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THIRD
SECTION
DECISION
AS TO THE
ADMISSIBILITY OF
Application no.
37862/02
by Aivars EPNERS-GEFNERS
against Latvia
The
European Court of Human Rights (Third Section), sitting on 25 May
2010 as a Chamber composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Ineta
Ziemele,
Luis
López Guerra,
Ann
Power, judges,
and
Santiago Quesada, Section
Registrar,
Having
regard to the above application lodged on 2 October 2002,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
regard to the unilateral declaration submitted by the respondent
Government requesting the Court to strike the application out of the
list of its cases and the applicant's reply to that declaration;
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Aivars Epners-Gefners, is a Latvian national who was
born in 1964 and lives in Liepāja. The
Latvian Government (“the Government”) are represented by
their Agent, Mrs I. Reine.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. Proceedings against the applicant
- On
1 October 1999 the applicant was arrested on suspicion of aggravated
robbery.
- On
31 December 1999 the applicant's criminal case was sent to the Rīga
Regional Court for adjudication. The applicant was committed for
trial on 17 January 2000 but the first hearing was not scheduled.
- On
30 January 2001 the applicant was informed that the hearing in the
case had not yet been scheduled. On 14 September, upon the
applicant's enquiry into the progress of the criminal proceedings
against him, the Rīga Regional Court informed him that the
hearing in the case had been scheduled for 3 March 2002.
- On
12 December 2001 the Criminal Chamber of the Supreme Court decided
that the case would be adjudicated by the Kurzeme Regional Court in
order to expedite the proceedings. The first hearing was scheduled
for 23 January 2002.
- On
11 April 2002 the Kurzeme Regional Court convicted the applicant of
aggravated robbery and sentenced him to six years and one month's
imprisonment. In establishing the applicant's guilt, the court relied
on the incriminating statements made by three witnesses and on
documentary evidence.
- On
5 June 2002, on the applicant's appeal, the Criminal Chamber of the
Supreme Court upheld in substance the judgment of the first-instance
court.
- On
20 September 2002 the Senate of the Supreme Court dismissed the
applicant's appeal on points of law in a preparatory meeting.
- On
23 August 2004 the Jelgava Court decided to apply a pre-release
scheme to the applicant and ordered his release before the end of his
sentence.
2. Family visits during the applicant's pre-trial detention
- On
18 May 2000 the applicant's wife gave birth to a son. The applicant
submitted that he had not been allowed to receive long-term family
visits from the day of his arrest until the final decision of the
Senate of the Supreme Court on 20 September 2002.
- According
to the Government, the applicant had received two short-term visits
from his wife during his pre-trial detention: on 16 November
2000 and 20 November 2001. They also submitted that on four occasions
the applicant's aunt had visited him during his pre-trial detention:
on 8
January,
10 April, 23 October and 20 December 2001.
3. Dental treatment during the applicant's detention
- According to the Government, the applicant first
complained about his dental care on 29 June 2000 during his pre-trial
detention in Central prison in Rīga. The doctor prescribed some
medication and advised him to consult a dentist. On 18 August 2000 he
saw a dentist but refused the recommended treatment. The Government
did not specify what kind of treatment was offered to the applicant.
- On 25 October 2001 while in pre-trial detention in
Brasa prison in Rīga the applicant saw a dentist following
repeated recommendations from a prison psychiatrist. He was diagnosed
with periodontitis and his treatment was commenced. The Government
does not specify what kind of treatment the applicant received. It
appears from the applicant's submissions that several dental roots
were extracted.
- On 26 November 2001 the applicant complained about the
conditions of his detention to the General Inspector's Office
(Ģenerālinspektora birojs), which at the material
time was the institution in charge of organising the execution of
criminal sentences and the probation system and was supervised by the
Ministry of Justice. It appears he complained that he was not
receiving appropriate dental care and that he was in need of dental
prosthetics. The applicant's complaint was transferred to the Prison
Administration for examination.
- On
11 December 2001 the Prison Administration informed the applicant
that, following his requests, a dentist had extracted several dental
roots. This service had been free of charge. It had been established
that the applicant had eight teeth left. It was presumed that he had
not taken appropriate care of his teeth prior to his imprisonment.
The applicant was informed that dental prosthetics could be provided
only at his own expense and that the Ministry of Finance did not
allocate any funds to the Prison Administration or Brasa prison for
this purpose.
