FOURTH SECTION

DECISION

Application no . 6670/06 Viktors PANCERS against Latvia

The European Court of Human Rights ( Fourth Section ), sitting on 30 June 2015 as a Chamber composed of:

Guido Raimondi, President, George Nicolaou , Ledi Bianku , Nona Tsotsoria , Päivi Hirvelä , Faris Vehabović , judges , Ineta Ziemele , ad hoc judge , and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 8 February 2006 ,

Having regard to the partial decision of 10 May 2011 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Viktors Pancers , is a Latvian national, who was born in 1965 and lives in Riga . He is represented before the Court by Mr A. Vidžups , a lawyer practising in Riga.

2. The Latvian Government (“the Government”) are represented by their Agent, M s K. Līce .

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. The applicant ’ s detention before the trial at the first-instance court

4 . On 23 August 2002 the Rīga City Vidzeme District Court authorised the applicant ’ s detention on remand. The term of the applicant ’ s detention was subsequently extended on several occasions.

5 . On 20 September 2002 the applicant was officially charged with large scale fraud and bribery. The charges against the applicant were subsequently amended on several occasions.

6 . The bill of indictment was finalised on 12 March 2004 and the case was transferred for adjudication to the Rīga Regional Court. On the same day the public prosecutor in charge of the criminal case against the applicant informed the director of Matīsa prison that the term of the applicant ’ s detention had been prolonged. The hearings in the first-instance court took place between 10 January and 1 August 2005.

2. The criminal proceedings and the subsequent orders concerning the applicant ’ s detention

7 . On 1 August 2005 the RÄ«ga Regional Court adopted judgment in the criminal case against the applicant and eight other defendants. The applicant was convicted of several crimes: repeated bribery; abuse of an official position; acquisition, possession and sale of cocaine; money laundering and repeated fraud. He was acquitted of the charges of incitement to bribery, illegal acquisition and sale of a firearm as well as falsification of a criminal case against a third person.

8. The applicant was sentenced to imprisonment of six years and one month. The court also indicated that the applicant was to be continued to be held in detention.

9. The applicant and two of his co-defendants appealed.

10. The Supreme Court started the appeal hearings on 23 May 2006. Hearings continued for three days, after which the presiding judge postponed the continuation of the trial until 30 June 2006.

11 . On 30 June 2006 the Supreme Court , acting as an appeal court, adopted a decision by which it quashed the first-instance court ’ s judgment in its entirety and remitted the case to the first-instance court. The appeal court considered that the first-instance court ’ s judgment had not been adequately motivated and had furthermore relied on evidence which had not been presented during the hearing.              The court also ruled on the applicant ’ s detention on remand and found it necessary to prolong the term of the applicant ’ s detention for three further months. The operative part of the decision of the appeal court indicated that the term of the applicant ’ s detention on remand was to be prolonged by three months “ starting from the date of entry into force of the decision ”.

12 . On 2 July 2006 the applicant lodged a complaint on points of law about his continued detention with the Supreme Court. On 17 August 2006 the Supreme Court informed the ap plicant that his appeal had been received on 7 July 2006 .

13 . On 27 August 2006 the applicant submitted an additional appeal on points of law against the Supreme Court ’ s decision to retain him in detention.

14 . On 7 November 2006 the Senate of the Supreme Court , after having examined the appeals on points of law submitted by the applicant and co ‑ defendants, and an opinion of the pros ecutor , quashed the appeal court ’ s decision of 30 June 2006 in full and remitted the case to the appeal court. The Senate pointed out that upon identifying procedural flaws in the first ‑ instance court ’ s judgment the appeal court itself had a duty to examine the case on the merits and adopt a new judgment.

15. On 23 October 2007 the Supreme Court started hearings concerning the applicant ’ s appeal against the judgment of the first ‑ instance court. The appeal court refused to order the applicant ’ s release from detention, arguing that his detention had been ordered by the verdict of the first ‑ instance court.

16. On 22 September 2008 the applicant was released from prison after having completed his sentence.

17. On 27 February 2009 the Supreme Court adopted a judgment. It upheld the judgment of the first ‑ instance court in full save for one episode of fraud, of which the applicant was acquitted. The applicant ’ s final sentence remained unchanged.

18. In a final decision of 28 October 2009 the Senate of the Supreme Court rejected the appeals on points of law that had been lodged by the prosecutor, the applicant and two of the applicant ’ s co-defendants. The applicant had disputed the interpretation of evidence by the appeal court and the fairness of his conviction in general.

B. Relevant domestic law

19 . Section 570 of the Law of Criminal Procedure (in force from 1 October 2005 and at the material time) provides that:

(1) A cassation complaint or protest shall be lodged not later than within l0 days after the day when a court ’ s judgment or decision becomes available.

...

(4 ) An appeal or protest submitted pursuant to the procedure s pecified in paragraph 1 of this Article shall suspend the execution of a judgment or the entry into force of a decision."

20 . The relevant legal provisions and the domestic case-law in relation to the right to completion of the criminal proceedings within a “reasonable time” have been summarised in the case Tr ūps v. Latvia ( dec. ), no. 58497/08 , 20 November 2012.

