CASE OF ESTRIKH v. LATVIA
Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 8;Non-pecuniary damage - financial award
David Thór Björgvinsson
5. The applicant was born in 1972 and lives in Krasnoyarsk in the Russian Federation. 6. The applicant arrived in the Republic of Latvia as a member of the ex-USSR armed forces located in the territory of Latvia. On an unspecified date in the beginning of the 1990s he and Ms B., a Latvian citizen, started living together in de facto partnership. In 1993 a child was born to the applicant and his partner. 7. After the military forces were withdrawn from Latvia, the applicant resided there between 11 June 1993 and 31 March 1994 on the basis of a temporary residence permit. On 31 March 1994, upon the expiry of the residence permit, he left Latvia. 8. Between 1994 and 1997 the applicant visited Latvia three times on the basis of a visa. The validity of the last visa expired on 17 November 1997 but the applicant continued to reside in Latvia illegally. 9. On 19 February 1998 the applicant was apprehended by the police and taken into custody on suspicion of having committed robbery and criminal proceedings were initiated against him and seven co-accused persons. 10. On 20 February 1998 the applicant was brought before a judge of the Ziemeļu District Court of the City of Riga who decided to detain him on remand. The judge filled in a standard form by typing in the date, the names of the court and the applicant and other details of the case. In substantiating the decision, the judge had to choose from and underline the pre-typed text of the standard form. She took into account the severity of the crime the applicant was suspected of, the danger of his possible absconding and the possibility that he could impede the investigation. However, the judge did not underline the pre-typed text as to whether or not a preventive measure should be imposed on the applicant. He did not appeal this decision. 11. On 17 March 1998 the applicant was officially charged with robbery. 12. On 9 April, 11 June, 10 August and 13 October 1998 a judge of the Ziemeļu District Court of the City of Riga, on the request of the prosecutor in charge of investigation, extended the applicant's detention on remand until 19 June, 19 August, 19 October and 12 December 1998 respectively. The applicant was not brought before the judge. The decisions were drafted using a standard form and repeated from one decision to the next the same grounds in the same words, i.e. the severity of the crime the applicant was charged with, the danger of his possible absconding and the possibility that he could impede the investigation. The applicant did not appeal any of these decisions. 13. On 30 October 1998 the prosecutor in charge of investigation and the applicant discussed the possibility of releasing him on bail. 14. On 25 November 1998, according to the prosecutor's permission, the applicant and his partner met in order to discuss the details of the applicant's release on bail without reaching any agreement in this respect. 15. On 10 December 1998, 11 January, 29 January, 20 February and 19 March 1999 a judge of the Ziemeļu District Court of the City of Riga, on the request of the prosecutor in charge of investigation, extended the applicant's detention on remand until 12 January, 29 January, 20 February, 20 March and 20 April 1999 respectively. The applicant was not brought before the judge. The decisions were drafted using a standard form and repeated, from one decision, the same grounds and in the same words, i.e. the severity of the crime the applicant was charged with, the danger of his possible absconding and the possibility that he could impede the investigation. The applicant did not appeal any of these decisions. 16. On 21 April 1999 the applicant was given access to the case file in order to take cognisance of its contents, which he completed on 29 October 1999. 17. On 7 August 2000 the last of the co-accused persons completed the reading of the case file. 18. On 23 August 2000 the investigating prosecutor N. informed all accused persons that the examination of the case file had been completed. The prosecutor, considering the fact that the applicant resided in Latvia illegally, the danger of his possible absconding and the possibility that he could impede the investigation, refused the applicant's request to alter the preventive measure imposed on him. The applicant did not appeal this decision. On the same day the final indictment, drafted by the prosecutor N., was presented to the applicant. 19. On an unspecified date the case was transmitted to the Riga Regional Court for adjudication. 20. During the preliminary investigation the applicant asked the prosecutor in charge of investigation for permission to correspond with his relatives; these requests, using a standard form, were refused as being contrary to the interests of investigation. 21. On 1 February 1999 the applicant asked the prosecutor for permission to meet his partner. His request was refused on 8 February 1999. 22. On 27 June 1999 the applicant asked the prosecutor for permission to exchange correspondence with his parents, who were living in Russia. 23. On 5 July 1999 the prosecutor informed the applicant that he was not allowed to meet his partner or to exchange correspondence with his parents. 24. On 22 July 1999 the applicant asked the prosecutor for permission to exchange correspondence with his relatives and to meet his partner and their child. These requests were refused on 2 August 1999. 25. On 10 August 2000 the applicant asked the prosecutor for permission to exchange correspondence with his mother and his partner. 