THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 12569/03 by Mihails PANASENKOVS against Latvia

The European Court of Human Rights (Third Section), sitting on 16 March 2010 as a Chamber composed of:

Josep Casadevall , President, Elisabet Fura , Boštjan M. Zupančič , Alvina Gyulumyan , Ineta Ziemele , Luis López Guerra , Ann Power , judges, and Santiago Quesada, Section Registrar ,

Having regard to the above application lodged on 8 April 2003,

Having regard to the Government ’ s observations and their request to strike the case out of its list of cases and the text of unilateral declaration made with a view to resolving the issue s raised by the application,

Having regard to the applicant ’ s response to the Government ’ s observations and unilateral declaration ,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Mihails Panasenkovs , is a permanently resident non-citizen of Latvia , who was born in 1942 and is currently serving his prison sentence in Jelgava Prison. The Latvian Government (“the Government”) are represented by their Agent, Mrs I. Reine .

A. The circumstances of the case

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

1. Pre-trial detention and court proceedings

3 . On 22 September 1999 the applicant was arrested and taken into custody on suspicion of having inflicted bodily injuries on another person. On the same date criminal proceedings were initiated. On 24 September 1999 a judge of the RÄ«ga City Latgale District Court decided to detain the applicant on remand. In substantiating that decision, the judge took into account the severity of the crime the applicant was suspected of, the risk that he might abscond and the possibility that he could impede the investigation.

4 . On 27 September 1999 the charges against the applicant were changed to the infliction of bodily injuries unintentionally causing death (the person on whom the applicant was suspected of having inflicted bodily injuries had died on 25 September 1999). On 13 December 1999 the applicant was charged with infliction of bodily injuries and with manslaughter.

5 . Between 15 and 22 December 1999 the applicant took cognisance of the documents in the case file. He was assisted by an interpreter. For unspecified reasons the applicant refused to continue examining the file.

6 . On 24 December 1999 a prosecutor of the Rīga District Prosecutor ’ s Office brought the final charges against the applicant and sent the case to the Rīga Regional Court for adjudication. On 10 January 2000 a judge of the Criminal Chamber of the Rīga Regional Court committed the applicant for trial and decided to leave the preventive measure imposed on him unchanged.

7 . On several occasions in 2000 the applicant applied to the Regional Court , asking that the preventive measure imposed on him be changed. The court replied that there were no grounds to do so.

8 . On 13 January 2001 the Regional Court decided to join two criminal cases – the one, in which the applicant had been charged with manslaughter, and another one, in which he had been charged with infliction of serious bodily injuries on his partner I.Š.

9 . On 1 November 2002 and 31 January 2003, upon request s by a judge of the Rīga Regional Court , the Senate of the Supreme Court by final decisions extended the applicant ’ s detention on remand until 1 February and 17 March 2003 respectively. In substantiating the se decisions, the Senate took into account the severity of the crime of which the applicant was suspected. The applicant was not brought before the court.

10 . On 2 January 2003 the Rīga Regional Court held a hearing in the applicant ’ s case. The court suspended the hearing until 3 January 2003 because the victim and several witnesses failed to appear. The court ordered that they be summoned under constraint. On 3 January 2003 the hearing was resumed but suspended because of the applicant ’ s sudden health problems. He was taken to hospital. On 17 January 2003 the court requested the prison administration of the applicant ’ s place of detention to provide information on his state of health, given that a court hearing was scheduled for 20 January 2003. That hearing was subsequently suspended until 24 January 2003 because I.Š. and several witnesses failed to appear. The court ordered that they be summoned under constraint.

11 . On 24 January 2003 the court adjourned the hearing on account of the applicant ’ s request for time to familiarise himself with the case file. Thereafter the applicant was given access to the case file. On 17 February 2003, at the applicant ’ s request, the Rīga Regional Court informed him that between 19 and 21 February 2003 he would be granted repeated possibilit ies to take cognisance of t he case file and to take notes.

12 . On 28 February 2003 the Rīga Regional Court resumed the hearing; during it the applicant addressed a prosecutor in an offensive manner. Although the court three times requested the applicant to stop, warning him of the consequences, namely expulsion from the courtroom, the applicant continued to insult the prosecutor. As a consequence of his inappropriate behaviour, the applicant was expelled from the courtroom , in accordance with Article 262 of the Criminal Procedure Code. The statements made by the applicant during the pre-trial investigation were read out at the hearing. In establishing the applicant ’ s guilt, the court relied on the incriminating statements made by five witnesses, on two expert opinions and on documentary evidence. The applicant ’ s legal counsel was present throughout the hearing.

