DMITRIJEVS v. LETTONIE
Inadmissible
David Thór Björgvinsson
The applicant, Mr Sergejs Dmitrijevs, is a “non-citizen” of Latvia, who was born in 1960 and lived in Valmiera (Latvia). Sentenced to fifteen years’ imprisonment, he is serving his service in Jelgava Prison. The Latvian Government (“the Government”) are represented by their Agent, Ms I. Reine. The facts of the case, as submitted by the parties, may be summarised as follows. From 1992 to 1995 a number of killings, attempted killings and burglaries were committed in the Riga district by a four-person organised gang. On 11 May 1995, two individuals assaulted M.G., a well-known Riga businessman, for the purpose of stealing his car. After following the victim and meticulously tracking his movements around the city, the criminals lay in wait for M.G.’s car near a house which he visited regularly. Once the car had stopped in front of the house, one of the assailants, wearing a cap, gloves and sunglasses, ran towards the vehicle, opened the door and pointed a pistol at the victim, ordering him to get out. M.G. also pulled a pistol from his pocket, at which point the assailant fired seven times, killing him immediately. A few seconds later, having noticed the victim’s adult daughter D.G. approaching the scene, the killer fled on foot. During the pre-trial investigation, D.G. was questioned three times: on 11, 17 and 25 May 1995. On 14 July 1995 the applicant was arrested by police officers from the anti-crime unit as a suspect in the above-mentioned crime and placed in police custody. During the period in police custody, the applicant was questioned by the police on several occasions. During those interviews, which took place without a lawyer, the applicant admitted that he had participated in six incidents of theft and hold-up as a member of the gang of robbers. He also confessed that he had been responsible for killing M.G. On 10 August 1995 the applicant was placed under investigation on a charge of aggravated murder and banditry. In the meantime, three other individuals suspected of belonging to the same gang were charged with burglary, robbery and murder. They thus became the applicant’s co-defendants. During questioning in August 1995, the applicant informed the prosecution service that all the confessions he had previously made were false, as they had been forced out of him by police officers from the anti-crime unit while he had been held in police custody. In the presence of his counsel, the applicant alleged that a specific police officer, whom he named, had threatened him and had offered him money and a reduction in his sentence in return for a confession; this statement was recorded in the minutes of the interview. In consequence, the applicant asked the prosecution service not to take into consideration the content of the preceding interviews and to acquit him. On 9 April 1997 the prosecution service submitted a final bill of indictment (apsūdzības raksts) against the applicant and his co-defendants. The applicant was charged with aggravated murder and banditry; the second charge included six hold-ups. With particular regard to M.G.’s murder, the prosecution service considered that the applicant’s guilt was sufficiently proven by the co-existence of inferences arising from the following evidence: – the statements by the victim’s adult daughter, who was questioned during the pre-trial investigation on 11, 17 and 25 May 1995 and confirmed that she had seen her father’s killer leaving the crime scene. On 11 May 1995 she gave the following description of the criminal: “...A twenty to twenty-five- year old man, dark hair, wearing a dark cap and sunglasses covering his eyes, he was wearing gloves. I do not remember his clothes. He resembled the pop-singer “Titomir”. ...” On 17 May 1995 D.G. gave the following description of the criminal: “...He could be thirty-year old, his height 170-175 cm, he was wearing dark clothes, a cap and sunglasses. ... I think his hair was not long ...” – a statement by two motorcyclists who had passed the crime scene a few seconds after the killing; those two witnesses claimed that they had followed a man who was running away for about a hundred metres; his physical characteristics corresponded to those of the applicant; – a statement by a person who had seen a man resembling the applicant running towards the crime scene a minute or two before the sound of gunfire; – the cap and sunglasses found hanging on the branches of a bush near the site of the killing, which resembled those worn by the killer; – statements made by the applicant himself during the initial interview and the scene-of-crime reconstruction to the effect that, after fleeing the scene of the crime, he had removed the cap and sunglasses and had thrown them towards a bush while running; the location indicated by the applicant corresponded to the exact spot where the two objects had been found; – the results of biological analysis of hair and traces of sweat taken from the cap and glasses and of osmological tests, confirming that it was highly probable that those two items had been worn by the applicant; – the applicant’s initial statements, which were concurring and corresponded to the results of other investigative measures, particularly the scene-of-crime reconstruction, carried out on-site on 25 July 1995; – statements by an anonymous witness, referred to in the case file by the pseudonym “Oleg”, alleging that he had met the applicant on the evening of the killing and that the latter had admitted to him that he had killed M.G. After forwarding the investigation file to the defendants, the prosecution service sent the case to the Riga Regional Court, the court of first instance in the case. The Riga Regional Court began examining the merits of the case on 20 October 1997. The applicant pleaded not guilty at the hearing, and repeated his allegation that the confessions had been forced from him by a police officer who promised money and a reduced sentence in exchange for an admission of guilt. After questioning the police officer named by the applicant and several of his colleagues and hierarchical superiors, the court found that that officer had questioned the applicant on only one occasion and that he was not part of the investigation team responsible for the case. As he had not been present at the crime-scene reconstruction on 25 July 1995, he could not therefore have guided the applicant’s actions or helped him to falsify the results of that investigatory measure. Accordingly, the court dismissed the applicant’s allegations in this connection. At the hearing, the Regional Court questioned the witnesses and examined all the other evidence submitted by the public prosecution service. On 3 December 1997 a neurologist issued a medical certificate, prohibiting D.G. to participate in court hearings and proceedings because of the state of her health. With regard to M.G.’s killing in particular, the court summoned and