- On
27 December 2001 the applicant submitted a complaint to the Chancery
of the President of Latvia (Latvijas Valsts prezidenta kanceleja)
about his dental care. The applicant's complaint was transferred to
the Ministry of Justice and from there to the General Inspector's
Office for examination, which transferred the complaint to the Prison
Administration.
- On
12 February 2002 the Prison Administration informed the applicant
that he had already received an answer on 11 December 2001 as regards
his complaint of 26 November 2001. It reiterated that dental
prosthetics could not be provided free of charge in prisons. The
applicant was informed that meals in prisons were prepared from soft
products and as such were not difficult to eat (soups, porridge,
mashed potatoes, macaroni, boiled vegetables, minced meat etc.).
B. Relevant domestic law
1. Pre-trial detention and trial
- The relevant part of section 77 of the former Code of
Criminal Procedure applicable at the material time (in force until
1 October 2005) provides that the maximum term of pre-trial
detention during the investigation of a criminal case may not exceed
two months. If it is not possible to complete investigation of the
case within that period and there are no grounds for altering a
preventive measure, a judge may extend the period of detention for up
to one year and six months. If necessary, the detained person
and his defence counsel may be heard. Extension of detention beyond
one year and six months is not allowed and the detained person
is subject to immediate release.
- Section 77, paragraph 7 (enacted on 17 October 2002
and in force since 1 November 2002) provides that in exceptional
cases the Senate of the Supreme Court may extend detention beyond one
year and six months.
- Section 241 sets time-limits for the examination of a
case and provides that the examination of a case before a court must
start no later than twenty days, or, under exceptional circumstances,
no later than one month, after the case has been received by the
court.
2. Medical assistance in custody
- Cabinet
Regulations no. 358 (1999), in force at the material time and until
28 March 2007, provided as follows:
“2. Convicted persons shall receive the minimum
standard of health care free of charge up to the amount established
by the Cabinet of Ministers. In addition, the Prison Administration,
within its budgetary means, shall provide the convicted persons with:
2.1. primary, secondary and tertiary (in part) medical
care;
2.2. emergency dental care;
2.3. examination of health conditions;
2.4. preventive and anti-epidemic
measures;
2.5. medication and injections
prescribed by a doctor of the institution;
2.6.
medical accessories.
3. Detained persons shall receive medical care in
accordance with Article 2 of these regulations, excluding planned
in-patient treatment .... Detained persons shall be sent to receive
in-patient treatment only in acute circumstances.”
3. Regulations on remand prisoners
- Until 14 May 2001 the situation of persons detained in
remand prisons was governed by the “Instruction on the
Procedure of Keeping Suspected, Accused, Detained and Sentenced
Persons in Remand Prisons” (Instrukcija par aizdomās
turamo, apsūdzēto, apcietināto un notiesāto
turēšanas kārtību izmeklēšanas
cietumos), approved by the Minister of the Interior on 30 April
1994 (“the Instruction”).
- Rule 26 of the Instruction provided that detainees
placed in investigation prisons were allowed to receive short-term
visits upon approval from the authority conducting the criminal
proceedings (that is, either from the investigating authorities or
the court, depending on the stage reached in the proceedings).
- Rule 32 of the Instruction stipulated that detainees
placed in investigation prisons might be allowed to receive one
short-term visit (up to one hour) per month from family members and
other persons only with written permission from the person or body
dealing with the particular criminal case.
- In 2001 the penitentiary institutions were passed over
from the supervision of the Ministry of the Interior to the Ministry
of Justice. On 9 May 2001 the Minister of Justice issued an
order enacting new regulations (“the Transitional Provisions”)
– the “Transitional Provisions on the Procedure of
Keeping Suspected, Accused, Detained and Sentenced Persons in Remand
Prisons” (Pārejas noteikumi par aizdomās turamo,
apsūdzēto, apcietināto un notiesāto turēšanas
kārtību izmeklēšanas cietumos). These
regulations entered into force on 14 May 2001.
- Rule
25 of the Transitional Provisions provided that detainees may be
allowed to receive one short-term visit per month with written
permission from the authority dealing with the particular criminal
case.
The Transitional Provisions referred to the Regulations of
Internal Order, adopted on 9 May 2001 by the Prison Administration,
to establish that receiving food parcels was not allowed; the
detainees were allowed to keep only a limited assortment of food
products bought in a prison shop.
