Communicated on 23 October 2014

FOURTH SECTION

Application no. 42906/12 Genadijs ÄŒAMANS and others against Latvia lodged on 6 July 2012

STATEMENT OF FACTS

1. The first applicant, Mr Genadijs ÄŒamans , is a Latvian national , who was born in 1970 and is residing in Daugavpils.

2. The second applicant, Ms Timofejeva Raisa , is a Latvian national, who was born in 1956 and is residing in Daugavpils.

A. The circumstances of the case

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

4. Between 16 and 18 November 2011 the State Revenue Service ( Valsts ieņēmumu dienests ) conducted an inspection of the premises and territory of the private compan y SIA “M. ” .

1. Concerning the first applicant

( a ) Measures against the first applicant

5. The first applicant worked as a guard at the company, SIA “M.” , and was present during the inspection.

6. In his submission, on 17 November 2011 at around 2.30 a.m. he left his post and went to the furnace room to switch on the heat. Shortly thereafter, in the furnace room he was handcuffed by the State Revenue Service officers and his mobile phone was taken from him. He was not given any reasons for these actions.

7. From that moment onwards he was under constant supervision by the State Revenue Service officers, who accompanied him even to the lavatory, and he was not permitted to use a phone. He remained handcuffed, apart from short periods of time every hour, until around 8 a.m. At around 10 a.m., in the SIA “M.” company office, he was questioned by the investigator, V.V., in the status of a witness.

8. At around 7 p.m. the first applicant was allowed to leave the inspection site.

9. On 18 November 2011, between 8.30 and 9.15 a.m. his declared place of residence was searched.

10. The same day at around 9.30 a.m. the State Revenue Service officers arrived at his home and informed him that he would be detained for a period of forty-eight hours. The first applicant was then taken to a vehicle, where he was handcuffed.

11. At around 1 p.m. he was brought before the investigator, S.B., who served on the first applicant a decision declaring him a suspect in the investigation, dated 19 November 2011, and a decision ordering a security measure against him.

12. The same day, 18 November 2011, the first applicant gave a statement without a lawyer, following which he was released.

( b ) Review by prosecutor ’ s office

( i ) The first applicant ’ s complaint

13. On 29 December 2011 the first applicant lodged a complaint before the prosecutor ’ s office in Daugavpils , putting forward the circumstances of restriction of his liberty and freedom of movement during the inspection by the State Revenue Service on 17 November 2011 ( see paragraphs 6-8 above) .

14. Further, he stated that a t no moment had he formally been detained. Also, no criminal investigation had been opened, permitting the Service officers to exercise the rights under section 16(3) and section 16 1 of the Law on the State Revenue Service ( likums “Par Valsts ieņēmumu dienestu” ) . None of the grounds in section 16 1 (1) of the Law, authorising his handcuffing, had existed.

15. The conduct of the Service officers had been in breach of Article 5 of the Convention.

(ii) Decision upon the complaint

16. On 9 January 2012 the prosecutor, O.R., refused the first applicant ’ s complaint.

17. O.R. noted that on 17 November 2011 the investigator of the Customs Criminal Department of the State Revenue Service ( Valsts ieņēmumu dienesta Muitas kriminālpārvalde ), I.R., had conducted an inspection on the premises of the company SIA “M. ”.

18. The first applicant did not indicate on the record of inspection that he had been compelled to participate in it.

19. As concerns the first applicant ’ s criticism of restriction of his rights by the officers of the State Revenue Service, that part of his complaint was transmitted to the Service for a decision regarding disciplinary proceedings ( see paragraph s 2 8 -3 4 below).

(iii) The first applicant ’ s appeal

20. On 18 January 2012 the first applicant appealed to a higher prosecutor against the aforementioned decision.

21. The first applicant argued that he had not been informed of his right not to participate in the inspection. The fact that he had not made a note on the record of inspection did not prove that no violations had been made.

