CEDH · CASELAW;COMMUNICATEDCASES;ENG — 19 février 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .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 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase }     Communicated on 19 February 2014   FOURTH SECTION Application no. 43134/09 Viktors CVEČKOVSKIS against Latvia lodged on 27 July 2009 STATEMENT OF FACTS   1.     The applicant, Mr Viktors Cvečkovskis, is a Latvian national, who was born in 1979 and lives in Jelgava. He is represented before the Court by Mr   A. Laiviņš, a lawyer practising in Riga. A.     The circumstances of the case 2.     The relevant facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The applicant’s arrest 3.     On 9 December 2007 at 7.00 p.m. the applicant was at a bus stop in Riga. He was together with A.I. and A.G. 4.     All three individuals looked under the influence of narcotic drugs or psychotropic substances. The police decided to detain them. 5.     As the applicant and A.I. were sitting on a bench at the bus stop, police officers approached them. A.G. had stepped aside. A cigarette pack, later identified to contain twenty plastic bags with methamphetamine, was found on the ground. 6.     The applicant was arrested. 7.     On 10 December 2007 at 2.40 a.m. a search was carried out in A.I.’s apartment in Riga. At the relevant time the applicant had stayed in this apartment. During the search an electric scale and two plastic bags with methamphetamine were found. 8.     On 10 December 2007 the investigated crime was classified as the crime of purchase and possession of narcotic and psychotropic substances with the intent to sell. 9.     On 11 December 2007 a court authorised the applicant’s detention on remand. 2.     First instance court proceedings 10.     The applicant was brought for trial before the Riga City Centre District Court ( Rīgas pilsētas Centra rajona tiesa ). 11.     He pleaded not guilty to the incriminated criminal conduct. 12.     On 11 August 2008 the district court found the applicant guilty of a repeated purchase and possession of psychotropic substances without the intent to sell. 13.     The district court established that the applicant had purchased from an unknown individual the psychotropic substance methamphetamine. The applicant had kept twenty plastic bags containing this substance in a “Monte Carlo Blue” cigarette pack placed in his clothing and had kept two plastic bags of this substance at his temporary place of residence in A.I.’s apartment in Riga. 14.     The district court found that during his arrest on 9 December 2007 at 7.00 p.m. the applicant had thrown the aforementioned cigarette pack on the ground. During the site inspection it had been found and seized. On 10   December 2007 at 2.40 a.m. the apartment used by the applicant had been searched and the two plastic bags containing the prohibited substance had been found in the toilet and seized. 15.     The district court referred to the testimonies of two police officers. By their account, during the arrest the applicant and A.I. had been sitting on the bench at the bus stop. A.G. had stepped aside. The police officers had seen the applicant throw the cigarette pack on the ground. Neither police officer could recall whether the applicant had been wearing gloves. On their evidence, the apartment where the psychotropic substances had been seized had belonged to A.I. but the applicant had also lived there. 16.     The district court further relied on the evidence of A.I. In particular, at the material time the applicant had been living in A.I.’s apartment. Besides the applicant and A.I. himself, two other persons had lived there. A.I. had heard about the applicant’s involvement in dealing with drugs. He had seen the applicant exiting from the toilet with small plastic bags. The applicant had been a drug user. At the time of arrest A.I. had been sitting on the bench next to the applicant and had seen the applicant take a cigarette pack out of his pocket and throw it on the ground. 17.     The district court took into consideration the site inspection evidence and the experts’ reports. It also referred to the results of the applicant’s analysis which had revealed the presence of amphetamine in the applicant’s urine and that the applicant had been under the influence of narcotics. Traces of amphetamine had been found on the applicant’s hands and mouth. No fingerprints had been identified on the cigarette pack or the plastic bags containing the prohibited substance. In this regard, the district court reasoned that the possibility that the applicant had been wearing gloves could not be excluded. This possibility could also be applied to the items found in the apartment. 18.     In view of the foregoing, the district court deemed that “all reasonable doubts with respect to [the applicant’s] guilt [had been] eliminated and therefore no grounds [existed] for a judgment of acquittal”. 19.     The applicant was imposed a five-year imprisonment sentence without confiscation of property and with police control for one year. 3.     