CEDH · CASELAW;STATEMENTOFFACTS;ENG — 26 juillet 2010

.s800EAC49 { font-size:12pt } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s1E2B8B97 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-align:justify; font-size:10pt } .s13887275 { margin-top:12pt; margin-bottom:6pt; text-align:center; font-size:10pt } .s673A384F { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } 5 July 2010     THIRD SECTION Application no. 61183/08 by X against Latvia lodged on 1 December 2008   STATEMENT OF FACTS THE FACTS 1.     The applicant, Mrs X, is a Latvian national who was born in 1959 and lives in Liepāja. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     On 1 November 2007, when the applicant was in the yard of her apartment building, two officers of the municipal police (J.M. and J.L.) pulled up in a car. After having a conversation with the applicant, in broad daylight and in plain view of everyone they twisted her arms behind her back and tried to push her into the trunk of their car. She was eventually let go, but later she started feeling ill and had to call an ambulance. The applicant submits that she still felt ill effects on her health more than a year after the events of 1 November 2007. 4.     On 2 November 2007 the applicant wrote to the Liepāja City Public Prosecutor's Office and requested that criminal proceedings be initiated against the responsible officers. The applicant stated that she had told the officers that they could talk in her apartment, after which one of them had grabbed her right upper arm and twisted her arm behind her back, while shouting that he would teach her a lesson about resisting the police. At that moment the second policeman had grabbed and twisted the applicant's left arm. The policemen had then tried to push the applicant into the rear compartment of their car. She was eventually let go after her neighbours intervened. Immediately after the policemen had left, the applicant had started experiencing health problems, namely, sharp pain in her chest, high blood pressure, pain in her back, neck and head and loss of feeling in her hands. She had called an ambulance and had been given an injection. The following day a general practitioner had issued the applicant with a sick leave certificate until 12 November 2007 and had prescribed painkillers and sedatives. The doctor had also informed the applicant that in order to have an expert establish the severity of her injuries she would have to make a request to a public prosecutor. The applicant did so, pointing out to the public prosecutor that there were haematomas on her upper arms and requesting an appointment with a forensic medical expert. 5.     On 4 November 2007 the applicant submitted a complaint to the head of the Liepāja City Municipal Police. In substance she repeated her account of the events of 1 November and added several grievances about certain troublesome tenants in her apartment building. In the conclusion of her complaint, the applicant requested that the actions of the two officers of the municipal police be investigated. She also pointed out that as a result of their actions she had suffered moral, material and psychological harm. 6.     On 21 January 2008 an inspector of the Liepāja City and District Police Department adopted a decision to terminate the criminal proceedings, which had been initiated on 2 November 2007 by a public prosecutor of the Liepāja City Public Prosecutor's Office. The decision was adopted on the basis of statements made by the applicant, by J.M. and J.L. and by three other witnesses as well as a forensic medical expert's report and a decision of the Liepāja City Municipal Police to take disciplinary measures in respect of J.M. and J.L. 7.     The applicant had testified that she had been washing her car in the yard of her neighbour's house and that, after she had parked the car near her house, two policemen had pulled up. They had asked the applicant to approach their car, which she had not done because she had needed to return to her apartment urgently. The policemen had then warned her that she was disobeying police orders and had subsequently twisted her arms behind her back. 8.     The policemen J.M. and J.L. stated that they had been called out about an administrative violation – a car being washed in a public courtyard. Upon arrival at the scene they had noticed the applicant with a bucket in her hands standing next to her car. J.L. had then invited the applicant to approach the police car so that a record of an administrative violation could be drawn up, which the applicant had refused to do and had started to walk away. The policemen had then taken her by the arms and started directing her towards the police car. Since the applicant had not shown resistance, J.L. and J.M. had released their hold and subsequently taken statements from the applicant's neighbours for the purpose of initiating administrative proceedings against her. 9.     