THIRD SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 6670/06
by Viktors PANCERS
against Latvia
The European Court of Human Rights (Third Section), sitting on 10 May 2011 as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Egbert Myjer,
Ján Šikuta,
Ineta Ziemele,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 8 February 2006,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Viktors Pancers, is a Latvian national who was born in 1965 and lives in Rīga.
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. Since 1993 the applicant, a former police officer, had been engaged in various activities aimed at exposing corruption at high levels of Latvian police. For that purpose he submitted various documents and other evidence to a member of the Latvian Parliament and to other persons. He submits that all of the subsequent events took place in retribution for his efforts.
4. On 21 January 2002 the applicant was detained by the police and brought to a police station. No charges were ever brought against him and he was not informed of the reasons for his arrest. He was released later on the same day.
5. On 22 August 2002 the applicant was driving his car in Jūrmala. While he had stopped his car at a red light, the car was blocked off by a white unmarked minivan. Approximately ten men wearing civilian clothing, some of them wearing black balaclavas, jumped out of the minivan, aimed their weapons at the applicant and ordered him to get out of the car. Once the applicant exited the car, he was forcibly lain face-down on the road and handcuffed. No explanations were provided as to who the men were and why the applicant was being detained. The applicant eventually recognised one of the men as an officer of the Corruption Prevention and Combating Bureau and therefore understood that he was being detained by the police. In the meantime, a traffic jam had formed at the place where the applicant’s car had been stopped. The scene of the applicant’s apprehension was witnessed by his wife and minor daughter who happened to be passing by. They were not allowed to approach the applicant or to talk to him.
6. The applicant was taken to Rīga where samples of his urine, blood, saliva and nails were taken in a hospital for the purpose of determining the presence of narcotic substances. After that the applicant was taken to a police station and placed in a cell. The reasons for his detention were not explained to him.
2. Searches and the recording of the applicant’s telephone conversations
7. The case file contains a document dated 20 September 2002 signed by the substitute director of Bureau for Prevention of Organised Crime and Corruption (Organizētās noziedzības un korupcijas apkarošanas birojs). The document explains that the Constitution Protection Bureau (Satversmes aizsardzības birojs; further – “the SAB”), one of the Latvian intelligence services, had intercepted telephone conversations involving four different mobile telephone connections. Two of the numbers mentioned in the document were used by the applicant. The interception of the conversations had taken place before the start of any criminal proceedings against the applicant. According to the document, the interception of the applicant’s phone calls had been authorised by the Office of the Prosecutor General on 17 July and 21 August 2002. The document goes on to state that the compact discs containing the recordings of the intercepted conversations could be used as evidence in the criminal case against the applicant and therefore they were added to the case file.
8. The applicant complained of a “forgery” of the above recordings in a letter to the SAB on 9 March 2007. On 12 March 2007 the director of the SAB replied to him that the legality of the actions of the SAB was supervised by the Prosecutor General and by specially authorised prosecutors. It does not appear that the applicant submitted any further complaints in that regard.
9. Also on 23 August 2002 the police conducted searches in the applicant’s residence, in the residences of his mother-in-law and his parents as well as in a café owned by the applicant.
3. The applicant’s detention before the trial at the first-instance court and the pre-trial investigation
10. On 23 August 2002 the Rīga City Vidzeme District Court authorised the applicant’s detention on remand. The term of the applicant’s detention was subsequently extended on several occasions.
11. On 20 September 2002 the applicant was officially charged with large scale fraud and bribery. The charges of bribery were later dropped. The charges against the applicant were subsequently amended on several occasions.
12. Throughout the pre-trial investigation and the trial the applicant kept submitting numerous requests to have witnesses summoned and questioned, to organise confrontations between him and witnesses and to obtain additional linguistic and voice-recognition experts’ reports. The applicant alleges that all of his requests were refused.
