FOURTH SECTION
DECISION
Application no. 17689/14
Nikolajs ZIKOVS
against Latvia
The European Court of Human Rights (Fourth Section), sitting on 30 June 2015 as a Chamber composed of:
Guido Raimondi, President,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Paul Mahoney,
Yonko Grozev, judges,
Ineta Ziemele, ad hoc judge,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 21 February 2014,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Nikolajs Zikovs, is a Latvian national who was born in 1983 and is currently serving a prison sentence in Riga Central Prison. He is represented before the Court by Mr V. Sruoģis, a lawyer practising in Riga.
2. The Latvian Government (“the Government”) were represented by their Agent, Mrs K. Līce.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 19 February 2011 the applicant went to the cinema. He got into an argument with another man. A fight ensued and the applicant fired several shots, killing the other man. The police arrived immediately and took the applicant into custody.
5. On 21 February 2011 a judge remanded him in custody.
6. On 24 February 2011 a search of the applicant’s car was conducted by the State Police without a judge’s authorisation. Several objects and documents were seized: a laptop, a thesis written by the applicant, sporting equipment, and several objects the applicant described as being of an intimate nature.
7. On 18 May 2011 the applicant was charged with aggravated murder.
8. On 26 October 2011 the prosecution announced the end of the pre-trial investigation and decided to transfer the case to court (lēmums par kriminālprocesa nodošanu tiesai). The case file was sent to the Riga Regional Court (Rīgas apgabaltiesa).
9. On 22 May 2012 the Riga Regional Court convicted the applicant of aggravated murder and sentenced him to seventeen years’ imprisonment, three years’ police supervision, and confiscation of property.
10. On 31 May 2013 the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta) upheld the judgment of the first-instance court. However, upon repeated requests by the applicant, the following objects and documents were excluded from the evidence relied on by the first-instance court for the purposes of the applicant’s conviction: the record of the inspection of the applicant’s car (automašīnas apskates protokols), the objects and documents seized therein (apskates laikā izņemtie priekšmeti un dokumenti), and their inspection record (mantu apskates protokols). The Criminal Cases Chamber relied on sections 159 (1) and (2), 160 (3), 179 (1) and 180 of the Criminal Procedure Law and found that, in actual fact, during the inspection of the applicant’s car a search, not a (visual) inspection, had been carried out, in breach of the relevant domestic provisions pertaining to inspections. Moreover, the search of the applicant’s car was carried out in breach of section 180 of the Criminal Procedure Law pertaining to searches. The evidence obtained therefrom was accordingly declared inadmissible.
11. On 20 September 2013 the applicant asked the prosecuting authorities to institute criminal proceedings against the police officers who were involved in the search of his car. He did not ask that the unlawfully seized material be returned to him, but he relied on Article 8 of the Convention and Article 96 of the Constitution. His complaint was forwarded to the Internal Security Bureau of the State Police (Valsts policijas Iekšējās drošības birojs) and he was informed about it.
12. On 2 October 2013 the Internal Security Bureau replied that no ancillary decision under the section 533 (1) of the Criminal Procedure Law had been made by the court. Accordingly, the State Police had no legal grounds to examine investigative activities undertaken by its officers during the pre-trial investigation. The applicant was informed that he could enquire with the Chairperson of the Criminal Cases Chamber of the Supreme Court. The applicant did not do so.
13. On 22 November 2013 the Senate of the Supreme Court upheld the appellate court’s ruling of 31 May 2013 and adopted a final decision in the applicant’s criminal case.
B. Relevant domestic law
1. The Constitution (Satversme)
14. Article 92 provides, inter alia, that “everyone whose rights are violated without justification has a right to commensurate compensation”.
15. Article 96 guarantees “inviolability of private life, home and correspondence”.
16. However, Article 116 permits restrictions on the exercise of rights set out in, inter alia, Article 96 in circumstances provided for by law in order to “protect the rights of other persons, the democratic structure of the State, public safety, welfare and morals”.
2. The Civil Law (Civillikums)
17. Section 1635 defines a delict as any wrongful act as a result of which damage (which may include non-pecuniary damage) has been caused to a third person. The person who has suffered the damage has the right to claim satisfaction from the person who caused it.
18. Section 1779 provides that everyone is under an obligation to make good damage caused by his or her act or failure to act.
19. These provisions as well as sections 2347-2351 relating to compensation for bodily injury (before and after the amendments that were effective from 1 March 2006) are quoted in full in Zavoloka v. Latvia (no. 58447/00, § 19, 7 July 2009).
3. The Criminal Procedure Law (Kriminālprocesa likums)
20. The relevant provision relating to searches can be found in Nagla v. Latvia (no. 73469/10, § 36, 16 July 2013).
21. In addition, section 533 (1) provides that a court may adopt an ancillary decision by which violations of law are notified to the competent authority or official and they are requested to remedy the situation.