13 . On 3 March 2003 the Rīga Regional Court delivered its judgment, finding the applicant guilty of inflictin g bodily injuries and of unintentional homicide and sentenced him to twelve years ’ imprisonment. The applicant was not present since he could not be escorted to the court for health reasons . His legal counsel was present. A copy of the judgment was sent to the applicant in Brasa Prison on 5 March 2003. He refused to accept the copy and it was sent back to the court on 17 March 2003.

14 . On 25 March 2003 the applicant lodged an appeal against the judgment of the Rīga Regional Court of 3 March 2003. On 26 August 2003 the Criminal Chamber of the Supreme Court e xamined the applicant ’ s appeal and upheld the judgment of the Rīga Regional Court . Both the applicant, who was assisted by an interpreter, and his legal counsel were present at the hearing.

15 . On 13 November 2003 the Senate of the Supreme Court dismissed the applicant ’ s cassation appeal. The copy of its decision was sent to the applicant in Brasa Prison. On 16 April 2004 the Prosecutor General ’ s Office informed the applicant that his complaints had been examined. It was established that , accor ding to documentary evidence, t he applicant himself had refused to accept the copies of the courts ’ decisions.

2. Other facts of the case related to the applicant ’ s complaints

16 . On 10 February 2002 the applicant complained to the Rīga municipality, complaining, inter alia , about inadequacy of medical and dental care provided to him in the Central prison. That complaint was forwarded to the Prison Administration ( Ieslodzījuma vietu pārvalde ) , which, in a reply of 22 February 2002 informed him that in 2001 he had been provided with adequate medical treatment in the hospital of the Central prison .

B. Relevant domestic law

17 . Pursuant to t he relevant part of Article 262 of the Latvian Criminal Procedure Code ( Latvijas Kriminālprocesa Kodekss ) (in force until 1 October 2005), applicable at the material time, if an accused disturbed a court hearing or disobeyed court orders, he or she would be warned by the court . In the event of pers istent disturbance, the court could decide to expel the accused from the court room and to continue adjudication of the case in his or her absence. Judgment had to be announced in the presence of the accused or he or she was to be informed thereof immediately after its delivery .

COMPLAINTS

18 . The applicant complained under Article 3 of the Convention that on 22 September 1999 he had been ill-treated by police officers and that in 2001 he did not receive adequate medical treatment.

19 . Under Article 4 and Article 5 § 1 (a) and (c) and 5 § 5 of the Convention he complained that his detention had been unlawful and that he had not been compensated for his unlawful detention.

20 . The applicant complained under Article 5 §§ 3 and 4 of the Convention about the length of his pre-trial detention and the alleged unfairness of the proceedings extending his detention. Relying on Article 13 of the Con vention, the applicant complained that he did not have an effective domestic remedy in this respect.

21 . U nder Article s 6 § 1 and 13 of the Convention t he applicant complained that he had been deprived of a trial within a reasonable time and that he did not have an effective domestic remedy in this respect.

22 . The a pplicant complained under Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention that he had been deprived of a fair trial in that he did not have adequate time and facilities for the preparation of his defence, could not defend himself in person before the first - and second - instance courts and could not examine unspecified witnesses.

23 . U nder Article 8 §§ 1 and 2 of the Convention he complained that the courts had interfered with his right to a personal life and that he could not correspond with his relatives between 1999 and 2001.

24 . The applicant complained that the first - instance court had expelled him from the courtroom in breach of Article 10 of the Convention.

25 . The applicant complained that his rights as guaranteed by Articles 6 § 2 and 14 of the Convention and Articles 2 and 3 of Protocol No. 7 to the Co nvention had been breached.

26 . The applicant complained , without relying on any Article of the Convention, that the national authorities had hindered him in the submi ssion of his application to the Court.

27 . Without relying on any Article of the Con vention, the applicant complained about various socio-economic probl ems. In particular, he complained that a rent agreement for his apartment had been terminated and that he could not receive social allowance s .

THE LAW

A. Length and legality of detention on remand and length of proceedings and the lack of an effective remedy in this respect

28 . The applicant complained about the length and legality of his detention on remand and length of the criminal proceedings against him as well as the lack of an effective remedy in this respect . He relied on Articles 5 §§ 3 and 4, 6 § 1 and 13 of the Convention which, in so far as relevant, provide :

Article 5 § 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.”

Article 5 § 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.”

Article 6 § 1

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

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

29 . On 31 October 2008 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue s raised by the applicant. They further requested the Court to terminate the proceedings accordingly. The declaration provided as follows:

“The Government of the Republic of Latvia represented by their Agent Inga Reine (hereinafter – the Government) admit that the total length of the [applicant ’ s] detention and the criminal proceedings initiated against the applicant , as well as the lack of available effective remedies did not meet the standards enshrined in Article 5 , Article 6 and Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention). Being aware of that, the Government undertake to adopt all necessary measures in order to avoid similar infringements in future.

