CASE OF JERONOVIČS v. LATVIA
Preliminary objections joined to merits and dismissed (Article 34 - Victim);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Aleš Pejchal;André Potocki;Dean Spielmann;George Nicolaou;Guido Raimondi;Helen Keller;Ineta Ziemele;Johannes Silvis;Jon Fridrik Kjølbro;Josep Casadevall;Kristina Pardalos;Krzysztof Wojtyczek;Ledi Bianku;Mark Villiger;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Paulo Pinto De Albuquerque;Zdravka Kalaydjieva
10. The applicant was born in 1962 and is detained in Daugavpils Prison. 11. On 25 April 1998 the applicant and another individual, A. Vovruško, were arrested by the police on suspicion of having committed, inter alia, aggravated assault against P.M. 12. Criminal proceedings were initiated in that connection, throughout which the applicant and his co-defendant pleaded their innocence. 13. On 27 September 2000 the applicant and his co-defendant were found guilty of the charges and were sentenced to nine and twelve years’ imprisonment respectively by the Riga Regional Court. 14. The applicant lodged an appeal on points of law and unsuccessfully sought leave to attend the hearing on his appeal before the Supreme Court. 15. Following his questioning at the police station after his arrest, the applicant complained to the public prosecutor’s office that he had been ill-treated by police officers who had tried to obtain a confession from him (for details concerning similar allegations of ill-treatment made by the applicant’s co-defendant, see Vovruško v. Latvia, no. 11065/02, 11 December 2012). 16. As a result, criminal proceedings (case no. 50207598) were initiated against the police officers for abuse of official power. On 19 March 2001 those criminal proceedings were discontinued by the Riga police station investigator (Rīgas rajona policijas pārvalde) on grounds of insufficient evidence. The investigator found, inter alia, that the applicant’s allegations were incoherent, and concluded that the “light” injuries he had sustained could have been caused during his arrest. 17. On 8 October 2001 the applicant lodged an application (no. 547/02) with the Court. He alleged a breach of Article 3 of the Convention, complaining of having been subjected to ill-treatment during the pre-trial investigation and of the lack of an effective investigation into those allegations. He also alleged breaches of Article 3 (conditions of detention following his conviction), Article 5 § 3 (duration of pre-trial detention), Article 5 § 5 (lack of compensation), Article 6 § 1 (refusal to grant him leave to attend the Supreme Court hearing and overall duration of the criminal proceedings), and Article 6 § 1 taken in conjunction with Articles 13 and 14 of the Convention (lack of legal assistance). He lodged a further complaint under Article 6 § 1 alleging that the criminal proceedings which had resulted in his conviction had been unfair as his confession had been obtained from him as a result of ill-treatment in breach of Article 3. 18. On 22 February 2007 the Government were given notice of the applicant’s complaints concerning, inter alia, his ill-treatment and the lack of an effective investigation into his allegations in that regard. 19. On 30 April 2008 the Government submitted the following unilateral declaration: “The Government of the Republic of Latvia (hereinafter – the Government) represented by [their] Agent Inga Reine admit that the physical treatment of Viktors Jeronovičs (hereinafter – the applicant) by the police officers, as well as the effectiveness of the investigation of the respective applicant’s complaints, the access to legal aid and effective remedies to apply for the compensation of damages, the length of criminal proceedings [against the applicant], as well as the lack of effective remedy did not meet the standards enshrined in Article 3, Article [5 § 5], Article [6 § 1], Article 13 and Article 14 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, as well as to provide an effective remedy. Taking into account that the parties have failed to reach a friendly settlement in this case, the Government declare that they offer to pay ex gratia to the applicant compensation in the amount of 4,500 EUR ([approximately] 3,163 LVL]), this amount being the 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 terminat[ing] the proceedings pending before the European Court of Human Rights (hereinafter – the Court) in the case [of] Jeronovičs v. Latvia (application no. 547/02). ... This payment will constitute the final resolution of the case.” 20. On 10 February 2009 the Chamber of the Court’s Third Section to which the case had been allocated adopted a decision in which, inter alia, it took note of the terms of the Government’s declaration and, by virtue of Article 37 § 1 of the Convention, struck out the complaints mentioned in the unilateral declaration. The relevant paragraphs of the decision read as follows: “48. The Court observes at the outset that the parties have not reached agreement on the terms of a friendly settlement of the case. It reiterates however that a distinction must be drawn between, on the one hand, declarations made in the context of strictly confidential friendly-settlement negotiations and, on the other, unilateral declarations – such as the one at issue – made by a respondent Government in public and adversarial proceedings before the Court. In accordance with Article 38 § 2 of the Convention and Rule 62 § 2 of the Rules of Court, the Court will proceed on the basis of the Government’s unilateral declaration and the parties’ observations submitted outside the framework of the friendly-settlement negotiations, and will disregard the parties’ statements made in the context of exploring the possibilities for a friendly settlement of the case and the reasons why the parties were unable to agree on the terms of a friendly settlement (see Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, § 74, ECHR 2003VI). 