CASE OF MIĶELSONS v. LATVIA
No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)
Armen Harutyunyan;Carlo Ranzoni;Johannes Silvis;Luis López Guerra;Mārtiņš Mits
5. The applicant was born in 1959 and resides in Riga. 6. The relevant facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicant was the chairman of the State-owned joint stock company L. On 14 June 2010 the Bureau for the Prevention and Combating of Corruption (Korupcijas novēršanas un apkarošanas birojs) opened a criminal investigation into suspected unlawful activity by the company’s officials. 8. On 15 June 2010 at 7 a.m. investigator A.R. ordered a search of the applicant’s apartment. It was possible that he was involved in the offences under investigation, and there was reason to believe that unlawfully obtained money and some other items were located there. 9. Between 7.40 and 10.40 a.m. officers from the Bureau carried out the search. The applicant was allowed to telephone his lawyer who, according to him, arrived at 9.38 a.m. 10. The applicant submitted that during the search he had not been free to leave the apartment. 11. The search record, however, stated that he and his wife had been informed of their right to remain present and make remarks about the investigators’ actions. They had attended the search. His lawyer had noted down in the record that the decision authorising the search did not comply with certain provisions of the Criminal Procedure Law (Kriminālprocesa likums). It was signed by all three of them. 12. At about 11 a.m. the applicant telephoned a security guard at company L. to ask that his driver place his briefcase in a car. 13. At 11.15 a.m. the officers informed the applicant he was under arrest. 14. Between 11.21 and 11.34 a.m. investigator G.B. drew up an arrest record specifying that the applicant had been arrested at 11.15 a.m. on suspicion of abuse of office with intent to obtain a material benefit and assisting money laundering, and that a witness had identified him as a perpetrator. He and his lawyer signed the record, noting also that his arrest was unjustified. 15. At 6.30 p.m. the applicant was interviewed. 16. The investigating authorities performed thirty searches in total that day and, according to the applicant, arrested seven other individuals. The Government submitted, without indicating when, that nine individuals had been arrested. They further drew attention to the large scale of the crimes under investigation and various investigative actions. 17. On 17 June 2010 at about 9 a.m. A.R. served on the applicant a decision declaring him a suspect and an application addressed to the Riga City Centre District Court (Rīgas pilsētas Centra rajona tiesa) for his pre-trial detention. His lawyer was present at the time. 18. According to A.R. there was a strong suspicion that, between 1 January 2006 and 15 June 2010 the applicant, in his position as chairman of company L., had secured decisions favourable to companies ANS and GGSMT for the reconstruction of hydro units and regarding a thermal power plant project. A sum of no less than 1,130,000 euros (EUR) obtained as a result of this unlawful activity had allegedly been laundered through companies registered in Latvia and abroad, by way of property transactions and investments in companies owned by the applicant and K.M. By doing so, the applicant had allegedly committed the offences of abuse of office with intent to obtain a material benefit and assisting money laundering. 19. The applicant, referring to his lawyer’s handwritten application, contended that at 9.20 a.m. that morning his lawyer had applied to A.R. for leave to consult, prior to the detention hearing, the documents in support of the application for detention. She had refused the request. The Government, however, submitted that neither the applicant nor his lawyer had made any complaints about access to the case file. 20. Between 10.04 a.m. and 1.30 p.m. an investigating judge of the Riga City Centre District Court held the hearing. 21. The applicant’s lawyer requested A.R. to provide evidence in support of the application for detention. She refused to do so and the hearing continued. 22. The lawyer submitted that the officers had controlled the applicant’s movements in the apartment from the start of the search. He had therefore requested them to draw up a record of his client’s arrest. In this connection, he pointed out that no one could be held in custody for more than forty-eight hours. 23. The investigating judge granted A.R.’s application and ordered the applicant’s detention pending trial. With regard to the suspicion that he had committed the offences in question, the judge reasoned as follows: “...search records, inspection records, statements [and] other material of the criminal proceedings give rise to grounds for suspicion that [the applicant] has committed the offences in relation to which the criminal proceedings have been instituted...” 24. As regards access to the case file, the judge stated: “Section 375(1) of the Criminal Procedure Law provides that case material is a secret of the investigation ... material and evidence that justify [the applicant’s] detention contain secret information ... [the investigator] has the right to disclose this material ... only to officials involved in the criminal proceedings.” 25. On 21 June 2010 the applicant’s lawyer lodged an appeal against this decision. On 5 July 2010 he submitted his arguments in support thereof. 26. He requested the Riga Regional Court (Rīgas apgabaltiesa) to grant him access to the case file so as to be able to effectively challenge the applicant’s detention. It did not grant the request. 27. On 6 July 2010 an appeal hearing was held. The lawyer maintained that he had the right to access the documents upon which the applicant’s detention had been based. 28. The Regional Court dismissed the appeal and upheld the original ruling. With regard to the suspicion that the applicant had committed the offences in question, the judge stated: “The court has had sufficient time to examine the case material furnished to it. The court, like [the lower court], concludes that information has been obtained ... giving rise to grounds for suspicion that [the applicant] has committed the accused offences. The court reached that conclusion having examined ... records of investigative actions [and] witness statements, and with special attention paid to information obtained by ... special investigative actions ... carried out long before the criminal proceedings were instituted.” 29. As regards access to the case file, the judge reasoned as follows: “An official in charge of criminal proceedings presents case material to an investigating or higher judge for them to assess grounds of pre-trial detention. An investigating or higher judge examines the case material ... [which] is kept secret from the parties not conducting the proceedings.” 30. No appeal lay against this decision. 31. On 18 August 2010 the investigating judge released the applicant on bail. 32. On 30 June 2010 the applicant’s lawyer lodged a complaint regarding his client’s arrest with the Office of the Prosecutor General. 33. On 8 July 2010 prosecutor V.J. dismissed it. Neither the applicant nor his lawyer had noted in the search record that the applicant’s freedom of movement or his liberty had been restricted during the search; they had not noted anything in the arrest record to say that he had been deprived of his liberty before this either. The applicant’s lawyer had not specified the manner in which his client had been deprived of his liberty. It could not therefore be established that he had been deprived of his liberty during the search. 34. By a final decision of 11 October 2010 chief prosecutor A.K. dismissed the complaint.