FIFTH SECTION

DECISION

Application no . 32983/08 Svetlana MERTENA against Latvia

The European Court of Human Rights (Fifth Section), sitting on 17 October 2017 as a Committee composed of:

André Potocki , President, Mārtiņš Mits , Lәtif Hüseynov , judges, and Anne-Marie Dougin, Acting Deputy Section Registrar ,

Having regard to the above application lodged on 3 June 2008,

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, Ms Svetlana Mertena , is a Latvian national who was born in 1940 and lives in Riga.

2. The Latvian Government (“the Government”) were represented by their Agents, Mrs I. Reine and (subsequently) by Mrs K. Līce .

A. The circumstances of the case

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

4. On 16 February 2001 the applicant attacked V.D. during an argument.

5. On 24 April 2001 the police refused to institute criminal proceedings in respect of the incident, since the injuries sustained by V.D. (concussion, broken nasal bone, haematomas on the face) had been classified by a forensic medical expert as minor injuries. At the relevant time Article 111 (2) of the Code of Criminal Procedure provided that the offence of inflicting minor bodily injuries belonged in the category of private prosecution cases which had to be brought by a plaintiff directly before the court with jurisdiction (see Leja v. Latvia , no. 71072/01 , §§ 35-36, 14 June 2011 ).

6. On 6 June 2001 V.D. submitted an application (“ iesniegums ”) to the Rīga City Kurzeme District Court ( Rīgas pilsētas Kurzemes rajona tiesa ) for the institution of criminal proceedings against the applicant.

7. On 7 June 2001 a decision to institute criminal proceedings under section 130 (1) of the Criminal Law was adopted by a judge of the Riga City Kurzeme District Court.

8. On 19 June 2001 the applicant asked the Riga City Kurzeme District Court to postpone a scheduled hearing so that she could acquaint herself with the case material and appoint a defence lawyer.

9. A hearing was held on 18 July 2001.

10. On 19 July 2001 the Riga City Kurzeme District Court adopted a judgment in which the applicant was found guilty of having committed the offence proscribed by section 130 (1) of the Criminal Law. She was sentenced to pay a fine as well as compensation of 178 Latvian lati (LVL) (approx imately 257 euros (EUR)) to V.D.

11. On 26 July 2001 the applicant lodged an appeal.

12. On 12 June 2002 the applicant asked the Riga Regional Court ( RÄ«gas apgabaltiesa ) not to schedule any hearings until November 2002 due to a planned trip to visit relatives in Russia. On 27 March 2003 the applicant made a further similar request, this time asking the Riga Regional Court not to schedule any hearings until October 2003.

13. On 30 March 2004 a hearing was adjourned to enable the applicant to obtain a Russian translation of the lower court ’ s judgment and to enable the Riga Regional Court to obtain additional evidence and to invite witnesses to the next hearing, which was scheduled for 7 December 2004.

14. On 7 December 2004 the Riga Regional Court quashed the lower court ’ s judgment and sent the case for a fresh examination. It found that the offence imputed to the applicant had been incorrectly classified under domestic law.

15. On 29 July 2005 the Riga City Kurzeme District Court re-classified the offence under section 130 (2) of the Criminal Law. A hearing was scheduled for 20 September 2005.

16. On 20 September 2005 the hearing was adjourned owing to the absence of V.D. ’ s lawyer.

17. On 11 October 2005 the hearing was again adjourned owing to the absence of the applicant ’ s lawyer.

18. On 9 November 2005 the Riga City Kurzeme District Court adopted a decision discontinuing the private prosecution proceedings. The court held, inter alia , that V.D. ’ s application of 6 June 2001 could not be considered as a properly reasoned request, as required by domestic law.

19. On 12 April 2006, following an appeal by V.D., the Riga Regional Court quashed the lower court ’ s decision of 9 November 2005 and sent the case back for a fresh examination.

20. On 20 June 2006 the Senate of the Supreme Court ( Augstākās tiesas Senāts ) refused the applicant leave to appeal on points of law.

21. On 31 October 2006 the applicant asked the Riga City Kurzeme District Court to postpone the next hearing to enable her to appoint her defence lawyer.

