CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 2 février 2010

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Zupančič,   Alvina Gyulumyan,   Ineta Ziemele,   Luis López Guerra,   Ann Power, judges, and Santiago Quesada, Section Registrar , Having regard to the above application lodged on 8 August 2001, Having regard to the declaration submitted by the respondent Government on 5 March 2009 requesting the Court to strike the application out of the list of cases, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Vladimirs Šutovs, is a permanently resident non-citizen of Latvia, who was born in 1956 and lives in Rīga. He is represented before the Court by Mr W. Bowring, a lawyer practising in London. The Latvian Government (“the Government”) are represented by their Agent, Mrs I.   Reine. A.     The circumstances of the case 2.     The facts of the case, as submitted by the parties, may be summarised as follows. 3.     On 13 May 1998 the applicant was arrested on suspicion of having committed rape. On 15 May 1998 his detention was authorised by a decision of the Rīga City Latgale District Court. The applicant did not appeal against that decision. His detention was later prolonged by decisions of the same court on 10 July and 23 September 1998. No appeals were submitted against those decisions, either. 4.     On 21 May 1998 the applicant was officially charged with rape. However, the criminal proceedings in that regard were terminated on 2   November 1998 for the absence of corpus delicti in the applicant’s actions. 5.     In the meantime, on 30 April 1998 unrelated criminal proceedings were initiated against the applicant. He was accused of having joined a group of unknown individuals in beating up of the victim Z., after which the victim’s watch, money and silver chain had been stolen. It was also alleged that the applicant had sprayed tear gas in the victim’s face. During the preliminary investigation, the victim testified that on 28 May 1998 several arrested persons had been shown on television, amongst which he had recognised the applicant as one of his assailants. 6.     On 26 June 1998 this criminal case was handed over to the Rīga City Latgale District Public Prosecutor’s Office. At a later stage the charges against the applicant were extended to include an accusation of an unauthorised possession of a knife. On 19 November 1998 the criminal case was transferred to the Rīga City Latgale District Court. 7.     On 18 March 1999 the Latgale District Court held a hearing but pursuant to a request from the applicant the hearing was adjourned on the ground that he requested the court to order taking of additional evidence and to question a medical expert and witnesses F., L. and D. (who had been present as impartial observers when the victim had identified the applicant’s photograph). The requested witnesses failed to appear at the next hearing and it was once again postponed. 8.     The hearing on the merits of the case was held on 28   and 29 February and 1 March 2000. The medical expert requested by the applicant was not summoned for that hearing and the witnesses F. and D., although summoned, failed to appear. The applicant waived his right to be represented by a defence counsel. 9.     In a judgment delivered on 1 March 2000, the court found the applicant guilty of theft and possession of a knife and sentenced him to four years’ imprisonment. The applicant pleaded not guilty. In establishing his guilt, the court relied on the testimonies at the trial by the victim and four witnesses. The victim testified that on the critical date he had been beaten by a group of teenagers. Thereupon the applicant had arrived on the scene and had told the perpetrators to strike him in the kidneys and had sprayed tear gas into his face. After the assault he had realised that his money, watch and silver chain had been stolen. Later, on 28 May 1998, he had recognised the applicant amongst several arrested persons shown on television. 10.     Besides the evidence given by the victim and the witnesses, the trial court based the applicant’s conviction on, inter alia , a medical expert’s report that stated that the victim had had bruises on his head and body; the victim’s identification of the applicant through photographs; the victim’s confirmation that a tear gas canister shown to him was of that kind that had been used by the applicant during the assault on him; the report drawn up by the police to the effect that a tear gas canister had been found in the applicant’s flat; the policeman’s report stating that a knife had been found on the applicant. 11.     The witness L. (who was one of the impartial observers present when the victim identified the applicant’s photograph) was also heard by the court. He testified that he had been present as an impartial observer at the photographic identification procedure and the tear gas dispenser identification procedure. He also stated that from time to time he had been invited to participate as an observer at several identification procedures held by the police. However, L.’s testimony was not reflected in the first-instance court’s judgment. 12.     The applicant had requested the court to order the taking of additional evidence on whether he had been shown on television on the alleged date. This request was turned down. It does not appear that the applicant submitted any other requests during the hearing. 13.     