Communicated on 11 October 2019
FIFTH SECTION
Applications nos. 31634/18 and 3613/19
Ilmārs RIMŠĒVIČS against Latvia
and Aivars LEMBERGS against Latvia
lodged on 26 June 2018 and 8 January 2019 respectively
STATEMENT OF FACTS
A. The circumstances of the cases
1. The applicants are Latvian nationals. The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Rimšēvičs, application no. 31634/18
2. Application no 31634/18 was lodged on 26 June 2018 by Ilmārs Rimšēvičs who was born on 30 April 1965 and lives in Garkalnes novads. He is represented by Saulvedis Vārpiņš, a lawyer practising in Riga.
3. The applicant has been the Governor of the Central Bank of Latvia since 2001. On 31 October 2013 the Latvian Parliament renewed his term of office, which was set to end on 21 December 2019
4. On 15 February 2018 the Bureau for the Prevention and Combating of Corruption (Korupcijas novēršanas un apkarošanas birojs, hereinafter – KNAB) initiated criminal proceedings against the applicant on suspicion of bribery and extortion. On the following day his house and workplace were searched in his absence.
5. On 17 February 2018 the applicant returned to Latvia from abroad and around 18:00 arrived at KNAB where he was immediately detained. Representatives of the media were already waiting by the building.
6. On the same day at 19:29 the Minister of Economy, who was also a leader of the political party “Unity” (“Vienotība”), posted on his Twitter account a message stating that the “Unity” invited the Prime Minister to call an extraordinary meeting of the Cabinet of Ministers and that in the light of such serious suspicions against him the Governor of the Central Bank of Latvia should suspend his powers of office at least for the period of the investigation.
7. On 18 February 2018 in an interview the Minister of Economy stated that the charges brought against the applicant were so serious that he should consider suspending his powers of office. At that time, no formal charges had been brought against the applicant.
8. On the same day the Prime Minister informed the media that the KNAB had detained the applicant as part of the criminal proceedings. He also noted that the KNAB worked professionally and accurately and that the Cabinet fully trusted the KNAB and was prepared to provide it with all necessary support, precluding any prejudice to its work.
9. Later the same day the Minister of Finance also urged the applicant to leave his office. She refused to comment on the reasons for the applicant’s detention.
10. On the morning of 19 February 2018 the Prime Minister gave an interview on national television. He was asked to comment on whether it would be acceptable for the applicant not to resign. The Prime Minister responded that he did not think that it would be necessary to accept such a situation, as security measures were also available. He could not imagine that the Governor of the Central Bank of Latvia, after having been detained, could arrive in office at 08:00 in the morning and “sit in his bank”. He also noted that the laws protected persons in such an office and that the procedure for dismissals was unwieldy. However, he could not imagine how the Governor of the Central Bank of Latvia could continue working, after having been detained on the basis of such “very serious accusations”. He invited the applicant to take the initiative to resign.
11. Later that day the Prime Minister informed the media that on the very same day a security measure would be imposed on the applicant and that “as a minimum” he would be prohibited from holding his office as the Governor of the Central Bank of Latvia.
12. Shortly afterwards the KNAB held a press conference about the criminal proceedings. The head of the KNAB stated that the criminal proceedings had commenced in relation to the demanding and accepting of a bribe of at least EUR 100.000 and that the responsible official had been detained for 48 hours. The KNAB would not request detention on remand but would impose bail and other security measures.
13. On the same day the KNAB adopted a decision declaring the applicant a suspect and imposed the following security measures – bail, prohibition to hold the office of Governor of the Central Bank of Latvia, prohibition to approach certain persons and prohibition to leave the country without the permission of the person directing the proceedings.
14. Later that afternoon the Deputy Speaker to the Parliament, who also chaired the National Security Commission of the Parliament, was interviewed on a television programme. In response to a question, “why can we say before a conviction that the applicant has caused harm”, she replied: “I would say that he has caused harm to the reputation of Latvia ... If a person has held such an important position for a long time and during his office has carried out extortion from credit institutions within a criminal group, and during those criminal proceedings that person is held in pre-trial detention, then in every democratic state we can speak about a huge harm to the reputation. It is very important that these criminal proceedings be completed. Today, during the commission meeting, we repeatedly asked this [question] to the head of the KNAB and also to the Prosecutor General, and they confirmed that the body of evidence was sufficient and they believed that these proceedings could be completed in a sufficiently short period of time.”
15. On 21 February 2018 the Prime Minister stated on national television: “The [KNAB] arrested, as we know, and will also bring charges, a grave charge of bribery, against the Governor of the Central Bank of Latvia ...” When asked whether he was convinced that there would be evidence in this case, he replied: “In any event, I rely on the [KNAB], I also rely on the Office of the Prosecutor General. Their assertions are still that the case has grounds and that they will be prepared to bring charges.”
