CASE OF KIRINS v. LATVIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment)
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev
5. The applicant was born in 1971 and lives in Daugavpils. 6. On 16 January 1995 Inspector S.K. of the Daugavpils City Police arrested the applicant and took him to the police station. The applicant, who had category 2 disability status in relation to his eyesight, did not offer any resistance. Subsequently, S.K. beat up the applicant by delivering several blows to his head, near to his eyes. When the applicant fell to the ground, S.K. kicked him at least once in the chest. 7. After this injury, the deterioration of the applicant’s sight accelerated, leading to retinal detachment. In 1995 and 1996 he had several eye operations, including three in a hospital in Moscow, but the retinal detachment continued to progress. In April 1996 he was granted category 1 disability status for complete loss of vision. 8. On 30 January 1995 criminal proceedings were initiated against S.K. On the same date the applicant was joined as a civil party to those proceedings. 9. In February 1995 a forensic medical report was drawn up. It stated that on 16 January the applicant had sustained numerous injuries, which by their nature were considered moderate, resulting in long-term health problems of more than twenty-one days and permanently reducing his capacity to work by at least a third. 10. On 22 March 1995 charges were brought against S.K. and on 8 August 1995 the case was sent to the Daugavpils Court for adjudication. 11. S.K. did not appear at the first hearing on 1 November 1995. The Daugavpils Court held that the case could not be heard in his absence and issued a warrant for his arrest. In December 1995 the warrant was sent to the Daugavpils police station. 12. During the same hearing the applicant’s lawyers asked the trial court to order a second forensic medical report in an attempt to establish the nature and seriousness of the injuries sustained. The prosecutor supported the request and the Daugavpils Court ordered a report. 13. In January 1998, January 1999 and August 1999 the Daugavpils Court asked the Daugavpils police station for information about the measures taken and results achieved in executing the arrest warrant. In reply to each request the police sent identical responses stating that S.K. was wanted and that the trial court would be informed when he was caught. In August 1999 the police informed the Daugavpils Court that, according to information received, S.K. had left Latvia. 14. In December 1996 the forensic medical service reminded the Daugavpils Court that it had not received any original medical documents. In July 1998 and January 1999 the Daugavpils Court asked the Russian authorities for assistance in obtaining originals of medical records relating to the applicant’s operations (see paragraph 7 above). For unknown reasons the documents were not obtained and as a result, the report could not be drawn up. 15. On 16 November 1999 the prosecutor asked the trial court to order a forensic medical examination to confirm the classification of the offence. After the initial forensic medical report the applicant’s health had deteriorated and he had completely lost his sight. According to the prosecutor, there were therefore grounds to consider that that might be related to the injuries which had been inflicted on the applicant in 1995. The Daugavpils Court upheld the prosecutor’s request and ordered the third forensic medical examination. A medical panel was asked to comment on what kind of trauma had caused the injuries; whether the applicant had lost his sight as a result of the injuries inflicted on him in 1995; to what extent he had been incapacitated before the injuries and their severity. 16. On 7 December 1999 a medical report was drawn up. It stated that on 16 January 1995 the applicant had sustained injuries which by their nature were considered minor, resulting in health problems of no more than six days. The report continued that prior to the injuries the applicant had had serious and progressively deteriorating myopia. The applicant’s sight problems had become worse as a result of the head injuries sustained on 16 January 1995, and that had led to further deterioration of his sight. It was also noted that, under domestic law, the worsening of a preexisting condition did not as such serve as grounds for reclassifying the seriousness of an injury. Serious eye disorders could develop and result in the loss of sight even without trauma. In the light of the above, the report did not establish a direct causal link between the injuries inflicted on the applicant in 1995 and his loss of sight. 17. In April 2000 the Daugavpils Court refused to grant the applicant’s request for another medical report for lack of reasoning. 18. From June 2000 to February 2003 a total of five hearings were postponed because experts, doctors, including an ophthalmologist, did not attend and several medical experts needed to be called. In particular, on two occasions between 27 September 2001 and 9 January 2002 and between 18 December 2002 and 24 February 2003 hearings were postponed at the request of the applicant, as he had asked for a doctor and a forensic expert to be summoned. 19. On 10 April 2002, at the request of Daugavpils Court, a panel of experts drew up the fourth medical report which stated that the applicant had suffered at least one blow to his right eye and to his thorax. The injuries sustained by him were considered minor. The report continued by stating that on 16 January 1995 the applicant had suffered injuries to his head that had resulted in a serious worsening of his eye disorder (myopia) with the recurrence of retinal detachments in both eyes followed by further deterioration of his sight. The worsening of a pre-existing condition, including after earlier injuries, did not in itself provide a basis for determining a more serious classification of bodily injury. A severe and progressive eye disorder (myopia) could deteriorate and lead to retinal detachment even if no injuries had been suffered, and eventually lead to complete loss of vision. The experts concluded that the applicant’s head injuries of 16 January 1995 had no direct causal link with the subsequent deterioration of his vision and his category 1 disability status. 20. On 23 February 2003 the applicant lodged a claim with the trial court for compensation for pecuniary and non-pecuniary damage. 21. On 27 February 2003 the Daugavpils Court found guilty S.K. in absentia for abusing his official power in a violent and disrespectful manner. He was sentenced to three years’ imprisonment. 