CASE OF DMITRIJEVS v. LATVIA
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva
5. The applicant was born in 1960 and lives in Riga. 6. He was arrested in July 1995 and in May 1998 he was convicted and sentenced to capital punishment. In June 1999, following the amendments to the Criminal Law Code, the appellate court converted the sentence of capital punishment into fifteen years’ imprisonment. The applicant started serving his sentence in a closed-type prison under the strictest (“lower”) regime (zemākais soda izciešanas režīms) (see “Relevant domestic law” below). 7. On 27 March 2001 the applicant was transferred to the “medium” regime in a closed-type prison (vidējais soda izciešanas režīms). In accordance with domestic law, the applicant was entitled to a list of rights (see “Relevant domestic law” below). 8. On 27 July 2005, while the applicant was serving his sentence in Pārlielupe Prison, the prison’s administrative commission decided to apply a more stringent regime to him and to transfer him to a closed-type prison under the “lower” regime. Relying on that decision, on 16 August 2005 the governor of Pārlielupe Prison recommended transferring the applicant to Daugavpils Prison owing to the fact that Pārlielupe Prison did not have appropriate facilities for him to continue serving his sentence under a more stringent regime. 9. On 5 September 2005, on an appeal by the applicant, the decision of the administrative commission was revoked by a decision of the Jelgava Court, which on 6 September 2005 was forwarded to Pārlielupe Prison. At the same time, on 5 September 2005 the Prisons Administration approved the recommendation by Pārlielupe Prison to transfer the applicant to Daugavpils Prison (see paragraph 8 above) and on 6 September 2005 the governor of Pārlielupe Prison issued an order to that effect. 10. On 18 October 2005 the order was executed despite the fact that the initial decision of 27 July 2005 had been revoked, and the applicant – who in the meantime had been admitted to the prison hospital – was transferred to Daugavpils Prison. During his stay in that prison the applicant was able to enjoy only a limited number of rights normally applicable to prisoners under the “medium” regime. In particular, he could not exercise his right to leave his cell for more than one hour a day, or his right to unrestricted access to the medical unit, prison shop, canteen and library. 11. On 20 October 2005 the management of Daugavpils Prison informed the Prisons Administration that they could not provide the facilities required under the “medium” regime. 12. On 26 October 2005 the Prisons Administration adopted a decision to transfer the applicant to Jēkabpils Prison to serve his sentence under the “medium” regime. That decision was executed on 4 November 2005. 13. It appears from the file on the applicant’s case before the administrative courts that on 27 September 2005 he raised an objection with the Prisons Administration about his transfer to Daugavpils Prison under a more stringent regime, but that the Prisons Administration dismissed it on 13 October 2005, and also dismissed a further complaint on 21 April 2006. 14. According to the Government’s submissions, on 17 October 2005 the applicant sent a complaint to the Prosecutor General’s Office, which forwarded it to the Specialised Multibranch Prosecutor’s Office. The latter then forwarded the complaint to the Prisons Administration. 15. On 20 December 2005 the Prisons Administration mentioned in a letter addressed to the applicant that his stay in Daugavpils Prison had been the result of the slow exchange of information between the courts, the prisons and the Prisons Administration. 16. On 26 October 2005 the applicant complained to the District Administrative Court that as a result of the unlawful activities of the Prisons Administration, he had been transferred to a prison in which he could not serve his sentence under the regime applicable to him. 17. Before initiating the administrative proceedings the District Administrative Court asked the applicant to pursue the appropriate outofcourt procedure by appealing against the negative decision of the Prisons Administration, which the applicant did in March 2006 (see paragraph 13 above). 18. After a series of procedural decisions, on 6 November 2007 the District Administrative Court found that the applicant’s transfer to Daugavpils Prison in order to serve his sentence under a stricter regime had been carried out without any lawful basis and awarded him 100 Latvian lati (LVL – 150 euros (EUR)) in compensation for non-pecuniary damage. Its finding was based on a comparison of the list of rights to which the applicant was entitled under the “medium” regime and the rights which he had actually enjoyed as a result of his unlawful transfer to more stringent prison conditions. The court also took into account the actions of the management of Daugavpils Prison and the duration of the applicant’s stay there. 19. The Regional Administrative Court partly upheld that decision, after analysing whether the applicant’s transfer to a more stringent regime amounted to a significant infringement of his rights under Article 3 of the Convention. The court established that in transferring him, the authorities had executed a decision which had been already revoked by the national courts, and that for a duration of eighteen days he had unlawfully been required to serve his sentence under a regime whereby he remained locked in a shared prison cell all day. According to the court, these conditions were aggravated by the fact that both the applicant and the authorities were aware that his transfer was unlawful. It held that he had suffered a serious infringement of his rights and accordingly awarded him LVL 300 (EUR 450) in compensation for non-pecuniary damage. 20. Following an appeal by the Prisons Administration, on 16 September 2009 the Senate of the Supreme Court quashed the appellate court’s decision and discontinued the administrative proceedings owing to the fact that the examination of decisions taken in the course of the execution of prison sentences did not fall within the jurisdiction of the administrative courts. The Senate also referred to section 16 of the Law on the Prosecutor’s Office, concerning the prosecuting authorities’ powers to initiate investigations into alleged violations of prisoners’ rights. In this connection the Senate mentioned that the applicant had lodged a complaint with the Prosecutor General’s Office about his transfer. 21. On 14 July 2010 the applicant was released from prison after completing his sentence. 22. On 15 March 2013 the Prisons Administration destroyed the applicant’s file on account of the expiry of the statutory archiving period.