CEDH · PRESS;GENERAL;ENG — 28 novembre 2002

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .sFBAA385C { margin-left:13.52pt; padding-left:17.83pt; font-family:serif } .sA36B60A1 { font-family:Arial; font-style:italic } .s76CF415B { page-break-before:always; clear:both } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s3964C3A3 { width:1.36pt; display:inline-block } .s901C2590 { width:56.7pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS     606   28.11.2002   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF LAVENTS v. LATVIA   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Lavents v. Latvia (application no. 58442/00). The Court held by six votes to one that there had been a violation of Article 5 § 3 (right to liberty and security) of the European Convention on Human Rights; unanimously that there had been a violation of Article 5 § 4 ; by six votes to one that there had been a violation of Article 6 § 1 (right to a fair hearing within a reasonable time) as regards the right to a hearing within a reasonable time; unanimously that there had been a violation of Article 6 § 1 as regards the right to a hearing by an impartial tribunal established by law, and that it was not necessary to give a separate ruling as to whether the tribunal in question was independent; unanimously that there had been a violation of Article 6 § 2 (presumption of innocence); by six votes to one that there had been a violation of Article 8 (right to respect for private and family life) as regards respect for correspondence and family life.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 15,000 euros for costs and expenses.   (The judgment is in French only.)   1.     Principal facts   Aleksandrs Lavents is a Latvian national born in 1959. A former businessman, he is currently being held under supervision in Linezers Hospital in Riga.   The applicant was chairman of the supervisory board of Latvia’s largest bank, Banka Baltija. The bank went into liquidation, causing severe damage to the national economy and the financial ruin of hundreds of thousands of people. The prosecutor dealing with the applicant’s case suspected him of the offence of sabotage ( kaitnieciba ) for having authorised the transfer of approximately 139 million euros to a Russian bank based in Moscow in exchange for an undertaking to make a payment in the form of Russian government bonds. The applicant was also accused of carrying out fraudulent actions in order to create a prosperous and stable image of the bank.   On 1 June 1995 the applicant was formally declared a suspect on a charge of sabotage and was questioned, and on 28 June 1995 he was placed under investigation. After an order had been made for his detention pending trial, he was imprisoned on 14 July 1995. During the investigation, in spite of a number of appeals by the applicant, his pre-trial detention was prolonged several times. In addition, as he suffered from heart problems in particular, he was twice admitted to hospital under supervision during that period.   On 12 June 1997 the case was set down for trial in the Riga Regional Court. The court dismissed an application by the applicant for his release, on the ground that he was charged with serious offences and that his state of health did not warrant amending the preventive measure imposed on him. After suffering a heart attack during a hearing on 14 October 1997, the applicant was placed under house arrest ( majas arests ), being kept under supervision and, in particular, being prohibited from leaving his flat. The day after that decision, Latvia’s main daily newspaper at the time, Diena , published a statement by the Prime Minister and the Minister of Justice – which was also reproduced in the Latvian Official Gazette ( Latvijas Vestnesis ) – in which they expressed their disagreement with the amendment of the preventive measures imposed on the applicant. The following day, the judges dealing with the case withdrew because of pressure “from the Government and the public”, and the case was assigned to a different bench of the same court. Also in October 1997, on an order by a judge, the applicant’s correspondence, including that with his lawyers, was seized and examined under Article 176 of the Code of Criminal Procedure ( Latvijas Kriminalprocesa kodekss ). To date, that measure has not been lifted.   On 14 September 1998 the applicant was imprisoned. He made a total of nine applications for release, all of which were refused on the ground that his character and the serious nature of the charge made it necessary to keep him in custody. Given his state of health, he was again admitted to hospital, both in prison – where he was denied family visits – and in outside medical establishments.   On a number of occasions during the trial, the applicant challenged the presiding judge of the Regional Court, Mrs Šteinerte, and the other two judges dealing with the case, accusing them of bias and of concealing a significant piece of exonerating evidence. An order by the other two judges for Mrs Šteinerte to withdraw was revoked on 14 December 1999 by the Senate of the Supreme Court, at the prosecution’s request. The challenge was referred to the Riga Regional Court, which, with exactly the same members sitting and Mrs Šteinerte presiding, dismissed it. Furthermore, in November and December 1999 Mrs Šteinerte made a number of statements to the press in two dailies,   Lauku avize and Respublika , and in the newspaper Kommersant Baltic . In them she criticised the conduct of the defence and alluded to the outcome of the trial; she also expressed her surprise that the applicant was persisting in denying the charges and called on him to prove his innocence.   