CASE OF ČALOVSKIS v. LATVIA
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (the United States of America);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings);Non-pecuniary damage - award
Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
6. The applicant was born in 1985 and lives in Riga. 7. On 23 August 2012 a federal grand jury sitting in the United States District Court for the Southern District of New York indicted the applicant on five counts of conspiracy to violate the criminal laws of the United States. He was charged with conspiracy to commit bank fraud, with a maximum prison sentence of thirty years; wire fraud, with a maximum prison sentence of twenty years; access device fraud, with a maximum prison sentence of five years; computer intrusion, under several subsections, with maximum prison sentences of five and ten years; and aggravated identity theft, with a mandatory prison sentence of two years, which must run consecutive to the sentence for any other offence. 8. The charges were based on allegations that the applicant and his co-conspirators, as members of a criminal enterprise, had created and distributed malicious software known as the “Gozi Virus”, which had infected computers worldwide, including in the United States. It was suspected that the Gozi Virus had been designed to steal login credentials, such as usernames and passwords, for online bank accounts and other internet-based accounts. The data had then been used to withdraw funds from victims’ accounts in the United States and Europe. It was alleged that the applicant specialised in creating software to work in conjunction with the Gozi Virus and other malicious software to deceive an account holder into divulging personal information. 9. Following the issuance of the indictment, on 23 August 2012 the United States District Court for the Southern District of New York issued a warrant for the applicant’s arrest in relation to the offences listed in the indictment. 10. On 27 November 2012, pursuant to the 2005 US-Latvia Extradition Treaty, the United States Department of Justice submitted to the Latvian authorities a request for the applicant’s extradition from Latvia to the United States, which was delivered to the Office of the Prosecutor General on 3 December 2012. 11. On 3 December 2012 M.V., Prosecutor of the International Cooperation Division, ordered the police to arrest the applicant in accordance with section 699 of the Criminal Procedure Law (Kriminālprocesa likums) (arrest for the purpose of extradition). The prosecutor referred to the United States’ request of 27 November 2012 for the applicant’s extradition. 12. At 11.21 a.m. on 4 December 2012 the applicant was arrested at his place of residence under section 699(1) of the Criminal Procedure Law. A search of his residence was carried out, which lasted until 1.20 p.m. 13. The record of the applicant’s arrest indicated that he had been informed of his rights under section 698 of the Criminal Procedure Law, including the right to invite a lawyer. The Government stressed that the applicant had not requested a list of lawyers or an opportunity to use a telephone. He had asked to call his mother. The record was signed by the applicant and an investigator. The text of section 698 of the Criminal Procedure Law (paragraph 73 below) in three languages, Latvian, English and Russian, was attached to the record. The applicant had signed under that text, having written “[the applicant] has read [and] familiarised [himself]”. 14. According to the applicant, however, he was deprived of an opportunity to contact a lawyer for legal assistance until 1.20 p.m. on 4 December 2012. In his submission, the above-mentioned record confirmed only that he had not expressed such a request. It had been impossible to call for any legal assistance because during the arrest he had been laid face down on the floor, with his head covered and his arms tied behind his back. When the search had continued in a car park at around 2 p.m., he had been permitted to use the phone. 15. The Government drew attention to the fact that later the same day a lawyer, A.O., and his assistant, I.S., had been appointed to represent the applicant, based on agreement no. 172. 16. The Government submitted, and the applicant affirmed, that on 5 December 2012 a prosecutor had informed the applicant’s lawyer, A.O., that the following day the applicant would be brought before the Riga City Centre District Court (Rīgas pilsētas Centra rajona tiesa) for a detention hearing. According to the Government, they agreed that the applicant would be given an opportunity to acquaint himself with the extradition request prior to the detention hearing. 