CASE OF KALĒJA v. LATVIA
Preliminary objection joined to merits and dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-3-a - Ratione materiae);Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1961 and lives in Rīga. 6. She worked as an accountant in a building management company (namu pārvalde) from 1989. From the beginning of 1997 she also fulfilled the duties of a cashier and she was fully responsible for any shortfall in the material assets (materiālās vērtības) entrusted to her. 7. On 9 December 1997 the applicant’s colleagues reported to the police that illicit cash withdrawals from the company’s cash registers had been made. Allegedly, the withdrawals had been made by the applicant and her colleague, B.E., by means of annulling the records of cash transactions and then taking the money received in respect of those transactions from the cash register. 8. Internal and external audits were carried out and it was discovered that certain data in the company’s cash registers had been manipulated. Specific amounts of cash and dates were noted in the audits, as well as the customer numbers in respect of which this manipulation had been executed. It was later established that the data had been manipulated in order to conceal illicit cash withdrawals. Further internal and external audits were carried out in 1999 and 2001. 9. On 15 January 1998 the applicant gave a written explanation (paskaidrojums) to a police inspector. The applicant testified that she had annulled three cash transactions and made three cash withdrawals in the amount of 1,228 Latvian lati (LVL – approximately 1,747 euros (EUR)). She had done so at the request of the deputy head of the company and had handed the cash over to him. As concerns the remainder of the missing cash, she stated that she had not taken it. Nor had she annulled any other cash transactions. 10. On 16 January 1998 the police inspector issued a decision to institute criminal proceedings (lēmums par krimināllietas ierosināšanu) in respect of “the misappropriation of funds in the amount of LVL 7,559 [approximately EUR 10,756] carried out by the applicant and B.E. by annulling records of cash transactions”. The applicant was not informed of this decision at that time. Instead, she was issued a summons to talks (pārrunas) and she was interviewed on 16 January 1998. A witness statement record (liecinieka nopratināšanas protokols) was drawn up. The applicant was informed of the rights and obligations of witnesses, as stipulated by Article 53 of the Criminal Procedure Code (Kriminālprocesa kodekss, see paragraph 24 below); she was also informed that if she refused to testify or gave false testimony she would incur criminal liability. The applicant repeated that she had annulled only three cash transactions and had made only three cash withdrawals. She had handed the cash over to the deputy head. 11. According to the applicant she appeared at the police station on 16 January 1998, accompanied by a lawyer whom she had authorised to represent her. Her request to be represented by the lawyer was refused – she was told that her status was that of a witness and that witnesses were not entitled to legal assistance. The Government contested the applicant’s submission, as there was no mention of this in the witness statement record; the Government stated that the applicant had signed the record and had made no remarks. 12. In the following years the applicant was interviewed as a witness five more times: on 21 January and 14 December 1999, 13 February 2002, and 6 January and 11 November 2004. Her rights and obligations as a witness – as well as the fact that she would render herself criminally liable if she refused to testify or gave false testimony – were explained to her (reference was made to Article 53 of the Criminal Procedure Code, see paragraph 24 below); no mention of any right to legal assistance was made. She reiterated that she had annulled only three cash transactions and had made only three cash withdrawals. She had handed the cash over to the deputy head of the company. She furthermore added that she had already repaid to the company approximately LVL 1,228 (approximately EUR 1,747). 13. A confrontation (konfrontācija) was also held between the applicant and B.E. on 27 January 1999 and with the deputy head of the company on 28 January 1999, who were also considered witnesses. Another confrontation between the applicant and the chief accountant was scheduled to take place on 24 May and 20 June 2002, but neither of them attended. 14. In 2000, 2001 and 2002 the police considered the case material to be sufficient for bringing charges against the applicant and referred the case to the prosecutor’s office. However, several prosecutors identified various shortcomings in the investigation and transferred the case back to the police for additional investigation. 15. The identified shortcomings included the following aspects. First, the criminal case material was found to be insufficient to establish guilt and therefore no charges could be brought. Serious breaches of the Criminal Procedure Code and other regulations were found. The criminal case material had contained uncertified copies of documents, missing pages of explanations and incomplete procedural records. In addition, the audits had not been carried out in accordance with law. Another audit had to be commissioned and more witnesses had to be questioned. Second, there had been discrepancies in the total amount of missing cash and it was impossible to establish that a crime had been committed or to bring charges against anyone. The audit had to be carried out by a certified auditor. A conclusion was made that the pre-trial investigation had been deficient, chaotic and had been carried out aimlessly. Moreover, the role of the chief accountant and the deputy head of the company in the cash withdrawals had not been properly investigated. 