THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38979/03 by KEIPENVARDECA S against Latvia

The European Court of Human Rights ( Third Section), sitting on 2 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 3 November 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

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

Having deliberated, decides as follows:

THE FACTS

1 . The applicants, Mrs Praskovja Keipenvardeca, a permanently resident non-citizen of the Republic of Latvia (“the first applicant”) , and her daughter, Ms Natalya Keipenvardeca, a Latvian national (“the second applicant”) were born in 1936 and 1970 and live in R ī ga . The respondent Government were represented by their Agent, Mrs Inga Reine.

A. The circumstances of the case

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

1. Events giving rise to the applicants ' claim for damages

3 . The applicants ' flat was burgled twice in succession, on 19 April (“the first burglary”) and 21 April 1999 (“the second burglary”). On 21 April a preliminary investigation was opened against inter alia X, a minor at the time. With decisions adopted on 22 April, 6 July 1999 and 15 February 2000 the first applicant w as joined as a civil party in the criminal proceedings against X. By a decision of 16 February 2000 at the latest, the second applicant was joined as a civil party in the same proceedings.

2. Preliminary investigation

4 . On 21 April 1999 the preliminary investigation was opened.

5 . On 23 April 1999 X was remanded in custody, where he remained until 21 September. He was again arrested on 5 August 2000.

6 . On 25 April 1999 a decision was taken to impose an attachment on X ' s property in order to secure the applicants ' civil claims. It was noted that X did not possess any property. On 28 April some of the stolen belongings and money were returned to the first applicant.

7 . Initially, on 29 April 1999 the case materials in relation to both burglaries were separated since X was suspected of having committed only the second burglary. On 3 May a charge was brought against him in that connection. However, it followed from the testimony given by X on the same date that he had also participated in the first burglary. On 31 July a second charge was brought against X in relation to the first burglary. Subsequently, on 9 August the case materials against X were joined together. On 20 August X ' s detention order was extended until 21 September. On that date he was released.

8 . Following the applicants ' complaint of 24 January 2000 about inactivity of the public prosecutor in proceeding with the case, on 7 February another public prosecutor was assigned to the case.

9 . On 22 February 2000 the mother of X was joined as a civil respondent in the criminal proceedings. On 28 February 2000 the public prosecutor requested information from a competent domestic authority about any real estate owned by X or his mother.

10 . On 9 March 2000 a final charge was brought against X in relation to both burglaries. Since X did not appear before the public prosecutor as requested to be informed of the final charge, a detention order was issued on 14 March. The police set out to locate and arrest him. Eventually, on 5 August, they arrested him and on 5 September 2000 the case was sent to the RÄ«ga Regional Court for adjudication.

3. Proceedings before the court of first instance

11 . On 11 September 2000 the RÄ«ga Regional Court received the case. On 1 October X reached the age of majority and on the next day he was committed for trial in that court. The date of the hearing was not set.

12 . On 24 August 2001 the applicants submitted a petition to the RÄ«ga Regional Court to clarify whether the amendments to the Code of Criminal Procedure of 20 June 2001 applied in the proceedings against X. They requested that the court proceed with the case within the time-limits prescribed by domestic law. They also asked if the case would be transferred to the RÄ«ga City Latgale District Court pursuant to the same amendments to the Code of Criminal Procedure.

13 . On 30 August 2001 the Rīga Regional Court forwarded the case to the Criminal Chamber of the Supreme Court ( Augstākās Tiesas Krimināllietu tiesu palāta ) to determine the competent court to adjudicate the case pursuant to the amendments to the Code of Criminal Procedure.

14 . On 20 September 2001 the Criminal Chamber of the Supreme Court noted as follows:

“The Rīga Regional Court has forwarded the case [against X] for determination of the competent court in accordance with transitional provision no. 2 of 20 June 2001 Amendments to the Code of Criminal Procedure.

Pursuant to the Amendments to the Code of Criminal Procedure, criminal cases against persons accused of crimes for which responsibility is determined in section 175 of the Criminal Law are to be examined by a District (City) Court.

According to transitional provision no. 2, a Regional Court may transfer a criminal case to a District (City) Court if the case has been sent for adjudication to the former court by 20 March 2001, after which date the latter court is competent to adjudicate upon it, and if the former has not yet begun to adjudicate and if a minor is being held in detention in the case.

The Criminal Chamber of the Supreme Court shall decide upon such transfer.

[X] was born on 1 October 1982 and was committed for trial on 2 October 2000 as a minor...”