(iv) Decision upon appeal

22. On 3 February 2012 the higher prosecutor, V.Š., refused the first applicant ’ s appeal.

23. V.Š. indicated that the inspection had been conducted based on section 162 of the Criminal Procedure Law ( Kriminālprocesa likums ). At the start of the inspection, on 17 November 2011 at 2.50 a.m., the first applicant was present on the site. The investigator, I.R., had invited him to participate in the inspection and there was no evidence that he had objected. As the first applicant was not involved in the criminal proceedings there had been no requirement to explain his rights to him.

(v) The first applicant ’ s further appeal

24. On 17 February 2012 the first applicant appealed against the above ‑ mentioned decision.

25. He maintained that the investigator, I.R., had ordered him to participate in the inspection. The fact that he had not made a note on the inspection record was irrelevant. Until questioned as a witness, he had no information about his status in the proceedings.

(vi) Final decision

26. On 14 March 2012 the chief prosecutor, A.S., refused the first applicant ’ s appeal and endorsed the lower prosecutors ’ decisions.

27. No further appeal was available.

( c ) Review by the State Revenue Service

28. The deputy director of the Customs Criminal Department of the State Revenue Service, M.K., examined the applicant ’ s complaint, transmitted to him by the prosecutor ’ s office, and on 17 January 2012 he refused the opening of disciplinary proceedings.

29. M.K. indicated that during the inspection on 17 November 2011 the first applicant entered the furnace room, switched on a pump and opened the tap so that spirits started flowing in the pipes. As there was a secret spirits container on the floor above, that applicant ’ s conduct caused reasonable suspicion of an attempt to conceal the evidence of a crime, which in itself was an offence.

30. Therefore, the first applicant had been handcuffed in order to prevent his committing an offence and failing to comply with lawful requirements, and in order to protect the crime scene from an unlawful threat. The handcuffs had been removed as soon as the inspection was completed and the furnace room secured.

31. M.K. also noted that on 19 November 2011 the first applicant was declared a suspect for having failed to inform the officials about cigarettes and spirits stored on the site. Further, upon V.K. ’ s (the director of SIA “M.” ) request made by phone, the first applicant had aimed to conceal the evidence of a crime by pouring out the spirits in the furnace building.

32. The interest of preventing the harm which could have been caused had the offence not been stopped outweighed the restrictions on the first applicant ’ s freedom of movement.

33. In that light, the Customs Criminal Department officers ’ action was justified.

34. No possibility of appeal against the aforementioned reply was indicated.

( d ) Review by the Ombudsperson ( Tiesībsargs )

35. Upon the first applicant ’ s request the Ombudsperson conducted an inquiry. On 13 March 2013 he issued a report.

36. The Ombudsperson found inter alia that no information emerged from the documents furnished by the State Revenue Service to the effect that during the inspection the first applicant had refused to comply with any orders of the Service officers or had resisted their lawful requests.

37. The first applicant ’ s freedom of movement had been restricted. However, an inspection conducted under section 163 of the Criminal Procedure Law did not provide for any restrictions of the rights of persons present.

38. Also, by means of handcuffing, the first applicant ’ s right to liberty had been restricted. No record of arrest, however, had been made under either the Criminal Procedure Law or the Code of Administrative Violations ( Administratīvo pārkāpumu kodekss ). The restriction had not been in accordance with the law.

39. Referring to the domestic case-law the Ombudsperson noted that every order given by a police officer in the course of performance of duty was to be regarded as binding and initially had to be complied with. Therefore, absent the investigator informing the first applicant of his right not to participate in the inspection, he had been denied the opportunity to do so.

2. Concerning the second applicant

( a ) Measures against the second applicant

40. The second applicant worked as a n accountant at SIA “M. ” .

41. On 16 November 2011 at around 4 p.m. the State Revenue Service officers arrived. One of the officers, J.L., asked the second applicant not to leave, even though she was told she was not being placed under arrest. Having consulted the company ’ s lawyer, V.G., at around 7.30 p.m. the second applicant left the site, despite the threats made by the Service officers.

