THIRD SECTION
DECISION
Application no. 28926/10
Vladimirs VINKS and Jelena RIBICKA
against Latvia
The European Court of Human Rights (Third Section), sitting on 7 February 2012 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 7 May 2010,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Vladimirs Vinks (the first applicant) and Ms Jelena Ribicka (the second applicant), are Latvian nationals who were born in 1975 and 1972 respectively and live in Ķekava parish. They were represented before the Court by Ms A. Kalēja, a lawyer practising in Rīga.
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
A. Criminal proceedings against two officers
3. On 13 November 2008 criminal proceedings were opened against two officers of the Finance Police Department of the State Revenue Service (Valsts ieņēmumu dienesta Finanšu policijas pārvalde – “the VID FPP”) for bribery, abuse of authority and aiding and abetting tax evasion. The first applicant testified in these criminal proceedings, which are currently pending before the domestic courts.
B. Criminal proceedings against the first applicant
4. On 4 June 2009 the VID FPP initiated criminal proceedings concerning tax evasion and large-scale money laundering.
5. On 12 June 2009 an investigating judge issued a search warrant for the applicants’ home.
6. On 16 June 2009, around 7 a.m., the applicants’ home was searched, the first applicant was taken into police custody (see paragraph 14 et seq. below) and taken to the premises of the VID FPP. Allegedly, he was then forced under duress to retract the evidence given in the criminal proceedings against the two officers of the VID FPP (see paragraph 3 above).
7. On 18 June 2009 the first applicant was declared a suspect in connection with the criminal proceedings concerning tax evasion and large-scale money laundering.
8. On 18 June 2009 an investigating judge remanded the first applicant in custody. No appeal was lodged against that decision.
9. On 27 August and 19 November 2009 the investigating judge decided that the first applicant’s continued detention was and continued to be justified in view of “reasonable suspicion”. These rulings were not amenable to judicial review.
10. In October or November 2009 an officer of the VID FPP, investigator I.S., remanded the first applicant on bail, which was set to 25,000 Latvian lati (LVL). At the same time, a restraining order and an order not to leave country were issued.
11. On 23 November 2009 the investigating judge examined the complaint by the first applicant regarding the amount of bail and dismissed it.
12. On 26 November 2009, upon the first applicant’s request, the investigator set bail to LVL 17,000; this amount remained uncontested. The bail was posted on the next day and the first applicant was released on 29 November 2009.
13. These criminal proceedings are currently pending; it appears that the pre-trial investigation stage has not been completed. However, on 12 July 2011 the decision to remand the applicant on bail was quashed on the ground that the time-limit for completing pre-trial investigation had exceeded 22 months.
C. Search of 16 June 2009
14. According to the applicants, on 16 June 2009, at about 7 a.m., a special police unit “Alfa” or “Omega” without prior warning of use of force entered their home, breaking several windows. Both applicants at that time were at home together with a friend in the kitchen in the ground floor; the second applicant’s daughter was sleeping in her room upstairs.
15. The second applicant’s daughter was pulled out of her bed in a room on the first floor by two officers of the special police unit who immediately brought her down to the ground floor, without allowing her to dress up.
16. All those present in the applicants’ home, including the second applicant and her daughter, were put down to the ground with their faces against the floor. The first applicant’s hands were tied behind his back.
17. In addition, somebody pushed the second applicant’s head against the floor with his boot and put a gun to it.
18. Subsequently, six officers of the VID FPP entered the applicants’ home, did not identify themselves and started the search after briefly showing the search warrant. It appears that nothing was seized during the house search, which was completed five hours later, at noon.
19. Another search – of the second applicant’s car – was then carried out. It appears that nothing was seized during this search, which was completed twenty-five minutes later, at 12.25 a.m.
20. The first applicant was then detained and taken to the premises of the VID FPP in Rīga, where a record of his detention was drawn up by investigator I.S. who had not participated in the search.
21. Finally, it appears that the first applicant’s car was searched at 1.05 p.m. and many documents were seized.
D. Review of the applicants’ complaints
22. As concerns the lawfulness of the search warrant itself, on 12 February 2010 the President of the court, with a final decision, dismissed the complaint by the first applicant and found that the search warrant had been issued lawfully.
