Communicated on 19 February 2014
FOURTH SECTION
Application no. 61257/08
Jānis OZOLS
against Latvia
lodged on 10 December 2008
STATEMENT OF FACTS
1. The applicant, Mr Jānis Ozols, is a Latvian national, who was born in 1970 and lives in Riga.
A. The circumstances of the case
2. The relevant facts of the case, as submitted by the applicant, may be summarised as follows.
1. Pre-trial phase
3. In 2000 a criminal investigation was conducted into suspected irregularities in customs procedures with respect to an internal transit of vehicles, including trailers between March and September 1999. As a result of these unlawful activities, it had been possible for third persons to legalise foreign goods (the vehicles) in Latvia using falsified documents Also, the applicable taxes had not been paid into the State budget.
4. On 24 February 2000 a commission was established based on a decision of a customs director of the State revenue service to verify the breach of official duty. On 16 March 2000 the commission issued a report. On 20 March 2000 a new commission was formed. On 24 Mach 2000 it gave its report.
5. On 12 February 2001 the pre-trial investigation was completed.
6. On 23 March 2000 a security measure was imposed on the applicant, whereby he had to promise not to change his place of residence.
2. First instance court proceedings
7. Seven officials, including the applicant, were brought for a trial on the related charges. Each of the officials had allegedly acted unlawfully in different stages of the customs procedures.
8. The applicant was charged with negligence which had caused substantial harm to the State and public interest. This charge was brought in connection with the processing of documentation for a used semi-trailer.
9. At trial the applicant pleaded not guilty.
10. On 16 December 2005 the Riga Regional Court (Rīgas apgabaltiesa) rendered a judgment of guilty.
11. With respect to the applicant, the regional court established that on 31 March 1999 at a customs control point he had acted contrary to the applicable regulations in the processing of documentation for the import of the used semi-trailer.
12. In particular, the applicant had accepted a transit declaration from a person who had not been a declarant’s authorised representative. He had not verified whether the person submitting a power of attorney had been the person to whom it had been issued. The applicant had not verified whether the used semi-trailer had been in the customs zone. Further, he had not issued an administrative violation record on the non-compliance with the forty-eight hour time-limit for the delivery to the customs office of the used semi-trailer. Also, the documentation processed had been incomplete.
13. The regional court relied on a report of the State revenue service of 24 March 2000. The report stated that the applicant had not complied with a number of applicable regulations.
14. Further, the regional court referred to the pre-trial statement of witness E.A. He had testified that he had in the beginning of 1999 purchased the semi-trailer. He had gone to the customs control point together with the seller’s representative. First the seller’s representative had turned to V.V. and thereafter to a customs officer in order to process the documentation. The semi-trailer had not been at the customs warehouse and it could not have been inspected by the customs officer.
15. The regional court relied on a set of documentary evidence attesting to the fact that the documentation for the semi-trailer in question had been processed by the applicant and that the semi-trailer had not entered the customs territory.
16. The regional court imposed a fine upon the applicant in the amount of five minimum monthly salaries LVL 400.
3. Appeal against the first instance court judgment
17. The applicant appealed to the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta) against the first instance court judgment.
4. Second instance court proceedings
18. In the appeal hearing on 8 January 2007 the applicant’s defence counsel argued that witness E.A. could not be summoned to the first instance court because E.A. had been abroad at the time. He requested that E.A. be summoned to appeal proceedings because accusation against the applicant had been based on E.A.’s evidence.
19. The appeal panel decided that this request be granted. It ordered the prosecution to find out E.A.’s place of residence.
20. On 11 February 2008 the appeal proceedings were resumed. E.A. did not appear in court. The prosecutor submitted that E.A. would certainly appear and that he was able to contact E.A.’s lawyer.
21. E.A. however did not appear. In the appeal hearing on 12 February 2008 the prosecutor argued that E.A. had been ill during the appeal proceedings and was in Germany at the relevant time. He submitted that, by way of such conduct, E.A. avoided appearing in court. Therefore, this gave grounds to have his testimony read out.
