CEDH · CASELAW;COMMUNICATEDCASES;ENG — 5 octobre 2013

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sD30F6183 { font-family:Arial; font-style:italic; letter-spacing:0.5pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .s4BAE41EE { font-family:Arial; font-size:11pt }       FOURTH SECTION Application no. 13662/09 Aldis GALVIŅŠ against Latvia lodged on 12 February 2009 STATEMENT OF FACTS   1.     The applicant, Mr Aldis Galviņš, is a Latvian national, who was born in 1992 and lives in Jelgava. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The applicant’s statements to the police 3.     In the context of a police investigation into arson which took place on 16 December 2006, the police on 14 August 2007 contacted the applicant at his house and escorted him to the Jelgava police station. At the time the applicant was 15 years old. 4.     According to the applicant, at the police station an assumption was expressed about his involvement in the arson which he at first denied. The applicant was also informed that his friend had already confessed to the arson and was asked to tell everything he knew, after which he would be allowed back home. The applicant wrote a submission, addressed to a chief of the Jelgava police station, detailing his involvement in the arson. On the applicant’s account, a police officer was partly dictating the text of this submission. As the applicant was writing the submission, his father arrived at the police station and shortly thereafter left due to urgency at work. These events took place between 2.00 p.m. and 3.00 p.m. 5.     The police accepted the applicant’s written confession. At 3.05 p.m. the applicant was informed of a decision declaring him a suspect in the investigation. 6.     Between 5.00 p.m. and 6.40 p.m. the applicant was interrogated in the status of a suspect. A State-appointed lawyer was present in the interrogation. According to the applicant, however, he had not been afforded an opportunity to consult the lawyer in private beforehand. 7.     Later the applicant engaged his own lawyer. On 12 September 2007, the applicant in the presence of the lawyer and his father testified to the police that on the critical day he had not set the house on fire but had waited outside the house while his friend had been inside. 2.     Proceedings before the Jelgava Court 8.     The applicant and his co-accused were brought for trial before the Jelgava Court. 9.     During the trial the applicant maintained that his last statement given to the police on 12 September 2007 had been accurate. He claimed that he had written his earlier confession on 14 August 2007 as directed by the police. Furthermore, the applicant argued that in the course of his interrogation as a suspect neither his mother nor father had been present and the lawyer had stayed for five minutes, signed the documents and left. 10.     The court heard the evidence of the police officer concerning the applicant’s questioning. He affirmed that until the arrival of the applicant’s father at the police station, he had explained to the applicant the case and that the applicant’s friend had already confessed to the crime. Thereafter the applicant had also confessed to the crime and his submission in this regard had been accepted. The applicant’s father had arrived as the applicant was writing his submission but had left after being informed that a lawyer would participate in his son’s interrogation. The police officer denied that he had dictated anything to the applicant but had only explained “the manner in which the submission needed to be written, the sequence of the facts”. The statements of the applicant and his friend had matched and a lawyer was invited in order to interrogate the applicant in the status of a suspect. 11.     On 11 February 2008 the Jelgava Court found the applicant and his co-accused guilty of arson. The court reasoned that it did not have grounds to doubt the truthfulness of the applicant’s confession to the police. The information provided in it and during his interrogation in the status of a suspect on 14 August 2007 matched. The court dismissed the applicant’s allegation that the lawyer had been present only for five minutes during his interrogation as a suspect because it derived from the minutes of the interrogation and the notice on legal aid in criminal proceedings that the lawyer had provided assistance from 5.00 p.m. until 6.40 p.m. The applicant’s guilt was supported by the evidence of the co-accused. The court doubted the truthfulness of the applicant’s later statements to the police on 12 September 2007 and in the trial, because they deviated from his initial testimonies. The court deemed this an attempt to avoid the responsibility for the crime. 12.     The applicant was imposed a suspended prison sentence of three years with a two-year probationary period. 3.     Appeal proceedings before the Zemgale Regional Court 13.     