Communicated on 20 March 2014

FOURTH SECTION

Applications nos . 40757/09 and 47018/11 Sergejs KAULAKANS against Latvia and Mareks FJODOROVS against Latvia lodged on 30 September 2009 and 25 July 2011 respectively

STATEMENT OF FACTS

THE FACTS

1 . The first applicant is a “non-citizen” of Latvia and the second applicant is a Latvian national.

A. The circumstances of the cases

2 . The facts of the cases, as submitted by the applicants, may be summarised as follows.

Application no. 40757/09

1. The incident on 22 May 2004

3 . On 22 May 2004 at around 10.00 p.m. at the bar “R.” in Valmiera an unknown person physically assaulted A.R. and J.B .

2. Pre-trial investigation

4 . On 23 May 2004 the police took a statement from the eyewitness N.S.

5 . He testified that on 22 May 2004 at around 9.30 p.m., he had been at the bar “R.” in Valmiera together with his brother A.R.

6 . At some point A.R. had exited the bar. About three minutes later N.S. also exited the bar and saw A.R. fighting with another customer from the bar at the stairs of the bar. Before N.S. managed to go down the stairs, A.R. was already lying on the ground. N.S. approached the other person and they started to push each other. More persons came out of the bar and separated them. The other person ran away.

7 . N.S. did not know who the person hitting A.R. was. N.S. described the person ’ s hair, height, body structure, age, possible ethnicity and clothing. N.S. had visited the bar three times and on all those occasions he had seen this person there. During the incident J.B. and a young person L. had also been present.

8 . On 20 July 2004 A.R. identified the applicant in a photo line - up consisting of three monochrome photographs. A.R. stated that he had recognised him because of his hairstyle and the shape of his face.

9 . On 20 July 2004 the police initiated the investigation.

10 . On 21 July 2004 J.B. also identified the applicant in a photo line - up.

11 . On 4 August 2004 the police took a statement from N.S. in the status of a witness.

12 . N.S. gave more details in relation to the incident of 22 May 2004. Also, he stated that when he had exited the bar, J.B. had already been lying, beaten up, on the ground. N.S. described the person who had assaulted his brother outside the bar and who had pushed J.B. in the bar earlier . In particular, N.S. gave evidence relating to that person ’ s hair, height, body structure, age, possible ethnicity and clothing. N.S. stated that he had previously seen this person in the bar and could recognise him in a photograph .

13 . The same day, N.S. was presented with a set of three monochrome photographs, which included the applicant ’ s photograph. N.S. declared that the person who had beaten up his brother was not among the persons shown in the photographs.

14 . On 24 February 2005 the police transferred the criminal case to the prosecution for proceedings against the applicant on the charges of intentional grievous injury and hooliganism .

15 . On 4 March 2005 the prosecutor D.Z. refused the proceedings against the applicant and returned the file for additional investigation.

16 . The prosecutor reasoned that the only evidence implicating the applicant had been the identification of the applicant in photo line-ups by A.R. and J.B. At the same time, the minutes from these photo line-ups had not indicated the events with respect to which A.R. and J.B. had recognised the applicant. Further, neither A.R. nor J.B. had been questioned about a perpetrator prior to the photo identification.

17 . Also, the prosecutor stated that “if victims ’ testimonies and identification would be the only evidence available...” an identity parade should have been used instead of a photo line-up.

18 . The prosecutor identified further flaws, namely that the investigation had been incomplete.

19 . In the course of the investigation, video recordings from inside or outside the bar “R.” from the day of the incident were not secured.

3. First instance court proceedings

20 . The applicant was brought for the main trial before Valmiera District Court ( Valmieras rajona tiesa ).

21 . In the trial the applicant pleaded not guilty to the charges brought against him with respect to the incident of 22 May 2004.

22 . The minutes of the main trial hearing of 19 March 2008 showed that the injured party J.B. had not appeared in court. The other injured party A.R. testified in court. He declared that the applicant had attacked him. No other witness had seen the applicant at the crime scene.