15 . As a result, it was decided to transfer the criminal case to the RÄ«ga City Latgale District Court. On 27 September that court committed X for trial and scheduled the first hearing for 20 December.

16 . On 27 December 2001 the RÄ«ga City Latgale District Court convicted X of two counts of aggravated burglary . The offences were qualified under section 175, paragraph 4 of the Criminal Law. The RÄ«ga City Latgale District Court sentenced him to eight years ' imprisonment and ordered confiscation of his property. The court awarded 2,692.29 Latvian lati (LVL) and LVL 4,065 in damages to the first and the second applicants, excluding the value of the applicants ' property that had been returned to them during the criminal proceedings.

4. Proceedings before the appellate court

17 . On 4 January 2002 the applicants appealed against the judgment of the court of first instance and requested that X ' s sentence be increased to ten years ' imprisonment and that his parents be declared liable for damages.

18 . On 13 May 2002 the case was sent to the RÄ«ga Regional Court . The hearings were scheduled for 2 September.

19 . On 2 September 2002 the RÄ«ga Regional Court upheld the judgment of the court of first instance but reduced the sentence to five years ' imprisonment. That court found that the first instance court had lawfully ordered X to pay damages since he was 19 by the date when that court handed down its judgment and was fully liable for the loss inflicted .

20 . According to the applicants, the full judgment was drawn up on 28 October 2002 and sent to them on 22 January 2003. They received its translation into Russian on 21 March 2003.

5. Proceedings before the court of cassation

21 . On 5 September 2002 the applicants requested that the RÄ«ga Regional Court extend the time-limit for appeal on points of law and provide a translation of the judgment into Russian.

22 . On 11 September 2002 the applicants gave notice of a preliminary appeal on points of law, stating that they would submit an appeal on points of law in full within ten days of receipt of a translation of the judgment into Russian.

23 . On 1 April 2003 the applicants appealed on points of law.

24 . On 12 May 2003 the Criminal Department of the Senate of the Supreme Court in a preparatory meeting dismissed the appeal on points of law.

6. Enforcement of the damages award

25 . Following X ' s conviction, the applicants were not able to have their award of damages enforced because X had no financial means and no property. It appears that the applicants have not received the awarded damages to date.

26 . The former Code of Criminal Procedure (in force until 1 October 2005), applicable at the material time, stipulated the competence of the domestic courts. Section 31 provided that District (City) Courts (as the courts of first instance) examine d criminal cases not fall ing within the competence of Regional Courts . According to section 32 Regional Courts examined all cases involving very serious crimes and some other categories of legally complex cases, in addition to their inherent competence as courts of appeal. Aggravated burglaries involving large amounts (section 175, paragraph 4 of the Criminal Law) were very serious crimes and thus had to be examined by Regional Courts.

27 . On 15 February 2001 (effective as of 20 March) amendments to the Code of Criminal Procedure were adopted with a view to reducing the backlog of cases before certain District (City) Courts and Regional Courts. They were also aimed at ensur ing an even distribution of cases among domestic courts. The competence of Regional Courts was established to hear cases involving specific crimes prescribed by the Criminal Law as courts of first instance. It no longer included any type of burglaries. Thus starting from 20 March 2001 cases involving burglaries had to be examined by District (City) Courts. Yet, according to the transitional provision cases where the accused had already been committed for trial before 20 March were to be examined by the court that initially received the case.

28 . On 20 June 2001 (effective as of 12 July) another set of amendments to the Code of Criminal Procedure was adopted with regard to the detention of minors. According to transitional provision no. 2 in cases where a minor was kept in detention, the trial had not yet commenced and if a case had been sent for adjudicating to Regional Court but after 20 March 2001 it fell to be examined by District (City) Court, the latter could examine the case if the Criminal Chamber of the Supreme Court decided about the transfer.

29 . According to section 101 , p aragraph 1 of the Code of Criminal Procedure a civil claim could be submitted by an individual who had suffered damage as a result of crime. It could be brought against the accused or the person who was materially liable for the acts of the accused. By virtue of section 141 the investigator or the public prosecutor determined who bore the liability for a civil claim. If it was not the accused , the civil responde nt, for example parents of the accused, had to be joined in the proceedings. Attachment of property could be imposed on t he assets of the accused or of a person who was materially liable for the acts of the accused in order to secure a civil claim ( section 175 , p aragraph 1).

30 . In relation to the complaint procedure, section 220 gave a victim of a crime and a civil party the right to complain about the acti ons of the investigator or the public prosecutor. Further sections of the Code of Criminal Procedure specified the procedure for complaints before and against the actions of a public prosecutor. The prosecutor had to decide upon a complaint within three days following its receipt and notify the petitioner. The decision could be appealed against to a higher-ranking public prosecutor.

