FOURTH SECTION

DECISION

Application no . 38068/08 Agnis PŪCE against Latvia

The European Court of Human Rights (Fourth Section), sitting on 9 December 2014 as a Chamber composed of:

Päivi Hirvelä , President,

Ineta Ziemele ,

Ledi Bianku ,

Nona Tsotsoria ,

Zdravka Kalaydjieva ,

Paul Mahoney ,

Faris Vehabović , judges,

and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 3 December 2007 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Agnis PÅ«ce , is a Latvian national, who was born in 1968 and lives in Ventspils .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Criminal proceedings against the applicant

3. On 3 December 2006 the applicant was arrested on suspicion of having damaged an oil product pipeline and of attempted theft . On 4 December 2006 the applicant ’ s pre-trial detention was ordered by a judge. On 13 July 2007 the Ventspils Court ( Ventspils tiesa ) convicted the applicant of the aforementioned crimes and sentenced him to two years in prison. Considering that the applicant had been previously convicted and that in those criminal proceedings he had been given a suspended prison sentence of two years, the final sentence for the applicant ’ s two convictions was set at three years ’ imprisonment.

4. On 7 January 2008 the Kurzeme Regional Court ( Kurzemes apgabaltiesa ) upheld the judgment of the Ventspils Court. On 7 January 2008, following an appeal on points of law, the Criminal Cases Division of the Senate of the Supreme Court ( Augstākās tiesas Senāta Krimināllietu departaments ) upheld the applicant ’ s conviction, but remitted the judgment with regard to the final sentence that was determined for the applicant ’ s two convictions.

5 . On 27 March 2008 the Kurzeme Regional Court set the final sentence for the applicant ’ s two convictions at two years and eight months ’ imprisonment. The Criminal Cases Division of the Senate of the Supreme Court upheld this judgment with a final decision of 6 May 2008.

2. The circumstances of the applicant ’ s arrest

6 . The applicant was arrested on 3 December 2006 at 0.30 a.m. At the time of the arrest the applicant was driving a car and was wearing no shoes, only woollen socks. The applicant submits that at the time of the arrest he had asked the police officers to take him home to pick up some shoes; this request was, however, rejected.

7 . The protocol of detention states that the applicant was arrested at the time of commission of the crime. In its judgment of 13 July 2007 the Ventpils Court established that after having realised that his co-accused had been arrested the applicant had attempted to dispose of his boots, which were subsequently found in the forest.

8 . During the trial hearing before the Ventspils Court that took place on 5 July 2007 police officer A.K. and investigator K.G. testified that A.K. had offered the applicant the shoes that had been available at the police office, and that the applicant had refused them. In his application to this Court the applicant denied that he had been offered any shoes. Furthermore, A.K. testified, and the applicant confirmed, that the applicant ’ s wife had been telephoned and invited to bring the applicant shoes. However, the Court has no information who provided the applicant with shoes and when this happened.

B. Relevant domestic law and practice

1. The proceedings before the Prosecution

9 . Section 6(3) of the Law on the Prosecutor ’ s Office ( Prokuratūras likums ), providing for an appeal against action taken by a prosecutor, was cited in Leja v. Latvia (no. 71072/01 , § 34, 14 June 2011).

2. Review of actions of public authorities

10. Regulation no. 827 (2005) of the Cabinet of Ministers, effective since 5 November 2005, provides that the H ead of the Prisons Administration decides on legal challenges brought by private individuals against “administrative acts” issued by or “actions of a public authority” taken by its subordinate officers, unless otherwise prescribed by law (paragraph 6 and 13). The decision of the H ead of the Prisons Administration can be brought to court (para 13).

11 . The Administrative Procedure Law ( Administratīvā procesa likums ) that took effect on 1 February 2004 provides, among other things, for the right to challenge administrative acts and actions of public authorities before the administrative courts. The relevant provisions of that L aw were summarised in the case of Melnītis v. Latvia (no. 30779/05, §§ 24-26, 28 February 2012).

3 . Prohibition on smoking in prisons

12 . Section 11 of the Law on Restrictions r egarding the Sale, Advertising and Use of Toba c co Products ( Likums “ Par tabakas izstrādājumu realizācijas , reklāmas un lietošanas ierobežošanu ” ), effective since 21 January 1997, sets out the restrictions on smoking. In particular, s ection 11( 1 )( 2) prohibits smoking in detention facilities, apart from in premises specially set aside for that purpose. Section 11( 1 )( 2) adds that the internal rules of the relevant establishment may provide for the possibility of smoking outside such premises, having due regard to the physical and mental health of the inmates

4 . Medical care in prisons

13 . Regulation n o. 358 (1999) of the Cabinet of Ministers governed the medical care of convicts in penal institutions until 28 March 2007. On the said date it was replaced with Regulation n o. 199 (2007) of the Cabinet of Ministers, which was in force until 23 January 2014. The relevant provisions of both R egulations were cited in the case of Fedosejevs v. Latvia (( dec. ), no. 37546/06 , §§ 33-34, 19 November 2013).