17. About thirty minutes prior to the hearing on 6 December 2012 at the District Court, the applicant and A.O. were provided with a complete case file. The Government referred to a record of the same day indicating that the applicant had disagreed to his extradition in a simplified procedure. The record was signed by the applicant and his lawyer. 18. The hearing commenced at 2.30 p.m. on the same day. The minutes, furnished by the Government, indicated that the hearing had been held in camera and that no requests had been made to the court at the start of the hearing. According to the minutes, the applicant and his lawyer, A.O., contested the contents of the extradition request and asked that a more lenient measure than detention be imposed on the applicant. 19. In the applicant’s submission, the following statement by A.O., recorded in the minutes, reflected the untimely service of the documents at issue: “[A.O.] – My client is currently legally unprepared, therefore [A.O.] shall speak first...” 20. The minutes showed that after A.O. had made his argument, to which I.S. had not wished to add anything, the applicant, having stated that he “had read all the documents in Latvian”, continued to dispute the allegations against him and the measure of detention proposed. 21. Following the hearing, at 4.30 p.m. the investigating judge ruled that the applicant be detained under section 702 of the Criminal Procedure Law (“pre-extradition detention”). 22. The investigating judge’s written ruling stated that the hearing had been closed to the public. 23. The ruling further noted the prosecutor’s submission in support of the applicant’s detention as follows: “... a request for [the applicant’s] extradition to the United States for criminal prosecution has been received ... The extradition request has been sent under Article 7(1) of the [2005 US-Latvia Extradition Treaty] and it contains all the information and documents as required by Article 7(2) and (3) of the said Treaty, as well as by section 702(1) of the Criminal Procedure Law ...” The ruling also indicated the applicant’s submission that the accusation against him was vague. 24. The relevant part of the investigating judge’s reasoning for granting the prosecutor’s request for the applicant’s detention read as follows: “... [the investigating judge] agrees with the prosecutor’s proposal [to impose on the applicant pre-extradition detention]. Section 702(1) of [the Criminal Procedure Law] prescribes that pre-extradition detention be applied after receipt of a request for a person’s extradition along with [the documents listed under section 702(1) of the Law]. The documents prescribed under section 702(1) of [the Criminal Procedure Law], including [an arrest warrant issued against the applicant in the United States] have been attached to the prosecutor’s request ... no reasons to exclude the possibility of extradition are known. ... The proposal has been submitted in compliance with section 702 of [the Criminal Procedure Law]; [an arrest warrant has been issued in the United States] in respect of [the applicant], therefore a competent institution has assessed the necessity of [the applicant’s] detention; and therefore ... a legal basis exists for the application of pre-extradition detention with respect to [the applicant]. Also, the grounds for deprivation of liberty set out in Article 5 § 1 (c) of [the Convention] permit the application of pre-extradition detention – the necessity to bring him before the competent legal authority on reasonable suspicion of having committed an offence. ... In view of the foregoing and based on Article 7(1) of the [2005 US-Latvia Extradition Treaty] and sections ... 701 [and] 702 of [the Criminal Procedure Law], Article 12(2) of the European Convention on Extradition and Article 5 § 1 (c) of [the Convention], the investigating judge has decided to impose on [the applicant] the pre-extradition detention.” 25. The ruling was not subject to appeal. 26. In his application to the Court the applicant alleged that during the detention hearing he had been placed in a dock with metal bars. He had been instructed by the police to cover his head with the hood of his jacket. From that time onwards, the mass media had circulated photographs depicting him in the courtroom behind the metal bars and wearing a hood. 27. According to the Government, the applicant had not been placed in a dock with metal bars during the hearing concerning his detention. 28. The Government referred to the applicant’s placement in a metal cage in a subsequent hearing held on 30 January 2013 before the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta) concerning his extradition (paragraphs 53 and 54 below). 