16. On 22 February 2018 a prosecutor of the Office of the Prosecutor General, when asked whether the evidence was sufficient for bringing the charges and the transferring of the case to trial, responded that currently the evidence was sufficient for declaring the persons as suspects. The investigators of the KNAB were continuing their work in gathering the evidence, however, “there were no signs that the case would not be sent to the prosecutor’s office to bring charges.”
17. On 26 February 2018 the Prime Minister expressed to the media that, as several security measures had been imposed, including the prohibition to leave the country and to hold office, the applicant would not be attending the meeting of the Governing Council of the European Central Bank, nor would he continue to head the Central Bank of Latvia. “Rimševičs currently is not the Governor of the Central Bank of Latvia,” he submitted. At that time the applicant’s appeal against the security measures was still pending before the domestic courts; however, on the following day these security measures were upheld by the investigating judge.
18. On 8 March 2018 in an interview with the news agency Reuters the Prime Minister reiterated his call on the applicant to resign. He stated: “Crooks and thieves will be prosecuted in due process. He should step down.”
19. On 10 April 2018 in an interview on national television the Prime Minister noted: “I am quite certain that the proceedings will not be protracted ... Our law enforcement service is working and the charge will be brought ...”
20. On 13 April 2018 during an interview on national television the head of the KNAB stated that both the investigator in charge of this investigation and the supervising prosecutor had indicated that they were sufficiently certain that the case would be sent to the prosecutor’s office to bring charges.
21. No charges were brought against the applicant until the day of lodging this application before the Court (26 June 2018).
22. On 26 February 2019 the decision of 19 February 2018 of the KNAB, insofar as it prohibited the applicant from performing his duties as the Governor of the Central Bank of Latvia, was annulled by the Court of Justice of the European Union.
2. Lembergs, application no. 3613/19
23. Application no. 3613/19 was lodged on 8 January 2019 by Aivars Lembergs who was born on 26 September 1953 and lives in Puzes pagasts. He is represented by Inese Nikuļceva, a lawyer practising in Riga.
24. The applicant is the leader of the political party “For Latvia and Ventspils” (“Latvijai un Ventspilij”) and has been the chairperson of Ventspils City Council since 1988.
25. On 14 March 2007 he was charged with bribery, money laundering, unlawful participation in property transactions and providing false information in his tax returns. It appears that he was later also charged with document forgery and abuse of public office. On 13 August 2007 a prosecutor imposed a security measure prohibiting the applicant from holding office as the chairperson of Ventspils City Council, despite which he has continued to hold this position (see Lembergs v. Latvia (dec.) [Committee], no.62323/17, 18 September 2018). Since 1 August 2008 the criminal proceedings against the applicant have been pending before the first-instance court.
26. On 16 October 2012 the applicant and the Minister of Environmental Protection and Regional Development, who oversees the work of local municipalities, participated in a live television broadcast. The debate focussed on a procedure, commenced by the Minister, with a view to suspending the applicant from his duties as the Mayor of the Ventspils City Council. The procedure was based on allegations that the applicant had taken a large number of decisions, despite there being a conflict of interest, and was substantiated with documents provided by the Office of the Prosecutor General. The Minister had requested the applicant to submit written explanations and the deadline for their submission had already passed. Prior to the debate the Minister had already stated that he was one hundred percent certain that the applicant would be dismissed. During this interview the Minister made the following statements:
“... for twenty years Mr Lembergs is ... spitting in the face of every Latvian resident, evidently demonstrating that the laws in this country are not the same for everyone ..., that Mr Lembergs is, in essence, the biggest furuncle in the Latvian system of municipalities...”
“And particularly, owing to your impunity, which you buy with public tax‑payers’ money, including money of the inhabitants of Ventspils, a lot of Latvian municipalities have turned into the academies of misappropriation of public funds, instead of ... working in the interests of its inhabitants, interests of the development of its territories.”
“Mr Lembergs’ time is up ... You should receive ... a fair punishment; a thief, just like in the film, should sit in prison. This era is over in Latvia.”
“One of the reasons why I got involved in politics, why my colleagues got involved in politics, was so that there would be some rule of law in Latvia and some transparency, including in the municipality processes. I have been entrusted with the field of municipalities with such mayors of the city councils, who work with such impunity as Mr Lembergs. I cannot work with the remainder of the system, because how can I blame any municipality for anything if in the other corner of Latvia I have Mr Lembergs who does ... who simply manages the municipality as though it is his own and his family’s pocket.”
“If we are speaking about Latvian development... much more significant are those 200,000 [inhabitants] who ... have left Latvia; you should take the responsibility for every one of them ... because you have robbed those people of the hope that there will ever be order in this country and that anything will ever be resolved.”