In a judgment of 28 December 2001 the applicant was convicted and sentenced to nine years’ imprisonment. Proceedings on appeal are still pending.       2.     Procedure and composition of the Court   The application was lodged on 1 June 2000 and declared partly admissible on 7 June 2001.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greek), President , Françoise Tulkens (Belgian), Giovanni Bonello (Maltese), Peer Lorenzen (Danish), Nina Vajić (Croatian), Rait Maruste (Estonian), Vladimiro Zagrebelsky (Italian), judges , and also Søren Nielsen , Deputy Section Registrar .     3.     Summary of the judgment [2]   Complaints Relying on Article 5 §§ 3 and 4 of the Convention, the applicant complained of the length of his detention pending trial, which he maintained had lasted more than six years, and of the lack of effective judicial review of the detention. Under Article 6 § 1, he submitted that he had not had a hearing within a reasonable time or by an independent and impartial tribunal established by law. The applicant also asserted that the statements made to the press by the judge dealing with his case had indicated that she was persuaded of his guilt, in breach of Article 6 § 2. He further submitted that the seizure and examination of his correspondence, and the ban on family visits during part of his time in detention, had infringed Article   8.   Decision of the Court   Article 5 § 3 The Court noted that for 11 months the applicant had been permanently confined to his flat under supervision, being strictly forbidden to leave. It held that the degree of constraint entailed by such a measure was sufficient for it to be regarded as a deprivation of liberty within the meaning of Article 5 of the Convention. The same applied to the periods spent in hospital, as under domestic legislation the applicant was still considered to be in detention pending trial. In that connection, the Court noted that the restrictions on the applicant’s freedom of movement had in substance been the same as those imposed in prison and that there had merely been a change in the regime and conditions of his pre-trial detention, a measure that remained in force.   The Court acknowledged that in examining the applicant’s complaint concerning the length of his detention pending trial, it was only able to consider the period after 27 June 1997, the date on which the Convention had come into force in respect of Latvia. However, it reiterated that it had to take into account the period already spent in custody by that date in order to assess whether the length of the detention was reasonable. It accordingly noted that six years, five months and 14 days had elapsed between the date on which the applicant had been arrested and the date on which a court had determined the merits of the charge against him, including a period of four years and six months after the Convention had entered into force in respect of Latvia.   The Court noted that after the Convention had come into force, the Regional Court had on nine occasions refused applications for the applicant’s release, stating the grounds for its decisions in an abstract and succinct manner and merely referring to the criteria set out in the relevant provision of the Code of Criminal Procedure. In the Court’s view, such grounds could not justify the applicant’s prolonged detention and did not stand the test of time. The Court accordingly held that there had been a violation of Article 5 § 3.   Article 5 § 4 The Court pointed out that it had jurisdiction to examine this complaint only as regards the period after the Convention’s entry into force in respect of Latvia on 27 June 1997. In the present case, that meant that its examination of the effectiveness of judicial review concerned only the judicial stage of the proceedings.   The Court reiterated that independence and impartiality were essential elements of the notion of a “court” wherever that term was used in the Convention. It added that a court was always required to be established by law if it was not to lack the necessary legitimacy to hear cases brought by individuals in a democratic society.   In the present case the Riga Regional Court had been called upon to consider the merits and had also had the task of examining the applicant’s applications for release. In that connection, the Court referred to its conclusions under Article 6 § 1 to the effect that the applicant had not been tried by an impartial tribunal and that the bench dealing with his case had not been “established by law” as regards the period after 14 December 1999. The Court accordingly held that there had been a violation of Article 5 § 4.   Article 6 § 1   Right to a hearing within a reasonable time The Court considered that the proceedings in the applicant’s case had begun when he had first been questioned as a suspect on 1 June 1995, and had ended with the delivery of the judgment at first instance on 28 December 2001. The proceedings, which were still pending on appeal, had therefore lasted almost six years and seven months. Although the Court was able to consider this complaint only from the date on which the Convention had come into force in respect of Latvia, it pointed out that it was required to take into account the stage reached in the proceedings by that date. By that date, the investigation of the case had taken two years and 27 days.   