On 4 April 2000 the applicant appealed against the theft conviction to the Rīga Regional Court. He alleged, inter alia , that his rights had been violated because the first-instance court had not requested expert testimony on the clinical effects of tear gas on the human conjunctiva. He further argued that procedural irregularities had occurred during the identification of his photograph and the tear gas canister. The applicant also complained that the first-instance court had refused his request to order the taking of additional evidence as to whether he had indeed been shown on television on 28 May 1998. 14.     On 13 May 2002 the applicant was released from prison after having served his sentence. The applicant alleged that he had contracted tuberculosis during his detention in the Central Prison and that he had not received adequate treatment for that disease. It appears that subsequently he was temporarily granted the second degree of disability. 15.     The Rīga Regional Court started examining the applicant’s appeal and held its first hearing on 13 May 2003. The applicant insisted that the medical expert who had examined the victim after the attack in 1998 and an expert psychologist be heard by the court. The public prosecutor requested that the victim and the medical expert be summoned. The hearing was adjourned in order to summon the victim and the medical expert. 16.     On 24 November 2003 the Regional Court held another hearing. It was adjourned because neither the victim nor any witnesses had appeared at the court. 17.     The next hearing was held on 21   January   2004. During the hearing, the applicant, his counsel and the public prosecutor declared that they considered it possible to hear the case in the absence of the victim, witnesses and the medical expert, on the basis of the documents in the case file. After giving testimony, the applicant did not have any further requests and stated that the court investigation could be finished. That opinion was also expressed by the applicant’s counsel and the public prosecutor. In the subsequent debates, the applicant’s counsel disputed the consistency of the victim’s earlier testimony. The court adjourned the hearing in order to ensure the attendance of the victim and the witness B., whose testimony had already been heard by the first-instance court. 18.     At the next hearing held on 4   March   2004 the applicant requested the court to order the taking of additional evidence as to whether he had or not been shown on television on 28 May 1998. This request was rejected on the ground that the exact television channel from whom the information had to be requested had not been specified by the applicant. The court heard testimony of the witness B. and decided to summon the medical expert who had examined the victim after the assault. 19.     In the following hearing, which was held on 15   March   2004, the appeal court heard the medical expert who testified that, while the possibility that tear gas had been sprayed into the victim’s face could not be excluded, her report had not contained any conclusions in this respect since she had examined the victim three days after the assault and had not observed any injuries consistent with the use of tear gas. 20.     The victim was not convened to the hearing since his whereabouts were unknown. During the hearing, the applicant requested to call an expert witness to testify on the clinical effects of tear gas on the human conjunctiva and to obtain an expert testimony from a psychologist as to the victim’s credibility. As to the request to hear expert testimony regarding the effects of tear gas, the court considered that the available expert evidence was sufficient and that there was no necessity to adhere to the applicant’s request. The applicant’s request to hear an expert regarding the victim’s credibility was also turned down because the victim was not present at the hearing and thus an expert would not have been able to verify his reliability. 21.     In its decision of 15 March 2004 the appeal court considered that the applicant’s allegations that there had been procedural defects in the identification procedures at issue did not rebut the victim’s statements that he had identified the applicant as the person who had assaulted him and that the tear gas canister at issue had been the one used by the applicant. That court also observed that the statements made by witness L. before the first instance court that he had been present as an impartial observer at other identification procedures held by the police had not refuted the fact that the victim had identified the applicant through photographs and that the tear gas canister at issue had been identified by the victim as the one used by the applicant. Having considered all these factors, the Rīga Regional Court concluded that the first-instance court had established all relevant facts with sufficient certainty and had assessed them correctly from the legal point of view. Accordingly the judgment of the court of first instance was upheld in full. 22.     On 15 June 2004 the Senate of the Supreme Court by a final decision of a preparatory meeting dismissed the applicant’s appeal on points of law. COMPLAINTS 23.     The applicant complained, without invoking any particular provision of the Convention, that he had not received adequate treatment of tuberculosis in prison. 24.     The applicant complained of a violation of Article 5 § 3 of the Convention without providing any further explanation. 