VDOVINS v. LATVIA
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
1. The applicant, Mr Aleksandrs Vdovins, is a Latvian national who was born in 1974 and lives in Valka. 2. The Latvian Government (“the Government”) were represented by their agent Mrs I. Reine, who was succeeded by Mrs K. Līce. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 23 May 2001 at 11 p.m. the police received information about an incident in the centre of Riga in which S. had been beaten up and robbed. 5. According to the pre-trial statements of two police officers (A.V. and Z.O.), when they arrived at the scene the patrol team saw the victim S. lying on the ground and six young men running away. One of them, the applicant, had dropped a black jacket. S. pointed to the group as the perpetrators, so the police arrested all six of them and took them to a police station. 6. According to the pre-trial statements of the victim S., while he was standing outside a nightclub in the centre of Riga, three young men commenced a conversation with him and afterwards they started walking down the street together. Then two of them grabbed S. by the hands (one of them, P., had his arm in a splint) and tried to drag the victim away. The victim resisted and the man with the splint hit him. Afterwards the victim was kicked in the head and body, and robbed of his jacket and a watch. When the police arrived the victim drove around with a police officer, looking for the perpetrators. The victim saw his jacket next to a group of six men. With the exception of the man with his arm in a splint he could not describe those who had inflicted injuries on him. 7. The victim, the applicant and two other arrested persons (Ka. and Kv.) were taken to the police station in the same car. During the first identity parade, set up soon after the arrest, the victim did not recognise the applicant as the perpetrator. 8. On 31 May 2001, during a second identity parade, the victim for the first time recognised the applicant and P., who had his arm in a splint, as the perpetrators of the attack. The latter two had spent a week in custody, and they were presented in the identity parade together with people brought in from the street. 9. On 20 June 2001 the applicant was confronted with the victim. The latter had identified him as one of the perpetrators of the attack. 10. In September 2001 a bill of indictment was drawn up. The applicant and another person, P., were charged with aggravated theft, committed as a group. It stated, notably, that on the critical date the applicant and P. had forced the victim to follow them. Then, with the aim of robbing him, P. had hit the applicant in the face and the applicant had kicked him on the body, inflicting minor bodily injuries on him. Afterwards they had both taken off the victim’s jacket and watch, causing him total material loss in the amount of about 50 euros (EUR). Both defendants denied the offence. 11. During the pre-trial investigation the other four members of the group of six were questioned. In May 2001 Kv. and Ka. testified that on the critical date the defendants and another person from their group had been talking to a man. The latter had shown no resistance to being led away down the street. After a couple of minutes the defendants came back; the applicant was carrying a black jacket. When the police arrived the jacket was on the ground. Ka. testified that he had not seen anyone drop the jacket but that it could have been the applicant. According to Kv., when the police arrived the applicant dropped the jacket. Later, when questioned by a prosecutor, Kv. and Ka. upheld and added to the statements they had made during the police questioning. 12. During court hearings in November 2001 and March 2002 the defendants cross-examined the victim, both police officers (A.V. and Z.O.), and four other witnesses (Ka., Kv., R.P. and R.L). The four other witnesses were all part of the group which had initially been arrested, and R.P. and R.L. had been summoned to the court at the defendants’ request. 13. During the hearing defence witnesses R.P. and R.L stated, inter alia, that they had not been with the defendants the whole time. 14. On 20 March 2002 the Riga Central District Court acquitted the defendants and released them from detention. As far as the applicant was concerned, the lower court indicated, in particular, that the scene of the alleged crime had not been identified, and the victim could not indicate who had attacked him, with the exception of co-defendant P.; that his statements concerning the applicant’s clothes and height did not match those of the applicant; and that the victim had not stated that the applicant had beaten him and on what parts of the body; similarly it was not stated that the applicant had stolen the victim’s belongings. Finally, the court refused to admit in evidence the results of the identity parade and also refused to cross-examine the victim and the defendants. It emphasised that the record of the identity parade had been drawn up contrary to the domestic law, in that the defendants were presented in the parade after having spent a week in custody, and their clothes and appearance differed considerably from those of the others in the parade; also, no photographs were taken of those in the parade and there was no statement by the victim confirming which characteristics had caused him to recognise the defendants. 