- The
relevant part of the Constitutional Court's judgment of 19 December
2001 in case no. 2001-05-03 on the compliance of the
Transitional Provisions with Satversme (the Constitution) reads as
follows:
“...The Constitutional Court established:
1. The Transitional Provisions have been enacted
referring to section 15, paragraph 1, part 2 of the Law on
Structure of the Cabinet of Ministers, under which [a member of the
Cabinet of Ministers] may issue instructions that are binding for the
subordinate institutions if the respective issue has not been
regulated by law or Cabinet Regulations. [The order with which the
Transitional Provisions were enacted] envisages that the personnel of
the Prison Administration and the institutions subordinate to it
shall become acquainted with the Transitional Provisions. Neither the
Transitional Provisions nor the Regulations of Internal Order have
not been made public.
Thus the Transitional Provisions and the Regulations
of Internal Order are internal normative acts...
2. ... Regulation of the relations between the state
and the imprisoned persons by internal normative acts is permissible
only if the consequences of the above regulation are not unfavourable
to the imprisoned persons.
...
6. ...By forbidding the detained persons to receive food
parcels the Prison Administration, which is an executive institution,
has groundlessly "broken into" the sector of legislation
and violated Article 64 of the Satversme, which determines that the
right of legislation shall belong to both the Saeima and to the
People, within the procedure and extent provided for in the
Satversme...
Thus, limitation of the fundamental rights of the
imprisoned persons is permissible only by law or on the basis of the
law.
....”
COMPLAINTS
- The
applicant complained under Article 5 § 3 of the
Convention about the excessive length of his pre-trial detention and
the proceedings against him. He also complained that he had not been
able to have long-term family visits, including by his wife and
newborn son, for more than two years.
- The
applicant complained, without invoking any Article of the Convention,
that during his detention he had not received appropriate dental
treatment and as a consequence many of his teeth had had to be
extracted. The applicant could not eat properly and asked for dental
prosthetics, which were refused.
- Finally,
the applicant complained under Article 6 § 1 of the Convention
that he had been deprived of a fair trial.
THE LAW
The complaint covered by the unilateral declaration
- The
applicant complained about the length of his pre-trial detention. He
relied on Article 5 § 3 of the Convention which, in so far as
relevant, provides as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- On
17 June 2009 the Government made the following unilateral
declaration:
“The Government of the Republic of Latvia
(hereinafter – the Government) represented by their Agent Inga
Reine admit that the length of the pre-trial detention applied to
Aivars Epners-Gefners (hereinafter – the applicant) did not
meet the standards enshrined in [Article 5 § 3] of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (hereinafter – the Convention). Being aware of that,
the Government undertake to adopt all necessary measures in order to
avoid similar infringements in future.
Taking into account the above mentioned, the Government
declare that they offer to pay the applicant compensation of [2,500]
euros ([1,758 Latvian lati]), this amount being the global sum and
covering any pecuniary and non-pecuniary damage together with any
costs and expenses incurred, free of any taxes that may be
applicable, with a view to terminating the proceedings pending before
the European Court of Human Rights (hereinafter – the Court) in
the case of Epners-Gefners v. Latvia (application no.
37862/02).
The Government undertake to pay the above compensation
within three months from the date of notification of the
decision/judgment taken by the Court pursuant to Article 37 of the
Convention. In the event of failure to pay this sum within the said
three-month period, the Government undertake to pay simple interest
on it, as established in the decision/judgment by the Court. The
above sum shall be transferred to the bank account indicated by the
applicant.
This payment shall constitute the final resolution with
respect to the mentioned complaint.”
- The
applicant commented that he agreed to the unilateral declaration
submitted by the Government.
- The
Court reiterates that Article 37 of the
Convention provides that it may, at any stage of the proceedings,
decide to strike an application out of its list of cases where the
circumstances lead to one of the conclusions specified under (a), (b)
or (c) of paragraph 1 of that Article. Article 37 § 1 (c)
enables the Court, in particular, to strike a case out of its list
if:
“for any other reason established by the Court, it
is no longer justified to continue the examination of the
application”.