16. The police carried out further investigative measures – they commissioned another audit, collected further evidence, and questioned more witnesses (including the head, the deputy head, and the chief accountant of the company, as well as some of its customers). 17. On 20 January 2005 the police referred the case to the prosecutor’s office for the fourth time. This time the case material was deemed sufficient for charges to be brought and, on 27 January 2005, the applicant was officially charged with nineteen episodes of misappropriation of funds. She thus became an accused person (apsūdzētā persona) in the criminal proceedings against her and was informed of her right to have a lawyer. A preventive measure – a prohibition on her changing her place of residence, which she had to acknowledge by giving her signature (paraksts par dzīves vietas nemainīšanu) – was imposed on her. On 26 May 2005 the charges were slightly amended in respect of the total amount of misappropriated funds. 18. On 27 January, 3 February, 26 May and 5 September 2005 the applicant was questioned as an accused person. On two occasions (on 27 January and on 26 May 2005) the applicant stated that a lawyer’s presence was not necessary. On another occasion (on 3 February 2005) she stated that she would continue giving testimony without the presence of a lawyer. No remarks were made regarding the absence of a lawyer during the questioning of 5 September 2005. The applicant was given access to the criminal case file in order that she could acquaint herself with its contents. She subsequently requested that further investigative measures be taken. Some requests for further investigative measures were granted and some were refused. 19. On 5 September 2005 the final bill of indictment was served on the applicant (uzrādīta galīgā apsūdzība) in the presence of a lawyer. The total amount of misappropriated funds was again slightly amended. On 21 October 2005 other preventive measures – a prohibition on leaving the country and the obligation to reside at a particular place of residence (uzturēšanās noteiktā dzīvesvietā) – were imposed on the applicant. On the same date the prosecutor’s office forwarded the case file to the Riga Regional Court (Rīgas apgabaltiesa). 20. On 23 October 2006 the first hearing was held. On 20 November 2006 the Riga Regional Court convicted the applicant of nineteen episodes of misappropriation of property that had been entrusted to her. The applicant did not admit her guilt. She agreed that she had annulled three cash transactions and made three cash withdrawals in the amount of LVL 1,228 (approximately EUR 1,747), but stated that she had done so at the request of the chief accountant and the deputy head of the company with a view to paying out salaries. As concerns other cash transactions, she had not annulled those. The court, relying on witness testimony and other case material (the results of three audits, the electronic cash register records, the relevant bills and receipts, the respective employment agreements etc.), convicted the applicant. The court did not rely on the applicant’s statements made during the pre-trial investigation. 21. The applicant was given a three-year suspended prison sentence, with three years’ probation (a more lenient sentence than the minimum provided by law). In setting the sentence the court took into account her state of health, the fact that she had partly compensated the company for the damage in question, and the fact that she had committed the crime nine years previously and that since then she had not committed any other crimes. The applicant lodged an appeal on 2 December 2006. 22. The first appellate hearing was scheduled for 15 August 2007. On 17 August 2007 the Criminal Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta) quashed the applicant’s conviction for lack of evidence in respect of five episodes of misappropriation of property. The applicant’s sentence was reduced to a two-year suspended prison sentence, with one year’s probation. In setting the sentence the court took into account the significantly lower number of episodes for which the applicant had been convicted, the fact that a particularly long period of time had elapsed since the commission of the crime, and the fact that there was no indication that she had committed any other crimes since then. The applicant lodged an appeal on points of law on 18 October 2007. 23. On 29 November 2007 the Senate of the Supreme Court (Augstākās tiesas Senāts) dismissed the applicant’s appeal on points of law. The Senate indicated that the former Criminal Procedure Code (which had been in force in January 2005, when the charges had been brought against the applicant) had not excluded that a person could have the procedural status of a witness while a pre-trial investigation was in progress and could only be officially charged once there was sufficient evidence concerning that person’s guilt.