26. On 16 August 2000 the prosecutor allowed the applicant to exchange correspondence with his mother. 27. On 13 September 2000 a judge of the Riga Regional Court allowed the applicant to exchange correspondence with his partner. 28. The applicant spent the whole period of detention from 19 February 1998 to 19 August 2002 in a remand prison. According to the Instruction on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons (hereinafter referred to as “the Instruction”), approved by the Minister of the Interior, and Transitional Provisions on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons (hereinafter referred to as “the Transitional Provisions”), approved by the Minister of Justice, long-term family visits were prohibited in remand prisons. 29. On 4 September 2000 the Riga Regional Court received the case file. 30. On 7 September 2000 a judge of the Riga Regional Court committed the applicant for trial and scheduled the hearing for 13 May – 10 June 2002. The applicant was not summoned. The judge decided to continue his detention on remand without giving reasons. The decision was not subject to appeal. 31. On 4 November 2000 the applicant asked the Riga Regional Court to schedule a separate court hearing in order to determine the date of trial and to reconsider the preventive measure imposed on him. 32. On 20 November 2000 a judge of the Riga Regional Court replied that the trial date had not been set. 33. On unspecified dates the applicant complained to the President of the Riga Regional Court and the Ministry of Justice that his right to trial within a reasonable time had been infringed. On 5 December 2000 the Ministry of Justice notified the applicant that the trial date had not been scheduled. 34. On 28 November 2000 the applicant asked the Riga Regional Court to hold a hearing in his case within a reasonable time. On 8 January 2001 the applicant repeated this request. 35. On 29 January 2001 a judge of the Riga Regional Court replied that the trial date had not been set. 36. On 26 February 2001 the applicant announced a hunger strike to protest against the lack of progress in the proceedings. 37. On 2 March 2001 the Riga Regional Court informed him that the hearing had been scheduled for May 2001 and he discontinued the hunger strike. 38. On 13 March 2001 the Riga Regional Court informed the applicant that the trial had been scheduled for 13 May – 1 July 2002. 39. On 15 March 2001, in reply to the applicant's earlier complaint, the Ministry of Justice informed him that the hearing had been set for 13 May – 1 July 2002. 40. On 27 March 2001 the Riga Regional Court confirmed that the trial date had been scheduled for 13 May – 1 July 2002. 41. On 5 April 2001 the Ministry of Justice confirmed that the trial dates were set for 13 May – 1 July 2002 and not May 2001 as erroneously stated by the Riga Regional Court in its letter of 2 March 2001. The applicant was also informed that, due to the court's case load, it was not possible to begin the trial within the time limit provided for in Article 241 of the Criminal Procedure Code. 42. On 11 April 2001, on the applicant's request of 2 April 2001 to alter his detention on remand, a judge of Riga Regional Court informed him that he had been committed for trial and that there was no reason to alter the preventive measure imposed on him. 43. On 13 May 2002 the Riga Regional court commenced adjudication of the applicant's case. 44. On 16 and 20 May 2002 the Riga Regional court adjourned the hearing as several witnesses did not appear. The court ordered the police to ensure the appearance of these witnesses under constraint. 45. On 11 June 2002 the Riga Regional Court found the applicant guilty of robbery and unlawful ammunition storage. The prosecuting authorities were represented by the prosecutor N. and his colleague. The court sentenced him to four years and six months' imprisonment and, according to Article 24 2 of the Criminal Code, ordered his deportation from Latvia after having served the sentence. The applicant appealed this judgment. 46. On 21 November 2002 the Criminal Chamber of the Supreme Court acquitted the applicant of the charge of unlawful ammunition storage and quashed the first instance court's sentence in regard to his deportation, upholding the remainder of the first instance court's judgment. The prosecutor N. represented the prosecuting authorities together with his colleague. The applicant did not file an appeal on points of law and thus the judgment became final. 47. On 29 July 2002 the Citizenship and Migration Authority (hereinafter referred to as the “CMA”) took a decision on forced expulsion of the applicant, stating that the applicant, a Russian national, arrived in Latvia on 20 August 1997 on the basis of a visa. It observed that the Riga Regional Court convicted the applicant on 11 June 2002 and ordered his expulsion from Latvia, according to Article 242 of the Criminal Code. The CMA noted that the applicant would be released on 19 August 2002 and decided, in accordance with Article 242 of the Criminal Code, to expel him from the territory of Latvia to the Russian Federation. There was no date indicated in the decision as to when the expulsion should take place. When the applicant took cognisance of this decision, he wrote next to his signature that he objected to his expulsion as he had a family in Latvia. 48. On 19 August 2002 the applicant was released from prison, the time he had spent in detention on remand counting as part of the sentence. On the same date he was transferred to the Detention Center for Illegal Immigrants and thereafter detained at the Center pending his deportation to the Russian Federation. 