CASE OF OZOLS v. LATVIA
No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-d - Obtain attendance of witnesses)
André Potocki;Mārtiņš Mits
4. The applicant was born in 1970 and lives in Riga. 5. In 2000 a criminal investigation was conducted into suspected irregularities in customs procedures with respect to the transit of vehicles. As a result of these unlawful activities, it had been possible for third persons to legalise foreign goods (the vehicles) in Latvia using falsified documents. 6. Seven customs officials, including the applicant, were charged with exceeding their official powers or failing to fulfil their duties. Each of the officials had allegedly acted unlawfully at different stages of the customs procedures. The applicant was charged with negligence which had caused substantial harm to the State and public interest. This charge was brought in connection with the processing of documentation for a used semi-trailer. 7. Several witnesses were questioned during the pre-trial stage, including witness E.A., a Latvian national residing in Latvia, who had purchased one of the vehicles. 8. On 16 December 2005 the Riga Regional Court, acting as the court of first instance, found the applicant guilty and imposed on him a fine to the amount of five minimum monthly salaries. 9. With respect to the applicant, the court established that on 31 March 1999 at a customs control point he had acted contrary to the applicable regulations in the processing of documentation for the importation of the used semi-trailer. 10. In particular, the applicant had accepted a transit declaration from a person who had not been a declarant’s authorised representative. He had not verified whether the person submitting a power of attorney had been the person to whom it had been issued. The applicant had not verified whether the used semi-trailer had been in the customs zone. Further, he had not issued an administrative violation record on the non-compliance with the forty-eight hour time-limit for the delivery to the customs office of the used semi-trailer. Furthermore, the documentation processed had been incomplete. 11. The regional court relied on a report drawn up by the State revenue service, dated 24 March 2000. The report stated that the applicant had not complied with a number of applicable regulations. 12. Further, the court referred to the pre-trial statement of witness E.A. who was summoned to a court hearing but could not attend due to his hospitalisation. The court took note of a medical certificate to that effect. 13. E.A. had testified that he had purchased the semi-trailer at the beginning of 1999. He had come to the customs control point together with the vendor’s representative. The vendor’s representative had turned first to a customs representative and then to a customs officer who processed the documentation. The semi-trailer had not been at the customs warehouse and it could not have been inspected by the customs officer. According to the documentation, the customs clearance of the vehicle was carried out by the applicant. After the statements were read out, the applicant’s defence asked the court to explain on what grounds a certified copy of the statements of E.A. was included in the case-file and where was its original. The request was upheld and the prosecutor provided a reply. 14. The court relied on a set of documentary evidence attesting to the fact that the documentation for the semi-trailer in question had been processed by the applicant and that the semi-trailer had not entered the customs territory. 15. The applicant appealed against the first instance court judgment. 16. At the appellate hearing on 8 January 2007, E.A. could not be summoned to the hearing because he was abroad at the time. The applicant requested that E.A. be summoned to the appeal proceedings. 17. The appellate court decided that this request be granted and E.A. was summoned to the hearings of September 2007 and February 2008. On both occasions E.A. asked the appellate court in writing to excuse his absence from the hearing on the grounds of hospitalisation (in September 2007) and his being abroad and having a technical problem with a car which had prevented him from coming to the hearing (in February 2008). He further asked the court to read out his pre-trial statements. 18. On 11 February 2008 the appeal proceedings were resumed. 19. During the court hearing, the applicant’s defence and the court questioned a defence witness – a customs expert on the customs procedure and its application. 20. E.A. did not appear at the court hearings on 11 and 12 February 2008. The prosecutor submitted that, by way of such conduct, E.A. avoided appearing in court and that this gave grounds for his testimony to be read out. 21. The applicant’s defence counsel disagreed that E.A.’s testimony could be read out. At the same time, the defence counsel submitted that he “[did] not need witness [E.A.] anymore ... the evidence [previously] given by the expert [was sufficient]. We do not uphold the request anymore. I consider that his statements should not be read out... I consider that there are no justifiable grounds for [E.A.] not appearing in court”. 22. The appellate court ruled that E.A.’s testimony be read out in accordance with section 501 of the Criminal Procedure Law. 23. After the testimony was read out, the applicant’s defence explicitly stated that they did not have any requests and that the court adjudication could be terminated. 24. On 15 February 2008 the appeal court upheld the applicant’s conviction. It considered that the applicant had inadequately verified the power of attorney (see paragraph 10 above). 25. The appellate court referred to the evidence of witness E.A., i.e., that the semi-trailer had not been at the customs warehouse and the customs officer could not have inspected it. It also relied on the logbook indicating that the semi-trailer had not entered the customs territory. The court also relied on the applicant’s statements in which he considered that the verification on the merits had been carried out by the customs broker and therefore those tasks fell outside his duties. The appeal court dismissed the applicant’s contention that he had inspected the semi-trailer. 26. Furthermore, the appeal court held that the applicant had inadequately verified the payment documents. It reasoned that the payment orders in question had given the appearance that a transfer of funds had been made to the State. However, a bank report indicated that these orders had neither been registered nor confirmed by the bank. 27. The appeal court found that the applicant had formally performed his official duties. However, it deemed that the applicant’s contention – that a customs broker and not a customs officer had been responsible for the truthfulness of the information – indicated that, in fact, the applicant had not verified anything. 28. In his appeal on points of law the applicant argued that the appellate court had not ensured the attendance of E.A. He insisted that the evidence attested to the fact that he had verified the power of attorney and had compared the bank accounts indicated in the payment orders. No electronic database had existed at the time and the only way to check the payment documents had been to compare the bank accounts listed. 29. On 1 July 2008 the Senate of the Supreme Court dismissed the applicant’s appeal on points of law. 30. It reasoned that the appellate court had verified the testimonies of witnesses in accordance with section 501 of the Criminal Procedure Law. Also, the appeal court had made efforts to establish E.A.’s whereabouts and to bring him to court. Therefore, the appeal court had done everything possible in order to call E.A. to court. 31. This decision was final.