22. On 3 April 2007 the Riga City Kurzeme District Court adopted a judgment which convicted the applicant under section 130 (2) of the Criminal Law, imposed a suspended fine, and ordered her to pay compensation of LVL 789 (approximately EUR 1140) to V.D.

23. The applicant appealed, arguing that V.D. had never submitted a properly formulated request to institute private prosecution proceedings.

24. On 17 September 2007 the hearing was adjourned due to the absence of the applicant ’ s lawyer.

25. On 24 October 2007 the Riga Regional Court quashed the judgment of the first-instance court and terminated the proceedings. It opined that in private prosecution cases the victim ’ s complaint could be equated to a statement of charges, which thus had to contain various details concerning the alleged crime, including the specific relevant provision of the Criminal Law as well as an explanation as to why that provision was applicable to the facts of the case at issue. The appellate court held that the application that had been submitted to the Riga City Kurzeme District Court by V.D. did not comply with the legal requirements for a private prosecution complaint.

26. With a final decision of 20 February 2008 the Senate of the Supreme Court dismissed V.D. ’ s appeal on points of law.

B. Relevant domestic law

27. Section 130 of the Criminal Law ( Krimināllikums ), as well as the relevant legal provisions concerning private prosecution cases have been summarised in Leja (cited above , §§ 35-36 ) .

28. The relevant legal provisions and the domestic case-law concerning the right to completion of criminal proceedings within a “reasonable time” have been summarised in the case Trūps v. Latvia ( dec. ) ( no. 58497/08, §§ 16-33, 20 November 2012 ) .

COMPLAINTS

29. The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against her.

30. The applicant also complained under Article 14 of the Convention that she had been discriminated against, and under Article 6 §§ 1, 2 and 3 (a), (b) and (c) of the Convention about the fairness of the criminal proceedings.

THE LAW

A. Complaint under Article 6 of the Convention

31. The applicant complained that the lengthy court proceedings, which lasted for a little over six years and eight months at three levels of jurisdiction, had breached the rights guaranteed to her by Article 6 § 1 of the Convention, which, as far as relevant, provides:

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

32. The Government submitted that the applicant had failed to exhaust domestic remedies, as she had not raised the complaint about the length of the proceedings before the criminal courts. It relied on the Court ’ s findings in the case of Trūps (cited above, §§ 47-57). Alternatively, the Government submitted that the complaint should be dismissed either as being incompatible ratione materiae or because the applicant had not suffered a significant disadvantage.

33. The applicant disagreed.

34. The Court reiterates that the area of exhaustion of domestic remedies requires a distribution of the burden of proof. It is incumbent on the Government claiming non ‑ exhaustion to satisfy the Court that the remedy was an effective one available in theory and practice at the relevant time, that is to say that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints, and offered reasonable prospects of success. However, once this burden has been satisfied it falls to the applicant to establish that use was made of the remedy advanced by the Government or that it was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement (see MelnÄ«tis v Latvia , no. 30779/05, § 46, 28 February 2012, with further references).

35. In Trūps (cited above) , 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 concerning unreasonably lengthy criminal proceedings which had to be exhausted. The remedy provides for the possibility of discontinuing unreasonably long criminal proceedings, or for the length of criminal proceedings to be taken into consideration in sentencing. In the above decision, the Court was also satisfied that the aforementioned remedy was not limited in terms of temporal jurisdiction. The Court therefore considers that the Government have, accordingly, met the burden incumbent on them to prove the effectiveness of the remedy in theory and practice.

36. The Court further observes that the applicant did not bring a complaint about the length of the criminal proceedings before the domestic courts, and she has not provided any concrete arguments to convince the Court that she did not need to use this remedy.

37. In view of the above-mentioned considerations, the Court upholds the Government ’ s preliminary objection of non-exhaustion of domestic remedies. There is, therefore, no further need to examine the other preliminary objections raised by the Government.

38. It follows that this complaint must be dismissed under Article 35 §§ 1 and 4 of the Convention.

B. Other complaints

39. The applicant raised other complaints under Articles 6 and 14 of the Convention.

40. 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 considers that the remainder of the application does not disclose any appearance of a violation of any of the above Articles of the Convention. It follows that this complaint is inadmissible and must be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 9 November 2017 .

Anne-Marie Dougin André Potocki Acting Deputy Registrar President