31 . With regard to the trial at the first - instance court, section 223 , p aragraph 4 set a time-limit for commit ting the accused for trial. The decision had to be adopted within fourteen days of the date when the case was received at the court. Pursuant to section 241 , adjudicati on of a case in a hearing had to be commenced within twenty days (in exceptional cases within a month) of the date when the case was received at the court. A legal representative of a minor was required to take part in the proceedings until the minor reached the age of majority ( section 251).

32 . Finally, section 447, p aragraph 3 of the Code of Criminal Procedure, concerning decision s of an appellate court , stipulated that a judgment or its operative part ( rezolut īvā daļa ) had to be pronounced. If only the operative part was pronounced, this had to be done in writing. The reasoned judgment had to be drawn up within five days.

COMPLAINTS

33 . The applicants complained under Article 6 § 1 of the Convention about the length of criminal proceedings they had joined as civil parties. Furthermore the applicants complained under Article 13 that they did not have an effective remedy in this respect.

34 . Relying on Article 8 of the Convention, the applicants complained that their right to peaceful enjoyment of property had been breached as a result of unreasonably long proceedings and failure to enforce the award of damages against a private person.

THE LAW

I. ARTICLE 6 § 1 OF THE CONVENTION

35 . The applicants complained that the criminal proceedings in which they were joined as civil parties had been unreasonably long. They relied on Article 6 § 1 of the Convention, which in its relevant part provides as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

36 . The Court notes that neither party disputed that Article 6 § 1 of the Convention under its civil limb applied to the present proceedings in as far as the applicants were concerned. Having regard to the fact that the applicants joined the criminal proceedings against X as civil parties and were awarded damages, it sees no reason to hold otherwise (see Moreira de Azevedo v. Portugal , 23 October 1990, § 67 , Series A no. 189 , and Perez v. France [GC], no. 47287/99, § 66-71 , ECHR 2004 ‑ I ).

37 . Firstly, with regard to the duration of the preliminary investigation the Government submitted that the case was complex since initially there had been two separate sets of proceedings in connection with the burglaries. They did not deny that there had been a period when no investigative activities were taken. The Government argued that the delay was caused by the change of public prosecutor in charge of the case. It was pointed out that the State could not be held responsible for the delay caused by X when the police were looking for him. Secondly, with regard to the proceedings before the court of first instance the Government maintained that the time taken to adjudicate the case had been justified taking into account the changes in domestic legislation, followed by the change of jurisdiction. They argued that it could be reasonably expected that a court of first instance, being aware of pending amendments affecting its competence, would postpone the allocation and examination of cases until the entry into force of such amendments. Thirdly, they contended that the proceedings before the appellate court and the court of cassation had been concluded in due time. In sum, the Government maintained that the overall length of the proceedings was in compliance with the requirements of Article 6 § 1 of the Convention.

38 . The applicants maintained that the proceedings had been unreasonably long. In particular, they were dissatisfied with the preliminary investigation at the hands of the first public prosecutor in charge of the case, and that no investigative activities had been carried out between 20 August 1999 and 7 February 2000. They further noted that the case had been dormant at the RÄ«ga Regional Court for almost one year and that sections 223 and 241 of the Code of Criminal Procedure had not been complied with. Only following their enquiry in August 2001 had the court competent to hear the case been determined. They considered that the period of one year and four months it had taken the first-instance court to hold a hearing was unreasonable. They also considered that for a first-instance court to give judgment two years and eight months after the crime had been perpetrated was unreasonable. Finally, they submitted that the judgment of the appellate court had not been drawn up and translated into Russian, a language they understood, in a timely fashion as prescribed by section 447 , p aragraph 3 of the Code of Criminal Procedure. It had been drawn up two months later and translated six months later.

39 . According to the Court ' s settled case-law, the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court ' s case-law, in particular, the complexity of the case, the conduct of the applicants and of the relevant authorities and what was at stake for the applicants in the proceedings (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43 , ECHR 2000 ‑ VII , and Estrikh v. Latvia , no. 73819/01, § 137, 18 January 2007 ).

41 . The Court notes that the criminal proceedings were instituted on 21 April 1999. Although several separate decisions were adopted to join the applicants as civil parties, it was from the very beginning of the proceedings that they both exercised their right to claim damages as stipulated in domestic law. The Court notes that neither party submitted that the starting date for the period to be taken into consideration in calculating the length of proceedings in relation to each of the applicants differed. The Court will accordingly proceed on the assumption that the starting date of the period under consideration for both applicants was 22 April 1999, the date when the first applicant was joined as a civil party in the criminal proceedings against X.

