FOURTH SECTION
DECISION
Application no. 25769/02
Sergejus IVANOVAS
against Latvia
The European Court of Human Rights (Fourth Section), sitting on 4 December 2012 as a Chamber composed of:
David Thór Björgvinsson, President,
Ineta Ziemele,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 20 June 2002,
Having regard to the declaration submitted by the respondent Government on 18 June 2009 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having regard to the parties’ observations concerning the admissibility and merits of the applicant’s complaint about the length of the criminal proceedings against him,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Sergejus Ivanovas, is a Lithuanian national, who was born in 1967 and lives in Klaipėda. He was represented before the Court by Mr A. Žlioba, a lawyer practising in Klaipėda.
2. The Latvian Government (“the Government”) were represented by their Agents, Mrs I. Reine and subsequently by Mrs K. Līce.
3. The part of the application concerning Article 5 §§ 3 and 5 and Article 6 § 1 of the Convention had been communicated to the Government.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. On 25 August 2000 the applicant was arrested in Rīga on suspicion of aggravated fraud.
6. On 28 August 2000 a judge of the Rīga City Latgale District Court authorised the applicant’s pre-trial detention for an initial period of two months. The term of the applicant’s detention was subsequently extended at regular intervals for two months each time. The last such decision was adopted by the Latgale District Court on 10 October 2001, extending the applicant’s pre-trial detention until 28 November 2001.
7. The applicant alleges that on 25 September 2000 an indictment was read to him but that he did not understand it. He submitted that he had only become acquainted with the accusations contained in the indictment and been able to gain an understanding of them on 23 January 2001. According to the Government, the document in question was not an indictment but instead the decision of the Economic Police to forward the case for prosecution. There was no legal obligation to provide a written translation of such a document. The applicant was informed in Russian, which he understood, about the contents of the said document.
8. On 20 September 2001 the pre-trial investigation was completed and the 501 alleged victims of the fraud were invited to read the case file. Forty-two of the alleged victims made use of the opportunity to read the materials in the case file. The alleged victims finished reading the case file on or before 30 October 2001. On that date the applicant was given an opportunity to read the materials in the case file, which consisted of twenty‑three volumes. The applicant was assisted by an interpreter. On 1 February 2002 a prosecutor invited the applicant to complete his reading of the case file by 18 March 2002. The applicant finished reading the case file on 14 March 2002.
9. Throughout the pre-trial investigation the applicant persistently requested an audit of the finances of an organisation registered in Latvia called the Latvian Young Farmers’ Association (Latvijas jauno zemnieku apvienība, hereinafter “the LJZA”). That request was refused by the public prosecutor in charge of the case on 19 March 2002 and on other dates, as it was believed that no new information would be discovered as a result of the audit.
10. On 22 March 2002 the final indictment was presented to the applicant. On the same date the applicant’s case was sent to court, he was committed to trial and a judge of the Rīga Regional Court decided not to change the preventive measure applied to the applicant – detention. No clear motivation for the continued detention of the applicant was provided.
11. On 3 March 2003 the Rīga Regional Court started to examine the applicant’s criminal case. Hearings subsequently took place on 27 May and 6 and 27 June 2003.
12. On 7 July 2003 the Rīga Regional Court convicted the applicant and sentenced him to a prison term of five years. The time that the applicant had spent in pre-trial detention was included in this term. The applicant was tried together with three co-defendants. According to the judgment, there had been 536 victims of the fraud.
13. Throughout the proceedings the applicant maintained that he had been a representative of an organisation, which was registered in Austria, called “the International Union of Young Farmers” (hereinafter “the IUYF”). He alleged that he, as a representative of the IUYF, had arrived in Rīga to conclude a joint venture agreement with the LJZA.
14. In that regard, the applicant alleged that his case should have been heard by an Austrian court. On multiple occasions he asked the Latvian public prosecutors to work together with the Austrian authorities.
15. The first-instance court considered that the Austrian organisation had been a fiction established for the purpose of committing fraud in Latvia.