questioned several witnesses, but not, however, the victim’s daughter. Her statements, made during the preliminary investigation of the case, were submitted and read out at the trial on 5 January 1998, in accordance with Article 285 of the Criminal Procedure Code. In a judgment delivered on 15 May 1998, the Regional Court convicted the applicant of aggravated murder and banditry; with regard to M.G.’s killing, the court established the applicant’s guilt on the basis of the coexistence of inferences arising from the afore-mentioned evidence established by the prosecution service. Under Article 99 of the Criminal Code in force at the material time, the applicant was sentenced to death. The applicant himself and his legal counsel appealed against the judgment of 15 May 1998 to the Criminal Division of the Supreme Court. In their respective memorials, they reiterated the applicant’s argument that the confessions had been forced from him by a police officer who had offered him a trade-off, and challenged the manner in which the evidence had been assessed by the Regional Court. On 5 June 1998 a Latvian weekly newspaper published an interview with a forensic expert, a director of the Centre of Ballistic Examinations. In a part of the interview he said the following: “... When leaving a gun next to a dead body, a killer “gives” it [the gun] to the police. And all ends break – where is the gun from, who is the owner of the gun – go and find it. But if a killer takes TT [a type of gun] with himself – one can find it in a search. If one will try so sell a gun to someone else – then the gun will move from hand to hand and will appear in the police together with its present owner, but it is not the link to the real killer. ...” These statements were followed by the illustration of the two examples: “...The well-known murder of the Vice-President of “Interpegro” M[...] G[...] was detected exactly because the guns used in committing the murder M[...] G[...] were found in searching the persons arrested in the course of a completely different case. The killers of V[...] L[...] did it more professionally. All around, including Riga, requests were sent out about bullets used in the murder. No tracks...” The applicant submitted this article to the Criminal Division, without requesting to summon the expert for examination. In a judgment of 21 June 1998 the Criminal Division dismissed the applicant’s arguments. After re-examining all the evidence available to it, the Division confirmed the validity of the Regional Court’s findings. Furthermore, like the first-instance court, the Division dismissed the applicant’s request that M.G.’s daughter be summoned and questioned in court. The Division dismissed the allegation that the confessions had been obtained through extortion; having watched the video recording of the scene-of-crime reconstruction, which took place on 25 July 1995, it found that the applicant’s actions in demonstrating what had happened were authentic and very precise and that any attempt to manipulate or rig the event would have been impossible. However, the Division quashed the applicant’s conviction on the charge of banditry; this charge was reclassified as armed robbery with violence. Equally, the Division noted that as Protocol No. 6 to the Convention had entered into force with regard to Latvia on 17 May 1999, the death penalty could no longer be implemented. Accordingly, the Division commuted the death sentence to fifteen years’ imprisonment, unsuspended. As the applicant’s defence counsel had chosen not to represent the applicant in subsequent proceedings, the latter drew up an appeal on points of law himself and submitted it to the Senate of the Supreme Court. In his memorial, the applicant complained primarily of errors in assessment of the facts which he alleged had been made by the lower courts. He also submitted that the presiding judge in the Criminal Division had interrupted him several times during his statement, that the appeal judges had refused to grant all of his procedural requests and that the rights of the defence had been seriously infringed. Equally, the applicant complained about the Division’s refusal to summon and question in court the forensic expert who had informed the press that he was in possession of the murder weapon, and also M.G.’s daughter. The applicant stressed that cross-examination of this second witness would have enabled the defence to focus on the visual difference between the portraits of the criminal and of the applicant, and thus to show that the killer had been someone else. By an order of 9 December 1999, served on the applicant on 12 January 2000, the Senate declared inadmissible the applicant’s appeal on points of law as lacking legal grounds. According to the order, the Riga Regional Court and the Criminal Division had carried out a full and very detailed examination of all the evidence available to them. Equally, the decisions by the trial and appeal courts had been fully reasoned in terms of fact and law. As to the establishment of the factual circumstances in the case, the Senate pointed out that that question did not fall within the jurisdiction of the Supreme Court, which dealt with appeals on points of law. Finally, the Senate considered the applicant’s various allegations of procedural violations to be unfounded. According to Article 87 of the Criminal Procedure Code, a transcript report of the court proceedings includes, inter alia, the information about case-related applications and petitions. The relevant part of Article 88 provides that within the period of three days after signing a transcript report of the court proceedings, the defence counsel and accused may submit remarks there on its accuracy. The remarks shall be considered and accordingly added to the transcript report. In accordance with Article 243 § 3, the parties enjoy rights in terms of summoning and questioning witnesses during the trial. The defence is entitled to cross-examine the victims and witnesses on the same conditions as the prosecution service (Articles 281 and 282). If one of the parties requests that a new witness be summoned or any new evidence be submitted to the court, it must explain to the court the reasons for such a request and, in particular, what it intends to prove through this new evidence. Dismissal of such a request does not prevent the party from resubmitting it during the examination of the case (Article 275 §§ 1 and 2). Where a witness or a victim submits good reasons for failure to attend the trial, the statements made by them during the preliminary investigation of the case are read out to the court (Article 285 § 1). The defendant may also be cross-examined by his or her co-defendants and their lawyers (Article 278 § 2). Article 449 states that examination of a judgment by the cassation court is permissible only if it is based on a violation of the criminal law or substantial violation of the Criminal Procedure law.