13. The pre-trial investigation in the applicant’s case lasted until 22 July 2003. The applicant was then given an opportunity to read the case file. On 22 July 2003 he refused to start reading the case file since his lawyer was not present. On 24 July 2003 the applicant’s lawyer was present and the applicant started reading the file. According to the official records, the reading continued until 12 March 2004, although the applicant alleges that the prosecutor in charge of his case had falsified the records and in fact the reading had been finished on 11 March 2004. During the time of the reading the applicant continued to be detained.
14. The bill of indictment was finalised on 12 March 2004 and the case was transferred for adjudication to the Rīga Regional Court. On the same day the public prosecutor charged with the criminal case against the applicant informed the director of Matīsa prison that the term of the applicant’s detention had been prolonged. The hearings in the first-instance court took place between 10 January and 1 August 2005.
4. The conditions of detention in Matīsa prison
15. During the pre-trial investigation as well as after the adoption of the first-instance court’s judgment the applicant was detained in Matīsa prison. On an unspecified date he was placed in a disciplinary cell. While there, on 29 January 2003 he declared a hunger strike. It appears that subsequently the applicant was placed in a different disciplinary cell where allegedly inhumane conditions prevailed. More specifically, the applicant states that in that cell an incessant powerful flow of water was falling into a hole in the floor that served as a toilet. The applicant was held in that disciplinary cell for ten days. The applicant ceased his hunger strike on 19 February 2003. At least for part of that time he was taking neither food nor water. He indicates that he never received any reply to his complaints to the Office of the Prosecutor General. Neither was he given any medical assistance.
16. The applicant furthermore submitted that from the beginning of 2006 until 3 May 2007 he had to share a cell in Matīsa prison with a certain A.M. who was subsequently found to have been responsible for committing an aggravated murder. A.M. was declared to be insane and particularly dangerous to the society and therefore was placed in a psychiatric institution. The applicant indicates that his placement together with A.M. had posed danger to his life and health and that furthermore A.M. had snored “intolerably” and had urinated and defecated in the cell without using the toilet.
5. The criminal proceedings and the subsequent orders concerning the applicant’s detention
17. The Rīga Regional Court adopted the judgment in the criminal case against the applicant and eight other defendants on 1 August 2005. The applicant was convicted of several crimes: repeated bribery, repeated organising of the crime of an abuse of an official position, acquisition, possession and sale of cocaine, money laundering, and repeated fraud. The applicant was acquitted of the charges of an incitement to bribery, illegal acquisition and sale of a firearm as well as of organising of the falsification of a criminal case against a third person. The applicant’s conviction on one charge of fraud was based in a large part on the contents of his intercepted telephone conversations. The first-instance court considered that the interception had been carried out legally.
18. The applicant was sentenced to imprisonment of six years and one month. His property was ordered to be confiscated. The court also indicated that the applicant was to be continued to be held in detention.
19. The applicant and two of his co-defendants appealed.
20. The Supreme Court started the appeal hearings on 23 May 2006. Hearings continued for three days, after which the presiding judge postponed the continuation of the trial until 30 June 2006.
21. On 30 June 2006 the Supreme Court pronounced its decision. It quashed the first-instance court’s judgment in its entirety and remitted the case to that court. The appeal court considered that the first-instance court’s judgment had not been adequately motivated and had furthermore relied on evidence which had not been presented during the hearing. The court also ruled on the applicant’s detention on remand. Its motivation in that regard was as follows:
“Considering that the appeal court in the present decision does not rule on the merits of the charges brought against the applicant and that the decision has not been adopted on the basis of circumstances that rehabilitate the accused, the preventive measure imposed on [the applicant] – detention – shall remain unchanged.
...
Considering the volume of the case and its particular complexity as well as considering that the security of the society cannot be guaranteed by applying to [the applicant] a different preventive measure, the [appeal court] finds it necessary to prolong the term of [the applicant’s] detention for further three months pursuant to section 277(7) of the Law of Criminal Procedure.”
22. The operative part of the decision of the appeal court indicated that the term of the applicant’s detention on remand was to be prolonged by three months “starting from the date of entry into force of the decision”.