25.     Under Article 6 § 1 of the Convention the applicant complained about the length of the criminal proceedings against him. 26.     The applicant alleged that he had not had a fair trial, since the domestic the courts had not granted his requests to hear the witnesses F. and D., that the expert witnesses requested by him had not been called and that the courts had refused to gather additional evidence as to whether he had been shown on television on 28 May 1998. In that regard he relied on Article   6   §§ 1 and 3 (d) of the Convention. THE LAW A.     Length of the criminal proceedings 27.     The applicant complained about the length of the criminal proceedings against him. He relied on Article 6   §   1 Convention which, in so far as relevant, reads as follows: Article 6 § 1 “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 28.     On 5 March 2009 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving a part of the issues raised by the applicant. They further requested the Court to terminate the proceedings accordingly. The declaration provided as follows: “The Government of the Republic of Latvia represented by their Agent Inga Reine (hereinafter – the Government) admit that the unreasonably lengthy criminal proceedings initiated against [the applicant] did not meet the standards enshrined in Article [6   §   1] 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 that the parties have failed to reach a friendly settlement in the present case, the Government declare that they offer to pay ex gratia to the applicant compensation in the amount of 2,700 euros ([approximately 1,898   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 Šutovs v. Latvia (application no.   4044/02). The Government undertake to pay the above compensation within three months from the date of delivery of the decision (judgment) 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 the amount, 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 will constitute the final resolution of the case.” 29.     The applicant did not comment in any way the unilateral declaration that had been proposed by the Government. 30.     The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. However, as it has stated in earlier cases (see, in particular, Tahsin Acar v. Turkey (preliminary objection) [GC], no.   26307/95, §   74, ECHR 2003 ‑ VI, and Venera-Nord-Vest Borta A.G. v. Moldova , no.   31535/03, §   28, 13   February 2007), a distinction must be drawn between, on the one hand, declarations made in the context of strictly confidential friendly settlement proceedings (Article 38 § 2 of the Convention and Rule 62 § 2 of the Rules of Court) and, on the other hand, unilateral declarations made by a respondent Government in public and adversarial proceedings before the Court. In accordance with Article 38 § 2 of the Convention and Rule 62 § 2 of the Rules of Court, the Court will proceed on the basis of the Government’s unilateral declaration submitted outside the framework of friendly-settlement negotiations, and will disregard the parties’ statements made in the context of exploring the possibilities for a friendly settlement of the case and the reasons why the parties were unable to agree on the terms of a friendly settlement (see Estate of Nitschke v. Sweden , no.   6301/05, §   36, 27   September 2007). 31.     The Court notes that under certain circumstances it may strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. 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 , cited above, §§ 75-77, Swedish Transport Workers Union v. Sweden (striking out), no.   53507/99, 18 July 2006, and Van Houten v. the Netherlands (striking out), no.   25149/03, ECHR 2005 ‑ IX, and also 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). 32.     As to whether it would be appropriate to strike out the present application, insofar as it concerns the length of the criminal proceedings against the applicant, on the basis of the unilateral declaration made by the Government, the Court points out that there is a considerable case-law with respect to Latvia as concerns the scope and the nature of their obligations arising under Article 6 § 1 of the Convention as regards the guarantee of the right to a trial within a reasonable time (see, in particular, Estrikh v. Latvia , no.   73819/01, 18 January 2007; Svipsta v. Latvia , no.   66820/01, 9   March   2006; Moisejevs v. Latvia , no.   64846/01, 15   June   2006; Lavents v. Latvia , no.   58442/00, 28   November 2002; Freimanis and Līdums v. Latvia , nos.   73443/01 and 74860/01, 9 February 2006; Kornakovs v. Latvia , no.   61005/00, 15 June 2006; and Čistiakov v. Latvia , no.   67275/01, 8   February 2007). The Court has repeatedly found a violation of this obligation and has awarded just satisfaction in accordance with the requirements of Article 41 of the Convention. 33.     Having regard to the specific circumstances of the case, the Government’s admission to violation of Article 6 § 1 of the Convention with respect to the applicant, as well as their acknowledgment of the general problem and their readiness to tackle it through the adoption of “all necessary measures” with a view to preventing similar violations of the Convention in the future, and the amount of compensation proposed to the applicant, the Court considers that it is no longer justified to continue the examination of the respective part of application (Article 37 § 1 (c)) (see, for the relevant principles, Tahsin Acar , cited above, Haran v. Turkey , no.   25754/94, judgment of 26   March   2002, Kapitonovs , Ozoliņš and Borisovs , cited above). 