CASE OF SHANNON v. LATVIA
No violation of Art. 5-1-c;Violation of Art. 5-4;No violation of Art. 5-4;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1955 and is a citizen of the United States of America. 6. On 25 September 2002, while the applicant was temporarily staying in Olaine (Rīga District, Latvia), the Latvian police initiated criminal proceedings concerning sexual assault of juveniles purportedly committed by him during his previous trip to Latvia, in November 2001. 7. On 1 October 2002 the applicant was apprehended by the police and taken into custody on suspicion of having committed sexual assault of juveniles. According to the arrest report, the applicant had been identified by an eyewitness whose name was not indicated. The charges against the applicant were explained to him in English by an officer from the Latvian National Interpol Bureau. The arrest report noted that the applicant had confirmed that he had understood the substance of the report but had refused to sign to that effect. 8. On 4 October 2002 the applicant was brought before a judge of the Rīga City Centre District Court, who decided to detain him on remand. The judge filled in a standard pre-typed form by writing her name, the date of the detention order and other details of the case. In substantiating the decision, the judge had simply to underline the pre-typed text of the standard form, choosing from the following list of grounds for detention: risk of absconding, risk of impeding the investigation, risk of committing crimes, severity of the crime the arrested person is suspected of, his or her personality, occupation, state of health, and “other circumstances”. The judge underlined all of the aforementioned grounds, except the “risk of absconding”, the “state of health”, the “occupation”, and the “other circumstances”. The applicant received the English translation of this order on 10 February 2003. 9. The applicant's attorney appealed against the detention order to the Rīga Regional Court on 15 October 2002. The attorney did not attend the hearings that had been scheduled for 18 and 29 October 2002. By a final decision of 5 November 2002, taken after a hearing with the applicant's lawyer's participation, the Rīga Regional Court dismissed the appeal, finding that the impugned order had been taken in accordance with the applicable law. No other reasons were given. 10. In the meantime, on 31 October 2002 the applicant was officially charged with sexual assault. 11. On 29 November 2002, a judge of the Rīga City Centre District Court, on the request of the public prosecutor in charge of investigation, extended the applicant's detention on remand until 1 February 2003. This decision was not written on a standard form with a pre-typed text. According to that decision, the applicant's detention was extended on the basis of the reasonableness of the suspicion against the applicant, the severity of the crime with which he was charged, the fact that he had no legal and/or fixed residence in Latvia, the danger of his absconding and the possibility that he could impede the investigation. It also mentioned the risk that the applicant could put pressure on witnesses or endanger them. 12. The applicant appealed against that decision to the Rīga Regional Court. According to the requirements of the law, he submitted his appeal, written in English, to the court that had adopted the disputed order, in order for it to be transmitted to the Regional Court. On 13 December 2002 the Regional Court sent the applicant's appeal back to the Centre District Court, directing that it should be first translated into Latvian. It also directed the Centre District Court to provide the applicant with an English translation of its decision, which was done on 8 January 2003. The competent judge of the Centre District Court sent the applicant's appeal back to him, in order for him to make the translation. 13. The applicant complained again to the Rīga Regional Court. By a decision of 21 January 2003 the Regional Court declared that, by compelling the applicant to translate his appeal himself rather than sending it for translation at the State's expense, the first instance judge had “grossly violated” his fundamental procedural rights guaranteed by law. Consequently, the Regional Court suspended the proceedings and ordered the Centre District Court to remedy the above-mentioned shortcomings. The case was also reported to the Ministry of Justice, competent in disciplinary matters involving the judiciary. The case was later assigned to another judge of the Centre District Court. 