49. On 29 August 2002 the applicant appealed against the decision of the CMA to the Central District Court of the City of Riga. The court received the appeal on the same day. 50. On the same day the applicant was deported to the Russian Federation. 51. On 3 September a judge of the Central District Court of the City of Riga examined the applicant's appeal of 29 August 2002 and, as it was written in Russian, allowed the applicant until 30 September 2002 to rectify this procedural deficiency. 52. On 3 October 2002 the proceedings were terminated as neither the applicant nor his lawyer pursued the complaint. 53. On 4 September 2003 the applicant and his partner married in Krasnoyarsk in the Russian Federation. 54. The relevant part of Article 77 provides that the maximum term of detention on remand during the investigation of a criminal case may not exceed two months. If it is not possible to complete investigation of the case within that period and there are no grounds for altering a preventive measure, a judge may extend the period of detention for up to one year and six months. If necessary, the detained person and his defence counsel may be heard. Extension of detention beyond one year and six months is not allowed and the detained person is entitled to immediate release. 55. Paragraph 7 of Article 77 (adopted on 17 October 2002 and with entry into force on 1 November 2002) provides that in exceptional cases the Senate of the Supreme Court may extend detention beyond one year and six months. 56. Paragraph 5 of Article 77 provides that the time taken for all defendants to take cognisance of the documents in the investigation file shall not be taken into account in calculating the length of detention pending trial. 57. By virtue of Article 83, a preventive measure shall be terminated if it has been applied unlawfully or it ceases to be necessary, or may be changed to ateration of detention on remand applied by a judge or a court during the preliminary investigation shall be effected by a reasoned decision of a prosecutor, or it may be terminated by a court decision in the cases provided for in Article 2221. 58. According to Article 222, a complaint regarding acts of a prosecutor shall be subject to appeal to a higher prosecutor. The complaint shall be examined within three days upon its receipt and it can be dismissed only by a reasoned decision. 59. Pursuant to Article 2221, all decisions given by a judge at the pre-trial stage regarding the detention on remand and its extension can be appealed to a higher court by a suspected or accused person or his/her counsel or representative. The appellant and the prosecutor in charge of investigation shall be present at the adjudication of the appeal. The appeal shall be examined and a decision taken within seven days as of its receipt. The decision is final and not subject to further appeal. 60. After a judge has committed an accused person to trial, a court shall decide in a preliminary hearing on the question of preventive measures. A decision concerning committal of an accused person to trial shall be taken within 14 days upon receipt of a case file in the court (Article 223). 61. In deciding whether to commit an accused person for trial, a judge or a court shall determine whether the preventive measure applied was appropriate (Article 225). 62. When committing an accused person to trial, a judge holds a preliminary hearing to rule on the request to alter a preventive measure if the judge considers that the request is well-grounded. The decision refusing the request to alter a preventative measure cannot be appealed. (Article 226). 63. Articles 237 and 465 provide that the decisions of a court, ordering detention on remand or altering it, taken during the preliminary hearing or during the adjudication of the matter, may be appealed to a higher court. 64. Article 241 sets time-limits for examination of a case and provides that the examination of a case before a court must start not later than within twenty days or, under exceptional circumstances, no later than within one month, after the case is received by the court. 65. A judgment of the first instance court enters into force and becomes final after expiry of the time-limit provided for appeal of this judgment, if the judgment has not been appealed. A judgment of an appellate court enters into force and becomes final after expiry of the time-limit provided for cassation appeal of this judgment, if the judgment has not been appealed. If a cassation appeal has been submitted, the judgment becomes final after its examination by the cassation court, if the court does not quash the judgment (Article 357). 2. Criminal Code (Latvijas Kriminālkodekss), applicable at the material time (in force until 1 April 1999) 66. The relevant part of Article 242 provided that a court can decide to order expulsion from the Republic of Latvia of a person, who is not a national of Latvia. The expulsion is a supplementary punishment and is effected after serving the sentence. 67. Until 14 May 2001 the situation of persons detained in remand prisons was governed by the “Instruction on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons” (Instrukcija par aizdomās turamo, apsūdzēto, apcietināto un notiesāto turēšanas kārtību izmeklēšanas cietumos), approved by the Minister of the Interior on 30 April 1994 (hereinafter referred to as “the Instruction”). 68. Rule 26 of the Instruction provided that the sentenced persons and the arrested persons placed in the investigation prisons were allowed to send letters and to receive short-term visits upon approval by the authority conducting the criminal proceedings (i.e. either by investigating authorities or the court, depending on the stage reached in the proceedings). 