22. In relation to the applicant’s civil claim the Daugavpils Court held that the total amount claimed, namely 156,853 Latvian lati (LVL) (around 224,075 euros (EUR)) and 8,400 United States dollars (USD) had not been supported by evidence. The majority of the documents confirming payment of the medical expenses had been submitted in German and English, and in order to invite a translator it would have to delay the adjudication. In addition, the applicant had not stated which part of the expenses related to the consequences of the injuries sustained. Accordingly, the trial court decided as follows: “To recognise the [applicant’s] rights to compensation from the State for material, pecuniary and non-pecuniary damage caused by the criminal offence, and to remit (nodot) the question of the precise amount to be awarded/enforced (piedzīt) to the court to decide in civil proceedings”. The judgment became final on 11 March 2003. 23. On 20 April 2004 the Riga Regional Court registered the applicant’s civil claim dated 23 March 2003 against the Ministry of the Interior and the State Police. The applicant claimed compensation for damage caused by the criminal offence committed by Inspector S.K. In the claim the applicant relied on the operative part of the judgment of the Daugavpils Court (see above), section 27 of the Law on Police and various provisions of the Civil Law which regulated tort liability. Relying on sections 2347 and 2349 of the Civil Law in particular, the applicant claimed pecuniary and non-pecuniary (morālo kaitējumu) damages of LVL 197,624.31 (EUR 282,320) for blindness, mutilation and disfigurement (sakropļojums un izķēmojums), loss of future income (atrautā peļņa) and medical expenses. 24. On 2 February 2006 the Riga Regional Court, acting as a firstinstance court, relied, amongst other provisions, on Article 92 of the Constitution and section 27 of the Law on Police, and accepted the applicant’s civil claim in part. He was awarded LVL 90,000 (EUR 128,500) in non-pecuniary damages for the damage caused to his health and LVL 4,502.81 (EUR 6,432.58) in pecuniary damages from both defendants on a pro rata basis for his medical expenses. 25. According to the Riga Regional Court, the applicant’s claim for compensation for non-pecuniary damage came within the scope of section 2349 of the Civil Law, a lex specialis providing no specific criteria for awarding compensation. The court referred to the findings of the experts in the criminal proceedings and stated that the applicant’s bodily injuries caused by the police officer might have been the reason for the worsening of his eye disorder (myopia) that had resulted in a rapid deterioration of his sight and eventually complete loss of vision. 26. On 27 September 2006 the Supreme Court reviewed the case following appeals by the applicant, the State Police and the Ministry of the Interior. It ruled that the first-instance court had been incorrect in concluding that the applicant’s injuries had amounted to mutilation and disfigurement under section 2349 of the Civil Law. The applicant’s claim for compensation for non-pecuniary damage was dismissed. The pecuniary damages were reduced to LVL 4,427.81 (EUR 6,325.44). 27. Regarding the applicant’s claim for pecuniary damages, the Supreme Court ruled that the judgment adopted in the criminal proceedings against S.K. only proved that he had committed a crime using violence against the applicant. The four usual criteria for establishing tort liability and compensation thus had to be satisfied (see paragraph 30 below). In the judgment of 27 February 2003 the first and fourth criteria had been established. The Supreme Court analysed all the medical data before it concerning the applicant’s health and concluded that the State Police were liable to pay pecuniary damages to the applicant for his medical expenses under section 2347 of the Civil Law. 28. Regarding the applicant’s claim for non-pecuniary damages, the Supreme Court concluded that the loss of the applicant’s sight had occurred under specific circumstances, including his previous state of health. It was also noted that the loss of his sight was not directly linked to the bodily injuries sustained by him on 15 January 1995. There was therefore no evidence to prove that his bodily injuries had amounted to mutilation or disfigurement, as provided in section 2349 of the Civil Law. 29. In a preparatory meeting on 22 February 2007 the Senate of the Supreme Court dismissed an appeal on points of law by the applicant as not raising any relevant legal issues. 30. In a letter dated 21 October 2010 addressed to the Government, the Supreme Court stated that there were no grounds for the national courts to extend the scope of the applicant’s claim and decide on the awarding of non-pecuniary damages on the following grounds. The applicant had claimed pecuniary and non-pecuniary damages for injuries sustained as a result of police ill-treatment. In this regard he had relied on sections 2347 to 2349 of the Civil Law, which provided that compensation could be claimed for mutilation and disfigurement. In order to determine whether the consequences of the alleged injuries were those stipulated in the legal provision, the domestic courts had to establish the essential conditions of tort liability, namely (i) unlawful conduct, (ii) damage, (iii) a causal link between the unlawful conduct and damage claimed and (iv) fault. In the applicant’s case, no such conclusions could be drawn on the basis of the medical documents. The applicant had lost his sight owing to various coexisting circumstances, not as a result of the injuries sustained in January 1995. 31. The Supreme Court also stated that with the amendments of 1 March 2006 the Civil Law contained a general legal provision (section 1635 of the Civil Law) for claiming non-pecuniary damages. Nevertheless, it did not have retroactive effect and therefore the national courts could not apply it in the applicant’s case. According to the Supreme Court, no such obligation could be inferred from any other legal acts on the account that the subject matter of the present civil dispute did not concern the public law obligation which the Latvian State had undertaken in the area of human rights. 32. Furthermore, the Supreme Court indicated that in the applicant’s case the ten-year statutory limitation period for claiming damages had started to run on 11 March 2003, the day the final judgment in the criminal case became effective. The Supreme Court therefore considered that the applicant still had the right to rely on Article 92 of the Constitution and lodge a claim for compensation for damage caused by a criminal offence. In that regard the Supreme Court referred to the judgment of 16 December 2009 in the so-called “Talsi tragedy” case, in which it ruled that a person has the right to receive compensation for violations of his or her human rights.