42. The same day, at around 10 p.m. the lawyer V.G. phoned the second applicant, asking her to come to SIA “M.” in order to find a certain document. At around 10.30 p.m. the second applicant returned there.

43. As the second applicant was resting on-site, given the late hour, on 17 November 2011, at around 3 a.m. she was approached by the investigator, I.R. The applicant ’ s phone was taken from her and from that moment onwards she was ordered to participate in the inspection and was prohibited to leave. Also, she was constantly guarded by the State Revenue Service officers, who even accompanied her to the lavatory. The applicant was not permitted to use a phone. At around 11 a.m., in the company office she was questioned by the investigator, V.V., in the status of a witness.

44. The second applicant was allowed to leave the inspection site on 18 November 2011 at around 4.30 a.m.

( b ) Review by prosecutor ’ s office

( i ) The second applicant ’ s complaint

45. On 14 December 2011 the second applicant lodged a complaint before the prosecutor ’ s office in Daugavpils , putting forward the circumstances of the restriction of her liberty and freedom of movement during the inspection by the State Revenue Service between 17 and 18 November 2011 (see paragraphs 43 and 44 above ) .

46. The conduct of the Service officers had been in breach of Article 5 of the Convention.

(ii) Decision upon the complaint

47. On 30 December 2011 the prosecutor, O.R., refused the second applicant ’ s complaint.

48. O.R. noted that between 17 and 18 November 2011 the investigator of the Customs Criminal Department of the State Revenue Service, I.R., had conducted an inspection on the premises of the company SIA “M. ”.

49. The second applicant, like the first applicant, did not indicate on the record of inspection that she been compelled to participate in it.

50. As concerns the second applicant ’ s criticism of restriction of her rights by the officers of the State Revenue Service, that part of her complaint was transmitted to the Service for a decision regarding disciplinary proceedings ( see paragraphs 60 - 63 below).

(iii) The second applicant ’ s appeal

51. On 12 January 2012 the second applicant appealed to a higher prosecutor against the aforementioned decision.

52. The second applicant argued that she had not been informed of her right not to participate in the inspection. She had noted on the inspection record that “she [did] not know her role in the inspection”.

(iv) Decision upon appeal

53. On 1 February 2012 the higher prosecutor, V.Š., refused the second applicant ’ s appeal.

54. V.Å . indicated that the inspection had been conducted based on section 162 of the Criminal Procedure Law. At the start of the inspection, on 17 November 2011 at 2.50 a.m., the second applicant had been present on the site. The investigator, I.R., had invited her to participate in the inspection and there was no evidence that she had objected. As the second applicant was not involved in the criminal proceedings there had been no requirement to explain her rights to her.

(v) The second applicant ’ s further appeal

55. On 14 February 2012 the second applicant appealed against the above-mentioned decision.

56. She maintained that the investigator, I.R., had ordered her to participate in the inspection. The fact that she had not made a note on the inspection record was irrelevant. Until questioned as a witness, she had no information about her status in the proceedings.

(vi) Final decision

57. On 13 March 2012 the chief prosecutor, A.S., refused the second applicant ’ s appeal and endorsed the lower prosecutors ’ decisions.

58. He further reasoned that after having been questioned as a witness, the second applicant had participated in the continuation of the inspection, from 17 November 2011 at 7.15 p.m. to 4.23 a.m. on 18 November 2011, as a person present there. Besides, as of 8.45 p.m. on 17 November 2011 her lawyer, I.B., had also participated in the inspection. Neither the second applicant nor her lawyer had noted on the inspection record that she had been compelled to participate.

59. No further appeal was available.

( c ) Review by the State Revenue Service

60. The deputy director of the Customs Criminal Department of the State Revenue Service, M.K., examined the applicant ’ s complaint, transmitted to him by the prosecutor ’ s office, and on 16 January 2012 he refused the opening of disciplinary proceedings.