15. The prosecution lodged a protest reiterating the arguments set out in the bill of indictment. They considered that the lower court had failed to give weight to the statements of the victim and witnesses Kv., Ka. and both police officers. 16. The appellate court summoned the victim and two witnesses, Kv. and Ka. The latter failed to attend the hearing. Invited by the court to express an opinion about whether the court could commence adjudication in the absence of the witness Ka., the applicant confirmed that he had no objection. 17. Questioned during the appellate hearing about the circumstances of the attack, the victim stated that although it was dark, at the moment of the attack he had had a clear view of the faces of his attackers, but that immediately after the arrest he could not recognise them, because it was dark and the co-defendant’s splint was not visible. 18. Witness Kv. retracted his statements given to the prosecutor during the pre-trial investigation. The statements of the police officers were read out. 19. Before summing up, defence counsel argued that the objection was also based on the statements of the two police officers, who should be summoned to the appellate court hearing. Without giving reasons, the defence also asked for R.P. and R.L. to be summoned. 20. The appellate court dismissed the defence’s requests for witnesses to be heard, arguing that they had all already been cross-examined. The defence did not object to the court investigation being brought to a close. 21. On 27 October 2003 the Rīga Regional Court convicted the defendants and sentenced the applicant to eight years’ imprisonment. 22. The court preferred to give weight to Kv.’s statements given during the pre-trial investigation, because, as a friend of the applicant’s co-defendant, his statements given during the hearing of the appellate court in the presence of his friend were not to be treated as objective. In relation to the statements given by Ka., the court noted that he had not changed the statements he had made during the pre-trial investigation and before the court of first instance, and that his statements did not differ in substance from those given by Kv. The court also did not consider that there were contradictions in the victim’s statements and that it was not crucial that he could not tell precisely which defendant had kicked him and how many times. The court gave weight to the fact that during the court hearing the victim could describe the situation and explained that he had tried to cover his face instead of observing the actions of each perpetrator. In connection to the varying statements about the exact place of the fight, the appellate court observed that it was explained by the fact that neither the victim nor the defendants lived in Riga. As regards statements about the visual description of the perpetrator’s clothes, the court did not consider the slight differences in the statements crucial, given that the events took place at night. The court said that even without the identification parade the defendant’s guilt had been proved by other evidence. The court noted that the victim had recognised the applicant during the confrontation. 23. In their appeal on points of law the applicant and his counsel based their case on the shortcomings identified by the lower court. In connection to the witnesses’ statements the applicant noted “...the court investigated the case incompletely. [It] did not summon all the witnesses, and the statements they had given before the lower court were not read out and [were not] taken into account”. 24. On 13 January 2004 the Senate upheld the appellate court’s judgment. It noted that the appellate court had excluded from the evidence the contested records of the identification parade. The Senate noted that the appellate court had analysed in detail and assessed all the statements provided by the victim S., as well as the statements of Kv. provided during the pre-trial investigation and during the court hearing, and also the statements of Ka. which had been read out during the hearing, and other evidence described and analysed by the appellate court. 25. It noted that the question concerning the defence’s request in relation to witnesses had been examined and decided in accordance with the law. 26. Article 275 of the Code provides that when a court session is opened the presiding judge is to ask the defendant and his representative whether they request new witnesses to be summoned or the submission of new evidence and inclusion thereof in the criminal matter. The person who submits a request shall specify particular circumstances which should be clarified by the questioning of witnesses or the submission of other evidence. The court shall ask the opinions of other participants in the proceedings concerning each request in accordance with Article 243 of this Code, and shall make a ruling. Refusal of the request shall not deprive the person whose request has been refused of the right to submit the request during the court hearing. 27. Article 442 sets out that the appeal court may summon witnesses who have testified before the first-instance court to a court session if the appeal court deems it necessary. 28. Article 443 stipulates that parties to appeal proceedings have the right to request witnesses to be summoned who have not been heard by the first-instance court. Such witnesses may be summoned on the appeal court’s own initiative.