69. Rule 32 of the Instruction stipulated that the arrested persons placed in the investigation prisons might be allowed to receive one short-term visit (up to one hour) per month from family members and other persons only on the basis of a written permission from the person or the body dealing with the particular criminal case. 70. Rule 35 of the Instruction provided that visits in the investigation prisons took place in the presence of a prison authority. 71. In 2001 the penitentiary institutions were transferred from the supervision of the Ministry of the Interior to the Ministry of Justice. On 9 May 2001 the Minister of Justice approved new “Transitional Provisions on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons” (Pārejas noteikumi par aizdomās turamo, apsūdzēto, apcietināto un notiesāto turēšanas kārtību izmeklēšanas cietumos) which entered into force on 14 May 2001 (hereinafter referred to as “the Transitional Provisions”). 72. Rule 25 of the Transitional Provisions provides that the sentenced persons and the arrested persons may be allowed to receive one short-term visit per month on the basis of a written permission from the authority dealing with the particular criminal case. 4. Civil Procedure Code (Civilprocesa kodekss), applicable at the material time (in force until 1 February 2004) 73. Article 228 § 3 provides that decisions of the state authorities, which affect the rights and obligations of individuals, are subject to judicial review by the court which is fully authorised to quash the impugned decisions and terminate the administrative proceedings against the concerned individuals. 74. According to Article 2395, the absence of an individual, who has submitted a complaint, at court proceedings is not an obstacle for the court to hear the merits of the case; however, the court may declare the individual's presence mandatory. 75. The court, having found the appealed act or decision unlawful and infringing the rights of an individual, declares the complaint lawful and obliges the responsible authority to remedy the violation complained about (Article 2397). 5. Law on Entry and Residence in the Republic of Latvia of Foreign Citizens and Stateless Persons (Likums par ārvalstnieku un bezvalstnieku ieceļošanu un uzturēšanos Latvijas Republikā), applicable at the material time (in force until 1 May 2003) 76. The Head of the department or the Head of a territorial unit shall issue an expulsion order, demanding the departure of a person from the territory of the State if, inter alia, an alien resides in the State without a valid visa or residence permit or if the alien has otherwise violated the visa regime (Article 38). 77. A person is obliged to leave the territory of the state within seven days from the moment he/she has been notified of an expulsion order unless the order has been appealed. The person who has been notified of an expulsion order may appeal it within seven days to the Head of the department. The person may reside in the territory of the state during the examination of the appeal. The decision of the Head of the department may be appealed within seven days from its receipt, by submitting an appeal to a relevant court (Article 40). 78. The Head of the department of a territorial unit can decide on the forced expulsion of a person if this person within seven days of the notification about the expulsion order has not appealed it, as provided for by Article 40, or his/her appeal has been dismissed (Article 481). 6. Other relevant regulations 79. Article 1 § 1 of the Law on Public Prosecutor's Office (Prokuratūras likums) states that the Prosecutor's Office is an institution of judicial power, which independently carries out supervision of the observance of law within the scope of its competence. 80. The relevant part of Article 92 of the Constitution (Satversme) states that every person has the right to defend his or her rights and lawful interests in a fair trial. In case of unlawful interference with his or her rights, everyone is entitled to adequate compensation. 7. The judgments of the Constitutional Court of the Republic of Latvia (Latvijas Republikas Satversmes tiesa) 81. The judgment of 5 December 2001 in case no. 2001-07-0103, in the relevant part, reads as follows: “...The Constitutional Court established: ...the court verdict of not guilty is determined as the legal basis for receiving the compensation. The criterion of the addressees of the Law on Compensation is non-existence of person's guilt. Thus, it refers only to those persons, whose liberty has been limited because of an arrest, but who are not guilty of a criminal case and the fact has been acknowledged by a court judgment... .” 82. The judgment of 19 December 2001 in case no. 2001-05-03, in the relevant part, reads as follows: “...The Constitutional Court established: The Transitional Provisions [on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons; confirmed by the Minister of Justice on 9 May 2001] have been passed in compliance with Article 15 of the Law on the Structure of the Cabinet of Ministers, determining that individual ministers may issue instructions binding on the institutions subordinate to them if the respective issue has not been regulated by the Law on the Structure of the Cabinet of Ministers. Instruction No. 1-1/187 envisages that the personnel of the Department of Prisons and the institutions subordinated to it shall be acquainted with the Transitional Provisions. ... the Transitional Provisions ... have [not] been published for common knowledge. Thus the Transitional Prohibitions ... are internal normative acts... .”