29. Furthermore, the Government argued that the applicant had never been asked to pull the hood of his jacket over his head. There were no State Police regulations requiring such a measure. It was solely the applicant’s decision to do so. The Government relied on the applicant’s statement to the mass media, published on 5 June 2013, to that effect, the relevant part of which read as follows: “As to why he had hidden his face in a hood, [the applicant] explained that ‘...[he] thought that it was a horrible misunderstanding, it could not be happening [to him]. If [he] showed [his] face, [he] would not be able to tell that it had not happened to [him]. [The applicant] was worried about [his] family, honour, parents, about [his] father’s health ...’” 30. In reply to the Government’s observations, the applicant responded in relation to his placement in a metal cage during the aforementioned hearing on 30 January 2013. At the same time, with respect to the detention hearing on 6 December 2012 he appeared to maintain that he had been instructed by the police to wear the hood. 31. On 12 December 2012 the applicant addressed a hand-written complaint, in the State language, to the Riga Regional Court (Rīgas apgabaltiesa) about the ruling of 6 December 2012 authorising his pre-extradition detention. 32. On 17 December 2012, the Judge of the Riga City Centre District Court, R.S., responded to the applicant’s complaint as follows: “...a decision ... under section 701(2) of the Criminal Procedure Law (provisional detention) ... is without appeal. Section 702(3) of the Criminal Procedure Law (pre-extradition detention) provides that a proposal for pre-extradition detention is decided following the procedure as for a request for provisional detention. Therefore, in accordance with the provisions of the Criminal Procedure Law ... a ruling of the judge on pre-extradition detention may not be appealed against ...” 33. It appears that on 25 February 2013 the applicant submitted to the Riga City Centre District Court a request to lift his pre-extradition detention or to substitute it with a different security measure. 34. On 28 February 2013 the Judge of the Riga City Centre District Court, R.S., gave the same response as the one given on 17 December 2012 (paragraph 32 above). He added that under the Criminal Procedure Law an investigating judge was not competent to examine whether pre-extradition detention should be continued or terminated. 35. On 27 August 2013 the applicant’s lawyer, E.R., requested that an investigating judge of the Riga City Centre District Court review the applicant’s detention and order his release. 36. On 3 September 2013, as is apparent from the case file, the Investigating Judge of the Riga City Centre District Court, K.K., refused the request. She reasoned that in accordance with the Criminal Procedure Law, pre-extradition detention was not subject to review. Furthermore, the maximum term of detention of one year prescribed in section 702(5) of the Law had not yet been exceeded. 37. The investigating judge also indicated that section 281(2) of the Criminal Procedure Law did not apply and no review of the pre-extradition detention could be conducted under that provision. 38. On 11 September 2013 E.R. lodged a complaint with the President of the Riga City Centre District Court. 39. On 30 September 2013 the complaint was dismissed. 40. On 27 December 2012 the applicant submitted a hand-written request, in the State language, to the Prosecutor of the International Cooperation Division, M.V. The applicant asked the prosecutor to lift his detention on the grounds that the extradition of a Latvian citizen was not permissible. 41. On 3 January 2013 M.V. refused the applicant’s request. He explained that in the event of any conflict between the 2005 US-Latvia Extradition Treaty and the Criminal Procedure Law, the former would prevail. Under the treaty, extradition could not be refused based on citizenship. That response was subject to appeal to a higher prosecutor. 42. During July and August 2013 the applicant lodged before the prosecution further requests to lift his detention. 43. On 10 October 2013 M.V. ordered the applicant’s release. 44. He reasoned as follows: “...there are grounds to believe that the [applicant’s] complaint to the [Court] will not be decided until 4 December 2013, i.e., until the maximum term of pre-extradition detention prescribed under section 702(5) of the Criminal Procedure Law – one year –has expired with respect to [the applicant]. As [the Court] has determined a provisional measure ... [the applicant’s] surrender may not be carried out within the maximum term of pre-extradition detention. Therefore [the prosecutor] deems that the purpose of pre-extradition detention – to prevent the person from fleeing and to ensure [his] surrender ... to a requesting State – has ceased to exist.” 