- In certain circumstances, the
Court may strike out an application under Article 37 § 1 (c) on
the basis of a unilateral declaration submitted by a respondent
Government. To this end, the Court will examine carefully the
declaration in the light of the principles emerging from its case-law
(see, in particular, Tahsin Acar
v. Turkey (preliminary
objection) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI;
Kapitonovs v. Latvia
(striking out), no. 16999/02, 24 June 2008;
Ozoliņš v. Latvia
(striking out), no. 12037/03, 2 September 2008; and Borisovs
v. Latvia (striking out)
no. 6904/02, 2 September 2008).
- As
to whether it would be appropriate to strike out the present
application on the basis of the unilateral declaration submitted by
the Government in so far as it relates to the complaint under
Article 5 § 3 of the Convention, the Court
points out that there is considerable case-law with respect to the
respondent State as concerns the scope and the nature of its
obligations arising under this Article (see, for example, Estrikh
v. Latvia, no. 73819/01, §§ 113-120,
18 January 2007, and Lavents v. Latvia,
no. 58442/00, §§ 70-71, 28 November 2002). The
Court has repeatedly found a violation of these obligations and has
awarded just satisfaction in accordance with the requirements of
Article 41 of the Convention. Having regard to the nature of the
admissions contained in the Government's declaration, as well as the
amount of compensation proposed, the Court considers that it is no
longer justified to continue the examination of this part of the
application (Article 37 § 1(c)).
- Moreover,
in the light of the above considerations, and in particular given the
clear and extensive case-law on the topic, the Court is satisfied
that respect for human rights as defined in the Convention and the
Protocols thereto does not require it to continue the examination of
this part of the application (Article 37 § 1 in
fine).
- The
Court notes that this decision constitutes a final resolution of this
part of the application only in so far as the proceedings before the
Court are concerned. It is without prejudice to the use by the
applicant of other remedies before the domestic courts.
- Accordingly,
the case in relation to the complaint under Article 5 § 3
of the Convention should be struck out of the list.
Complaint under Article 3 of the Convention
- The
applicant complained of the domestic authorities' refusal to provide
him with dental prosthetics, as well as a lack of proper dental
treatment while he was being held in custody. The Court will examine
this complaint under Article 3 of the Convention, which provides as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government raised a preliminary objection of non-compliance with the
six-month time-limit as prescribed in Article 35 § 1 of the
Convention. They submitted that the final decision rejecting the
applicant's complaint at domestic level was adopted on 12 February
2002, that is, more than six months before the complaint was lodged
with the Court.
- The
Court reiterates, at the outset, that the object of the six-month
time-limit is to promote legal certainty by ensuring that cases
raising issues under the Convention are dealt with in a reasonable
time, and past judgments are not continually open to challenge.
Further, the rule also affords the prospective applicant time to
consider whether to lodge an application and, if so, to decide on the
specific complaints and arguments to be raised (see Worm v.
Austria, 29 August 1997, § 32, Reports of
Judgments and Decisions, 1997 V, and Keenan v. the United
Kingdom, no. 27229/95, Commission decision of 22 May 1998).
- The
Court further reiterates that Article 35 § 1 of the Convention
provides that the Court may only deal with a matter if it has been
introduced within six months from date of the final decision in the
process of exhaustion of domestic remedies. Where no effective remedy
is available to the applicant, the time-limit expires six months
after the date of the acts or measures complained of, or after the
date of knowledge of that act or its effect or prejudice on the
applicant (see Younger v. the United Kingdom (dec.), no.
57420/00, ECHR 2003 I). This approach is especially appropriate
in circumstances where it is clear from the outset that no effective
remedy was available to the applicant in respect of the act or
decision complained of within the relevant domestic law (see Keenan,
cited above).
- In
the case of a continuing situation, meanwhile, the time-limit expires
six months after the end of the situation concerned (see, among many
other authorities, Agrotexim Hellas S.A. and Others v. Greece,
no. 14807/89, Commission decision of 12 February 1992, Decisions
and Reports 72, and, more recently, Varnava and Others v. Turkey
[GC], nos. 16064/90, 16065/90, 16066/90,
16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90,
§ 159 and seq., ECHR 2009 ...). Similarly, in respect of a
complaint about the absence of a remedy for a continuing situation,
the time-limit under Article 35 § 1 of the Convention also
expires six months after the end of that situation – for
example, when an applicant is released from custody (see Ječius
v. Lithuania, no. 34578/97, § 44, ECHR 2000 IX).