23. The appeal court also analysed whether the overall length of the applicant’s detention remand was in line with the law (more specifically, with section 77 of the Code of Criminal Procedure (see below, paragraphs 32 and 33), which was held to be applicable to the applicant’s detention pursuant to paragraph 5 of the transitional provisions of the Law of Criminal Procedure (see below, paragraph 36). In that regard the court took into account the time that had elapsed between the applicant’s arrest (on 22 August 2002) until the moment when he started reading the case-file (on 24 July 2003). The appeal court furthermore stated that “four months and nineteen days elapsed from the moment when the case was received by the [first-instance] court until the end of adjudication” in that court. Consequently the one year, three months and twenty-one days that, according to the appeal court, the applicant had spent in detention on remand was held not to exceed the maximum permissible period.
24. On 4 July 2006 the applicant attempted to complain about his continued detention to the Senate of the Supreme Court. On 24 July 2006 a representative of the administration of Matīsa prison confirmed to the applicant that his appeal had been despatched to the Supreme Court on 4 July 2006. On 27 July 2006 the Senate of the Supreme Court informed the applicant that his appeal had not been received there.
25. On 27 August 2006 the applicant submitted a repeated appeal against the Supreme Court’s decision to retain him in detention. He indicated that it was apparent that, contrary to what was indicated in the operative part of the decision of the Supreme Court (see above, paragraph 22), his detention had actually been prolonged from the day that decision had been adopted, since he was still in prison. The applicant also noted that the overall length of his detention was in excess of all limits set down in the domestic legislation. In that regard he observed that the four months and nineteen days that, according to the appeal court, had elapsed between receiving the case at the first-instance court and the adoption of that court’s judgment had in reality been one year, four months and nineteen days (from 12 March 2004 to 1 August 2005). He furthermore criticised the fact that the Supreme Court, when calculating the overall length of his detention, had omitted the time when he had been detained while reading the materials of the criminal case, which was contrary to, inter alia, the European Court of Human Rights’ judgment Ječius v. Lithuania (no. 34578/97, ECHR 2000‑IX). Lastly the applicant criticised the Supreme Court’s reliance on the volume and the complexity of the criminal case as well as its indication that he would pose danger to the society. The applicant denounced those grounds as being merely formalistic. He furthermore pointed out that he had not been accused of any violent crimes.
26. On 7 November 2006 the Senate of the Supreme Court upheld the prosecutor’s appeal on points of law, quashed the appeal court’s judgment in full and remitted the case to the appeal court. No oral hearing was held. The Senate pointed out that upon identifying procedural flaws in the first‑instance court’s judgment the appeal court itself had a duty to examine the case on the merits and to adopt a new judgment. It was furthermore indicated that in the first‑instance court the applicant had been acquitted of an incitement to bribery, illegal acquisition and sale of a firearm as well as of organising the falsification of a criminal case against a third person. No appeal or protest had been lodged in that regard. Therefore the appeal court did not have a right to quash the first‑instance court’s judgment in so far as it concerned the applicant’s acquittal. The Senate considered that after it quashed the appeal court’s judgment the applicant continued to be detained pursuant to the convicting judgment of the first‑instance court and therefore the Senate did not have to examine the legality of the extension of the term of the applicant’s detention on remand that had been ordered by the appeal court.
27. On 23 October 2007 the Supreme Court started hearings concerning the applicant’s appeal against the judgment of the first‑instance court. The applicant made several requests to the court which were partially upheld. The appeal court decided to summon all the witnesses, experts and victims already heard by the first‑instance court but refused to order the applicant’s release from detention, arguing that his detention had been ordered by the convicting verdict of the first‑instance court.
28. On 22 September 2008 the applicant was released from prison after having completed his sentence.
29. On 27 February 2009 the Supreme Court adopted a judgment. It upheld the judgment of the first‑instance court in full save for one episode of fraud, of which the applicant was acquitted. The first‑instance court had considered that the applicant’s guilt with regard to that episode had been proven in large part by the transcripts of his intercepted and recorded telephone conversations. The applicant’s final sentence remained unchanged.