COMPLAINT
22. The applicant complained under Article 8 of the Convention about the search of his car on 24 February 2011, which had been declared unlawful in the criminal proceedings against him.
THE LAW
A. Alleged violation of Article 8 of the Convention
1. The parties’ submissions
23. The Government raised several preliminary objections. They considered that the applicant could not, first of all, claim to be a “victim” of a violation of his rights under Article 8 of the Convention. Secondly, they argued that “the matter has been resolved” at the national level. In relation to these arguments they pointed to the 31 May 2013 judgment acknowledging that the search of the applicant’s car had been carried out in breach of the relevant criminal-law provisions. Thirdly, the Government also considered that the applicant had not suffered a significant disadvantage. Fourthly, they argued that the applicant’s complaint was belated, as it had been lodged more than six months after the 31 May 2013 judgment.
24. Lastly, the Government submitted that the applicant had not exhausted domestic remedies, as he had not had recourse to civil courts. He could have relied on sections 1635 and 1779 of the Civil Law and claimed compensation for pecuniary and non-pecuniary loss from the State on account of allegedly unlawful actions on the part of officers of the State Police. The Government provided the following examples of domestic case-law.
25. As the first example, they referred to case PAC-61, where victims and their relatives had sought compensation for bodily injury from the Security Police on account of unlawful actions (established in criminal proceedings) of an officer who had shot or injured three victims while being drunk. On 4 January 2001 the appellate court had partly upheld the claim and awarded medical expenses and compensation on the basis of sections 2347, 2349 and 2351 of the Civil Law.
26. As the second example, the Government referred to the proceedings in case C04346907, where a claimant had sought compensation on account of unlawful actions (established in criminal proceedings) of an officer of the State Police who had shot her son. On 9 February 2010 the first-instance court had partly upheld the claim and awarded compensation for breach of human rights (right to life and health) on the basis of Article 92 of the Constitution.
27. As the third example, they relied on the proceedings in case C06066505, where a prisoner had sought compensation for bodily injury for allegedly unlawful actions on the part of Grīva Prison staff dating back to 1995. On 5 December 2006 the appellate court had partly upheld the claim and awarded compensation for disfigurement on the basis of section 2349 of the Civil Law. The Government laid particular emphasis on the finding of the appellate court that the lack of corpus delicti had no legal effect on the adjudication of the civil claims arising from the allegedly unlawful action. The final decision had been taken by the Senate of the Supreme Court on 25 April 2007, which confirmed the findings of the appellate court.
28. As the fourth example, the Government pointed to the proceedings in a widely reported case, C04381306, where a journalist had sought compensation for allegedly unlawful disclosure of information, which had been obtained using operational measures. She had relied on Article 8 of the Convention, Article 96 of the Constitution and sections 1635 and 1779 of the Civil Law. By a judgment of 9 February 2007 the first-instance court had established that her telephone conversations had been recorded in breach of domestic law. The court had held that the claimant had rightly relied on Article 92 of the Constitution and section 1635 of the Civil Law; it awarded 100,000 Latvian lati (LVL) for non-pecuniary damage. The Government particularly emphasised the finding of the first-instance court that unjustified interference with private life had provided legal grounds to claim compensation under section 1635 of the Civil Law.
29. To substantiate their position on non-exhaustion, the Government further relied on the Court’s findings in the case of Y v. Latvia (no. 61183/08, §§ 70-72, 21 October 2014).
30. The applicant contested the Government’s position. In so far as their non-exhaustion argument was concerned, he submitted that the domestic case-law was neither consistent nor well-established. The domestic courts had continued to rely on corpus delicti as established in criminal proceedings, or at least disciplinary fault on the part of the State or its agents, in order to award damages. Domestic law was very clear on this: section 359(5) of the Criminal Procedure Law provided that a judgment adopted in connection with criminal proceedings was binding on a civil court. It was the applicant’s view that the first, second and last example provided by the Government underscored his argument. Moreover, the applicant pointed out that the first-instance court’s judgment in the last case had been partly overturned on appeal – the damage award had been reduced by approximately 90%.
31. As to the Government’s third example, the applicant pointed out that in that case damages had been awarded for disfigurement, which was a different legal ground. The applicant did not agree that he would be entitled to non-pecuniary damages based on the case-law relied on by the Government, and considered that this remedy was not available to him in law and practice.
2. The Court’s assessment
32. The Court reiterates that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. The Court is tasked with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected at the domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. Those who wish to rely on the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided for by the national legal system. The Court cannot emphasise enough that it is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases that require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions (see Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‑IV; Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, § 69, ECHR 2010; and, more recently, Vučković and Others v. Serbia [GC], no. 17153/11, § 70, 25 March 2014).