- The
Court notes that the applicant complained to the Court shortly after
20 September 2002 when his conviction entered into force. The
applicant's initial introduction of his complaints dates from
2 October 2002 and he subsequently submitted a completed
application form on 21 November 2002.
- The
Court observes that, in the present case, the applicant complained of
a continuing situation to which he had been subjected while in
custody – the impossibility of acquiring dental prosthetics and
thus proper dental treatment since the domestic law specified that
costs for the type of medical care needed in the applicant's case
were to be borne by the persons in custody themselves. The Prison
Administration had informed him accordingly with a letter of 12
February 2002. The applicant continued to be affected, that is,
barred from receiving medical assistance in the form of dental
prosthetics, after 12 February 2002.
- Therefore,
on the date his complaint was introduced under Article 3 of the
Convention the applicant continued to be affected by the restriction
on receiving dental prosthetics and thus he introduced his complaint
on time in accordance with Article 35 § 1 of the Convention.
- Accordingly,
the Court dismisses the Government's preliminary objection in that
regard.
- The
Court considers, in the light of the parties' submissions, that the
complaint raises serious issues of fact and law under the Convention,
the determination of which requires an examination of the merits. The
Court concludes therefore that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. No other ground for declaring it inadmissible has been
established. It must therefore be declared admissible.
Complaint under Article 8 of the Convention
- The
applicant complained that he had not been able to have long-term
family visits while being held in custody, in particular, by his wife
and newborn son. The Court will examine this complaint under Article
8 of the Convention, which reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government submitted that there had been no interference with the
applicant's right to respect for private or family life since he
never expressed his wish to exercise that right and thus considered
this part of the application manifestly ill-founded. They submitted
that under domestic law, in particular Article 32 of the Instruction
(see paragraph 25 above) and Article 25 of the
Transitional Provisions (see paragraph 27
above), short-term visits were allowed and that on two occasions the
applicant had exercised his right to receive short-term visits from
his wife. In relation to long-term visits, the Government did not
quote or provide any legal ground that could serve as a basis for the
applicant's request to exercise that right. Together with their
written observations they submitted a letter signed by the State
Secretary to the Ministry of Justice, where it was expressly stated
that under domestic law detainees did not enjoy the right to receive
long-term visits.
- The
Court finds that the scope of domestic law in respect of long-term
visits is closely related to the merits of the applicant's complaint
under Article 8 of the Convention. Hence, to avoid prejudging the
merits of the case, the Court holds that this issue should be joined
to the merits and reserved for consideration at a later stage. The
Court concludes, therefore, that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. No other ground for declaring it inadmissible has been
established. It must therefore be declared admissible.
Complaints under Article 6 § 1 of the Convention
- The
applicant complained about the length of the criminal proceedings
against him. He also complained about the fairness of these criminal
proceedings. He relied on Article 6 § 1 of the Convention which,
in so far as relevant, provides as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair hearing within a
reasonable time by [a] ... tribunal ...”
- With
regard to the first part of the applicant's complaint, namely, the
length of the criminal proceedings, the Government submitted that the
proceedings had not been unreasonably long.
- The
Court observes that the criminal proceedings against the applicant
lasted for two years, eleven months and twenty days at three levels
of jurisdiction. The Court finds that, in the circumstances of the
present case, such a period does not raise any issues under the
Convention.
- It
follows that this part of the applicant's complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
- With
regard to the second part of the applicant's complaint, namely, the
fairness of the criminal proceedings against him, in the light of all
the material in its possession, and in so far as the matters
complained of are within its competence, the Court finds that they do
not disclose any appearance of a violation of the rights and freedoms
set out in the Convention or its Protocols.
- It
follows that this part of the applicant's complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government's
declaration and the modalities for ensuring compliance with the
undertakings referred to therein;
Decides to strike the application out of its list of cases in
so far as it relates to the complaint under Article 5 § 3 of the
Convention, in accordance with Article 37 § 1 (c) of the
Convention;
Decides to
discontinue the application of Article 29 § 3 of the Convention;
Declares admissible, without prejudging the merits, the
applicant's complaints under Article 3 of the Convention and Article
8 of the Convention concerning long-term visits;
Declares inadmissible the remainder of the application.
Santiago Quesada Josep Casadevall
Registrar President