22. The applicant’s defence counsel disagreed that E.A.’s testimony could be read out. He disputed that E.A. had justifiable grounds for not appearing in court. At the same time, the defence counsel submitted that he “[did] not need witness [E.A.] anymore ... [i]t [was] sufficient with the evidence [previously] given by the expert”.
23. The appeal panel ruled that E.A.’s testimony be read out in accordance with section 501 of the Criminal Procedure Law.
24. On 15 February 2008 the appeal court upheld the applicant’s conviction.
25. It affirmed that the applicant had inadequately verified the power of attorney.
26. Furthermore, the appeal court referred to the evidence of witness E.A. that the semi-trailer had not been at the customs warehouse and the customs officer could not have inspected it. It also relied on the logbook indicating that the semi-trailer had not entered the customs territory. The appeal court dismissed the applicant’s contention that he had inspected the semi-trailer.
27. Also, the appeal court affirmed that the applicant had inadequately verified the payment documents. It reasoned that the payment orders in question had given the appearance that a transfer of funds had been made to the State. However, a bank report indicated that these orders had neither been registered nor affirmed at the bank.
28. The appeal court found that the applicant had only formally performed his official duties. It deemed that the applicant’s contention – that a customs broker, and not a customs officer, had been responsible for the truthfulness of the information – indicated that, in fact, the applicant had not verified anything.
5. Appeal on points of law against the second instance court judgment
29. The applicant lodged an appeal on points of law against the aforementioned judgment.
30. He argued that discrepancies had existed between the testimonies of V.V. and E.A. The court had not assessed V.V.’s evidence and had not ensured the attendance of E.A.
31. Also, the report relied upon was invalid.
32. He insisted that the evidence attested to the fact that he had verified the power of attorney and had compared the bank accounts indicated in the payment orders. No electronic database had existed at the time and the only way to check the payment documents had been to compare the bank accounts listed.
6. Final court decision upon appeal on points of law
33. On 1 July 2008 the Criminal Cases Division of the Senate of the Supreme Court (Augstākās tiesas Senāta Krimināllietu departaments) refused the applicant’s appeal on points of law.
34. It reasoned that the appeal court had verified the testimonies of V.V. and E.A. in accordance with section 501 of the Criminal Procedure Law. Also, the appeal court had made a recess to allow the prosecution to establish E.A.’s whereabouts and bring him to court. Therefore, the appeal court had done everything possible in order to call E.A. to court.
35. This decision was final.
B. Relevant domestic law
36. For Article 92 of the Constitution (Satversme) see Kornakovs v. Latvia (no. 61005/00, § 53, 15 June 2006).
37. In accordance with section 501(3) of the Criminal Procedure Law, a person’s testimony given earlier may be read out in court if the person is not present in the court hearing due to a reason which makes attendance impossible. Section 501(4) of the law provides that testimony may also be read out in court if the person avoids going to court or refuses to testify.
COMPLAINTS
38. The applicant complains under Article 6 § 3(d) of the Convention that he and his defence counsel were deprived of the opportunity to question witness E.A. His testimony was the sole evidence against the applicant and it contravened other evidence. Witness E.A. avoided going to court and the court did not make efforts to ensure his attendance.
39. The applicant states that reasons were not given as to his failure to verify the power of attorney. He had verified it and there was no evidence to the contrary.
QUESTIONS TO THE PARTIES
1. Was the applicant’s conviction based solely or to a decisive degree on the pre-trial statements of witness E.A. (see see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 119, ECHR 2011)?
2. Did the applicant waive his right to have witness E.A. examined?
3. Did the lack of a possibility for the applicant to have witness E.A. examined at trial render the proceedings unfair, in breach of Article 6 §§ 1 and 3(d) of the Convention?
4. Did the domestic courts give a proper reasoning with respect to the applicant’s failure to verify the power of attorney? Did the domestic courts’ reasoning comply with Article 6 § 1 of the Convention?
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