The forensic medical expert who had examined the applicant noted that each of her upper arms bore two haematomas. It was concluded that the haematomas could have appeared in the circumstances described by the applicant. The haematomas were described as minor injuries which would not have adverse medical effects for more than six days (“ kas neizraisa īslaicīgus veselības traucējumus uz laiku virs 6 dienām ”). The fact that the applicant had actually sought medical treatment for longer than six days was considered irrelevant, since the expert considered that the nature of her injuries did not warrant such an extended treatment. 10.     The three eyewitnesses of the events of 1 November all agreed that the applicant had ignored the requests of the police and that therefore the policemen had tried to detain her. The applicant had resisted and therefore the officers had twisted her arms behind her back. After the applicant had stopped resisting, she had been released. 11.     The findings of the internal investigation of the Liepāja City Municipal Police of 16 November 2007 disclosed that the policemen J.L. and J.M. had been penalised for their lack of diligence in drawing up a record of the administrative violation allegedly committed by the applicant (washing her car in a public courtyard). No mention appears to have been made of the alleged use of force against the applicant. 12.     Taking into account the information set out above, the inspector concluded that the applicant had intentionally disobeyed the lawful command of a police officer (thus committing an administrative offence under Latvian legislation). As a result, J.L. and J.M. had used special restraint techniques (“ pielietoja speciālos cīņas paņēmienus ”), namely, put the applicant's arms behind her back in order to detain her. The applicant had shown resistance while she was being directed towards the police car. Once she had stopped resisting, she had been let go and J.L. had informed his supervisor of the events. In consultation with J.L.'s supervisor it had been decided not to bring the applicant to the police station but instead to initiate administrative proceedings against her. Administrative proceedings were initiated on 13 November 2007 and discontinued on 18 February 2008 because procedural time-limits had not been observed by the police. 13.     The decision stated that, since the applicant had refused to cooperate with the police and had started to walk away, the policemen had had legitimate grounds for detaining her, as long as they observed the requirements set out in the Law on Police (see below). Nevertheless, J.L. and J.M. had failed to fulfil the requirements of section 13 in fine of the Law, which prohibits using special restraint techniques against women, save in exceptional circumstances. As a result, the applicant had sustained minor injuries. Infliction of minor injuries is an offence proscribed by section 130   of the Criminal Law. Under section 7(3) of the Criminal Law infliction of minor injuries is one of the crimes that are prosecuted privately by the victim. 14.     The inspector further noted that J.L. and J.M. had not exceeded their official authority in contravention of section 317 of the Criminal Law. It was established that even though the policemen had violated the requirements of section 13 in fine of the Law on Police, it had to be taken into account that the applicant herself had disobeyed and resisted the police. Thus, taking into account the “nature, circumstances and consequences of the officers' actions”, the inspector concluded that, taking into account the explanations contained in section 23(1) of the Law on the Coming into Force and Application of the Criminal Law, there had been no substantial harm done to state authority, administrative order or the rights and interests of a person. Accordingly the inspector held that the municipal police had to decide whether J.L. and J.M. should be held disciplinarily liable for the violation of section 13 in fine of the Law on Police. In conclusion, it was decided to terminate the criminal proceedings for absence of corpus delicti . 15.     The decision was sent to the applicant in a letter of 24 January 2008. The letter stated as follows: “... You may appeal against the adopted decision to the Liepāja City Public Prosecutor's Office within 10 days after receiving the decision. Please also note that section 7(3) of the Law of Criminal Procedure provides that the offence mentioned in section 130 of the Criminal Law (intentional infliction of minor injury) is prosecuted privately. In the course of private prosecution criminal proceedings the prosecutorial functions are carried out by the victim, who must lodge an application with a court. ...” 16.     It appears that the applicant did not appeal against the decision of 21 January 2008. She did, however, submit a complaint to the Liepāja Court stating her intention to initiate a private prosecution under sections 130 and 156 of the Criminal Law. The complaint was dated 29 April 2008 and was marked as having been received at the court on 30 April. The applicant indicated that J.M. and J.L. had used special restraint techniques against her in contravention of the Law on Police, as a result of which she had been injured, which had been confirmed by a forensic medical expert. She further pointed out that she had incurred pecuniary and non-pecuniary losses. Accordingly, she claimed damages. 