49. The Court further refers to Article 37 § 1 of the Convention, the relevant parts of which provide: ‘1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ... (c) for any other reason established by the Court, it is no longer justified to continue the examination of the application. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.’ Tahsin Acar, cited above, § 75; see also, for example, Van Houten v. the Netherlands (striking out), no. 25149/03, § 33, ECHR 2005IX; Swedish Transport Workers’ Union v. Sweden (striking out), no. 53507/99, § 24, 18 July 2006; Kalanyos and Others v. Romania, no. 57884/00, § 25, 26 April 2007; Kladivík and Kašiar v. Slovakia (dec.) (striking out), no. 41484/04, 28 August 2007; Sulwińska v. Poland (dec.) (striking out), no. 28953/03, 18 September 2007; Stark and Others v. Finland (striking out), no. 39559/02, § 23, 9 October 2007; Feldhaus v. Germany (dec.) (striking out), no. 10583/02, 13 May 2008; and Kapitonovs v. Latvia (dec.) (striking out), no. 16999/02, 24 June 2008). ... 52. As to the ill-treatment to which the applicant was allegedly subjected in police custody and the effectiveness of the investigations carried out, although the Court has not to date found a violation of Article 3 by the Latvian police in that specific context, it nevertheless points to its clear and very extensive case-law in this regard (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, §§ 95-106, ECHR 1999V; Dikme v. Turkey, no. 20869/92, §§ 73-104, ECHR 2000VIII; and Karaduman and Others v. Turkey, no. 8810/03, §§ 64-82, 17 June 2008). The same is true as regards the principles governing the granting of legal aid as a component of the right of access to a court (see, for example, Aerts v. Belgium, 30 July 1998, §§ 59-60, Reports of Judgments and Decisions 1998V; P., C. and S. v. the United Kingdom, no. 56547/00, §§ 88-91, ECHR 2002VI; Bertuzzi v. France, no. 36378/97, §§ 23-32, ECHR 2003III; and Staroszczyk v. Poland, no. 59519/00, §§ 127-129, 22 March 2007). 53. In their declaration in the present case the Government have recognised that the treatment to which the applicant was subjected by the police officers while in police custody, the manner in which the investigations were carried out in that regard, the handling of the applicant’s claims for compensation and in particular the refusal of his applications for legal aid in order to gain access to the compensation procedure, as well as the length of the criminal proceedings against him, infringed Articles 3, 5 § 5, 6 § 1, 13 and 14 of the Convention. They have offered to pay the applicant EUR 4,500 in compensation and undertake to take all necessary measures to prevent similar violations in the future. 54. In view of the nature of the undertakings contained in the Government’s declaration, the Court considers that it is no longer justified to continue the examination of the complaints in question. That decision is without prejudice to the possibility for the applicant to exercise any other available remedies in order to obtain redress. The same applies to the complaint under Article 2 of Protocol No. 7, which is identical in substance to the complaint under Article 6 § 1 of the Convention concerning the length of the criminal proceedings in question (paragraph 38 in fine). The Court is further satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue its examination of this part of the application (Article 37 § 1 in fine). 55. Accordingly, the case should be struck out of the list in so far as it concerns the complaints referred to in paragraphs 28, 37 and 38 of this decision.” 21. In the same decision, the Court declared admissible the complaints concerning the applicant’s conditions of detention (Article 3) and the refusal to grant him leave to attend the Supreme Court hearing (Article 6), and dismissed all the other complaints, including the complaint that the criminal proceedings had been unfair owing to the admission of evidence obtained under duress (Article 6). On the latter point the Court found as follows: “39. Relying on Articles 6 §§ 1 and 2, 7 and 14 of the Convention, the applicant complained of the overall unfairness of his conviction for the armed robbery allegedly committed in April 1998. He maintained in that connection that a confession had been obtained from him under duress and that the courts had refused several requests made by him for a confrontation. Lastly, the applicant contended that he had been convicted solely on account of his ethnic and social origin and his previous convictions. ... 84. The Court, having regard to all the evidence in its possession and in so far as it has jurisdiction to examine the allegations made, finds no appearance of a violation of the rights and freedoms guaranteed by the provisions on which the applicant relies. In particular, it reiterates that it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention, which is not the case here (see, among many other authorities, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000V). 85. It follows that these complaints are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.” 22. On 1 December 2009 the Court adopted a judgment – Jeronovičs v. Latvia (no. 547/02) – finding a violation of Article 3 of the Convention (conditions of detention) and Article 6 § 1 (refusal to grant leave to attend the Supreme Court hearing) and awarding 5,000 euros [EUR] in compensation for the non-pecuniary damage suffered on account of the Article 3 violation. 