CASE OF J.L. v. LATVIA
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
5. The applicant was born in 1980. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 21 November 2005 the applicant’s wife’s car was stolen. G. contacted the applicant and asked for money for return of the car. The applicant reported this to the police and on 25 November 2005, under instructions from police officers, he gave the money to G. and recorded the conversation on audio tape. On the same day G. was arrested. On 5 June 2006 G. was charged with theft and extortion, mainly on the basis of the aforementioned evidence. On 14 July 2006 the criminal case was referred to the court. 8. Meanwhile, on 7 November 2005 the Aizkraukle District Prosecutor’s Office brought charges against the applicant concerning repeated misappropriation. 9. On 16 November 2005 the applicant entered a plea of guilty and confirmed that the examination of evidence was not necessary. He explicitly refused the assistance of defence counsel. On the same day the criminal case was referred to the court. 10 On 4 January 2006, during the hearing, the applicant confirmed that defence counsel and examination of witnesses were not necessary. The Aizkraukle District Court found the applicant guilty and sentenced him to three years’ and nine months’ imprisonment. The applicant was taken to Central Prison from the courtroom. 11. On 26 January 2006 the Zemgale Regional Court examined the applicant’s appeal and upheld the judgment of the lower court. According to the records of the hearing the applicant said in his statement to the court that he had been beaten up on his way to the prison and that it had happened because of his previous cooperation with the police. 12. In his appeal on points of law of 16 February 2006 the applicant complained about the severity of the sentence. He also mentioned his cooperation with police, and that as a result he had suffered bodily injuries in prison. 13. On 23 February 2006 the applicant asked the Prosecutor General to reduce his final sentence. He mentioned, inter alia, that because of his cooperation with the police he had encountered problems in prison, specifically that his nose had been broken and he had also sustained other body injuries. In March 2006 he sent a similar request to the Aizkraukle District Court. 14. On 7 March 2006 the Supreme Court dismissed the applicant’s appeal on points of law. 15. On 1 September 2006, at the request of the Prosecutor General’s Office, the Aizkraukle District Court reduced the applicant’s sentence by one year, owing to the fact that he had helped to disclose a serious criminal offence. 16. On 22 June 2007 the applicant was released from prison after serving his sentence. 17. The applicant arrived at Central Prison on 5 January 2006 and was placed in a filtering cell with eleven other inmates. 18. According to the applicant, during the night of 5-6 January 2006 he was physically and sexually assaulted by his fellow inmates: his nose was broken and he was raped. He complained about this to the Central Prison doctor, who rendered medical assistance but refused to draw up a medical report in this connection; similarly, a prison guard refused to initiate an investigation into the assault. 19. On 6 January 2006 he was transferred to cell 72, which provided services to the prison canteen. 20. According to a report drawn up by the head of the medical unit of the Prison Administration, on 6 January 2006 the applicant was examined by the Central Prison doctor, who recorded the applicant’s complaints about inflammation of the duodenum. On 16 January 2006 the applicant had a prophylactic examination by the same doctor, who assessed him as in good health and fit for work in the prison canteen. 21. On 14 March 2006 the applicant asked the Prison Administration to transfer him to specialised detention facilities in Matīsa Prison, arguing that he had been receiving threats from those he had testified against. 22. On 21 March 2006 an officer of the Security Department of the Prison Administration met the applicant. According to the report drawn up by the officer during the meeting the applicant complained about possible threats, in that the people he had testified against were known to some of his fellow inmates. The applicant denied having any problems in Central Prison where he was employed in the canteen. 23. Further, according to the same report, in a telephone conversation on 22 March 2006 a police officer in charge of G.’s criminal case confirmed that the applicant was cooperating, and acknowledged that the applicant might therefore encounter problems in prison, but he refused to confirm this in writing. With the agreement of the deputy head of the Prison Administration it was decided to transfer the applicant to Jēkabpils Prison. The report also stated that on 22 March 2006 a representative of the Prison Administration had advised the head of Jēkabpils Prison by telephone to take the applicant “under control”. 24. On 30 March 2006 the applicant was transferred to Jēkabpils Prison. 25. On 13 August 2006 the applicant complained to the Ombudsman (the Bureau for the Protection of Human Rights at that time) that he had been ill-treated on 6 January 2006 in Central Prison. At the Ombudsman’s request in September 2006 the Prison Administration requested information from Central and Jēkabpils Prisons about the applicant’s situation there. 