Information Note on the Court’s case-law 198

July 2016

Jeronovičs v. Latvia [GC] - 44898/10

Judgment 5.7.2016 [GC]

Article 37

Article 37-1

Striking out applications

Continuing obligation of the respondent State to investigate Article 3 complaints even following a decision striking out the complaint following a unilateral declaration

Article 3

Effective investigation

Refusal to reopen criminal proceedings in respect of which Government had submitted unilateral declaration: violation

Facts – In 1998 the applicant instituted criminal proceedings concerning his alleged ill-treatment by police officers. Those proceedings were ultimately discontinued. In 2001 the applicant lodged an application (no. 547/02 ) with the European Court complaining, inter alia , about the ill-treatment and the lack of an effective investigation. In respect of that complaint the Government submitted a unilateral declaration acknowledging a breach of Article 3 and awarding the applicant compensation. On 10 February 2009 the application was consequently struck out of the list in so far as it concerned the complaints referred to in the unilateral declaration. In 2010, the authorities refused a request by the applicant to have the criminal proceedings reopened.

In his present application to the European Court, the applicant complained that, despite the acknowledgment by the Government of the breach of his rights under Article 3 of the Convention, the State authorities had failed to properly investigate his ill-treatment by the police officers.

On 3 February 2015 a Chamber of the Court decided to relinquish jurisdiction in favour of the Grand Chamber.

Law – Article 3

(a) Court’s case-law and practice on unilateral declarations – The considerations to be taken into account when deciding whether to strike out a case, or part thereof, under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration are: (i) the nature of the complaints made, the nature and scope of any measures taken by the respondent Government in the context of the execution of judgments delivered by the Court in any such previous cases and the impact of these measures on the case at issue; (ii) the nature of the concessions contained in the unilateral declaration, in particular the acknowledgment of a violation of the Convention and the payment of adequate compensation for such violation; (iii) the existence of relevant or “clear and extensive” case-law in that respect, in other words, whether the issues raised are comparable to issues already determined by the Court in previous cases; and (iv) the manner in which the Government intend to provide redress to the applicant and whether this makes it possible to eliminate the effects of an alleged violation. If the Court is satisfied with the answers to the above questions, it then verifies whether it is no longer justified to continue the examination of the application, or the part in question, and that respect for human rights does not require it to continue its examination. If these conditions are met it then decides to strike the case, or the relevant part, out of its list.

Even after it has accepted a unilateral declaration and decided to strike an application (or part thereof) out of its list of cases, the Court reserves the right to restore that application (or part of it) to its list. In exercising such power, the Court carries out a thorough examination of the scope and extent of the various undertakings referred to in the Government’s declaration as accepted in the strike-out decision, and anticipates the possibility of verifying the Government’s compliance with their undertakings. A Government’s unilateral declaration may thus be submitted twice to the Court’s scrutiny. Firstly, before the decision is taken to strike a case out of its list of cases, the Court examines the nature of the concessions contained in the unilateral declaration, the adequacy of the compensation and whether respect for human rights requires it to continue its examination of the case according to the criteria mentioned above. Secondly, after the strike-out decision the Court may be called upon to supervise the implementation of the Government’s undertakings and to examine whether there are any “exceptional circumstances” which justify the restoration of the application (or part thereof) to its list of cases. In supervising the implementation of the Government’s undertakings the Court has the power to interpret the terms of both the unilateral declaration and its own strike-out decision.

(b) Merits – In its strike-out decision the Court did not expressly indicate to the Government whether they remained under an obligation to conduct an effective investigation or whether such obligation was extinguished by the acknowledgment of a breach and the payment of compensation. The Court had therefore to examine whether such an obligation could arise from the Government’s undertaking contained in their unilateral declaration and from the Court’s decision striking out the applicant’s complaint, or whether the refusal in question disclosed a failure to comply with any procedural obligation that continued to exist after that strike-out decision.

The Court found no exceptional circumstances that could justify restoring to its list of cases the part of application no. 547/02 that it struck out on 10 February 2009. However, it considered particularly relevant the reference, in its 2009 decision, to the fact that the applicant retained the possibility to exercise “any other available remedies in order to obtain redress” as a pre-condition of the Court’s decision to strike the relevant part of the application out of its list of cases. Such possibility had to be accompanied by a corresponding obligation on the part of the respondent Government to provide him with a remedy in the form of a procedure for investigating his ill-treatment at the hands of State agents. The payment of compensation could not suffice, having regard to the State’s obligation under Article 3 to conduct an effective investigation in cases of wilful ill-treatment by agents of the State. The unilateral declaration procedure was an exceptional one and was not intended either to circumvent the applicant’s opposition to a friendly settlement or to allow the Government to escape their responsibility for the breaches of the most fundamental rights contained in the Convention. Accordingly, by paying compensation and by acknowledging a violation of the various Convention provisions, the respondent State had not discharged the continuing procedural obligation incumbent on it under Article 3 of the Convention.

Under the domestic law the applicant could request the reopening of the investigation on the grounds of newly disclosed circumstances, and he had availed himself of this possibility. His request was however dismissed on the ground that the Government’s unilateral declaration was not considered as a newly disclosed circumstance for the purposes of the domestic law at issue. Although the Convention did not in principle guarantee a right to have a terminated case reopened, the Court could nevertheless review whether the manner in which the Latvian authorities had dealt with the applicant’s request produced effects that were incompatible with their continuing obligation to carry out an effective investigation. In this regard, it found that national legal obstacles could not exempt States from complying with such an obligation. Otherwise the authorities could confine their reaction to incidents of wilful ill-treatment by State agents to the mere payment of compensation, while not doing enough to prosecute and punish those responsible. This would make it possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity, and would render the general legal prohibition of torture and inhuman and degrading treatment, despite its fundamental importance, ineffective in practice. It followed that the applicant had not had the benefit of an effective investigation as required by Article 3 of the Convention.

Conclusion : violation (ten votes to seven).

Article 41: EUR 4,000 in respect of non-pecuniary damage.

(See also Gäfgen v. Germany [GC], 22978/05, 1 June 2010, Information Note 131 ; Tahsin Acar v. Turkey (preliminary objections) [GC], 26307/95, 6 May 2003, Information Note 53 ; Žarković and Others v. Croatia (dec.), 75187/12, 9 June 2015, Information Note 187 ; and Aleksentseva and Others v. Russia , 75025/01 et al., decisions of 4 September 2003 and 23 March 2006 , and judgment of 17 January 2008 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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