27. On 22 October 2012 the Minister of Environmental Protection and Regional Development took a decision suspending the applicant from his position as the Mayor of Ventspils City Council. On 29 May 2013 the Administrative District Court quashed the decision. The Ministry filed an appeal, which it revoked following a change of Minister.
28. On 27 May 2013 the applicant brought civil proceedings against the Minister. His claim was based on section 2352.1 of the Civil Law, protecting honour and dignity; Article 95 of the Constitution, protecting the same right; and Article 92 of the Constitution, protecting presumption of innocence. Referring, inter alia, to the Court’s cases of Daktaras v. Lithuania, no. 42095/98, ECHR 2000‑X and Peša v. Croatia, no. 40523/08, 8 April 2010 the applicant emphasised that he had not been found guilty of any offence and that the principle of presumption of innocence had been breached.
29. On 29 May 2014 the Jūrmala City Court dismissed the applicant’s claim. It considered that the impugned statements should be regarded as the Minister’s opinion, rather than a statement of fact; that the applicant had been criticised as a politician, rather than as a private person; and that the debate had concerned an issue that was important to the public. The opinions expressed had factual basis – the information received from the Office of the Prosecutor General indicating that the applicant had taken numerous decisions while despite there being a conflict of interests. While the expressions used by the Minister had been critical, his opinions could not be regarded as rude or excessively offensive. It also could not be concluded that the applicant had been accused of having committed any particular criminal offence.
30. The applicant appealed against this judgment. On 4 February 2015 the Riga Regional Court granted the applicant’s claim in part. First, it considered that, as the Minister had expressed his opinion, section 2353.1 of the Civil Law was not applicable, as it only regulated consequences for statements of facts. Nonetheless, relying directly on Articles 92 and 95 of the Constitution, the appeal court found that with respect to two statements (“You should receive ... a fair punishment; a thief, just like in the film, should sit in prison,” and “And particularly, owing to your impunity, which you buy with public tax-payers’ money, including the money of the inhabitants of Ventspils, ...”) the limits of acceptable criticism had been exceeded as they had implied that the applicant was guilty of the crimes he had been accused of. Thus, the appeal court found a breach of the presumption of innocence and awarded the applicant EUR 2,000.
31. On 5 October 2017 the Supreme Court quashed this judgment considering that the appeal court had failed to take into account that it was common knowledge that the applicant was not accused of theft. It did not agree that the two impugned phrases would make an average viewer conclude that the applicant had committed the crimes he had been accused of. It pointed to the context of the heated political debate and considered that the Minister had used a metaphor when referring to a well-known film. It also noted that the appeal court had failed to consider the applicant’s own conduct during the debate. In particular, he had directly and unambiguously called the Minister a thief.
32. On 22 January 2018 the Riga Regional Court dismissed the applicant’s claim. It considered that a neutral listener could not have perceived the Minister’s remarks as statements of fact, as the applicant’s activities were regularly reflected in the mass media. It was well known that the criminal proceedings against him concerning various crimes had been pending before the court already for ten years. The limits of acceptable criticism were broader for politicians and State officials, and the debate had concerned an issue of public importance. The Minister had not called the applicant a thief but had used a metaphor in a reference to a popular film. The applicant himself had called the Minister a thief while using direct and unequivocal language. The Minister’s opinions had had sufficient factual basis – the information received from the Office of the Prosecutor General concerning the charges brought against the applicant. As the truthfulness of an opinion could not be verified, the claim concerning honour and dignity had to be dismissed. An opinion could not harm the applicant’s reputation.
33. The applicant lodged an appeal on points of law arguing that the judgment was contrary to the principle of presumption of innocence. By a final decision of 9 November 2018 the Supreme Court refused to institute cassation proceedings.
B. Relevant domestic law
34. The relevant Articles of the Latvian Constitution (Satversme) provide:
Article 92
“Everyone has the right to defend his or her rights and lawful interests in a fair court. Everyone shall be presumed innocent until his or her guilt has been established in accordance with the law. Everyone whose rights are violated without justification has the right to commensurate compensation. Everyone has the right to the assistance of counsel.”
Article 95
“The State shall protect human honour and dignity. Torture or other inhuman or degrading treatment of a person is prohibited. Nobody shall be subjected to cruel or degrading punishment.”
35. Section 2352.1 of the Civil Law provides:
“Everyone has the right to bring proceedings to have information which offends his or her honour and dignity retracted if the disseminator of the information cannot prove that the information is true.
If information that offends a person’s honour and dignity has been published in the press, in the event that such information is not true it shall also be retracted in the press. If information that offends a person’s honour and dignity has been included in a document, that document shall be replaced. In other cases a court shall determine the procedure for retraction.
Anyone who unlawfully offends a person’s honour and dignity orally, in writing or by deed, shall provide financial compensation. A court shall determine the amount of such compensation.”
