reads as follows:
“(1) Pre-trial detention may be applied only if concrete information has been gathered in criminal proceedings on such facts that attest to grounded suspicion that a person has committed a crime, punishable by deprivation of liberty...”
COMPLAINTS
29. The applicant, referring to Article 5 §§ 1 (c), 3 and 4 of the Convention, complains that in fact he was placed under arrest on 15 June 2010, as of 7.40 a.m. and that he was not brought before the investigating judge within the forty-eight hour time-limit from the moment of his arrest as required by the domestic law and that the domestic courts failed to assess his argument in that regard.
30. Relying on Article 5 §§ 1 (c), 3 and 4 of the Convention, the applicant complains that the domestic courts did not establish the existence of reasonable suspicion that he had committed the offences alleged.
31. The applicant complains that due to the denial of access to documents relating to the circumstances justifying his pre-trial detention he could not effectively challenge it, which led to a violation of Article 5 §§ 2 and 4 of the Convention.
QUESTIONS TO THE PARTIES
1. Was the applicant “deprived of his liberty” within the meaning of Article 5 of the Convention on 15 June 2010, as of 7.40 a.m. (see, for example, Creangă v. Romania [GC], no. 29226/03, 23 February 2012)?
2. Did the domestic law require that the applicant be brought before an investigating judge within forty-eight hours from the moment of his arrest? Was that requirement complied with in the case of the applicant – was he deprived of his liberty “in accordance with a procedure prescribed by law” as required by Article 5 § 1 of the Convention?
3. Did the domestic courts assess the reasonableness of a suspicion that the applicant had committed the offences alleged – Article 5 § 1 (c) of the Convention – when authorising and deciding on his pre-trial detention, as required by Article 5 §§ 3 and 4 of the Convention?
4. Was the applicant denied access to the documents relating to the circumstances justifying his detention? Was that denial in line with equality of arms as required by Article 5 § 4 of the Convention with regard to the proceedings before the domestic courts in which the applicant’s pre-trial detention was decided (see, for example, Mooren v. Germany [GC], no. 11364/03, 9 July 2009)?
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