23 . On 19 March 2008, in relation to the incident of 22 May 2004, the district court found the applicant guilty of infliction of intentional grievous injury, with a sentence of five years ’ imprisonment and police control for two years, and aggravated hooliganism, with a sentence of two years and six months ’ imprisonment and police control for two years.

24 . In its judgment the district court relied on the evidence of A.R. and J.B. as attesting to the applicant ’ s guilt. As pointed out by the applicant, there was no other evidence attesting to his guilt.

4. Appeal against the first instance court judgment

25 . On 11 and 12 April 2008 the applicant and his defence counsel, respectively, appealed against the judgment of the district court.

5. Second instance court proceedings

26 . On 17 June 2008 an appeal hearing was held before the Vidzeme Regional Court ( Vidzemes apgabaltiesa ).

27 . In the hearing the applicant ’ s defence counsel requested that the injured parties A.R. and J.B. be summoned. The appeal panel granted this request. It reasoned that the testimonies of the injured parties contained in the case file were incomplete.

28 . After the aforementioned decision had been announced, the applicant requested that the witness N.S. also be summoned . The applicant submitted that N.S. ’ s testimony contradicted that of the injured parties. The appeal panel granted this request.

29 . The appeal hearing continued on 19 February 2009. The minutes of the hearing showed that none of the above persons had appeared in court. The injured party A.R. had informed the regional court by telephone that he could not be present due to work reasons.

30 . The applicant and his defence counsel insisted that they all needed to be heard in court. The appeal panel ruled that the case could be decided without their participation. It reasoned a s follows:

“The court finds that [A.R.] has not arrived at the court hearing due to justifiable reasons, therefore it is possible to read out his testimony given previously . Likewise, the court deems that the testimonies given earlier by the injured party [J.B.] and the witness [N.S.] should be read out, because these persons are avoiding coming to an appeal instance court hearing.”

31 . In the course of the appeal hearing the applicant argued that the injured parties had seen the perpetrator only once, whereas N.S. had seen him at least on four occasions. Therefore, more credibility should have been attributed to the testimony of N.S., who had been unable to identify the applicant.

32 . On 19 February 2009 the regional court rejected the appeals of the applicant and his defence counsel and upheld the first instance court judgment, endorsing its reasoning.

33 . The regional court found that the evidence of the injured parties A.R. and J.B. directly implicated the applicant in the crimes charged. With regard to their identification of the applicant in the photo line-ups, the regional court found that this evidence had complied with the requirements of the Criminal Procedure Law. It noted that they had both been examined prior to the photo line-ups.

34 . It further reasoned that it was an indisputable fact that the witnesses who had been together with the injured parties A.R. and J.B. at the bar “R.” on 22 May 2004 had not recognise d the applicant as a person who had had a conflict with the injured parties.

35 . With regard to the evidence of N.S. , the regional court concluded that N.S. had in fact not remembered the person who had insulted J.B. inside the bar and attacked A.R. outside the bar . In particular, the regional court underlined the discrepancies in the description of the perpetrator ’ s clothing given by N.S. in his pre-trial statements and in the first instance court hearing. Further, N.S. had declared in the first instance court hearing that he had made a mistake in considering that he had remembered the perpetrator.

6. Appeal on points of law against the second instance court decision

36 . On 22 March 2009 the applicant ’ s defence counsel lodged an appeal on points of law against the aforementioned decision. In her appeal the defence counsel underlined that on 17 June 2008 the appeal panel had ruled that the injured parties were to be summoned to a court hearing. However, the appeal panel subsequently deemed otherwise. She insisted that defence rights had been violated.

37 . She further argued that the court had relied on the evidence gathered in the pre-trial investigation with respect to which the prosecutor had found procedural irregularities (see paragraphs 16 and 17 above).

38 . It appears that the applicant also lodged an appeal on points of law. He indicated that the court should have summoned the injured parties and the witness N.S.

7. Final court decision upon appeal on points of law

39 . On 5 May 2009 the Criminal Cases Division of the Senate of the Supreme Court ( Augstākās tiesas Senāta Krimināllietu departaments ) rejected both appeals on points of law and upheld the impugned decision.