61. M.K. indicated that on 17 and 18 November 2011 the investigator, I.R., conducted an inspection which was governed by sections 159, 160 and 162 of the Criminal Procedure Law. I.R. had acted in order to prevent any interference with the inspection and destruction of evidence and in order to stop the commission of a crime. That had outweighed the restrictions placed on the second applicant, which had also been proportionate.

62. In that light, I.R. ’ s action had been justified.

63. No possibility of appeal against the aforementioned reply was indicated.

B. Relevant domestic law

1. Concerning site inspection

64 . Section 159 of the Criminal Procedure Law defines the investigative action of inspection. Further section 160 sets out its general terms. According to section 160(1) any person involved in the relevant criminal proceedings may be invited to participate in the inspection.

65. Section 162 of the Law regulates an inspection of the incident site. According to section 162(1) it is conducted following receipt of information about an offence committed and if sufficient grounds exist to believe that an offence has been committed or has continued there. Section 163 lays down the terms of the inspection of territories, premises, vehicles and objects.

66. These provisions do not contain the right of officers conducting an inspection to restrict the liberty or freedom of movement of persons present.

2. Concerning powers of the State Revenue Service

67. Section 13 1 of the Law on the State Revenue Service provides that, when conducting investigation into customs-related criminal offences, officers of the Customs Criminal Department shall have the rights set out in section 16(3) and section 16 1 of the Law.

68. Under Section 16(3)4) of the Law – in order to uncover and prevent criminal offences or other violations of law – in the circumstances and in accordance with the procedure prescribed by law, the officers have the right to carry out an administrative detention of the offenders, and under section 16(3)5) they have the right to detain persons who have committed an administrative offence or are suspected of or accused of having committed criminal offences.

69. Under section 16 1 (1) of the Law the officers have the right to use inter alia handcuffs in order to:

“1) prevent an attack on officers of the State Revenue Service performing their official duty;

2) detain and transport to the premises of the State Revenue Service the offenders and during an escort – in order to restrain persons detained, if they disobey or resist the [officers] or there are grounds to believe that they may flee or harm other persons or themselves;

3) prevent an intentional non-compliance with the lawful requests made by the [officers] in the performance of their official duty;

4) secure an object under protection from unlawful or other type of threat.”

COMPLAINTS

70. The first applicant complain s that prohibition to leave the premises, restriction of his movement and being guarded and handcuffed by State Revenue Service officers during an inspection was in violation of Article 5 § 1 of the Convention and Article 2 §§ 1 and 3 of Protocol No. 4 to the Convention.

That deprivation of liberty and restriction of freedom of movement, including by means of handcuffing, were unlawful. No criminal investigation had been opened allowing the State Revenue Service officers to exercise the rights under section 16(3) and section 16 1 of the Law on the State Revenue Service. Further, none of the grounds in section 16 1 (1) of the Law existed.

71. The second applicant complain s that prohibition to leave the premises, restriction of her movement and being guarded by State Revenue Service officers during an inspection was in violation of Article 5 § 1 of the Convention and Article 2 §§ 1 and 3 of Protocol No. 4 to the Convention.

That deprivation of liberty and restriction of freedom of movement were unlawful. As the site was subjected to an inspection and not a search, there was no basis under the Criminal Procedure Law for prohibition to leave the premises.

QUESTIONS TO THE PARTIES

1. Was the first and/or second applicant deprived of their liberty within the meaning of Article 5 § 1 of the Convention, or h as there been a restriction on the ir right to liberty of movement , guaranteed by Article 2 § 1 of Protocol No. 4 to the Convention ?

Was the period of time in issue, with regard to the first applicant, on 17 November 2011 from around 2.30 a.m. to around 7 p.m., and with regard to the second applicant, from 17 November 2011 at around 3 a.m. to around 4.30 a.m. on 18 November 2011?

2. D id the deprivation of their liberty fall within any of the paragraphs - (a), (b), (c), (d), (e) - of Article 5 § 1 of the Convention?

3. If the answer to the above questions is affirmative, what were the reasons and legal basis for such restrictions?