14 . Section 10 of the Medical Treatment Law ( Ārstniecības likums ), as in force until 5 October 2007, provided that the Inspectorate of Quality Control for Medical Care and Working Capability (“the MADEKKI”) was responsible for monitoring the professional quality of medical care in health-care establishments. Following the reorganisation of the MADEKKI, from 5 October 2007 onwards, that task was entrusted to the Health Inspectorate. The competence of these institutions and the domestic case-law with regard to the supervision of medical care in prisons is outlined in the case of Antonovs v. Latvia (( dec. ), no. 19437/05, §§ 63-65, 71-79, 11 February 2014).

15 . Finally, section 138 (1) of the Criminal Law ( Krimināllikums ) provides that in cases of inadequate performance of professional duties by a medical professional resulting in serious or moderate bodily injury, such professional may be held criminally responsible. Criminal responsibility for inadequate performance of professional duties by a medical professional resulting in infection with the hepatitis B or C viruses was established by means of amendments to section 138 (2) of the Criminal Law, coming into force on 1 July 2009. Criminal responsibility for wilful infection with the hepatitis B or C viruses was established by way of amendments to section 133 of the Criminal Law effective from 1 July 2009.

COMPLAINTS

16 . The applicant complained under Article 3 of the Convention about the fact that, on account of the circumstances of his detention, he had spent two days in custody without shoes and had subsequently been brought to a court hearing without footwear.

17 . The applicant further complained, also under Article 3 of the Convention, of the fact that he had been held in a cell together with smokers, which had damaged his health. He also argued that, while in custody, he had frequently been ill and had, moreover, been infected with hepatitis C.

18 . The applicant also lodg ed further complaints, in substance under Article 5, Article 6, Article 8, and Article 9.

THE LAW

A. Complaint under Article 3 of the Convention of not being provided with shoes

19. The applicant complained that he was held in custody without any shoes for two days and was subsequently taken to a detention hearing on 4 December 2006 with only socks on his feet. The applicant submits that these actions had violated Article 3 of the Convention, which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

20. The Court has frequently noted that i ll-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (se e, amongst other authorities, Stanev v. Bulgaria [GC], no. 36760/06, § 202, ECHR 2012).

21 . However, before assessing the merits of the applicant ’ s complaint, the Court notes that under the terms of Article 35 § 1 of the Convention the Court may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the “final” domestic decision (see Slivenko and Others v. Latvia ( dec. ) [GC], no. 48321/99 , § 68, ECHR 2002 ‑ II (extracts)) .

22. The Court reiterates that the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it. While Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of effective remedies designed to challenge decisions already given. It normally also requires that complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Gäfgen v. Germany [GC], no. 22978/05, § 142, ECHR 2010).

23 . Turning to the circumstances of the present case, the Court notes that the applicant ’ s complaint concerns two days – 3 and 4 December 2006 – during which he was held in custody allegedly without shoes, as well as his transfer to a court hearing allegedly without footwear . In determining whether domestic remedies have been exhausted the Court will, first, assess the applicant ’ s submission that he complained about the conduct of the police officers to the Ventspils Court and to the prosecutor ’ s office.

24 . For the purposes of the six-month rule the Court could consider the applicant ’ s allegation that he complained about the police officers ’ conduct before the domestic courts (see, mutatis mutandis , Bērziņš v. Latvia , no. 25147/07 , § 73, 25 February 2014 and Kočegarovs and Others v. Latvia ( dec. ), nos. 14516/10, 26544/10 and 44939/11, § 134, 18 November 2014 ). However, t he applicant has provided the Court with no documents supporting this statement or given any more details about the complaints he had supposedly raised. In particular, the case file contains no documentation concerning the detention hearing. Further, the minutes of the trial hearing of 7 July 2007 before the Ventspils Court indicate that the investigators testified about the circumstances of the applicant ’ s arrest, as it had been carried out at the time of commission of the crime (see paragraphs 7-8 above). The investigators testified, inter alia , that at the time of his arrest the applicant had had no footwear and that after being brought to the police station he had been offered a pair of shoes, which he had refused. Even though in his submissions before this Court the applicant contested the truthfulness of these statements, the Court finds it more relevant to note that the minutes of the trial hearing do not indicate that the applicant had raised his complaint as to the absence of footwear during the two days ’ detention and at the detention hearing before the Ventspils Court. Accordingly, the case file does not confirm the applicant ’ s assertion that he had communicated his grievances to the Ventspils Court.

25 . Nor has the applicant provided the Court with any relevant documents concerning his complaint to the prosecutor ’ s office. The only document in the case file, which contains a reference to the fact that such a complaint was raised at the pre-trial stage, is the first-instance court ’ s judgment of 13 July 2007. In particular, when assessing the applicant ’ s allegations of partiality on the part of the investigators involved in the criminal proceedings against him, the Ventspils Court noted:

“In the pre-trial proceedings, on the basis of A.Pūce ’ s applications and complaints, several examinations were conducted about the actions of the police officers implicated by him; however, it can be seen that [these examinations] did not concern the subject-matter of the case but, for example, the escorting of A. Pūce to a court hearing in his socks.”