14. On 30 January 2003, a judge of the Rīga City Centre District Court, on the request of the public prosecutor in charge of investigation, again extended the applicant's detention on remand, this time until 1 April 2003. The reasoning of this detention order was similar to the first two orders. The applicant's detention was extended on the basis of almost the same grounds: the reasonableness of the suspicion against the applicant, the severity of the crime with which he was charged, the danger of his absconding and the possibility that he could impede the investigation. Contrary to the earlier decisions on the applicant's detention, this order in addition referred to the possibility that he could “flee after having committed an offence” and specifically mentioned the fact that he had no legal and/or fixed residence in Latvia as well as no permanent residence permit there. 15. By a decision of 14 February 2003 the Rīga Regional Court dismissed the applicant's appeal against the detention order of 30 January 2003. Although the decision set out the applicant's arguments in detail, the court's reasoning consisted of repeating the reasons given by the court of first instance and declaring that the latter had acted in conformity with the law. The Regional Court further noted that the appeal against the detention order of 29 November 2002 was still pending. 16. On 25 February 2003 the Rīga Regional Court finally examined and dismissed the applicant's appeal against the detention order of 29 November 2002, by which his detention had been extended until 1 February 2003. The court observed that there continued to be grounds for applying the exceptional measure – detention. Those grounds included the fact that the applicant had been charged with committing a serious crime, that he had no permanent residence permit in Latvia and that he had no permanent place of residence there, as well as the grounds mentioned by the judge of the first instance court. 17. On 28 February 2003 the applicant was examined by a board of psychiatrists which established that he had suffered from a mental disorder in the past and that he had undergone treatment in a psychiatric hospital in the United States. However, the board declared itself unable to reach a precise conclusion and recommended the applicant's internment in a psychiatric hospital for further examination. On 23 May 2003 experts of the State Psychiatry Centre, after having observed the applicant in a psychiatric hospital over a period of one month, found that he was of a sound mind. 18. On 31 March 2003, a judge of the Rīga City Centre District Court again extended the applicant's detention on remand until 1 June 2003. The reasoning was practically identical to that in the decision of 30 January 2003. The applicant's appeal, in which he inter alia complained that the decision to leave him in detention solely because his residence permit had expired was discriminatory, was dismissed by the Rīga Regional Court on 9 May 2003, which used similar reasoning to the previous decisions. 19. On 30 May 2003, the competent judge of the Rīga City Centre District Court, on the request of the public prosecutor in charge of the investigation, extended the applicant's detention on remand until 1 August 2003. Besides the usual grounds, the judge's decision noted: “...Having assessed the gravity of the offence allegedly committed, [as well as] the particularities of investigating a case where the victims are children, I consider that... the length of the remand measure prohibiting Lindsey Hughes Shannon from exercising his freedom of movement is consistent with the character of the socially dangerous act of which he has been accused...” 20. On 13 June 2003 the Rīga Regional Court upheld the aforementioned detention order, repeating in substance the reasons given by the first instance judge. 21. On 18 June 2003 the prosecutor expanded the charges against the applicant, also accusing him of having molested young boys on the occasion of another trip to Latvia, in July, August and September 2001. Besides the existing charge of sexual assault, the applicant was accused of having committed aggravated forcible sexual assault, forcible sodomy, inducing or compelling a juvenile to engage in prostitution, and engaging a juvenile under fourteen years of age in production of pornography. On 10 July 2003 the preliminary investigation was completed and the case-file was handed over to the defence, who finished acquainting themselves with the case on 28 July 2003. 22. On 30 July 2003 the applicant and his lawyer were presented with the final bill of indictment and its English translation. On the same day the case was sent to the Rīga Regional Court for trial. 23. On 1 August 2003 a single judge of the Rīga Regional Court adopted a decision to commit the applicant for trial and to keep him in detention. The decision to keep the applicant in detention was reasoned as follows: “The preventive measure has been chosen in accordance with the accused person's personality and the gravity of the charges brought [against him], and there is no reason to alter [that measure]”. There was no possibility to appeal against that decision (see below paragraph 33). 24. After having adjourned hearings of 9 and 12 January 2004, by a judgment of 20 January 2004 the Rīga Regional Court found the applicant guilty of all the crimes he had been accused of and sentenced him to five years' imprisonment. According to Article 43 of the Criminal Law, the court ordered his deportation from Latvia after having served the sentence. The applicant appealed against this judgment. 