30. In a final decision of 28 October 2009 the Senate of the Supreme Court rejected the appeals on points of law that had been lodged by the prosecutor, the applicant and two of the applicant’s co-defendants. The applicant had disputed the interpretation of evidence by the appeal court and the fairness of his conviction in general.
B. Relevant domestic law
31. The legislation governing the detention on remand at the preliminary investigation stage (pirmstiesas izmeklēšana) and the judicial stage (iztiesāšana) of the proceedings, as in force at the material time, can be summarised as follows.
32. At the preliminary investigation stage (comprising the police investigation and preparation of the case file), the initial period of detention on remand could not exceed two months (section 77 of the Code of Criminal Procedure, Kriminālprocesa kodekss, hereafter – “the KPK”). However, where it was not possible to complete the preliminary investigation and commit the accused for trial within that time, and where “there [were] no grounds for amending the preventive measure”, the prosecutor could request the judge to extend the term of detention. The term of detention could not be extended by more than two months each time. At this stage in the proceedings, the total length of detention on remand could not exceed eighteen months. If, after eighteen months had elapsed, the case had still not been sent for trial, the accused person had to be released, except if the accused had been charged with particularly serious crimes involving violence or threat of violence.
33. The fifth paragraph of section 77 of the KPK read as follows:
“On completion of the investigation, and before the maximum statutory period has elapsed, the documents in the file must be sent immediately to the accused and his or her counsel so that they may familiarise themselves with it. The time spent by all the accused in familiarising themselves with the documents in the file shall not be taken into account in calculating the period of detention on remand ...”
In practice, the prosecuting authorities and the courts interpreted the second sentence of this provision as authorising the continued detention of the accused person throughout the time during which he or she and any co‑accused were studying the file, even if the validity of the last detention order given by the judge had expired. As of 1 February 2005 the KPK was amended and the second sentence of the fifth paragraph of section 77 was deleted. As a consequence, the time spent reading the file had to be counted towards the maximum permissible length of detention on remand.
34. Under the terms of section 241 of the KPK, “consideration of the case at a hearing [of the first-instance court had to] begin not more than twenty days or, in exceptional cases, one month from the date on which the court receive[d] the file”. However, this provision, which was a legacy from the Soviet era and had never been amended, was very rarely complied with by the Latvian courts.
35. As of 1 November 2002 the time of detention counting from the time the trial court received the investigation file until delivery of the judgment at first instance could not exceed one year and six months. Once this time‑limit had been exceeded, the detained person had to be released immediately, except if that person had been charged with particularly serious crimes involving violence or threat of violence, in which case a court had to hear the accused person’s submissions and to decide on the justifiability of a further extension.
36. As of 1 October 2005 the KPK was replaced by the Law of Criminal Procedure (Kriminālprocesa likums). The fifth paragraph of the transitional provisions of that Law provided that the preventive measures that had been applied prior to 1 October 2005 were subject to the time-limits provided in the KPK or in the respective court decisions on preventive measures.
37. As concerns the preventive measures applied after 1 October 2005, section 277(7) of the Law of Criminal Procedure provided with regard to persons charged with particularly serious crimes (such as was the applicant) that
“The term of detention ... shall not exceed 24 months, of which the person shall be permitted to be held in detention during the preliminary investigation stage no longer than 15 months. Both an investigating judge during the preliminary investigation stage and a higher-level court judge during a trial may extend a term by three more months, if there have been no unjustifiable delays attributable to the person directing the proceedings, or if the person who performs defence has intentionally delayed the progress of proceedings, or if a faster completion of proceedings has not been possible due to the particular complexity thereof. A higher-level court judge may extend such the term by three additional months, if there have been no unjustifiable delays attributable to the person directing the proceedings, and public safety cannot be guaranteed by applying a different preventive measure.”