26 . This phrase allows the Court to conclude that the applicant had indeed raised his complaint at the pre-trial stage, at least as regards the police action during his transfer to the detention hearing in his socks, and that this issue was verified by the domestic authorities. Nonetheless, the documents before the Court do not allow it to conclude what kind of decisions had been taken in this regard and whether the applicant had pursued his complaint further by making use of the remedy of hierarchical appeal (see Leja , cited above, §§ 68-69 and Kočegarovs and Others , cited above, §§ 134-135 ; but contrast Holodenko v. Latvia , no. 17215/07, §§ 81 and 82, 2 July 2013; Sorokins and Sorokina v. Latvia , no. 45476/04 , §§ 81 and 105, 28 May 2013 ; and Timofejevi v. Latvia , no. 45393/04 , §§ 103 and 105, 11 December 2012, concerning ineffective investigation into allegation of ill-treatment, where the Court did not find against an applicant for failing to appeal to a higher-ranking prosecutor, finding a violation of Article 3).

27 . The Court further notes that assuming that on account of not being provided with footwear the applicant wished to complain about the conditions of his two days ’ detention and the conditions of his transfer to a court hearing, he could still bring compensatory proceedings before the administrative courts, after having complied with the extrajudicial procedure.

28 . There is now well-established case-law concerning the effectiveness of administrative courts in Latvia in examining complaints of conditions of detention. In particular, in the case of Ignats v. Latvia the Court considered the domestic case-law in which the conditions in a detention facility from 27 July 2005 to 4 August 2006 had been scrutinized (( dec. ), no. 38494/05 , § 110, 24 September 2013). In view of that fact, the Court ruled that it was incumbent on the applicant to pursue the administrative complaint he had lodged on 21 April 2006 concerning the detention conditions he had been placed in until 4 August 2005 ( ibid., § 115). Also in the subsequent cases of Iļjins and Jegorovs the Court followed the same approach (see Iļjins v. Latvia ( dec. ), no. 1179/10 , § 39, 5 November 2013 and Jegorovs v Latvia ( dec. ), no. 53281/08, §§ 110, 119, 1 July 2014). Furthermore, in Kočegarovs and Others the Court found that recourse to the administrative courts was an effective domestic remedy which the applicants were required to pursue also with regard to their complaints about conditions in short-term detention facilities and holding cells at the police stations where the applicant was placed for the purposes of attending court hearings (cited above, §§ 123, 127). Finally, in the case of Merza ļ ijevs v. Latvia the Court considered the domestic case-law where the detainees ’ complaints about provision of clothing and footwear in detention and the conditions of transfer to court had been scrutinised by the administrative courts and concluded that these cases did not disclose any concerns as to the effectiveness of a complaint to the administrative courts (( dec. ), no. 1088/10, § 46-49, 67-68, 13 November).

29 . The Court consequently considers that it was incumbent on the applicant, if he considered that the circumstances, which had allegedly lasted for two days, reached the level of severity required under Article 3, to make use of this compensatory remedy. However, the applicant has not indicated, nor does it emerge from the documents submitted, that he attempted to bring a case to the administrative courts. The only remedy which the applicant did, to some extent, attempt to pursue was a complaint with the prosecutor ’ s office; however, the documents before the Court do not allow it to conclude that this domestic remedy was exhausted either. Besides, the applicant has not suggested that the circumstances of the case constituted ill-treatment by the police officers.

30 . In view of the foregoing considerations, the Court finds that the applicant ’ s complaint under Article 3 of the Convention with regard to the alleged failure to provide him with shoes, even assuming it falls within the scope of Article 3 of the Convention, should be dismissed pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. Other complaints under Article 3 of the Convention

31 . Under Article 3 the applicant also complained that he had been held in a cell together with smokers, which had damage d his lungs, that he had been frequently ill , and that he had contracted hepatitis C while in custody.

32 . As stated above, the Court has frequently noted that i ll-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (see, among other authorities, Bazjaks v. Latvia , no. 71572/01 , § 105 , 19 October 2010 ). The State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (see KudÅ‚a v. Poland [GC], no. 30210/96, § 94 , ECHR 2000 ‑ XI ).

33. In assessing the evidence on which to base the decision as to whether there has been a violation of Article 3, the Court adopts the standard of proof “beyond reasonable doubt ”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Gäfgen , cited above, § 92) .

35. Therefore, o wing to lack of information and evidence, the Court is not in a position to conclude that the applicant has made a prima facie case as regards the detriment to his health while in custody.

36 . On these grounds the Court finds that the remainder of the applicant ’ s complaints under Article 3 of the Convention is manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and must be declared inadmissible .

C. Other alleged violations of the Convention

37 . The applicant also raised further complaints, in substance under Articles 5, 6, 8, and 9 of the Convention .

38 . In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Päivi Hirvelä Registrar President