17.     On 7 May 2008 a single judge of the Liepāja Court issued a decision concerning the applicant's complaint. The judge held that the limitation period of six months had expired and therefore criminal proceedings could not be instituted. He noted that he had received the applicant's complaint on 6 May 2008, after the expiry of the statutory time-limit. Furthermore, the decision noted that the applicant had failed to specify which paragraph of section 130 formed the legal basis of her complaint, and had not substantiated in any way her claim under section   156. 18.     The applicant appealed. On 2 June 2008 a single judge of the Kurzeme Regional Court dismissed her appeal. The decision noted that the last day on which J.L. and J.M. could have been charged in the course of a private prosecution had been 1 May 2008. Since the applicant had lodged her complaint on 30 April 2008, it would have been physically impossible to initiate proceedings on 1 May 2008 because of the large number of procedural steps that would have had to be taken (for example, a copy of the complaint would have had to be sent to the accused, the accused would have had to be informed about their rights, the applicant would have had to be informed about the time and the place of the hearing, and the accused and other persons would have had to be called to the hearing). The judge further noted that the police had decided not to initiate criminal proceedings on 21   January 2008, yet the applicant had waited for almost three months before lodging a request to initiate a private prosecution. The decision also pointed out that a refusal to initiate criminal proceedings did not preclude the applicant from lodging a civil claim in order to receive compensation for the harm done. Finally it was remarked that the judge of the first-instance court had correctly held that the applicant had failed to specify which of the three paragraphs of section 130 of the Criminal Law formed the legal basis of her complaint. Under the Law of Criminal Procedure, the judge of the first-instance court had a duty to verify if the legal qualification was correct, since the accused had a right to know the exact content of the accusations against them. The decision of the Kurzeme Regional Court was final. B.     Relevant domestic law 19.     Article 95 of the Constitution ( Satversme ) prohibits torture, as well as any cruel, inhuman or degrading treatment or punishment. 20.     Section 12 of the Law on Police ( Likums par policiju ) authorises police officers to perform various activities necessary to maintain public order and to stop or to investigate crimes and administrative violations. The police are authorised, inter alia , to detain suspects, bring them to a police station and hold them under guard. Section 13 regulates the conditions for the use of force, weapons and specialised equipment by the police. Paragraph 6 of section 13, as in force at the relevant time, authorised the use of force and specialised equipment in order to “stop intentionally wrongful resistance to lawful requests made by police officers or other persons performing service duties with the aim of maintaining public order or in the fight against crime.” 21.     Section 13 in fine at the relevant time provided that “The ... intensity of use of physical force or special means shall be determined taking into account the specific situation, the nature of the violation and individual characteristics of the violator, and restricting as much as possible the harm done by such means. If someone is injured as a result of the use of physical force or special means, a police officer is obliged to provide medical assistance to the victim without delay and to report on the incident to his or her immediate supervisor who shall notify the prosecutor. ... It is prohibited to use special [restraint] techniques ... against women ..., except in cases when they ... endanger the lives or health of other persons and police officers, or show armed resistance.” 22.     Section 130 of the Criminal Law ( Krimināllikums ) reads as follows: Section 130 – Intentional Minor Bodily Injuries “(1) For a person who intentionally inflicts [upon another person] bodily injuries, which have not caused damage to health or the general ongoing loss of ability to work (minor bodily injuries), as well as who intentionally [subjects another person] to beating, which has not caused the consequences mentioned, the applicable sentence shall be custodial arrest, or community service, or a fine not exceeding ten times the minimum monthly wage. (2) For a person who intentionally inflicts [upon another person] minor bodily injuries, which have caused temporary damage to health or insignificant general ongoing loss of ability to work, the applicable sentence shall be deprivation of liberty for a term not exceeding one year, or custodial arrest, or community service, or a fine not exceeding twenty times the minimum monthly wage. (3) For a person who [subjects another person to] systematic beating having the nature of torture, or [to] any other kind of torture, provided these acts have not [caused injuries of medium severity or very severe injuries], the applicable sentence shall be deprivation of liberty for a term not exceeding three years, or custodial arrest, or community service, or a fine not exceeding sixty times the minimum monthly wage.” 23.     