42 . The period under consideration ended on 12 May 2003 when the Criminal Department of the Senate of the Supreme Court dismissed the applicants ' appeal on points of law. The overall period under consideration therefore lasted for 4 years and 21 days in three levels of jurisdiction.

43 . The Court considers that the case was of a certain complexity. It involved two burglaries . Although initially the criminal proceedings in relation to the first and second burglaries were separated, they were joined on 9 August 1999 following X ' s testimony about his participation in both.

44 . As regards the conduct of the applicants, the Court finds no delays attributable to them. The Court considers that in cases such as the instant one, regard must also be had to the fact that a civil-party claim for damages is not the only or the central issue in the proceedings but is secondary to the issue of criminal liability which must be determined in the same set of proceedings. The Court observes that the criminal proceedings were duly commenced following the complaint lodged on 21 April 1999 and the preliminary investigation was practically completed within less than one year, on 9 March 2000, when the final charge was brought against X (cf. Bíro v. Slovakia , no. 57678/00, § 510-51 , 27 June 2006 ). The period of inactivity of four months that followed until 5 August, when X was finally arrested and informed of the charges against him, is attributable solely to X.

45 . As regards the conduct of the authorities, the Court observes that there were certain periods of inactivity . The Court shall therefore ascertain whether they were justified, taking into account the particular circumstances of the case.

46 . As regards the preliminary investigation, the Court points out that no investigative activities were carried out from 21 September 1999, when X was released from custody, until 7 February 2000, when a new prosecutor was assigned to the case. The Court does not accept the Government ' s argument that the change of public prosecutor could justify such inactivity. Furthermore, the public prosecutor was changed only upon the applicants ' complaint. The Court does consider, however, that the newly assigned public prosecutor acted diligently to remedy any deficiencies in the preliminary investigation which might have occurred under the supervision of the former prosecutor. The preliminary investigation was practically completed within one month and two days when, on 9 March 2000, the final charge was brought against X.

47 . Turning to the proceedings before the court of first instance, the Court observes that the parties did not dispute the fact that the Rīga Regional Court failed to comply with certain time-limits prescribed by domestic law. According to the Court ' s case-law such a failure does not in itself contravene Article 6 § 1 of the Convention (see paragraph 40 above). However, the fact remains that the case was dormant at that court for a substantial period of time during which no judicial activity was accomplished. The Court should therefore ascertain whether the explanations put forward by the Government were pertinent and sufficient to justify that inactivity.

48 . From the outset the Court considers that changes in domestic legislation governing the competence of domestic courts to hear cases may in certain circumstances justify periods of inactivity before such courts provided that overall length of proceedings is not unreasonable and thus complies with Article 6 § 1 of the Convention. In the present case it was the Supreme Court of Latvia that decided according to domestic law to transfer the criminal case to the District (City) Court for the latter to hear it and adjudicate upon it. More importantly, once the competent domestic court to hear the case was established, the case was duly received at the Rīga City Latgale District Court on 25 September 2001 and examined in a proper and speedy manner. In just two days X was committed for trial and the date of the first hearing was scheduled. On 27 December that court gave its ruling. Taking into account that the criminal case was adjudicated by the competent first-instance court within 1 year, 3 months and 16 days after it was received from the investigating authorities, the Court does not consider this excessive in the particular circumstances of the case.

49 . Turning to the appeal proceedings, the Court observes that on 4 January 2002 the applicants submitted their appeal. It was forwarded to the appellate court on 13 May. The Rīga Regional Court scheduled the hearings for 2 September and on that date it pronounced the operative part of the judgment. The Government did not contest that the full judgment was not drawn up until 28 October 2002 and that the translation of the judgment in a language the applicants understood was delivered on 21 March 2003. Even if the delay caused by the translation of the judgment is regrettable, the Court finds that a period of 1 year, 2 months and 15 days for an appellate court to adjudicate a case does not contravene Article 6 § 1 of the Convention in circumstances such as those of the present case.

50 . As regards the proceedings before the Senate of the Supreme Court, the Court finds no delays attributable to the authorities. On 1 April 2003 the applicants filed an appeal on points of law and on 12 May 2003 it was dismissed.

51 . In the light of the foregoing the Court finds that in the particular circumstances of the case the overall length of the criminal proceedings where the applicants were joined as civil parties did not exceed the “reasonable time” requirement contained in Article 6 § 1 of the Convention.