34.     The Court further notes that this decision constitutes a final resolution of this application only insofar as the proceedings before the Court are concerned. It is without prejudice to the applicant’s right to use other remedies before the domestic courts to claim further compensation in respect of the impugned issues. 35.     In the light of all the above considerations, 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 ). Accordingly, this part of the application should be struck out of the list. B.     The remaining complaints Article 3 36.     The applicant complained that he had contracted tuberculosis while in the Central Prison and that he had not received adequate medical treatment. The Court considers it appropriate to examine this complaint from the perspective of Article 3 of the Convention. The Court notes that the applicant has never informed any domestic authorities about these alleged problems. It follows that this complaint must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. Article 5 § 3 37.     The applicant referred to Article 5 § 3 of the Convention but failed to specify his complaint. Accordingly this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.   Article 6 §§ 1 and 3 (d) 38.     The applicant alleged that he did not have a fair trial, since the domestic courts did not grant his requests to hear the witnesses F. and D., that the expert witnesses requested by him were not called and that the courts refused to gather additional evidence as to whether he had been shown on television on 28 May 1998, as was alleged by the victim. In that regard he relied on Article   6   §§   1 and 3 (d) of the Convention. 39.     At the outset, the Court notes that it is not its task to review alleged errors of fact and law committed by the domestic judicial authorities and that, as a general rule, it is for the national courts to assess the evidence before them and to apply domestic law. The Court’s task is to ascertain whether the proceedings as a whole were fair (see, inter alia, Bernard v. France, judgment of 23 April 1998, no. 22885/93, § 37, ECHR 1998-II). Against that background, the Court will address the applicant’s complaints in turn. Failure to summon witnesses F. and D. 40.     The Court notes that the applicant requested that witnesses F. and D. be summoned to the hearing in the first-instance court. He considered that their testimony would enable that court to establish that the procedures of identification of his photograph and the tear gas canister allegedly used by him had been conducted with violations of the applicable procedural law. 41.     However, the Court observes that, even though F. and D. did not testify before the first-instance court, during the hearing of the appeal court the applicant did not repeat his request that they be summoned. Neither did he allege that the first-instance court’s judgment had been defective because of that court’s failure to hear the requested witnesses. It follows that this complaint must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. Failure to summon expert witnesses 42.     The applicant complained that the appeal court had refused to summon an expert who could testify as to the effects of tear gas on human conjunctiva and an expert psychologist who could establish the degree of veracity of the victim’s testimony. As to the former, the Court sees no reason to disagree with the domestic courts’ opinion that the requested expert’s opinion was not relevant to the facts of the case. As to the latter, the appeal court correctly pointed out that the victim was not present at the hearing and his presence had not been requested by the applicant. Accordingly summoning a psychologist would have been futile. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. Evidence concerning the television broadcast of 28 May 1998 43.     Among the evidence used to establish the applicant’s guilt, the domestic courts took into account the victim’s allegation that he had recognised the applicant as one of his assailants when he had seen him in a television broadcast on 28 May 1998. Throughout the course of the proceedings the applicant insisted that he had not been shown on television that day and requested the appeal court to obtain a video-recording of the broadcast. Despite several attempts to contact the TV station, which had been most likely to have demonstrated the broadcast in question, the court was unable to obtain the recording. 44.     While the appeal court’s stated motives for refusing the applicant’s request might have been misleading, the Court considers that the applicant has failed to demonstrate that the fact that the recording in question had not been viewed by the domestic courts impaired his defence rights to such an extent as to render the whole proceedings unfair. The applicant was convicted on the basis of solid evidence (witness testimonies, expert reports, and identification of the applicant’s photograph and of the tear gas canister used by him). It follows that this 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 Decides to strike the applicant’s complaint about the length of the criminal proceedings against him out of its list of cases; Declares inadmissible the remainder of the application.     Santiago Quesada   Josep Casadevall   Registrar   President