Section 156 of the Criminal Law (which was in force until 23   December 2009 and has since been removed from the Law) provided for criminal responsibility for intentional written or verbal defamation of a person's honour or reputation. 24.     Section 317 reads as follows: Section 317 – Exceeding Official Authority “(1) For a person who, being a State official, commits intentional acts which manifestly exceed the limits of rights and authority granted to the State official by law or pursuant to his or her assigned duties, if substantial harm is caused thereby to State authority, administrative order or to legally protected individual rights and interests,   the applicable sentence shall be deprivation of liberty for a term not exceeding five years or community service, or a fine not exceeding one hundred times the minimum monthly wage, with or without deprivation of the right to occupy specified positions for a term of between one and three years . ...” 25.     Section 23(1) of the Law on the Coming into Force and Application of the Criminal Law ( Par krimināllikuma spēkā stāšanās un piemērošanas kārtību ) clarifies that “Liability for a criminal offence, provided for in the Criminal Law, by which substantial harm has been caused, shall come into effect if the offence has caused not only significant financial loss but has also threatened other interests or rights protected by law, or if such a threat has been significant.” 26.     Under section 7(3) of the Law of Criminal Procedure ( Kriminālprocesa likums ), the offences mentioned in sections 130 and 156 of the Criminal Law belong to the category of a private prosecution offences. Section 102(1) of the Law of Criminal Procedure provides that such cases have to be brought by the victim directly before the competent court, after which a judge has to make a decision on whether to initiate criminal proceedings. Section 621(2) provides that “no later than on the next working day after receiving [the private prosecution] complaint, the judge shall verify whether the victim's complaint contains a correct indication of the section and paragraph of the Criminal Law, on the basis of which criminal proceedings are to be initiated in a private prosecution case, and whether or not a statutory limitation has entered into effect ...” 27.     After criminal proceedings have been initiated, it is the duty of the victim to prove the accusations contained in his or her complaint. For this purpose the victim may request the judge to call witnesses and to obtain other materials (section 102(2) of the Law of Criminal Procedure). Section 622(2) provides that no pre-trial investigation takes place in private prosecution cases. Lastly, the statutory limitation period in cases susceptible to private prosecution expires six months after the day on which a criminal violation has been committed (section 56(1)(1)). Section 56(2) provides that “the [statutory] limitation period shall be calculated from the day when the criminal offence has been committed until the day when charges are brought”. 28.     Sections 350 to 353 of the Law of Criminal Procedure set out the rules on compensation for victims' pecuniary and non-pecuniary damage. Section 350(3) provides that if a victim considers the compensation received in the course of criminal proceedings insufficient, he or she may request additional compensation in the civil courts. In such cases, the civil courts are bound by the criminal courts' findings concerning the defendant's guilt. COMPLAINTS The applicant complains under Article 6 of the Convention that the domestic courts did not establish the objective truth while adjudicating on her complaint. Without reference to any particular provisions of the Convention, the applicant complains about the police officers' use of force against her. Lastly, the applicant invokes Article 41 of the Convention and complains that she had no possibility to receive compensation for the damage done to her health, reputation and honour. QUESTIONS TO THE PARTIES TO THE PARTIES   1.     Has the applicant exhausted all effective and accessible domestic remedies with regard to her complaint about the police officers' use of force against her, as required by Article 35 § 1 of the Convention?   2.     Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention?   3.     Did the applicant have access to domestic proceedings in which she could have obtained compensation for the alleged use of force against her? If so, were those proceedings in the present case effective and accessible, as required by Article 13 of the Convention (see Rupa v. Romania (no. 1) , no. 58478/00, § 181, 16 December 2008)? The Government are requested to provide specific examples of decisions of Latvian courts in which claims for compensation for damage caused by State agents in the course of their duty have been examined on the merits.