26. On 25 September 2006 the head of Jēkabpils Prison reported that when the applicant arrived his personal file did not contain any indication that he required isolation from other inmates, and that he had not raised any complaints about physical ill-treatment while detained in Jēkabpils Prison. It was also noted that according to the prisoners’ internal classification the applicant was “kreisais” (someone who had allegedly, inter alia, cooperated with the law enforcement authorities). 27. On 27 September 2006 the head of Central Prison informed the Prison Administration that the applicant had never complained about the incident of 6 January 2006. The letter contained statements from three of the eleven fellow inmates with whom the applicant had been placed on 6 January 2006; they all denied any ill-treatment of the applicant. 28. Relying on the above reports, on 3 October 2006 the Prison Administration informed the Ombudsman’s Office that there was no information about the applicant’s ill-treatment. 29. In response to the request of the Government Agent, on 2 November 2007 the Office of the Prosecutor General stated that they had not received any complaints from the applicant concerning ill-treatment in Central Prison on 6 January 2006 or in any other prison. The letter confirmed that by virtue of section 6 of the Law of Criminal Procedure the Office of the Prosecutor would have decided on the opening of criminal proceedings if it had received a complaint from the applicant of physical or sexual ill-treatment or a refusal by the prison administration to review the complaint. 30. Aiming to ensure that the applicant attended G.’s trial, on 4 September 2006 the prosecutor in charge asked the Prison Administration to transfer the applicant from Jēkabpils Prison to Rīga. In her letter the prosecutor noted that G. had been detained in Central Prison and that his criminal case contained compelling information that G. had previously intimidated the applicant. Therefore the Prison Administration was asked to transfer the applicant to the specialised detention facilities in Matīsa Prison. The prosecutor referred to a report addressed to the Office of the Prosecutor General which confirmed the attempt to intimidate the applicant. 31. It appears that on two occasions the applicant had been transferred to Matīsa Prison in Rīga in order to attend G.’s trial. 32. In September and October 2006 the Prison Administration dismissed the applicant’s requests to allow him to continue serving the rest of his sentence in Matīsa Prison. 33. Sections 159 and 125 of the Criminal Law provides criminal sanctions for rape and other forms of sexual assault, the severity of sanctions varying according to the qualification of the offence. 34. Section 6 of the Law of Criminal Procedure provides that the official authorised to perform criminal proceedings has a duty in each case where the reason and grounds for initiating criminal proceedings have become known, to initiate proceedings and to direct them towards fair regulation of the criminal law as set out in the Criminal Law. 35. By virtue of section 369 parts one and two, one reason for initiating criminal proceedings is information which indicates that a criminal offence has been committed, if such information has been submitted to, or acquired by, an investigating institution (izmeklēšanas iestāde), the Office of the Prosecutor, or the court. The information referred to above may be submitted, inter alia, by a person who has suffered as a result of a criminal offence; by controlling and supervising institutions; by medical practitioners or institutions; or by any natural or legal person regarding possible criminal offences from which that person has not directly suffered. 36. Section 370 provides that criminal proceedings may be initiated if there is an actual possibility (reāla iespēja) that a criminal offence has been committed. Criminal proceedings may also be initiated if the information received described circumstances relating to a criminal offence which may have taken place and the examination of such information is possible only by methods applicable to criminal proceedings. 37. Section 371 sets out the responsibility for instituting investigations and those of the Office of the Prosecutor and the courts in the initiation of criminal proceedings. In particular, an investigator has a duty to initiate criminal proceedings, within his or her competence, if any of the factors referred to in Section 369 of this Law are present. A public prosecutor may send materials for examination to an investigating institution or commence criminal proceedings within the scope of his or her competence, in connection with any reason referred to in section 369 of this Law. Besides, a decision of a public prosecutor regarding the initiation of criminal proceedings, and the materials related to such decision, shall immediately be sent to an investigating institution, except for particular cases referred to in section 38, paragraph 3 of this Law. 38. By virtue of sections 386 and 387 the Prison Administration shall carry out pre-trial criminal proceedings and investigate criminal offences committed by detained or convicted persons, or by employees of the Latvian Prison Administration in places of imprisonment. 39. According to part 9 of the transitional provisions the terms izziņas iestāde (institution of an inquiry) and izziņas izdarītājs (person presiding over an inquiry) used in other legal enactments shall hereinafter be understood as the terms izmeklēšanas iestāde (investigating institution) and izmeklētājs (investigator). 