COMPLAINTS
36. The applicants complain under Article 6 § 2 of the Convention about the violation of the principle of presumption of innocence.
1. Rimšēvičs, application no. 31634/18
37. Owing to his position as the Governor of the Central Bank of Latvia, the public had to be provided some information following his arrest, however, the applicant argues that the State officials had been obliged to choose their formulations carefully so that they could not be interpreted as declaring his guilt. Instead, the public statements by the State officials had created an impression about his guilt, even though until the lodging of the application with the Court no charges had been brought against him. The Prime Minister and the other State officials had exerted pressure on the investigating institutions, the investigating judge and the other decision-makers, thereby breaching his right to a fair trial.
38. Firstly, the statements of the deputy Parliament Speaker (also holding the office of the chairperson of the National Security Commission of the Parliament) and of the Prime Minister had directly pointed to his guilt.
39. Secondly, numerous state officials had proclaimed that the charges against the applicant had already been brought or certainly would be brought, thereby urging the responsible authorities to adopt these decisions. The Prime Minister’s assertive statements that the charges certainly would be brought, in view of his supervisory role over the KNAB, could be seen as an order affecting the independence of the investigation.
40. Thirdly, the officials of the law-enforcement institutions – the head of the KNAB, the supervising prosecutor, and the Prime Minister (in his capacity as the supervisor of the KNAB) – have all made statements about the sufficiency of the evidence concerning the applicant’s guilt and the fact that charges would certainly be brought. In addition, the Prime Minister had made some of his statements shortly before the procedural decisions had bene taken (e.g. concerning the security measures).
2. Lembergs, application no. 3613/19
41. The applicant argues that the Minister of Environmental Protection and Regional Development who was responsible for overseeing the work of the applicant had unequivocally stated that the applicant had for a prolonged period of time violated laws, misappropriated public funds, acted in a position of conflict of interests, and had bribed the State officials so that he would face no liability. Even though the criminal proceedings in which the applicant was, inter alia, charged with using his powers in a situation of a conflict of interest were still pending, the Minister had created a certainty that the applicant had committed the crimes he was accused of and that he had not been convicted only because he had bribed State officials. Thereby the Minister had breached the applicant’s right to presumption of innocence and had also affected the court that was examining the criminal proceedings against him. Moreover, the Minister had referred to the information provided by the Office of the Prosecutor General concerning the facts that were also being examined in the criminal proceedings against him.
42. Furthermore, the analysis of the domestic courts had focussed on the question of whether the Minister’s statements were facts or opinions and whether his opinions had factual basis and had not been excessively offensive. The question of whether these statements had breached the principle of presumption of innocence had not been properly assessed. While the word “thief” had indeed been used as a metaphor, the purpose of this metaphor had been to emphasise that the applicant had certainly committed the crimes he was accused of and that he should receive a punishment. When noting that the factual basis of the Minister’s statements had been the information provided by the Office of the Prosecutor General, the courts had disregarded the fact that at the same time this information was being assessed in the criminal proceedings against him and that therefore the Minister had been bound by the principle of presumption of innocence. Additionally, the impugned statements had been made by the Minister responsible for overseeing the applicant’s work and whose powers included the capacity to suspend the applicant from his office.
COMMON QUESTIONS
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
2. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present cases?
CASE SPECIFIC QUESTIONS
Rimšēvičs, application no. 31634/18
3. Is there an effective remedy that is sufficiently certain not only in theory but also in practice within the meaning of Article 35 § 1 of the Convention in respect of the applicant’s complaints under Article 6 § 2 of the Convention?
4. In particular, is there such a remedy with respect to the applicant’s complaints about:
(a) the statements allegedly declaring or insinuating his guilt;
(b) the statements allegedly influencing the criminal proceedings against him?
5. Did the statements of the deputy Parliament Speaker (also holding the position of the chairperson of the National Security Commission of the Parliament) and of the Prime Minister breach the principle of presumption of innocence, guaranteed by Article 6 § 2 of the Convention?
6. Did the statements of the Prime Minister and other State officials, including the officials of the law-enforcement institutions, encourage the public to believe that the applicant was guilty and prejudged the assessment of the facts by the competent judicial authority, in breach of the principle of presumption of innocence?
Lembergs, application, No. 3613/19
7. Was the civil claim brought under section 2352.1 of the Civil Law and Articles 92 and 95 of the Constitution an effective remedy within the meaning of Article 35 § 1 of the Convention?
8. Did the domestic courts address the applicant’s claim that the statements of the Minister of Environmental Protection and Regional Development had breached the principle of presumption of innocence?
9. Did the statements of the Minister of Environmental Protection and Regional Development breach the principle of presumption of innocence, guaranteed by Article 6 § 2 of the Convention?
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