16. On 15 September 2003 the applicant was sent a Russian translation of the first-instance court’s judgment. On 17 September 2003 he submitted an appeal consisting of eighty-eight pages and on 23 October 2003 he amended his appeal. On 9 December 2003 the Supreme Court declared the applicant’s appeal admissible and scheduled appellate hearings for 8 and 9 March 2004.
17. The Supreme Court started the examination of the case on those dates. The examination of the case was continued on 23 August 2004. Prior to a hearing that was scheduled for 3 January 2005, one of the applicant’s co-defendants’ lawyer (the Government in their observations mistakenly referred to him as the applicant’s lawyer) asked the court to adjourn the examination of the case due to his being ill. The appeal hearing was adjourned.
18. On 25 August 2005 the applicant completed serving his prison sentence and was deported to Lithuania, where he was taken into custody in connection with unrelated criminal proceedings.
19. On 5 September 2005 the Supreme Court received a request by the applicant to adjourn the proceedings until the beginning of 2006, in order to ensure his participation in the appeal hearings. The proceedings were adjourned and on 12 October 2005 the Supreme Court enquired with the Ministry of Justice about the possibility of ensuring the applicant’s attendance.
20. On 25 November 2005 the Ministry of Justice informed the Supreme Court that it would possible to transport the applicant to the hearing upon submitting a reasoned request to Lithuania on the basis of the European Convention on Mutual Assistance in Criminal Matters. On 27 January 2006 the Supreme Court submitted such a request.
21. On 18 September 2006 the Supreme Court enquired with the Ministry of Justice about the progress made with regard to the request to the Lithuanian authorities. On 11 October 2006 the Ministry of Justice informed the Supreme Court that on an unspecified date the Lithuanian authorities had refused to temporarily extradite the applicant on the basis of the Mutual Assistance Convention. However, the Lithuanian Ministry of Justice had expressed the opinion that the applicant could be temporarily extradited on the basis of the European Convention on Extradition.
22. On 11 November 2006 the Supreme Court addressed an extradition request, based on the European Convention on Extradition, to the Lithuanian Office of the Prosecutor General. The Ministry of Justice forwarded that request to Lithuania on 8 December 2006.
23. On 15 January 2007 the Ministry of Justice informed the Supreme Court that the Lithuanian authorities had rejected the request for the applicant’s short-term extradition, as Lithuanian law prohibited the extradition of Lithuanian citizens.
24. On 6 June 2007 the Supreme Court resumed the proceedings and decided to proceed in the absence of the applicant, since he was located abroad and it was not possible to ensure his attendance (the possibility of trial in absentia was provided for at the relevant time by section 465 (1) (2) of the Law of Criminal Procedure). The applicant’s lawyer objected to the proceedings being continued in his absence.
25. On the same date the Supreme Court adopted a decision in which it rejected the applicant’s appeal.
26. The applicant filed a cassation complaint on 26 October 2007. On 29 November 2007 at a preparatory hearing the Senate of the Supreme Court refused to accept it for adjudication on the merits.
COMPLAINTS
27. The applicant complained under Article 5 §§ 3 and 5 of the Convention that the length of his pre-trial detention had been excessive and of the lack of an enforceable right to compensation in that regard.
28. The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against him.
29. The applicant submitted a large amount of other complaints under a plethora of Convention articles.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 §§ 3 AND 5 OF THE CONVENTION
30. The applicant complained that the length of his pre-trial detention had been excessive and of the lack of an enforceable right to compensation in that regard. He relied on Article 5 §§ 3 and 5 of the Convention.
31. By letter dated 17 June 2009 the Government informed the Court that they proposed to make a declaration with a view to resolving the above-mentioned issue. They further requested that the Court strike out the relevant part of the application in accordance with Article 37 of the Convention.