40. According to section 1, an administrative act is a legal instrument issued by an institution in an area of public law. It further specifies that decisions regarding, inter alia, criminal proceedings and court adjudications, are not administrative acts. 41. The other relevant parts of the Law of Administrative Procedure as applicable at the material time concerning the right to challenge administrative acts and actions of public authorities are summarised in Melnītis v Latvia; no. 30779/05, §§ 24-26, 7 February 2012, not yet final. 42. The relevant provisions of the Law on the Prosecutor’s Office applicable at the material time are summarised in Leja v. Latvia, no. 71072/01, § 34, 14 June 2011. In particular, according to section 15 a prosecutor shall supervise the execution of sentences of deprivation of liberty and the places of that detention. 43. Section 16 provides that a prosecutor shall, in accordance with the procedures prescribed by law, carry out an examination if the information received contains assertions regarding either a crime or violation of the rights and lawful interests of, inter alia, detainees. 44. According to section 2 paragraph 5 the Prison Administration is an institution of an inquiry (izziņas iestāde) in criminal proceedings instituted to investigate offences committed by detained or convicted persons. By virtue of section 6 paragraph 4 the head of the Prison Administration shall have the power to launch an investigation in such criminal proceedings. 45. According to section 5 the special protection measures specified in this law are ensured by the following institutions: a specially authorised division of the State Police; a specially authorised department of the Latvian Prisons Administration and at the place of imprisonment – a specially authorised division of the place of imprisonment, as well as other persons performing investigative operations, if, in accordance with the instructions of the Prosecutor General, it is necessary to ensure special protection. 46. According to section 6 the reasons of applying special protection shall be an actual threat to the life, health or other legal interests of a person, expressed imminent threats or other sufficient grounds indicating that the danger may be imminent owing to a person’s participation in criminal proceedings. The special protection shall be appplied based on either a written request of a person testifying in criminal proceedings and a proposal of the investigating authority; or the initiative of a court, if a reason for applying special protection has arisen during the course of adjudication; or a written submission of another person to whom the special protection has been assigned. 47. The report of 13 March 2008 to the Latvian Government on the visit to Latvia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”) from 5 to 12 May 2004 notes the following: “46. During the 2004 visit, the delegation examined several internal investigation files on inquiries conducted by the Security Departments into serious incidents of inter-prisoner violence at Daugavpils Prison and Rīga Central Prison. The delegation also had consultations with the competent prosecutor in Rīga. It came to light that, in several cases, no criminal investigations had been initiated, despite the fact that medical evidence consistent with allegations of inter-prisoner violence was available. In this connection, the delegation was informed that, as a rule, instances of inter-prisoner violence were only reported to the prosecutor if the victim made explicit allegations to this effect in his written statement to the Security Department. In this connection it appeared to be immaterial whether or not the prisoner concerned had previously made such allegations to the doctor and the allegations had been recorded in his medical file. It is also of concern that, even when the prosecutor had become aware of serious cases of inter-prisoner violence, he had not always initiated investigation not taken a formal reasoned decision on the matter. In fact, the Security Department’s investigation file was simply returned to the prison, without any record being kept that the prosecutor had examined the case. 47. The CPT recommends that the existing procedures be reviewed in order to ensure that whenever injuries are recorded by a doctor which are consistent with allegations of inter-prisoner violence, the matter is immediately brought to the attention of the relevant prosecutor and a preliminary investigation is initiated by him. More generally, the CPT calls upon the Latvian authorities to develop strategies with a view to addressing the problem of inter-prisoner violence in the establishments visited (and, as appropriate, in other prisons in Latvia). 50. In the light of the above, the CPT calls upon the Latvian authorities to take immediate steps to review throughout the prison system the role played by the Security Departments, in the light of the remarks made above ... . In particular, steps should be taken to ensure that: - criminal investigations into instances of ill-treatment by staff as well as inter-prisoner violence are no longer carried out by the Security Departments. Such investigations should be conducted by a body which is independent of the establishment concerned, and preferably of the prison system as a whole. - prisoners are allocated/transferred to cells under the responsibility of the Director of the establishment concerned”. ... 66. At Rīga Central Prison, neither the complement of qualified nursing staff nor the psychiatric/psychological services had been strengthened, despite the specific recommendations made after the 1999 visit and reiterated after the 2002 visit. .... 