45. On 11 January 2013 the applicant complained to the Office of the Prosecutor General about the circumstances of his arrest. In particular, he complained that his mother had not learnt about it until after 2 p.m. on 4 December 2012 when she had returned home. She had called him on the phone, and he had been able to speak to her only because he had been allowed to use his phone to contact a lawyer. The applicant also complained that he had been denied the possibility to contact a lawyer. His complaint was forwarded to the State Police for examination. 46. On 25 February 2013 the Internal Security Office of the State Police (Valsts policijas Iekšējās drošības birojs) completed an inquiry. 47. It was established that the applicant had answered his mother’s phone call at the time of the search of the vehicle used by him. When his mother had arrived at the car park, the police officers had told her about the United States extradition request. They had also provided information on the applicant’s whereabouts. That had been affirmed by the applicant’s mother herself in her request of 11 January 2013 addressed to the State Police. 48. With respect to legal assistance, it was found that the applicant had been provided with a list of lawyers. As he had indicated himself, he had been allowed to use a phone to contact a lawyer. He himself had signed the record of arrest stating that a lawyer’s presence was not required, and that he had been informed of his rights under section 698 of the Criminal Procedure Law, including the right to invite a lawyer. 49. The Internal Security Office concluded that there were no grounds for disciplinary proceedings against the police employees involved in the operation. 50. On 20 December 2012 M.V. issued a ruling finding the United States’ request for the applicant’s extradition permissible. 51. The ruling spelled out the allegations against the applicant and their legal classification under the United States Code. It indicated that on 23 August 2012 an arrest warrant had been issued against the applicant in the United States. The applicant’s extradition was held to be permissible based on the following: “- the maximum limit of the sentence of deprivation of liberty for the crimes [the applicant] is accused of exceeds one year; - no criminal proceedings have been initiated in the Republic of Latvia for the crimes for which the United States Department of Justice has requested [the applicant’s] extradition; - no decision has been taken in the Republic of Latvia not to initiate or to terminate the criminal prosecution for the crimes for which [the applicant’s] extradition has been requested; - no court decision has entered into force with respect to [the applicant] for the crimes for which the extradition has been requested; - the crimes of which [the applicant] is accused are not of a political or military nature; - [the applicant] is a citizen of the Republic of Latvia, however, pursuant to Article 3 of [the 2005 US-Latvia Extradition Treaty] citizenship is not a basis for the refusal of extradition; - the statutory limitation periods have not expired either in the Republic of Latvia or in the United States; - [the applicant] has not been granted a pardon for the same crimes.” That ruling was subject to appeal to the Criminal Cases Chamber of the Supreme Court. 52. On 11 January 2013 the applicant and his lawyer lodged an appeal against the aforementioned ruling before the Criminal Cases Chamber of the Supreme Court. 53. The appeal hearing was scheduled for 30 January 2013 in courtroom no. 207, which was not equipped with a dock with metal bars. According to the applicant, he was never taken to that courtroom. 54. In view of the considerable media attention, the Criminal Cases Chamber decided to relocate the hearing to a larger courtroom, no. 213. It was the only courtroom equipped with a dock with metal bars. The applicant was placed in that dock. 55. At the start of the hearing the applicant’s lawyer, I.B., requested that the Criminal Cases Chamber close the hearing to the public and prohibit filming. The Criminal Cases Chamber refused to exclude the public from the hearing. It reasoned that the proceedings concerned the permissibility of extradition and not the imposition of detention. On the other hand, it prohibited under section 485 of the Criminal Procedure Law the continuation of filming and the use of any material already filmed. 56. During the hearing interpretation was provided to the applicant. 57. The applicant’s lawyer, I.B., submitted that at the start of the proceedings the applicant had not been provided with a lawyer. Also, in the course of the proceedings the State authorities had not verified his language knowledge. He had therefore been unable to understand the documents served on him. These had been provided only half an hour prior to the detention hearing, so neither the applicant nor his lawyer had been able to prepare their argument with respect to the documents presented. 