52 . It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

II . ARTICLE 13 OF THE CONVENTION

53 . The applicants complained that they did not have an effective remedy in respect of unreasonably lengthy proceedings. They relied on Article 13 of the Convention, which reads as follows:

“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.”

54 . The Government contested this allegation.

55 . The Court recalls that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, for example KudÅ‚a v. Poland [GC], no. 30210/96, § 157 , ECHR 2000 ‑ XI ).

56 . In view of the above finding (see paragraphs 51-52) the Court concludes that the applicants did not have an arguable claim to a remedy for the Article 6 § 1 complaint under Article 13 of the Convention .

57 . It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

III . ARTICLE 1 OF PROTOCOL N o . 1 OF THE CONVENTION

58 . The applicants complained that as a result of the lengthy proceedings and the non-enforcement of the award of damages, their right to the peaceful enjoyment of their possessions had been breached. The Court will examine the applicants ' complaint under Article 1 of Protocol No. 1, which in as far as relevant, reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

59 . The Government disputed the Court ' s competence to entertain a claim under Article 1 of Protocol No. 1 because in their initial application the applicants referred to Article 8 of the Convention in this regard. They submitted that this complaint was incompatible ratione materiae with the provisions of the Convention. The Government submitted that during the criminal proceedings the applicants did not have a “possession” within the meaning of Article 1 of Protocol No. 1. They noted that the applicants ' right to receive compensation from the perpetrator was established by a judgment effective as of 12 May 2003, when the applicants ' appeal on points of law was dismissed. Lastly, the Government argued that the State could not be held responsible for the acts or omissions of private individuals.

60 . The applicants maintained that there had been a violation of their right to the peaceful enjoyment of their possessions, first on account of the lengthy proceedings and, second, on account of the non- enforcement of their award of damages.

61 . The Court notes at the outset that certain property belonging to the applicants was stolen, as determined in the domestic criminal proceedings. It is therefore clear that there has been an interference with the applicants ' right to the peaceful enjoyment of their possessions as protected under Article 1 of Protocol No. 1 of the Convention (see Bl ū mberga v. Latvia , no. 70930/01, § 66 , 14 October 2008 ). I t follows that the Government ' s objection in this regard is unfounded.

62 . As regards the first branch of the applicants ' complaint, namely the lengthy proceedings, the Court notes that the interference with the applicants ' right to the peaceful enjoyment of their possessions was perpetrated by private individuals, one of whom was subsequently convicted. The Government submitted that it could not be held responsible for the acts of private individuals. The Court points out that it has already established the principles in such cases in the context of positive obligations incumbent on the State under Article 1 of Protocol No. 1 (see Bl ū mberga v. Latvia , cited above , § 67).

63 . The Court observes firstly that the applicants were able under domestic law to exercise their right to claim damages in respect of the loss sustained. They did so in the criminal proceedings against one of the perpetrators. The criminal proceedings resulted in damages being awarded to the applicants. Secondly, it notes that the investigation was duly commenced and led to the conviction of X. Thirdly, the Court refers to its analysis and finding above that the proceedings in the particular circumstances of the case were not unreasonably long (see paragraphs 41-52 above).

65 . As regards the second branch of the applicants ' complaint, namely that it had not been possible to enforce the award of damages, the Court observes that the award specified that those had to be paid by X and not by the State from its own budget. The State thus cannot be held responsible for the lack of payment on the part of X.

66 . The Court notes that the applicants did not complain about any specific failure on the part of the State authorities responsible for enforcement. Rather, the applicants were dissatisfied with the non-payment of the damages awarded. It appears that after the judgment became final enforcement proceedings were opened, but since X lacked the financial means he was not able to pay the award. The Court cannot ascertain any failures on the part of the bailiffs ' service or in the enforcement proceedings in general in the instant case (cf. mutatis mutandis Fuklev v. Ukraine , no. 71186/01, § 92, 7 June 2005 , and Kesyan v. Russia , no. 36496/02, § 80, 19 October 2006 ).

67 . The applicants submitted that the loss sustained by them was based on the assumption that, had the mother of X been found liable for the award in their favour, its enforcement would have been more effective. However , as noted by the Government, no evidence has been adduced to support that hypothesis. On the contrary , according to domestic law as determined by the domestic courts, X was found to be liable himself for the damages in respect of any loss sustained by the applicants as he had reached the age of majority during the criminal proceedings.

68 . In the light of the foregoing the Court considers that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible .

Santiago Quesada Josep Casadevall Registrar President