Communicated on 24 February 2020 Published on 16 March 2020

FIFTH SECTION

Application no. 42627/19 Mārtiņš GRĪNBERGS against Latvia lodged on 31 July 2019

STATEMENT OF FACTS

1 . The applicant, Mr Mārtiņš Grīnbergs , is a Latvian national, who was born in 1994 and is currently serving a prison sentence in Riga Central Prison.

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

3 . On 16 September 2014 the applicant flew from Riga to Istanbul. In the city of Gaziantep, Turkey, which is located some 100 km from Aleppo, Syria, the applicant met militants from the so-called Islamic State of Iraq and al-Sham (ISIS – also known as Islamic State of Iraq and the Levant or Daesh ).

4 . On 23 September 2014 the applicant crossed the border between Turkey and Syria. The applicant joined a militant group of ISIS.

5 . For about two months, from October to December 2014, the applicant underwent military training in the city of Homs.

6 . According to the applicant, he did not participate in active warfare, but was serving as a guard (with a gun) for some two months in the beginning of 2015 in the area near Homs.

7 . Sometime in February 2015 he was transferred to Raqqa, where he joined another militant group of ISIS. In April 2015 he was taken to the city of Sarrin .

8 . According to the applicant, he did not participate in active warfare, but again was serving as a guard (with a gun) for some ten days in April 2015. He had been instructed to monitor attacks against ISIS, but not to fire himself. Afterwards, he was brought back to Raqqa.

9 . Subsequently, the applicant made several attempts to leave Syria. He was arrested on several occasions by ISIS and spent some time in various detention facilities. Eventually, he escaped and crossed the border with Turkey, where he was taken into custody.

10 . On an unspecified date the applicant was deported to Latvia.

11 . On 6 September 2016 the applicant was arrested. Subsequently, his detention was ordered by a judge.

12 . On 27 April 2017 the Riga City Vidzeme District Court ( R īgas pilsētas Vidzemes priekšpilsētas tiesa ) convicted the applicant on a charge with regard to unlawful participation in an armed conflict (section 77. 1 of the Criminal Law), sentenced him to four years ’ imprisonment, and acquitted him on a charge with regard to participation in a criminal organisation (section 89. 1 (2) of the Criminal Law).

13 . On 16 November 2017 the Riga Regional Court ( Rīgas apgabaltiesa ) quashed that judgment. The Regional Court found the applicant guilty in respect of both charges against him – under sections 77. 1 and 89. 1 (2) of the Criminal Law.

14 . On 22 May 2018 the Supreme Court ( Augstākā tiesa ) quashed that judgment. The Supreme Court clarified that section 89. 1 (2) of the Criminal Law envisaged criminal responsibility for participation in committing of especially serious crimes as laid down in Chapters IX and X of the Criminal Law by a criminal organisation. Section 89. 1 (2) of the Criminal Law was broader in scope than section 77. 1 of the Criminal Law. The Regional Court had not examined whether the criminal responsibility under those two provisions had to be established concurrently or exclusively.

15 . On 3 December 2018 the Regional Court issued a new ruling. The Regional Court found the applicant guilty only in respect of the more serious charge against him – participation in a criminal organisation (section 89. 1 (2) of the Criminal Law) – and sentenced him to six years ’ and eight months ’ imprisonment, which was below the statutory minimum for that offence (see paragraph 24 below). The applicant did not deny that he had carried out certain activities in Syria (for his account of events, see paragraphs 3-9 above), but denied that they had constituted a criminal offence.

16 . The judgment began by stating that the applicant had been:

“involved in a criminal organisation ... established with the purpose of committing especially serious crimes against humanity or peace, war crimes, genocide, and ... crimes against the State.”

He had also:

“ unlawfully participated in an armed conflict outside the Latvian territory...; [that conflict was] directed against the territorial integrity of the State and [was] contrary to international law binding upon [Latvia], in breach of legal instruments.”

17 . As regards his “involvement” in a criminal organisation, the Regional Court established that the applicant had left Latvia to participate in the armed conflict in Syria as a militant of the unlawful terrorist organisation ISIS. From 23 September 2014 to April 2016 the applicant had been involved in that organisation, which had been established with the purpose of committing crimes against the State (destroying territorial integrity of Syria and Iraq), crimes against humanity and peace (harming civilians and civil infrastructure), genocide (against other religious and ethnic groups) and the crime of aggression (in territories of other States).

18 . In relation to his “participation” in a criminal organisation, the Regional Court established that in April 2015 the applicant had been serving as a guard (with a gun), which had been active warfare, in the militant group of ISIS; and this had been contrary to domestic law (they referred to the Law on Participation of the Latvian National Armed Forces in International Operations). He had been actively participating in the armed conflict in Syria, which had been directed against the territorial integrity of the State. Accordingly, the applicant had supported and promoted the crimes against the State, crimes against humanity and peace, genocide and war crimes committed by the terrorist organisation ISIS.

19 . The Regional Court considered that such actions by the applicant (see paragraphs 17-18 above) had been contrary to international law (they referred to Article 1 and Article 2 § 4 of the Charter of the United Nations).

20 . The applicant ’ s conviction was based on, inter alia , his own testimony, photographic and video footage of the applicant wearing military clothing and holding a gun, reports by the Security Police, reports following forensic examinations and undisclosed classified material.

21 . The Regional Court considered that there was sufficient evidence that ISIS (i) had been listed as a terrorist organisation; (ii) had ten to a hundred thousand active fighters; (ii) had been involved in the armed military conflict in Syria; and (iii) had been established with the purpose of undermining the interests and sovereignty of the State and its inhabitants. The applicant had joined ISIS in September 2014. He, therefore, had been involved in the criminal organisation within the meaning of section 89. 1 of the Criminal Law. Latvian law provides for criminal responsibility for being merely involved in such an organisation, irrespective of whether any other crimes have been committed (section 89. 1 (1) of the Criminal Law).