58. On 31 January 2013 the Criminal Cases Chamber announced its ruling. In view of the smaller public attendance than the previous day, the hearing was held in a smaller court room, no. 207, without a metal cage. 59. I.B. pointed out that the previous day the applicant’s face had appeared in the media, even though any recording had been prohibited. 60. The Criminal Cases Chamber upheld the impugned ruling, stating as follows: “[The Chamber] concludes that the prosecutor has verified the extradition request in compliance with the requirements of section 704 of the Criminal Procedure Law. [He] has assessed carefully whether grounds for [the applicant’s] extradition exist, in compliance with section 696 of the Criminal Procedure Law, and has made justified conclusions as to the permissibility of [the applicant’s] extradition to the United States of America.” 61. The Criminal Cases Chamber further found that there were no grounds for refusing the applicant’s extradition under section 697 of the Criminal Procedure Law. It reasoned as follows: “... Article 3 of [the 2005 US-Latvia Extradition Treaty] provides that citizenship ... is not grounds for the refusal of extradition. ... ... [the 2005 US-Latvia Extradition Treaty] has a higher legal force than section 697(2)1) of the Criminal Procedure Law, which prohibits the extradition of a Latvian citizen. The Criminal Cases Chamber finds declaratory the defence’s indication that [the applicant’s] human rights would be violated if he were extradited to the United States of America. The United States of America is a democratic [State], which, in concluding the treaty on extradition with Latvia, undertook to comply with human rights standards and the rule of law, and to guarantee an accused the right to a fair trial, including the right to a trial in an independent and impartial court. ... It follows from the case material that [the applicant] mentioned in the record of [his] arrest that he understands the Latvian language and neither in the course of his arrest, nor when together with his defence he was getting acquainted with the United States’ extradition request did [the applicant] indicate that the participation of an interpreter was required. Also, in the detention hearing ... without the participation of an interpreter he gave his explanation, noting that the accusation presented had not stated exactly what he had done. Likewise ... [the applicant] had himself written applications and requests in the Latvian language.” The ruling was final. 62. On 12 April and 15 July 2013 the applicant lodged constitutional complaints before the Constitutional Court (Satversmes tiesa). 63. The applicant argued, inter alia, that the 2005 US-Latvia Extradition Treaty and the national law that ratified it were incompatible with Article 90 of the Constitution (Satversme) (right to be informed of rights) and its Article 92 (right to a fair trial) and Article 98 (prohibition of extradition of a Latvian citizen). 64. The applicant further requested that sections 701(2) and 707(2) of the Criminal Procedure Law prohibiting an appeal against the judge’s ruling on provisional detention and the court’s ruling on the permissibility of extradition, respectively, be declared unconstitutional. 65. On 31 May and 31 July 2013 the Constitutional Court refused to open a case. The relevant part of its decision read as follows: “The preamble of the Extradition Treaty expressis verbis provides that the parties to the treaty undertake to ‘have due regard for the rights of individuals and the rule of law’ and are ‘mindful of the guarantees under their respective legal systems which provide an accused person with the right to a fair trial, including the right to adjudication by an independent and impartial tribunal established pursuant to law’. Therefore the Extradition Treaty expressis verbis foresees the same protection as the first and fourth sentences of Article 92 of the Constitution, as well as the third sentence of Article 98 of the Constitution, even though [the applicant] contests the compatibility of the Extradition Treaty precisely with these provisions. Likewise, in accordance with Article 15 of the Council of Europe Convention on Cybercrime, the contracting parties shall ensure that persons under criminal investigation or adjudication do not have less human rights protection and procedural safeguards than those foreseen in the European Convention for the Protection of Human Rights and Fundamental Freedoms. The US has ratified the Council of Europe Convention on Cybercrime, without making reservations with respect to Article 15 of that Convention, which has been in force in the United States of America since 1 January 2007. The applicant is accused of committing crimes which correspond to those mentioned in Articles 2 through 10 of the Convention