Appeal against the first instance court judgment 20.     On 1 September 2008 the applicant appealed to the Riga Regional Court ( Rīgas apgabaltiesa ) against the first instance court judgment. 21.     The applicant argued that the testimony of A.I. was unreliable. In particular, A.I. had also been suspected of dealing narcotic drugs and following the arrest on 9 December 2007 traces of the prohibited substance had been identified also on him. The two plastic bags with the prohibited substance had been found in A.I.’s apartment. The applicant had only sometimes stayed there overnight. These circumstances provided grounds for suspicion also against A.I. However, he had been afforded the status of a witness in the proceedings. 22.     Similarly, the applicant pointed out that the analysis from 9   December 2007 showed that the prohibited substance had also been found in A.G.’s urine. 23.     The applicant criticised that despite such circumstances, the police had decided just a few hours after the arrest on the roles of the applicant, A.I. and A.G. 24.     The applicant drew attention to the fact that his fingerprints had not been found on the cigarette pack, the plastic bags inside it or on the plastic bags found in A.I.’s apartment. 25.     In the appeal, the applicant raised that he had requested A.G.’s examination. The applicant indicated that on the day of the first instance court hearing, 28 May 2008, the court had been aware of A.G.’s location in prison. Therefore, there would have been no difficulty in bringing A.G. to court. However, this had not been done. 4.     Second instance court proceedings 26.     A.G. did not appear at the appeal hearing. The appeal panel noted that A.G. had been in detention until 11 June 2008. Neither the first instance court nor the appeal court had information about A.G.’s place of residence after his release. The summons had been sent on 28 September 2008 to A.G.’s address. However it had been returned with an indication that A.G. had changed his place of residence. 27.     The applicant and his defence counsel requested that A.G. be re-summoned. The appeal panel decided to reject this request “because neither the court, nor [the applicant], nor his defence counsel [knew] the location of witness [A.G.]”. 28.     On 12 November 2008 the regional court rejected the applicant’s appeal and upheld the first instance court judgment. 29.     With regard to A.G., the regional court stated that A.G. had been summoned to the hearing on 12 November 2008. However he had changed his place of residence. None of the parties to the proceedings had known A.G.’s place of residence. In such circumstances the appeal panel had not been able to ensure A.G.’s examination in the appeal proceedings. 30.     The regional court affirmed that testimonies of the two police officers and A.I. attested to the fact that on 9   December   2007 the applicant had thrown the cigarette pack on the ground. 5.     Appeal on points of law against the second instance court decision 31.     On 5 January 2009 the applicant lodged an appeal on points of law against the aforementioned appeal court decision. 32.     He submitted that he had repeatedly requested the examination of A.G. However, that had not been ensured. He indicated that at the court hearing on 28 May 2008 A.G.’s location in prison had been known. Therefore, the court would not have had any difficulty in bringing A.G. to the hearing. 6.     Final court decision upon appeal on points of law 33.     On 12 March 2009 the Criminal Cases Division of the Senate of the Supreme Court ( Augstākās tiesas Senāta Krimināllietu departaments ) refused to examine the applicant’s appeal on points of law. 34.     This decision was final. B.     Relevant domestic law 35.     For Article 92 of the Constitution ( Satversme ) see Kornakovs v.   Latvia (no. 61005/00 , § 53, 15 June 2006). COMPLAINT 36.     The applicant complains under Article 6 § 3 (d) of the Convention that despite his repeated requests in the first instance court and in the appeal court, an important witness for the applicant, A.G., was not summoned and examined in court. Witness A.G. could attest to the applicant’s innocence. QUESTIONS TO THE PARTIES 1.     Did the impossibility for the applicant to have witness A.G. examined at trial render the proceedings unfair, in breach of Article 6 §§ 1 and 3(d) of the Convention?   2.     Did the State authorities exercise, with respect to the applicant’s request that witness A.G. be summoned to trial, the diligence required in order to ensure that the rights guaranteed by Article 6 §§ 1 and 3(d) of the Convention are enjoyed in an effective manner (see Caka v. Albania , no.   44023/02, § 108, 8 December 2009, and Barberà, Messegué and   Jabardo v. Spain , 6 December 1988, § 78, Series A no. 146)?   3.     The Government are requested to provide copies of the following documents to the Court: 3.1.     Minutes of the court hearing(s) in which A.I. was examined; and 3.2.     Minutes of the court hearing held on 28 May 2008.