32. The declaration provided as follows:
“The Government of the Republic of Latvia (hereinafter – the Government) represented by their Agent Inga Reine admit that the length of pre-trial detention applied to Sergejus Ivanovas (hereinafter – the applicant) and the lack of an enforceable right to compensation in the applicant’s case did not meet the standards enshrined in Article 5, paragraphs 3 and 5 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.
Taking into account that the parties have failed to reach a friendly settlement in this case, the Government declare that they offer to pay to the applicant compensation in the amount of 3,500 [euros], this amount being [a] 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 [terminating] the proceedings pending before the European Court of Human Rights (hereinafter – “the Court”) in the case Ivanovas v. Latvia (application no. 25769/02).
The Government undertake to pay the above compensation within three months from the date of delivery 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 [aforementioned] complaints.”
33. On 23 July 2009 the applicant wrote to the Court and commented on the unilateral declaration that had been proposed by the Government. He considered the amount of compensation proposed by the Government insufficient, arguing that the compensation should instead be 46,000 euros (EUR).
34. The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
35. It also recalls that in certain circumstances it may strike out an application or part thereof under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government – even if the applicant wishes the examination of the case to be continued.
36. To this end, the Court will carefully examine the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03, 18 September 2007).
37. The Court has developed in a number of cases, including those brought against Latvia, the principles applicable in cases concerning the length of pre-trial detention (see, for example, Kudła v. Poland [GC], no. 30210/96, ECHR 2000‑XI; Estrikh v. Latvia, no. 73819/01, 18 January 2007; Svipsta v. Latvia, no. 66820/01, ECHR 2006‑III (extracts); and Zandbergs v. Latvia, no. 71092/01, 20 December 2011) and has stated that there should be an enforceable right to compensation in case of detention in violation of Article 5 (see, for example, Stanev v. Bulgaria [GC], no. 36760/06, ECHR 2012, and Orman and Others v. Turkey, nos. 9462/05, 20369/05, 32652/05, 33193/05, 43845/05, 5295/06 and 48090/08, 7 December 2010).
38. Having regard to the nature of the admissions contained in the Government’s declaration and the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1 (c)).
39. Moreover, in the light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).
40. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the respective part of the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
41. The applicant also complained about the length of the criminal proceedings against him. He relied on Article 6 § 1 of the Convention.
A. Submissions of the parties
42. The Government submitted that the length of the proceedings had been reasonable, taking into account the fact that the applicant’s criminal case had been very complex, that, in so far as the conduct of the national authorities had been concerned, the proceedings had been conducted promptly and expeditiously, and that most delays in the examination of the case had been attributable to the applicant himself.
43. As to the complexity of the case, the Government referred to the Court’s finding “that the scale and complexity of a criminal case concerning financial crimes, like fraud, may justify the extensive length of proceedings” (see Nämnd v. Sweden (dec.), no. 70072/01, 13 December 2005). According to the Government, the complexity of the criminal case against the applicant had been increased by the fact that its investigation had concerned the activities of companies located in Austria as well as in Latvia, thus a cross‑border element had been present. Furthermore, the investigators had had to obtain statements from all the victims, namely 501 persons. The case materials had comprised twenty-five volumes at the beginning of the proceedings and thirty-seven volumes once the proceedings had been completed.
44. As for the conduct of the national authorities, the Government submitted that no delays could be attributable to them. The period before the beginning of the trial before the first-instance court had been used to make the necessary arrangements to prepare for the trial, which had included conducting correspondence with the more than five hundred victims. The Government argued that the delays that had arisen while the case had been pending before the appeal court had occurred for reasons outside the Supreme Court’s control. The hearing of 3 January 2005 had been adjourned due to the illness of counsel. The delays that had arisen following the end of the applicant’s prison sentence and his deportation to Lithuania had been due to his insistence on his presence at the proceedings before the appeal court and the complexity of the necessary cooperation with the Lithuanian authorities. The Government’s conclusion was that the Supreme Court’s efforts to honour the applicant’s request to ensure his presence at the appellate hearings and the Lithuanian authorities’ refusal to temporarily extradite the applicant for that purpose could not be attributed to the Latvian national authorities.