COMPLAINTS

21. The applicant complained under Article 5 §§ 1 (c), 3 and 4 of the Convention about the legality, length and review of his detention on remand.

22. He also complained under Article 6 § 1 of the Convention about the length of the criminal proceedings.

THE LAW

A. The complaints under Article 5 of the Convention

23. The applicant complained that his pre-trial detention authorised on 30 June 2006 had been unlawful and that it was not subjected to a proper review. He also complained that the period of his detention lasting from 22 August 2002 until 1 August 2005 and from 30 June 2006 until 7 November 2006 was excessively long. It had therefore been in breach of Article 5 §§ 1 (c), 3 and 4 of the Convention, which as far as relevant reads as follow s:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence; ...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

1. The complaints under Article 5 §§ 1 and 3

24. The Government argued that between 30 June and 7 November 2006 the applicant had been detained within the meaning of Article 5 § 1 (a) of the Convention. They referred to Section 570 (4) of the Criminal Procedure Law and argued in substance that given the Senate ’ s decision of 7 November 2006 by which it revoked the decision of 30 June 2006, the lower court ’ s judgment had in fact not been quashed and the decision to prolong the applicant ’ s pre-trial detention had not come into force.

25 . The applicant disagreed .

26. In relation to the applicant ’ s complaint about the unlawfulness of his detention from 30 June 2006 to 7 November 2006 , the Court observes that according to the domestic law provision regulating the legal effect of an appeal on points of law submitted against a decision adopted by the appellate court, such a decision would become effective only if no appeal against it had been submitted. Therefore, pending the review of an appeal on points of law, the detention “ results from, follows and depends upon or occurs by virtue of the conviction”, thus falling under Article 5 § 1 (a) of the Convention ( Del Río Prada v. Spain [GC], no. 42750/09 , § 124 , ECHR 2013 ) .

27. In this particular case the appeals submitted against the impugned decision of 30 June 2006 suspended the quashing of a lower court ’ s judgment adopted on 1 August 2005 by which the applicant was found guilty. It also suspended the extension of the applicant ’ s pre-trial detention which would have come into effect only if the judgment of 1 August 2005 was quashed and remitted to the lower court for fresh adjudication. The impugned decision of 30 June 2006 was revoked completely on 7 November 2006 when the appeal against the judgment of the lower court was remitted for adjudication to the appellate court (see paragraph 14 above). It follows that the applicant ’ s detention was ordered by the lower court ’ s judgment of 1 August 2005 and thus complied with the guarantees required under Article 5 § 1 (a) of the Convention.

29 . Having regard to the foregoing, the Court concludes that the complaints under Article 5 §§ 1 and 3 are accordingly manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be declared inadmissible pursuant to Article 35 § 4.

2. The complaint under Article 5 § 4 of the Convention

31. The Government considered that the complaint was inadmissible.

32. The applicant upheld his initial complaint.

33. The Court reiterates that where an applicant is convicted and sentenced by a competent court to a determinate term of imprisonment for the purposes of punishment, the review of the lawfulness of detention required by Article 5 § 4 is incorporated in the decision depriving the applicant of his liberty at the close of the judicial proceedings (see De Wilde, Ooms and Versyp v. Belgium , 18 June 1971, § 76, series A, no. 12 ; more recently Iorgov v. Bulgaria (no. 2), no. 36295/02 , § 72, 2 September 2010 ) .

34 . It follows from the above that the judicial control required by Article 5 § 4 of the Convention was incorporated in the judgment of 1 August 2005 by which the applicant was found guilty, and in the subsequent judgments adopted by the appellate and cassation courts .

35 . This complaint is accordingly manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

B. Complaint under Article 6 § 1 of the Convention

36. The applicant complained that the length of the criminal proceedings which lasted seven years, two months and eight days had been incompatible with th e “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which reads as follows :

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

37. The G overnment rejected the allegation and submitted that the applicant had failed to exhaust domestic remedies.

38. The applicant did not comment on this part of the Government ’ s submissions.

39. The Court recalls that in Trūps v. Latvia ( dec. ), no. 58497/08, 20 November 2012, the Court concluded that, as shown by the national courts ’ practice, section 14 of the Law of Criminal Procedure, dated 1 October 2005, had established a compensatory remedy for complaints of unreasonably lengthy criminal proceedings which had to be exhausted. The remedy provides for the possibility of discontinuing unreasonably long criminal proceedings or the length of criminal proceedings being taken into consideration in sentenc ing. In the above decision, the Court was also satisfied that the aforementioned remedy was not limited in terms of temporal jurisdiction.

40. Observing that the applicant never brought a complaint about the length of the criminal proceedings before the domestic courts, the Court concludes that the applicant did not exhaust domestic remedies .

41 . In the light of the above, the Court concludes that this complaint must be rejected under Article 35 § 1 of the Convention .

For these reasons, the Court, unan imously

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 23 July 2015 .

FatoÅŸ Aracı Guido Raimondi              Deputy Registrar President