The applicant lodged an appeal with the Zemgale Regional Court. He argued that the confession and interrogation at the police station on 14   August 2007 had been in violation of his defence rights, and there was no other evidence to base a guilty verdict against him. 14.     On 3 June 2008 the Zemgale Regional Court refused the applicant’s appeal. Upon the injured party’s appeal against the sentencing, which was supported by the prosecution, the court modified the applicant’s sentence and imposed two years of deprivation of liberty. 15.     With regard to the applicant’s written confession the Zemgale Regional Court acknowledged a procedural violation in that a lawyer had not been present. However, the court concluded that this violation could not affect the truthfulness and credibility of the information contained in it to the extent that it had been affirmed by other evidence. 16.     With regard to the applicant’s interrogation as a suspect, the Zemgale Regional Court affirmed that the lawyer had been present. The court noted that the applicant’s father had left and therefore had chosen not to participate in the interrogation of his son. 4.     Cassation proceedings before the Supreme Court 17.     In the appeal on points of law the applicant maintained that his confession and the minutes of interrogation of 14 August 2007 were inadmissible evidence because they had been obtained in violation of his defence rights. The applicant argued that in fact his interrogation had begun at 2.00 p.m. without the presence of his parents or a lawyer. Already upon his arrival at the police station an assumption had been expressed about his guilt to the crime. A lawyer had been provided only from 5.00 p.m. until 6.40 p.m. during the time of the applicant’s interrogation as indicated in the minutes. In that manner the applicant had been deprived of a possibility to consider the defence strategy. He further contended that apart from this defective evidence there was no other evidence to base a guilty verdict against him because the co-accused’s evidence could not suffice to allow a conviction. 18.     On 12 August 2008 the Senate of the Supreme Court refused the applicant’s appeal on points of law. 19.     The Senate outlined that defence rights were applicable to a person against whom criminal proceedings had been initiated. It reasoned that every person against whom an assumption had been made about commission of a crime had a right to defence. In the present case, the applicant had been declared a suspect in the investigation pursuant to a decision issued on 14 August 2007, notified to the applicant at 3.05 p.m. It was from that moment that the applicant had obtained a status of a person in the criminal proceedings with a right to defence. A lawyer had participated in the applicant’s examination in the status of a suspect on 14 August 2007 between 5.00 p.m. and 6.40 p.m. 20.     Further, in rejecting the applicant’s argument that his earlier written confession to the police be excluded from the evidence, the Senate reasoned: “the [appellate] court has assessed the argument of [the] defence on exclusion of [the applicant’s] submission from the evidence as absolutely inadmissible evidence and has determined the submission was admissible in part pursuant to the Criminal Procedure Law section 130(3) in finding that absence of a lawyer ... could not affect the truthfulness of the obtained information and its credibility is affirmed by other information obtained in the proceedings ... a person’s conversations with the police employees, writing of a submission prior to the person’s involvement in the concrete criminal proceedings are not regarded as investigatory actions in these criminal proceedings. The written submission [confession] is not a testimony obtained in interrogation but a document which may be used as a proof.” 21.     The Senate further noted: “The appellate court has in detail examined and analysed the situation, in which [the applicant] found himself, including his invitation to the police, circumstances at the police, and did not discern that, in fact, already prior the decision declaring [him] a suspect, an assumption had been expressed that he had committed a criminal offence. At the same time, the court has indicated that a lawyer ... had the right to be present when submission [confession] was being written and has found the submission partly admissible evidence.” 22.     With regard to the circumstances in which the applicant had been summoned to interrogation, the court affirmed that generally a minor had to be summoned through his legal representative, educational institution or a guardianship tribunal. However, an exception existed from this general rule, where there were circumstances which prevented or made it cumbersome to utilise this procedure of summoning. In that light the Senate indicated: “[The applicant] wandered around, often was not at home, did not listen to parents. Prior to the interrogation he was already present in the police premises.” 