40 . It reasoned that the appeal court had examined in detail the testimonies of the injured parties and also of the witness N.S. Further, the appeal court ’ s decision not to call them to a hearing had complied with section 560(2) of the Criminal Procedure Law (see paragraph 43 below). The applicant and his defence counsel had had an unlimited opportunity to examine these persons in the first instance court hearing.

41 . This decision was final.

Application no. 47018/11

1. The incident on 12 April 2010

42 . On 12 April 2010 at around 9.30 p.m. outside a building in Alūksne , N.N. was physically assaulted. A cigarette pack, a bottle of beer and a mobile phone were taken from N.N.

43 . On 14 April 2010 the applicant was detained on suspicion of aggravated robbery perpetrated against N.N.

2. First instance court proceedings

44 . The applicant and the co -accused K.V. were brought for the main trial before the Alūksne District Court ( Alūksnes rajona tiesa ).

45 . On 14 September 2010 the district court found the applicant guilty of theft.

46 . The applicant was sentenced to six month s ’ imprisonment .

3. Appeal against the first instance court judgment

47 . The prosecution appealed against the judgment of the district court.

4 . Second instance court proceedings

48 . On 7 April 2011 an appeal hearing was held before the Vidzeme Regional Court.

49 . In the hearing the applicant and his defence counsel requested that the injured part y N.N. be summoned to court . The appeal panel refused this request.

50 . On 7 April 2011 the regional court quashed the first instance judgment and found the applicant guilty of aggravated robbery.

51 . The regional court criticised the first instance court for not having given a full description of the facts of the crime it had established.

52 . The applicant was imposed a prison sentence of four years , with police control for two years.

5. Appeal on points of law against the second instance court decision

53 . The applicant lodged an appeal on points of law against the aforementioned decis ion .

54 . On 14 June 2011 the Criminal Cases Division of the Senate of the Supreme Court refused to consider the applicant ’ s appeal on points of law.

B. Relevant domestic law

55 . For Article 92 of the Constitution ( Satversme ), see Kornakovs v. Latvia (no. 61005/00 , § 53, 15 June 2006).

56 . Section 560(2) of the Criminal Procedure Law reads as follows:

“Other persons may be summoned to a court hearing if such a request has been made in the appeal ... and if such persons have not been interrogated in the adjudication of the case in a court of first instance. A court may on its own initiative summon persons who have been interrogated in a court of first instance, if the court has justified doubts regarding the completeness of the testimony given or regarding the possible guilt of the accused ... ”

COMPLAINTS

57 . The applicants complain in substance under Article 6 §§ 1 and 3(d) of the Convention about the domestic courts ’ refusal to have their requested witnesses examined in appeal proceedings:

Application no. 40757/09

58 . The applicant complains that the appeal panel ruled that it could continue the proceedings without having secured the attendance in the appeal hearing of the injured parties A.R. and J.B. and the main witness N.S., even though the appeal panel had earlier found their attendance necessary.

Application no. 47018/11

59 . The applicant complains that the appeal panel refused to have the main witness in the case, the injured party N.N., examined in court. In the first instance court N.N. had testified in favour of the applicant that the applicant had not inflicted any physical pain on N.N. and that he had interfered in a fight between N.N. and K.V. in order to separate them.

QUESTIONS

Application no. 40757/09

1. Was the applicant given an adequate an d proper opportunity to challenge and question the witnesses against him, in particular the injured parties A.R. and J.B., as required by Article 6 §§ 1 and 3(d) of the Convention (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 118 et seq., ECHR 2011)?

2. Did the lack of a possibility for the applicant to have the witness N.S. examined in appeal proceedings comply with the principle of equality of arms, as required by Article 6 §§ 1 and 3(d) of the Convention?

3. Did the lack of a possibility for the applicant to have the injured parties A.R. and J.B. and witness N.S. examined in appeal proceedings and the use by the court of their earlier testimonies render the trial unfair, in breach of Article 6 §§ 1 and 3(d) of the Convention?

Application no. 47018/11

4. Did the lack of a possibility for the applicant to have the injured party N.N. examined in appeal proceedings render the trial unfair, in breach of Article 6 §§ 1 and 3(d) of the Convention?