Communicated on 19 June 2017

FIFTH SECTION

Application no. 20786/14 Igors IVANOVS against Latvia lodged on 7 March 2014

STATEMENT OF FACTS

1. The applicant, Mr Igors Ivanovs , is a Latvian national who was born in 1958 and is detained in Riga. He is represented before the Court by Ms J. Kvjatkovska , a lawyer practising in Riga.

A. The circumstances of the case

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

3. On 6 January 2008 the applicant ’ s wife, E.I. and their children returned from a trip. The applicant ’ s driver, A.V., drove them home from the airport. That same evening, the applicant ’ s wife was shot dead outside the family home.

4. On 5 March 2008 the police arrested the applicant in connection with E.I. ’ s murder. He was subsequently detained.

5. On 7 April 2008 a police officer, G.N., met with the applicant in detention. He recorded their conversation and reported it to his superiors. A prosecutor then authorised an undercover operation . On 15 April, 8 May and 14 May 2008 G.N. visited the applicant again. They spoke about how G.N. could ensure that the criminal proceedings against the applicant were terminated if he paid him a bribe. The applicant also spoke to G.N. with regard to the murder in the same context.

6. On 9 March 2009 the prosecution brought charges against the applicant.

7. At trial the applicant pleaded not guilty. On 30 December 2009 the Riga Regional Court ( RÄ«gas apgabaltiesa ) established that the applicant had incited V.M. to organise the murder and had aided in its commission. It also established that L.A. had shot E.I.

8. As regards the motive for the murder, the Regional Court established that the applicant had learnt that E.I. and O.G. had been having a relationship. The court relied on indirect evidence to prove the applicant ’ s guilt. He had known exactly when E.I. would arrive home on 6 January 2008; he had also known that, once home, E.I. would let their dogs out of the garage and into the yard. He had therefore locked the door leading from the house to the garage so that E.I. had had to exit the house in order to let the dogs out. L.A. had been able to shoot her there. He had also known the organiser of the murder, V.M. Furthermore, he had previously assaulted E.I. and had threatened O.G. by handing a bullet to him. There was evidence that they had been afraid of the applicant.

9. The Regional Court referred to a transcript of a conversation between the applicant and G.N. in May 2008 (hereinafter “the transcript”) (see paragraph 5 above), the relevant parts of which contained the following statements made by the applicant:

“Tell me, do you ... believe that I incited him to do something?”

“Gypsy ’ s an idiot ... straight away, on his own initiative, ‘ [V.], he ’ ll do anything you want ’ . I didn ’ t ask him for anything ... the first time I saw him was on television. So, on his initiative ... in Moscow, they organised everything themselves there. When I did something, bite on the tail ... They found out, wanted to destroy me ... The information came from [O.G.]. She lost her mind ... It was not on my initiative ... ”

The Regional Court stated that the phrases used indicated the applicant ’ s involvement in the murder. At the same time, it found that the applicant had not known that G.N. had been acting undercover or that he had been authorised to incite him to bribe him.

10. The Regional Court sentenced the applicant to thirteen years ’ imprisonment, with subsequent police supervision for three years.

11. The applicant appealed to the Criminal Chamber of the Supreme Court ( Augstākās tiesas Krimināllietu tiesu palāta – “ the Criminal Chamber ” ), arguing that the Regional Court had based its findings on assumptions. There was no evidence proving the allegations against him. The transcript should not have been used as evidence. In any event, it did not prove that he had incited V.M. to organise the murder.

12. On 14 December 2012 the Criminal Chamber upheld the applicant ’ s conviction.

13. Like the Regional Court, it also relied on indirect evidence to prove the applicant ’ s guilt. As regards the transcript, it stated that it pointed to his guilt “without any doubt”. At the same time, it declared the transcript of th e first conversation of 7 April 2008 inadmissible evidence. It went on to state that the undercover operation subsequently carried out could not have been authorised because nothing in the conversation of 7 April 2008 indicated that the applicant had had any intention of bribing G.N. Furthermore, there was no evidence that he had wanted to see him again.

14. The applicant appealed on points of law. He argued that there was no evidence that he had incited V.M. to organise the murder. The Criminal Chamber had upheld his conviction on the basis of indirect evidence. Furthermore, it should have declared the whole transcript inadmissible evidence, given its findings as regards the authorisation for the relevant undercover operation.

15. On 27 September 2013 the Senate of the Supreme Court ( Augstākās tiesas Senāts ) upheld the applicant ’ s conviction. This was the final judgment concerning his guilt. With regard to the transcript, the Senate held as follows:

“It follows from the appellate court ’ s judgment that the court ... held that the information about the facts included in the expert ’ s report was inadmissible and could not be used as evidence. The appellate court in its judgment presented the information – the content of the recorded conversation – but it was not used as evidence to prove the applicant ’ s guilt.”

The Senate reduced the applicant ’ s sentence to twelve and a half years ’ imprisonment, with subsequent police supervision for three years, given that his right to a trial within a reasonable time had not been respected.

B. Relevant domestic law

16. Under section 268(1) of the Criminal Procedure Law ( Kriminālprocesa likums ), an investigating authority must immediately but no later than within forty-eight hours of a person ’ s arrest decide whether to declare them a suspect or an accused. Sections 66 and 70 provided, at the relevant time, that a suspect and an accused both had the right to a lawyer and the right to remain silent.

17. Under section 146(2) of the Criminal Procedure Law, a person in detention is summoned for questioning through the detention institution in which they are being held. Section 150 provides that prior to questioning, a suspect and an accused must be explained their procedural rights and obligations and the officer conducting the questioning must inform them of their right to remain silent and that anything they say may be used against them as evidence.

COMPLAINT

18. The applicant complains under Article 6 of the Convention that the investigating authorities obtained the evidence from him through the undercover operation, and the domestic courts subsequently used it at trial, in breach of the right to silence and the privilege against self-incrimination.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others , §§ 266-274, ECHR 2016 , and Allan v. the United Kingdom , no. 48539/99, §§ 42-44, ECHR 2002 ‑ IX)?

2. In particular, did the domestic courts use the evidence obtained through the undercover operation?

3. If they did, was that in compliance w ith the guarantees of Article 6 § 1?

4. Were the undercover operation and the use at trial of the evidence thus obtained compatible with the privilege against self-incrimination and the right to silence?