67. In the light of the above, the CPT reiterates its recommendation that steps be taken, as a matter of priority, to ensure that: - the complement of qualified nursing staff at Daugavpils Prison and Rīga Central Prison is increased; ... - every newly-arrived prisoner is properly interviewed and physically examined by a medical doctor (or a fully qualified nurse reporting to a doctor) as soon as possible after his admission to Daugavpils Prison; save for exceptional circumstances, the interview/examination should be carried out on the day of admission; ... 68. In both establishments (including the Prison Hospital), the examination of medical files revealed that the injuries observed (upon admission or after violent incidents within the prison) were frequently not recorded in detail, and that no additional information was given as to the causes of the injuries sustained. ... The CPT must therefore reiterate its recommendation that steps be taken at Daugavpils Prison and Rīga Central Prison (as well as in other prison establishments in Latvia) to ensure that the record drawn up after a medical examination of a prisoner, on arrival or after a violent incident within the prison, contains: (i) a full account of statements made by the prisoner concerned which are relevant to the medical examination, including any allegations of ill-treatment made by him; (ii) a full account of the objective medical findings based on a thorough examination; (iii) the doctor’s conclusions in the light of (i) and (ii). In his conclusions, the doctor should indicate the degree of consistency between allegations made and the objective medical findings; these conclusions should be made available on request to the prisoner concerned and his lawyer. Further, whenever injuries are recorded by a doctor which are consistent with allegations of ill-treatment made by a prisoner, the record should be immediately brought to the attention of the relevant prosecutor (see also paragraph 47)”. 48. In response to the above report the Latvian Government referred to an instruction of 29 March 2004 adopted by the Prison Administration. According to the instruction, in case there has been an incident of ill-treatment in a prison establishment, the prison doctor has to examine the detainee and to inform the administration of the prison. The latter has to inform the Prosecutor’s office and carry out an investigation according to the procedure established by law. 49. The report of 15 December 2009 to the Latvian Government on the visit to Latvia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”) from 27 November to 7 December 2007 notes: “78. ... As was the case during all previous visits, the delegation observed a number of shortcomings in the manner in which injuries were recorded at Rīga Central Prison. First of all, several newly-arrived prisoners met by the delegation displayed visible injuries on various parts of the body (including on the face), but no injuries at all were recorded in the medical file, despite the fact that these injuries had apparently been sustained prior to admission. Further, although objective medical findings relating to injuries were recorded in other cases, they were frequently not accompanied by an account of the statements made by the persons concerned which are relevant to the medical examination. In particular, medical records frequently failed to note the prisoner’s account of the origin of these injuries (or to note if the person concerned had refused to reply to the relevant questions asked by the doctor) as well as the doctor’s conclusions in the light of the objective findings and the prisoner’s account. Further, at Jēkabpils Prison, the delegation found instances where visible injuries had not been recorded at all in the prisoners’ medical files (including after violent incidents in the prison). The CPT must recommend once again that steps be taken at Rīga Central Prison and Jēkabpils Prison, as well as in all other prisons in Latvia, to ensure that the record drawn up after a medical examination of a prisoner, on arrival or after a violent incident within the prison, contains: (i) a full account of statements made by the prisoner concerned which are relevant to the medical examination, including any allegations of ill-treatment made by him; (ii) a full account of objective medical findings based on a thorough examination; (iii) the doctor’s conclusions in the light of (i) and (ii). In his conclusions, the doctor should indicate the degree of consistency between any allegations made and the objective medical findings; these conclusions should be made available to the prisoner and his lawyer. 50. Recommendation Rec (2005)9 of the Committee of Ministers of the Council of Europe to member states on the protection of witnesses and collaborators with justice. ... “II. General Principles 1. Appropriate legislative and practical measures should be taken to ensure that witnesses and collaborators of justice may testify freely and without being subjected to any act of intimidation. 2. While respecting the rights of the defence, the protection of witnesses, collaborators of justice and people close to them should be organised, where necessary, before, during and after the trial. 3. Acts of intimidation of witnesses, collaborators of justice and people close to them should, where necessary, be made punishable either as separate criminal offences or as part of the offence of using illegal threats”. ...