45. The applicant did not submit any pertinent observations.
B. The Court’s assessment
46. The Court notes that the criminal proceedings lasted from the day the applicant was arrested (25 August 2000) until the day on which the Senate of the Supreme Court adopted the final decision in his criminal case (27 November 2007), thus for seven years, three months, and four days.
47. The Court notes that the applicant was reading the case file from 30 October 2001 to 14 March 2002, namely for a period of almost five months (in this regard, see, mutatis mutandis, Calleja v. Malta, no. 75274/01, § 132, 7 April 2005).
48. The main periods characterising the conduct of the proceedings by the Latvian authorities can be summed up as follows. From 25 August 2000 to 30 October 2001 the pre-trial investigation and several other procedural steps were carried out. From 14 March 2002 to 7 July 2003 the trial before the first-instance court was prepared and carried out. After the applicant appealed on 17 September 2003, the examination of the case by the appeal court started on 8 March 2004 and lasted until 3 January 2005, which was the first date on which it was adjourned due to a request of one of the parties (in that instance, due to one of the defendants’ lawyers being ill). The proceedings were then adjourned for more than eight months, during which time the applicant finished serving his sentence and was expelled to Lithuania, where he faced another criminal trial. Taking into account the complexity of the case, and in particular the large number of victims, the Court does not consider that the proceedings were unduly protracted until that time.
49. It remains to be determined whether the period between 5 September 2005 (when the applicant informed the appeal court of his wish to be present at the hearings before that court) and 6 June 2007 (when the Supreme Court decided to resume the proceedings without ensuring the applicant’s presence) was attributable to actions of the applicant, the domestic authorities, or any other bodies. The Court notes that the appellate proceedings in Latvia continued after the applicant had been expelled to Lithuania and that the applicant had expressed the wish to attend the appellate proceedings in person. The applicant’s expulsion before the end of these proceedings was the basis for the subsequent lengthy exchanges between the two States on the applicant’s temporary extradition to Latvia to attend the hearing in the appellate court. The Court considers that the Latvian authorities were undoubtedly right to undertake an effort to ensure the applicant’s presence at the hearings before the appeal court. The applicant should not suffer any negative consequences from his wish to be present when the criminal charges against him were examined by the courts.
50. It is impossible to establish with certainty how quickly the Lithuanian authorities responded to the Latvian authorities’ requests once they had been communicated to them. But there is no doubt that there was a difference of opinion between the Lithuanian Ministry of Justice and the Lithuanian Prosecutor General concerning the international legal acts applicable to short-term extradition requests (see paragraphs 21 and 23 above), which certainly contributed to the lengthening of the criminal proceedings in Latvia for the relevant period.
51. The Court finds that the Latvian authorities can be blamed for certain unexplained periods of inactivity (for example, the sluggish pace of communication between the Supreme Court and the Ministry of Justice between 12 October 2005 and 27 January 2006, and the Supreme Court’s failure to restart the proceedings between 15 January and 6 June 2007). However, taking into consideration the particular complexity of the case and the fact that the applicant had already served his sentence, the Court accepts that cross-border criminal co-operation is often, as it was in this case, complicated and time-consuming.
52. Taking into account the above considerations, the Court finds that the overall length of the criminal proceedings against the applicant was reasonable in the specific circumstances of the case. 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.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
53. With regard to the remainder of the applicant’s complaints, 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 they 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 (a) and 4 of the Convention.
For these reasons, the Court
Takes note of the terms of the respondent Government’s declaration in respect of the applicant’s complaints under Article 5 §§ 3 and 5 of the Convention and of the mechanisms for ensuring compliance with the undertakings referred to therein;
Decides unanimously to strike a part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;
Declares by a majority the complaint under Article 6 § 1 of the Convention inadmissible;
Declares unanimously the remainder of the application inadmissible.
Fatoş AracıDavid Thór Björgvinsson
Deputy RegistrarPresident
Full & Egal Universal Law Academy