25. On 13 October 2004 the Criminal Chamber of the Supreme Court acquitted the applicant of the charges of producing child pornography and reduced the penalty to four years' imprisonment. The remainder of the appeal was dismissed. 26. The applicant then filed an appeal on points of law, by submitting himself a short handwritten letter that was translated into Latvian by a court interpreter. On 10 January 2005 the Senate of the Supreme Court by a decision of a preparatory meeting declared the appeal inadmissible for lack of arguable points of law. Ten days later, on 20 January 2005, the applicant's lawyer tried to submit to the Senate a more elaborate memorial; however, it was returned to him since the time-limit for appeal on points of law had elapsed and since the applicant's own appeal had already been examined and rejected. 27. After the applicant had served three quarters of his sentence, he was released on parole on 10 July 2006 and was expelled from Latvia three days later. 28. The former Code of Criminal Procedure (KPK), a legacy of the Soviet era which was amended on numerous occasions, was applicable at the material time. It remained in force until 1 October 2005, when it was replaced by the new Criminal Procedure Law (Kriminālprocesa likums). 29. Under the terms of Article 68 of the KPK, a preventive measure could be applied where plausible reasons existed to suspect that the accused would seek to evade investigation or hinder the determination of the truth in the case. Eight types of preventive measure existed: an undertaking not to change one's residence, personal guarantees, financial guarantees, police surveillance, house arrest, detention in prison and two measures specifically applicable to minors and members of the armed forces. 30. Under Article 72 of the KPK, a preventive measure had to be chosen and implemented on the basis of the following criteria: the seriousness of the alleged offence; the personality of the accused; the likelihood that he or she would seek to evade investigation and hinder the determination of the truth in the case; and the accused's occupation, age, domestic circumstances and health and other relevant criteria. Any preventive measure had to be applied on the basis of an order giving sufficient reasons. 31. By virtue of Article 83 of KPK, a preventive measure had to be terminated if it had been applied unlawfully or it ceased to be necessary, or could be changed to ad. The termination or alteration of detention on remand applied by a judge or a court during the preliminary investigation had to be effected by a reasoned decision of a prosecutor, or it could be terminated by a court decision in the cases provided for in Article 2221. 32. Pursuant to Article 2221, all decisions given by a judge at the pre-trial stage regarding the detention on remand and its extension could be appealed to a higher instance court by a suspected or accused person or his counsel or representative within seven days after they found out about that decision. The appeal had to be examined and a decision taken within seven days as of its receipt. The decision was final and not subject to further appeal. 33. After drawing up and signing the final indictment, the public prosecutor's office had to forward the file to the trial court (Articles 209-11 of the KPK). Within fourteen days of receiving the file, a single judge of the trial court, without ruling on the accused's guilt, had to decide whether the file provided a sufficient basis for committing the accused for trial and whether the preventive measure had been chosen correctly. If he had no objections, the single judge adopted a final decision to commit the accused for trial and leave the preventive measure unchanged (lēmums par apsūdzētā nodošanu tiesai). Such a decision could not be appealed. 34. If the single judge disagreed with the conclusions of the bill of indictment or considered that a preventive measure had to be applied to the accused or that the preventive measure that had been applied previously had to be altered, he convened a preparatory meeting (rīcības sēde). The preparatory meeting took a decision either to commit the accused for a trial or to terminate the proceedings or to refer the case back for additional investigation. It also had to decide the question about the preventive measure. The order given following a preparatory hearing was amenable to appeal before a higher court. 35. Article 241 set time-limits for examination of a case and provided that the examination of a case before a court had to start no later than within twenty days or, under exceptional circumstances, no later than within one month, after the case was received by the court. However, this provision was very rarely complied with by the Latvian courts (see Svipsta v. Latvia, no. 66820/01, § 62, ECHR 2006III (extracts)).