23. As concerns the manner in which the search was carried out, the applicants lodged numerous complaints with several domestic authorities.
1. Complaints by the first applicant
24. On 28 June 2009 the first applicant complained to the prosecutor’s office about allegedly illegal activities of several VID FPP officers, including S.P. who had participated in the search. This complaint was forwarded to the VID FPP. On 21 July 2009 the director of the VID FPP issued the following reply, which the first applicant received on 29 November 2009, after his release:
“On 15 June 2009 the Finance Police Department of the State Revenue Service has received your 28 June 2009 complaint, which was addressed to the General Prosecutor’s Office. Information provided by you has been examined. Facts complained of have not been confirmed and no breaches have been found in the actions of the VID FPP officers during your arrest.”
25. On 4 January 2010 a prosecutor, upon a complaint by the first applicant, found that the actions of the VID FPP officers had been substantiated and lawful. The first applicant lodged a complaint against this decision.
26. On 9 February 2010 a superior prosecutor noted that the 28 June 2009 decision by the director of the VID FPP had been final. The prosecutor, however, examined the complaint about the search and the detention of the first applicant and found that his procedural rights had not been infringed.
27. On 5 March 2010 another prosecutor, upon a complaint by the first applicant, found that the domestic law had not been breached as concerns the search of 16 June 2009 and the first applicant’s detention. He examined and rejected as unfounded the first applicant’s complaint that the actions of the VID FPP officers of had been motivated by revenge.
2. Complaints by the second applicant
28. On 29 June 2009 the second applicant lodged a complaint with the prosecutor’s office about allegedly illegal activities of the police officers who had authorised the 16 June 2009 search at her house with the special police unit. The second applicant did not receive a reply on the merits to this complaint.
29. On 22 January 2010 a superior prosecutor, upon a complaint by the second applicant, informed that the lower prosecutor had examined her complaint and had rejected it. The superior prosecutor herself also examined the second applicant’s complaint and found that the search had been substantiated and lawful.
30. On 25 February 2010 another superior prosecutor examined the second applicant’s complaints and rejected them with a final decision.
COMPLAINTS
31. Both applicants complained under Article 8 of the Convention that the search of 16 June 2009 had been unlawful, carried out in a brutal manner and with disregard for the interests of the second applicant’s child. They argued that the search had taken place with no prior warning to allow for voluntary compliance and had inflicted pecuniary damage (broken windows etc.). They argued that the involvement of the special police unit had not been necessary. They also noted the lack of procedural safeguards. In addition, the applicants alleged that they did not have an effective remedy under Article 13 of the Convention in connection with their Article 8 complaint.
32. The first applicant further complained under Article 5 § 1 (c) of the Convention that there had been no “reasonable suspicion” for his arrest and that his detention had been unlawful. He complained about the amount set for bail.
33. The first applicant complained of a breach of Article 5 § 4 of the Convention on account of the alleged lack of an adequate remedy with which to obtain a review of the lawfulness of his detention.
34. The first applicant also complained under Article 6 § 3 (c) of the Convention about the quality of the services rendered by a state-appointed attorney.
35. The second applicant alleged that Article 3 had been breached in respect of her and her daughter on account of the manner in which the search had been carried out. She also complained, under Article 6 of the Convention, about the fairness of the proceedings against the first applicant.
36. Lastly, referring to the above complaints, the applicants also invoked Articles 13 and 17 of the Convention.
THE LAW
A. Complaints concerning the search of 16 June 2009 and the effectiveness of domestic remedies in that regard
37. The applicants complained about the lawfulness of the search of 16 June 2009 and the proportionality of such interference in their private, family life and home. They further contended that there were no effective remedies available under domestic law for their complaint.
38. The Court will examine these complaints under Articles 8 and 13 of the Convention, which provide as follows:
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
39. The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
B. Other complaints
40. The applicants further complained under Articles 3, 5 §§ 1 (c) and 4, 6 §§ 1 and 3 and Article 17 of the Convention of violations of their rights.
41. 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 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 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants’ complaints about the search of 16 June 2009 and the effectiveness of the domestic remedies in that regard under Articles 8 and 13 of the Convention;
Declares the remainder of the application inadmissible.
Marialena TsirliJosep Casadevall Deputy Registrar President
Full & Egal Universal Law Academy