Taking into account that the parties have failed to reach a friendly settlement in th e present case, the Government declare that they offer to pay ex gratia to the applicant compensation in the amount of 2,500 euros ([approximately LVL 1,757 ]), this amount being the global sum and covering any pecuniary and non-pecuniary damage together with any costs and expenses incurred, free of any taxes that may be applicable, with a view to [terminating] the proceedings pending before the European Court of Human Rights (hereinafter – the Court) in the case of Panasenkovs v. Latvia (application no. 12569 /03).

The Government undertake to pay the above compensation within three months from the date of delivery of the decision (judgment) by the Court pursuant to Article 37 of the Convention. In the event of failure to pay this sum within the said [three-month] period, the Government undertake to pay simple interest on the amount, as established in the decision (judgment) by the Court. The above sum shall be transferred to the bank account indicated by the applicant.

This payment will constitute the final resolution of the case.”

30 . On 19 November 2008 the applicant wrote to the Court and commented on the unilateral declaration that had been proposed by the Government. In his comments he requested that he be released from prison and suggested that the Latvian Government was using criminal proceedings as an instrument of repression and genocide against the Russian-speaking part of the population of Latvia . In conclusion he requested the Court to quash his conviction, thus in essence requesting that the proceedings be continued.

31 . The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. However, as it has stated in earlier cases (see, in particular, Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, § 74, ECHR 2003 ‑ VI, and Venera -Nord-Vest Borta A.G. v. Moldova , no. 31535/03, § 28, 13 February 2007), a distinction must be drawn between, on the one hand, declarations made in the context of strictly confidential friendly settlement proceedings (Article 38 § 2 of the Convention and Rule 62 § 2 of the Rules of Court) and, on the other hand, unilateral declarations made by a respondent Government in public and adversarial proceedings before the Court. In accordance with Article 38 § 2 of the Convention and Rule 62 § 2 of the Rules of Court, the Court will proceed on the basis of the Government ’ s unilateral declaration and the applicant ’ s statement in respect thereof submitted outside the framework of friendly-settlement negotiations, and will disregard the parties ’ statements made in the context of exploring the possibilities for a friendly settlement of the case and the reasons why the parties were unable to agree on the terms of a friendly settlement (see Estate of Nitschke v. Sweden , no. 6301/05, § 36, 27 September 2007).

32 . The Court notes that under certain circumstances it may strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law (see, in particular, Tahsin Acar , cited above, §§ 75-77 ; Swedish Transport Workers Union v. Sweden (striking out), no. 53507/99, 18 July 2006 ; Van Houten v. the Netherlands (striking out), no. 25149/03, ECHR 2005 ‑ IX ; Kapitonovs v. Latvia (striking out), no. 16999/02, 24 June 2008 ; Ozoliņš v. Latvia (striking out), no. 12037/03 , 2 September 2008 ; and Borisovs v. Latvia (striking out), no. 6904/02, 2 September 2008 ).

33 . As to whether it would be appropriate to strike out the present application on the basis of the unilateral declaration made by the Government, the Court points out that there exists a considerable case-law with respect to Latvia as regards the scope and the nature of the obligations under Articles 5 §§ 3 and 4 and 6 § 1 of the Convention concerning the guarantee of the right to a trial within a reasonable time and the quality of court decisions applying and extending pre-trial detention (see, in particular, Estrikh v. Latvia , no. 73819/01, 18 January 2007; Svipsta v. Latvia , no. 66820/01, 9 March 2006; Moisejevs v. Latvia , no. 64846/01, 15 June 2006 ; Lavents v. Latvia , no. 58442/00, 28 November 2002; Freimanis and L ī dums v. Latvia , nos. 73443/01 and 74860/01, 9 February 2006; Kornakovs v. Latvia , no. 61005/00, 15 June 2006; and Čistiakov v. Latvia , no. 67275/01, 8 February 2007). The Court has repe atedly found a violation of these obligation s and has awarded just satisfaction in accordance with the requirements of Article 41 of the Convention.

34 . Having regard to the specific circumstances of the case, the Government ’ s admissio n to violation of Articles 5, 6 and 13 of the Convention with respect to the applicant, as well as their acknowledgment of the general problem and their readiness to tackle it through the adoption of “all necessary measures” with a view to preventing similar violations of the Convention in the future, and the amount of compensation proposed to the applicant, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)) (see, for the relevant principles, Tahsin Acar , cited above ; Haran v. Turkey , no. 25754/94, 26 March 2002 ; and Kapitonovs , Ozoliņš and Borisovs , all cited above).

35 . The Court further notes that this decision c onstitutes a final resolution with regard to the complaints mentioned above only insofar as the proceedings before the Court are concerned. It is without prejudice to the applicant ’ s right to use other remedies before the domestic courts to claim further compensation in respect of the impugned issues.