23. On 11 October 2010 the applicant requested the public prosecutor’s office to reopen the criminal proceedings in which he had been convicted (see paragraph 13 above) as well as the proceedings concerning his alleged ill-treatment by police officers (see paragraph 16 above). He relied on the terms of the Government’s unilateral declaration of 30 April 2008 and on sections 655(3), 656(3) and 657 of the Criminal Procedure Law (see paragraphs 28 to 31 below). 24. On 17 November 2010 a prosecutor attached to the Riga Regional Court dismissed the applicant’s request, finding that none of the grounds for the reopening of criminal proceedings set out in section 655(2) of the Criminal Procedure Law applied. The prosecutor also found as follows: “...The case of Jeronovičs v. Latvia (no. 547/02) contains the Government’s unilateral declaration, the conclusions of which are applicable only to the circumstances and the events examined within the scope of that case. It cannot be concluded from the judgment of 1 December 2009 adopted by the European Court of Human Rights that the Court examined and assessed any activities carried out by the law-enforcement officers during the pre-trial investigation in the criminal proceedings ... Accordingly, the conclusions reached in [the Court’s] judgment of 1 December 2009 and the Government’s unilateral declaration of 30 April 2008 cannot be applied or connected to the criminal proceedings...” 25. In an appeal lodged on 9 December 2010 the applicant reiterated that there was a legal basis for reopening the criminal proceedings concerning his ill-treatment, on account of the fact that the Government’s unilateral declaration had expressly recognised the violation of Article 3 of the Convention, a circumstance which had led the Court to strike out that complaint. He further argued that at the time his criminal case was examined by the domestic courts, the judicial authorities had been unaware that the investigation into his allegations of ill-treatment was in breach of Article 3. 26. In a final decision of 20 December 2010 a higher-ranking prosecutor upheld the decision of 17 November 2010. The prosecutor noted that, under section 655(2) of the Criminal Procedure Law, only criminal proceedings that had ended with a valid court judgment or decision could be reopened, and only provided that the ground for requesting such reopening was among those listed in that provision. The prosecutor further found as follows: “Having examined the foregoing, I find that the conclusion of the prosecutor in her decision of 17 November 2010 is valid and well-founded, to the effect that your application dated 11 October 2010 requesting the reopening of the criminal proceedings in cases nos. 06725198 and 50207598 on the basis of new circumstances does not comply with any of the conditions prescribed by section 655(2) of the Criminal Procedure Law which could serve as grounds for reopening the above-mentioned criminal proceedings. The prosecutor did not establish the existence of any such conditions during the examination of your application, which is why I regard as reasonable her decision to refuse the reopening of the criminal proceedings in cases nos. 06725198 and 50207598 on the basis of newly disclosed circumstances. As already mentioned, the Criminal Procedure Law prescribes in detail all the circumstances which shall be recognised as newly disclosed and on the basis of which criminal proceedings ending in a valid court judgment or decision may be reopened. The Criminal Procedure Law does not make any provision for these circumstances to be expanded. In examining your complaint I did not find established any of the newly disclosed circumstances prescribed by section 655(2) of the Criminal Procedure Law. Likewise, I did not find any opinion by an international judicial authority relating to the decision of the Latvian court in case no. 50207598 and finding that the judgment of the Criminal Division of the Riga Regional Court which came into force on 27 September 2000 did not comply with international law and regulations binding on Latvia. The European Court of Human Rights did not express such an opinion in its judgment of 1 December 2009 or in the decision of 10 February 2009 in which that international court examined your application. I would also like to point out that, contrary to your allegations, the European Court of Human Rights in its decision of 10 February 2009 stated that in the adoption of its decision concerning inhuman treatment by police officers during the criminal investigation it did not find any violation of international laws or regulations. In your application you emphasised that the criminal proceedings in cases nos. 06725198 and 50207598 should be reopened in connection with the unilateral declaration of the Government of the Republic of Latvia mentioned by the Latvian Republic Government Agent on 30 April 2008, in which the Government of the Republic of Latvia recognised that the physical treatment of Viktors Jeronovičs by police officers, the effectiveness of the investigation into the applicant’s complaints, his access to legal aid and to effective remedies by which to apply for compensation for damage, the length of the criminal proceedings, and the lack of an effective remedy, did not meet the standards enshrined in Articles 3, 5 § 5, 6 § 1, 13 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. I would like to make clear that, according to section 655(2) of the Criminal Procedure Law, the above-mentioned unilateral declaration by the Government of the Republic of Latvia is not recognised as a newly disclosed circumstance and cannot therefore be regarded as a basis for reopening the criminal proceedings in cases nos. 06725198 and 50207598. In view of the above-mentioned considerations, there is no reason to quash the decision [...] dated 17 November 2010 concerning the refusal to reopen the criminal proceedings in the light of newly disclosed circumstances...”