22 . However, for a person to be found guilty of a crime under section 89. 1 (2) of the Criminal Law it must be established that he or she participated in committing at least one offence by that criminal organisation. In that respect, the Regional Court referred to the applicant as having served as a guard (with a gun) in April 2015 in Sarina, where fights between ISIS and Kurdish fighters took place. His actions were construed as being constitutive of the offence contrary to section 77. 1 of the Criminal Law (unlawful participation in an armed conflict), but he was convicted only in respect of the more serious charge against him – participation in a criminal organisation (section 89. 1 (2) of the Criminal Law).

23 . Taking into account the Supreme Court ’ s ruling of 22 May 2018, the Regional Court concluded as follows:

“From 23 September 2014 [and onwards the applicant] committed the crime contrary to section 89. 1 (1) of the Criminal Law, but in April 2015 he committed the crime, which was included in Chapter IX, section 77. 1 of the of Criminal Law, thereby committing the crime contrary to section 89. 1 (2) of the Criminal Law.

Taking into account that [acts by the applicant] are found to be [constitutive] of an offence under section 89. 1 (2) of the Criminal Law, there are no grounds to consider that [his] acts also [constitute] an offence under section 77. 1 of the Criminal Law, he has to be acquitte d in relation to [that] charge. ”

24 . On 16 April 2019 the Senate of the Supreme Court refused to institute proceedings on points of law, without addressing the applicant ’ s argument that section 89. 1 of the Criminal Law provided criminal responsibility only for participation in a criminal organisation in Latvia or against the interests of Latvia.

25 . The relevant parts of the Criminal Law ( Krimināllikums ) read as follows:

Section 4 – Applicability of the Criminal Law outside the territory of Latvia

“(1) Latvian citizens ... shall be held liable in the territory of Latvia, in accordance with this Law, for an offence committed in the territory of another state or outside the territory of any state irrespective of whether it has been recognised as criminal and punishable in the place where it has been committed.

...”

Chapter X Crimes against the State Section 89. 1 – Criminal organisation [as in force on 1 April 2013]

“(1) For a person who establishes such a criminal organisation (association) which consists of at least five members, with the purpose of committing especially serious crimes against humanity or peace, war crimes, genocide or of committing especially serious crimes against the State, as well as for being involved in such an organisation or in an organised group included within such organisation or other criminal formation,

- the applicable punishment is deprivation of liberty for a period of eight and up to seventeen years, with or without confiscation of property and with or without probationary supervision for a period up to three years.

(2) For a person who leads [such] a criminal organisation or participates in committing of [such crimes as provided under 89. 1 (1)] by such an organisation,

- the applicable punishment is life imprisonment or deprivation of liberty for a period of ten and up to twenty years, with or without confiscation of property and with probationary supervision for a period up to three years.”

26 . As of 19 February 2015 a new provision was included in Chapter IX, which was entitled “Crimes against humanity, peace, war crimes and genocide”:

Section 77. 1 – Unlawful participation in an armed conflict

“For a person who unlawfully participates in an armed conflict, that is, [who] actively participates in an armed conflict taking place outside the territory of the Republic of Latvia which is directed against territorial integrity or political independence of a State or is otherwise in contradiction with international law binding upon the Republic of Latvia, violating [domestic] legal instruments or the international agreements binding upon the Republic of Latvia,

- the applicable punishment is the deprivation of liberty for a period of up to ten years, with probationary supervision for a period of up to three years.”

COMPLAINT

27 . The applicant complains under Article 6 of the Convention that he was not afforded a fair hearing; he mentions such issues as the thorough examination of the case, assessment of evidence and the right to appeal. In particular, he refers to the appellate court ’ s ruling of 3 December 2018 and to the Senate ’ s ruling of 16 April 2019.

28 . The applicant also argues that section 89. 1 of the Criminal Law envisages criminal responsibility only for participation in a criminal organisation in Latvia or against the interests of Latvia.

QUESTIONS TO THE PARTIES

1. In view of the applicant ’ s allegations, did he have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention?

2. Was the refusal by the Senate of the Supreme Court on 16 April 2019 to institute proceedings on points of law sufficiently reasoned in the circumstances of the present case, as required by Article 6 § 1 of the Convention?

Reference is made, in particular, to the fact that the applicant raised the issue of the scope of protected interests under section 89. 1 of the Criminal Law in his appeal on points of law.

3. Did the acts committed in Syria of which the applicant was convicted constitute a criminal offence under Latvian law at the time they were committed, as envisaged by Article 7 of the Convention?

In particular, could the applicant have reasonably foreseen that he would be held criminally liable in Latvia for the acts he committed in Syria?

The parties are requested to address the following issues:

(a) Does section 89. 1 of the Criminal Law provide for individual criminal responsibility for acts committed outside the territory of Latvia?

(b) Does section 89. 1 of the Criminal Law provide for individual criminal responsibility for acts committed outside the territory of Latvia to protect the interests of any other State than Latvia?

(c) Does section 77. 1 of the Criminal Law provide for individual criminal responsibility to protect the “ territorial integrity or political independence” of any other State than Latvia?

(d) Does section 77. 1 of the Criminal Law provide for individual criminal responsibility for any other acts in breach of domestic and/or international law?

4. The parties are requested to submit any relevant examples of the domestic case-law as regards application and interpretation of sections 89. 1 or 77. 1 of the Criminal Law in practice.