36 . In the light of all the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ). Accordingly, this part of the application should be struck out of the list.

B. Article 6 §§ 1 and 3 (c) of the Convention

37 . The a pplicant complained under Article 6 §§ 1 and 3 (c) of the Convention that he had been deprived of a fair trial , in that he could not defend himself in person before the first - and second - instance courts. According to his submissions, that deprivation occurred when he was expelled from the hearing of the first-instance court and when he was not summoned to the hearing of the appeal court. The respective Convention Article provides:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require ...”

1. The hearing of the RÄ«ga Regional Court

38 . The Government in its observations pointed out that it had effectively ensured the applicant ’ s rights as enshrined in the cited provisions by enabling him to be present at the first-instance court ’ s hearings. It further noted that Article 6 § 3 (c) cannot be interpreted in such a way that the national courts would have an obligation to disregard a defendant ’ s openly undignified behaviour and disruption of hearings. In conclusion, the Government alleged that the applicant himself had misused his right to defend himself for reasons unrelated to the conduct of the domestic authorities and despite repeated warnings issued by the judge in charge of his case. Accordingly, he could not invoke the responsibility of the domestic authorities in that regard.

39 . The applicant ’ s observations mostly focused on the factual account of the events that led to his expulsion from the courtroom. According to his submissions, the expulsion was ordered after an exchange of opinions between him and the judge concerning the question of whether adjudication on the merits of the case could be started, after which the judge had “turned green in the face” and “with foam on his lips” ordered the applicant ’ s removal from the courtroom. As for the legal analysis, the applicant limited himself to stating that the Government ’ s analysis did not correspond to the o bjective reality.

40 . The Court notes that, although this is not expressly mentioned in Article 6 § 1, the object and purpose of that article taken as a whole show that a person “charged with a criminal offence” is entitled to take part in the hearing. Moreover, sub-paragraph (c) of paragraph 3 guarantees to “everyone charged with a criminal offence” the right “to defend himself in person or through legal assistance ”, and it is difficult to see how one could exercise these rights without being present (see Colozza v. Italy , 12 February 1985, § 27, Series A no. 89).

41 . However, it appears that in the present case the applicant ’ s attitude towards the public prosecutor and the judge was offensive. Furthermore, such an attitude was found to disrupt the hearing, about which fact the applicant was warned on three occasions. He was also informed of the possibility that he might be expelled from the courtroom. Nothing in the case file or the applicant ’ s observations contradicts these facts. Irrespective of those warnings, the applicant ’ s disruptive and offensive behaviour continued. After the applicant ’ s expulsion from the courtroom, his counsel continued to be present throughout the hearing and made submissions on the applicant ’ s behalf.

42 . The above considerations lead the Court to consider that, i n the light of the circumstances ta ken as a whole, the applicant ’ s behaviour was of such a nature that he largely contributed to bringing about a situation that lead to his expulsion from the hearing of the first-instance court ( see, mutatis mutandis , Medenica v. Switzerland , no. 20491/92, § 58 , ECHR 2001 ‑ VI ). Furthermore, the Court notes that the applicant ’ s defence rights continued to be ensured to the best possible extent through his counsel.

43 . Accordingly the Court finds that the applicant ’ s complaint is manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

2. The hearing of the Supreme Court

44 . The Government indicated that the applicant had been summoned to the appeal hearing of the Supreme Court on 26 August 2003 and that he had in fact been present throughout that hearing, along with his defence counsel. The applicant did not dispute that he had been present at the hearing, yet in essence complained about the fairness and outcome of the hearing. Accordingly, it appears that the applicant ’ s complaint does not concern his right “to defend himself in person or through legal assistance of his own choosing”. Therefore the Court finds that the applicant ’ s complaint about the conduct of the hearing of the Supreme Court does not disclose any appearance of a violation of Article 6 § 3 (c) and thus it must be declared manifestly ill-founded and rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

C. Other complaints

45 . The applicant further submitted numerous other complaints under Article 3, Article 4, Article 5 § 1 (a) and (c), Article 5 § 5, Article 6 §§ 1, 2 and 3 (b) and (d ), Article 8 §§ 1 and 2, Article 10 of the Convention and Articles 2 and 3 of Protocol No. 7 . However, 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 they 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 declared inadmissible i n accordance with Article 35 §§ 3 and 4 of the Convention.

For these r easons, the Court unanimously

Decides to strike the applicant ’ s complaints about the length and legality of his detention on remand and the length of the criminal proceedings against him , and the lack of an effective remedy in this respect, out of its list of cases.

Declares inadmissible the remainder of the application.

Santiago Quesada Josep Casadevall Registrar President