23.     The Senate also remarked that neither the applicant nor his defence in the course of his interrogation had expressed any objection regarding limitations on defence rights. Finally, the applicant’s legal representative had a right to participate in the interrogation, however the applicant’s legal representative had not utilised that right, which did not render the testimony inadmissible. B.     Relevant international standards and domestic law 24.     Article 14 (4) of the International Covenant on Civil and Political Rights 1966 (“ICCPR”) reads as follows: “In the case of juvenile persons, the procedure shall be such as will take account of their age, and the desirability of promoting their rehabilitation.” 25.     Article 40 of the Convention on the Rights of the Child 1989 provides: “2.     To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that: (b)     Every child alleged as or accused of having infringed the penal law has at least the following guarantees: (ii)     To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence.” 26.     Section 20 (1) of the Criminal Procedure Law reads: “(1)     Every person against whom an assumption or allegation has been made that such person has committed a criminal offence shall have the right to defence, that is, the right to know the criminal offence the person is suspected of or accused of having committed, and choose own defence strategy.” 27.     Section 83 (1) 1) of the Criminal Procedure Law provides: “(1)     The participation of a defence counsel is mandatory in criminal proceedings if: 1)     a person, who has the right to defence, is a minor, under legal incapacity or diminished mental capacity.” 28.     Sections 130 (2) 4) and 130 (3) of the Criminal Procedure Law set out: “(2)     The information about facts shall be inadmissible and may not be used in proving where it has been obtained: 4)     in violation of the fundamental principles of criminal procedure. (3)     Information about facts which has been obtained in violation of other procedural rules shall be considered restrictedly admissible and may be used in proving only if the procedural violations are not substantial or may be eliminated, they could not affect the truthfulness of the obtained information or its credibility is affirmed by other information acquired in the proceedings.” 29.     Section 146 (3) of the Criminal Procedure Law is worded as follows: “A minor as a general rule shall be summoned to an interrogation through his or her legal representative, educational institution or a guardianship tribunal (parish court). If there are circumstances which justifiably prevent or make cumbersome such procedure of summoning, the minor shall be summoned without resorting to the aforementioned.” COMPLAINT The applicant complains in substance under Article 6 § 3 (c) in conjunction with Article 6 § 1 of the Convention that in the absence of his parents and a lawyer the police escorted him to the police station, put questions about the case and asked to write a submission, which the applicant did, confessing to the crime, which further served as basis for his conviction along with his co-accused’s testimony.   QUESTIONS TO THE PARTIES 1.     Has there been a violation under Article 6 § 3 (c) in conjunction with Article 6 § 1 of the Convention on account of the lack of legal assistance to the applicant, minor at the time, prior the initial inquiry by the police and the written confession to the police, in the absence of his legal guardian; in the light of Süzer v. Turkey , no. 13885/05, 23 April 2013; Salduz v. Turkey [GC], no. 36391/02, ECHR 2008 ? Did the interests of justice require such assistance and that the applicant be informed of his right to seek and obtain legal representation prior the initial inquiry and the written confession to the police?   2.     Did the domestic law require that the applicant, minor at the time, prior a decision declaring him a suspect in the investigation, be accompanied by his legal guardian and/or a lawyer to the police, including, during the initial inquiry and the written confession to the police? Did the domestic law require that the applicant, minor at the time, prior a decision declaring him a suspect in the investigation, be informed of his right to seek and obtain legal assistance?   3.     What was the applicant’s status in the criminal proceedings and what procedural guarantees applied to him at the time the police escorted him to the police station and conducted the initial inquiry, prior a decision declaring him a suspect in the investigation? Did the initial inquiry amount to interrogation?   4.     The Government are requested to submit to the Court the copies of the minutes of the initial inquiry conducted by the police with the applicant, if any record of it was kept, and the applicant’s written confession and the minutes of his interrogation of 14   August 2007.