on Cybercrime. The Collegium of the Constitutional Court also indicates that pursuant to the [Criminal Procedure Law] and the Extradition Treaty, a court of general jurisdiction has the precise duty to ensure that an individual’s fundamental rights are observed in a concrete extradition procedure. ... Also, in the case-law of the European Court of Human Rights it has been found that a person to be extradited must be guaranteed human rights protection specifically in the course of the extradition process ... At the same time the European Court of Human Rights has held that a possibility that a person may receive a severe punishment, for example, a prolonged term of imprisonment, does not always of itself constitute a sufficient basis for a decision to refuse his or her extradition to the US ... The Cabinet of Ministers will adopt the final decision on [the applicant’s] possible extradition to the US, which is also under an obligation to observe the human rights protection guarantees provided for in the Constitution, the Convention and the Extradition Treaty. Therefore ... the legal reasoning on the possible incompatibility of the Extradition Treaty ... is obviously insufficient to grant the claim. ... The legislator has a wide margin of appreciation to decide which cases may be considered at several court instances and also the procedure for their adjudication ... ... it has not been substantiated how Article 91 of the Constitution could impose a mandatory duty on the legislator to foresee the same rights for persons with respect to whom an investigating judge has taken a decision to order provisional detention as for persons for whom detention has been imposed as a security measure.” 66. On 7 June 2013 the Ministry of Justice wrote to the United States Department of Justice. Referring to Article 98 of the Constitution (paragraph 72 below) the Ministry asked the Department of Justice to guarantee as follows: “1) in case of extradition, during the criminal procedure, [the applicant’s] human rights will not be violated and he will have such rights in criminal procedure as rights to fair trial, including rights to defence; 2) in case of conviction, human rights prescribed for in the international law will be ensured to [the applicant] in his place of imprisonment in USA; 3) in case of conviction and after his request for transfer, [the applicant] will have the right to serve his sentence in the Republic of Latvia, according to [Article] 3 of the Treaty on Extradition between Latvia and USA and Convention on the Transfer of Sentenced Persons of European Council from March 21, 1983.” 67. The request drew attention to the range of sanctions for the crimes at issue under the Criminal Law (Krimināllikums), in particular sections 1771(3) and 1931(3) (paragraph 74 below) and that the maximum term of imprisonment did not exceed fifteen years. 68. On 4 July 2013 the Embassy of the United States in Riga provided Diplomatic Note No. 078-13, the relevant part of which read as follows: “The Constitution and laws of the United States, including the treaties to which we are a party, incorporate all fundamental human rights ... The fundamental guarantees apply before conviction, and post conviction if confinement is adjudged. No person extradited to the United States may be subjected to torture or cruel and unusual punishment. ... In the case of [the applicant], as previously stated in the extradition request, the death penalty is not an applicable punishment, and he therefore shall not be deprived of life in any event. ... Finally, in accordance with Article 3 of the Extradition Treaty between the Government of the United States of America and the Government of the Republic of Latvia, signed on December 7, 2005, if convicted, the United States will make best efforts to honor a request from [the applicant] to serve his sentence in Latvia in accordance with the Council of Europe Convention on the Transfer of Sentenced Persons and the implementing statutes thereto, should he apply for such a transfer. In the event that the application cannot be honored, the Government of the United States shall consult with the Government of Latvia pursuant to Article 19 of the Extradition Treaty.” 69. On 30 July 2013 the applicant’s lawyer, S.V., submitted to the Cabinet of Ministers the matters for consideration when deciding on the applicant’s extradition. He stated, inter alia, the following: “...the absence of guarantees about [the applicant’s] serving a sentence in the Republic of Latvia ... the service of a sentence thousands of kilometres away would constitute an identical violation as in the case of [Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, 25 July 2013].” 70. On 6 August 2013 the Cabinet of Ministers decided that the applicant would be extradited to the United States.