33. The area of exhaustion of domestic remedies requires a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and practice at the relevant time, that is to say that it was accessible, was capable of providing redress in respect of the applicant’s complaints, and offered reasonable prospects of success. However, once this burden has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact made use of or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement (see Melnītis v. Latvia, no. 30779/05, § 46, 28 February 2012, with further references). The existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Akdivar and Others, cited above, § 71, and Leja v. Latvia, no. 71072/01, § 48, 14 June 2011).
34. The Court would distinguish from the outset the circumstances of the present case and those in the above-cited case of Y v. Latvia, relied on by the Government. While the present case concerns the possibility of seeking damages at the national level on account of allegedly unlawful interference with private life, the case of Y v. Latvia concerned compensation for damage resulting from an alleged violation of Article 3 of the Convention specifically (see Y v. Latvia, cited above, §§ 60 and 70). Therefore, the Court’s findings in that case as to availability of civil-law remedy for such allegations cannot be considered of relevance in the case at hand.
35. It is not disputed that the domestic courts in the criminal proceedings against the applicant in the present case acknowledged that the search of his car had been carried out in breach of the relevant legal provisions (see paragraphs 10 and 23 above). In these circumstances the notion of effective remedy under the Convention does not go as far to require the opening of criminal proceedings against the individuals who had carried out the search. It remains to be established whether any avenues of redress were available for the applicant to vindicate his right to respect for his private life, and whether the Government referred to any relevant domestic case-law in that regard (see Peev v. Bulgaria, no. 64209/01, § 70, 26 July 2007).
36. The Government argued that the applicant could have relied on sections 1635 and 1779 of the Civil Law to claim compensation for pecuniary and non-pecuniary damage from the State on account of allegedly unlawful actions of the officials of the State Police. The Court would further add that section 1635 of the Civil Law has been amended and since 1 March 2006 expressly provides that compensation for non-pecuniary damage is included in the general right to compensation (see Zavoloka, cited above, §§ 17 and 41).
37. The Court observes that in the first three cases relied on by the Government (PAC-61, C04346907, and C06066505) the claimants’ claims were upheld on specific legal grounds (Article 92 of the Constitution and sections 2347, 2349 and 2351 of the Civil Law) and not on the grounds of section 1635 of the Civil Law. Nevertheless, in the fourth case relied on by the Government (C04381306) compensation was awarded, inter alia, on the grounds of section 1635 of the Civil Law. The Court notes that the examples provided by the Government demonstrate that compensation under Latvian law can be granted not only for unlawful actions on the part of police officers or prison staff, who had inflicted bodily injury or used force as in the first three cases, but also for unlawful disclosure of information as in the fourth case. The Government specifically pointed out that in the fourth case the first-instance court had held that unjustified interference with private life provided legal grounds to claim compensation under section 1635 of the Civil Law. The parties did not suggest that these findings were later called into question by higher courts in that particular case, or indeed in any other case. The applicant’s allegation that the domestic courts had continued to rely on corpus delicti as established in criminal proceedings or at least on disciplinary fault on the part of State agents is unsubstantiated. The Court notes that the fourth case relied on by the Government was examined by the first-instance court while criminal proceedings against the alleged perpetrators were still pending; there had been no final decisions establishing corpus delicti. Indeed, the Court’s case-law suggests that adjudication of civil matters without a final judgment in criminal proceedings giving rise to those civil matters is possible (see Plotiņa v. Latvia (dec.), no. 16825/02, §§ 62-63, 3 June 2008; Blumberga v. Latvia, no. 70930/01, § 68, 14 October 2008; and Y v. Latvia, cited above, § 71).
38. Therefore, the Government have provided relevant domestic case-law, where domestic courts had examined a claim for compensation under section 1635 of the Civil Law in connection with an alleged breach of the claimant’s private life and awarded compensation. The Court considers that the Government have, accordingly, met the burden incumbent on them to prove the effectiveness of the remedy in theory and practice. The applicant has not provided any substance to his argument that the remedy proposed by the Government was not available to him; his allegation in this regard is not by itself sufficient to call into question the effectiveness of the remedy as such. The applicant has, therefore, failed to convince the Court that he did not need to bring a claim before the civil courts.
39. In view of the above-mentioned considerations, the Court upholds the Government’s preliminary objection of non-exhaustion of domestic remedies. There is, therefore, no further need to examine the other preliminary objections raised by the Government.
40. It follows that this complaint must be dismissed under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 23 July 2015.
Fatoş AracıGuido Raimondi
Deputy RegistrarPresident
Full & Egal Universal Law Academy