38. According to section 577(1) of the Law of Criminal Procedure the lodging of an appeal on points of law suspends the entry into force of a decision of an appeal court.
COMPLAINTS
39. In his application form and subsequent letters the applicant included the following complaints.
40. Under Article 3 of the Convention the applicant complained about the following:
- the degrading character of his detention on 21 January 2002;
- the degrading character of his apprehension on 22 August 2002;
- the fact that on the same day he was brought to a hospital in order to collect samples for testing for narcotic substances, even though there was no reason to do so;
- the conditions in Matīsa prison and the attitude of the administration of that prison, namely, threats of physical violence, unnecessary transfer between different cells, unnecessary placement in a disciplinary cell, and failure to provide medical assistance during his hunger strike;
- the prosecutors did not ensure the safety of his property after his arrest but instead themselves took part in squandering it away;
- having to share a cell with A.M. which had posed danger to the applicant’s life and health;
- that because of the protracted criminal proceedings in his case he had to serve the entirety of his sentence in the lowest (strictest) imprisonment regime and he was unable to benefit from the possibility of an early release.
41. Under Article 5 of the Convention the applicant complained about:
- his allegedly unlawful detention on 21 January 2002;
- his detention after 22 August 2002. In particular, he pointed out that the decisions authorising his detention had been poorly motivated, that there was no legal basis for his detention from 22 July 2003 until 11 March 2004, and that his pre-trial detention had been excessively lengthy, especially considering that virtually no investigative steps with his participation had been taken;
- his detention after the day when the Supreme Court quashed the judgment of the first-instance court (30 June 2006), in particular alleging that there was no legal basis for that detention and that the Supreme Court had not motivated its decision apart from making a purely formalistic reference to the alleged danger posed to the society;
- the procedure for reviewing the legality of his detention by the Senate of the Supreme Court, in particular arguing that the review had been excessively lengthy and that the Senate did not hold an oral hearing despite his request to that effect.
42. The applicant complained under Article 6 of the Convention about various aspects of the criminal proceedings, such as the fact that:
- during the pre-trial investigation as well as during the hearings in the first-instance court none of his requests and demands to hear witnesses who could confirm his alibi was upheld;
- the investigation and the trial were not carried out impartially and had a predetermined outcome;
- evidence and witness testimonies were distorted in order to fit with the charges brought against him;
- the first-instance court refused to accept additional evidence concerning the recordings of his telephone conversations;
- information concerning his guilt was publicised in various mass media outlets and the decisions of the courts and prosecutors were based on those publications.
43. The applicant further alleged that Article 8 of the Convention was violated by the following:
- his complaints to various institutions were never sent to their addressees;
- without any reason searches were conducted at his and his relatives’ residences;
- his mobile phone conversations were being intercepted without any reason, prior to any criminal investigation having been started and without obtaining an adequate authorisation of a court or a prosecutor;
- edited records the intercepted conversations had been appended to the criminal case file.
44. The applicant complained under Article 10 of the Convention that the Latvian authorities had fabricated the criminal case against him solely for the reason of his active civic position and in particular because he had gathered evidence of high-level corruption in Latvia.
45. Lastly, the applicant complained under Article 13 of the Convention that various complaints to national authorities were not adequately replied to in timely manner and on their merits.
THE LAW
46. The applicant complained about the legality, length and review of his detention on remand, as well as the overall length of the criminal proceedings against him. He relied on Articles 5 and 6 of the Convention which provide, in so far as is relevant:
Article 5
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
Article 6
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
47. The Court considers that it cannot, on the basis of the case file, determine the admissibility of the above-mentioned applicant’s complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of the application to the respondent Government.
48. The applicant further submitted numerous other complaints under Articles 3, 5, 6, 8, 10, and 13 of the Convention. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant’s complaints in that regard do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the legality, length and review of his detention on remand, as well as the overall length of the criminal proceedings against him;
Declares the remainder of the application inadmissible.
Marialena TsirliJosep Casadevall
Deputy RegistrarPresident
Full & Egal Universal Law Academy