The Court acknowledged that the case was an extremely complex one and noted that substantial delays had been caused by the applicant’s state of health, but held that the applicant could not be held responsible for such delays as they had been the result of force majeure . As regards the conduct of the national authorities, the Court observed that ten months and 28 days had elapsed between the date on which the judges had withdrawn from considering the case, citing Government pressure, and the date on which the case had been referred to a different bench, without any reason having been given for such inaction. The Court therefore concluded that the judicial authorities had not shown the diligence required for the proper conduct of proceedings, and held that there had been a violation of Article 6 § 1 of the Convention.   Right to a hearing by a tribunal established by law The Court noted that the order of 27 October 1999 for Mrs Šteinerte to withdraw had been revoked on 14 December 1999 by the Senate of the Supreme Court, at the prosecution’s request. Contrary to the instruction given by the Senate in its order, the case was referred to the same bench of the Riga Regional Court that had already withdrawn. The Court further noted that after the decision by the two non-presiding judges had been revoked, those judges had been disqualified by law from sitting in the case. The bench of the Regional Court had accordingly not been constituted in accordance with the law, and there had therefore been a violation of Article 6 § 1 on that account.   Right to a hearing by an impartial and independent tribunal The Court noted that in the press, Mrs Šteinerte had criticised the attitude of the defence in the court proceedings, made predictions about the outcome of the trial and expressed surprise that the applicant was persisting in pleading not guilty, calling on him to prove his innocence. In the Court’s opinion, those statements amounted to the adoption of a definite position as to the outcome of the trial, with a distinct preference for a guilty verdict against the applicant. The statements were incompatible with the requirements of Article 6 § 1 and had caused the applicant to fear that the judge in question lacked impartiality. The Court accordingly held that there had been a violation of Article 6 § 1 on account of the court’s lack of impartiality and held that that finding made it unnecessary to examine separately the question whether the court had been “independent”.   Article 6 § 2 The Court noted that it appeared from Mrs Šteinerte’s statements to the press that she was persuaded of the applicant’s guilt. She had even suggested that he prove that he was not guilty, an attitude which in the Court’s opinion was at variance with the very principle of the presumption of innocence, one of the fundamental principles governing a democratic State. The Court accordingly held that there had been a violation of Article 6 § 2 of the Convention.   Article 8   Seizure and examination of correspondence The Court considered that there had been interference with the applicant’s right to respect for his correspondence. It noted that the measure in issue had been ordered by a judge on the basis of Article 176 of the Code of Criminal Procedure, which authorised such a measure in the case of persons accused of particularly serious offences. In the Court’s view, that provision left the courts too much latitude by merely indicating the types of offences concerned and not specifying the period of validity of the measure or the reasons that might warrant it. The Court noted in that connection that the monitoring of the applicant’s correspondence, a measure which had been ordered in 1997, was still being carried out. In the Court’s opinion, the law that had been applied did not indicate with sufficient clarity the scope and manner of exercise of the discretion conferred on the authorities in the relevant sphere. It consequently held that the interference had not been prescribed by law and that there had been a violation of Article 8 of the Convention.   Prohibition of family visits The Court noted that there had been interference with the applicant’s right to respect for his family life because his wife and young daughter had not been allowed to visit him in prison. That measure had been provided for at the material time by a ministerial order. However, in December 2001 the Latvian Constitutional Court had declared that any interference with an individual’s personal rights on the sole basis of a ministerial order was incompatible with the Constitution. That caused the Court to have serious doubts as to whether the measure in issue had been “in accordance with the law” as required by Article 8 of the Convention.   The Court further noted that the applicant’s wife and daughter had not been allowed to visit him during three periods, the longest of which had lasted almost a year and seven months. Moreover, the ban had been an absolute one. In addition, the Court observed that the applicant had not taken advantage of his period under house arrest, during which time he had had unlimited contact with his family, to engage in any form of collusion or to hinder the investigation of his case. The Court was therefore not satisfied that the application of such a stringent measure had been necessary to achieve the legitimate aims it might have pursued. It considered that the measure had not been “necessary in a democratic society” and held that there had been a violation of Article 8 on that account.     Judge Maruste expressed a partly dissenting opinion, which is annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] .     Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] .     This summary by the Registry does not bind the Court.