Communicated on 31 January 2014

FOURTH SECTION

Application no. 30006/09 Dmitrijs TUZIKS against Latvia lodged on 14 September 2009

STATEMENT OF FACTS

The applicant, Mr Dmitrijs Tuziks , is a Latvian national, who was born in 1977 and is serving a prison sentence in Daugavpils .

A. The circumstances of the case

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

The applicant was arrested on 30 March 2006 on suspicion of two episodes of robbery.

The criminal case against the applicant was examined by the Riga City Centre District Court in several hearings.

At the hearing of 4 September 2007 the applicant was represented by a State-appointed advocate I.L. According to the decision of the appeal court, the hearing was adjourned because the applicant wished to read the case file and to conclude an agreement with another lawyer.

At the hearing of 14 November 2007 the applicant was represented by a State-appointed advocate V.K. According to the decision of the appeal court, the hearing was adjourned because the applicant asked to be assigned another lawyer and to be shown a list of all available lawyers.

On 11 February 2008 the Centre District Court examined the question of prolonging the term of the applicant ’ s pre-trial detention (the decision was adopted on 12 February 2008). The applicant was represented by a State-appointed lawyer A.L., who agreed to the prosecutor ’ s proposal to prolong the applicant ’ s pre-trial detention. According to the decision of the appeal court, the applicant “refused the services of the representative” because his relatives had found another lawyer to represent him.

At the hearing of 21 May 2008 the applicant was represented by a State-appointed advocate I.K. the hearing was adjourned because the applicant was brought to a hospital

At the hearing of 12 June 2008 the applicant was represented by an advocate U.B. The hearing was adjourned to give U.B. time to read the materials in the case file. U.B. subsequently failed to appear at the hearings of 28 August (due to an illness) and 1 September 2008 (for unknown reasons), which were adjourned because of his absence.

On 12 September 2008 the applicant ’ s relatives secured an agreement for the applicant ’ s representation with advocate A.K. On 10 September 2008 the applicant informed U.B. accordingly.

On 15 September 2008 another hearing took place. According to the decision of the appeal court, U.B. and an assistant to a sworn attorney ( advokāta palīgs ) K.G. were present at the beginning of the hearing. The applicant refused to be represented by U.B., explaining that he had an agreement to be represented by A.K., who had been unable to attend the hearing due to being occupied in another case. It appears that A.K. had sent to the court an authorisation to represent the applicant ( orderis ) as well as a request to adjourn the hearing due to being busy with another case. According to the appeal court, “the first-instance court decided to replace the advocate [A.K.] and to commence the examination of the case”. In the course of this hearing the court decided to expel the applicant from the courtroom due to his unruly behaviour.

The next hearing took place on 22 September 2008. The applicant was represented by an assistant to a sworn attorney ( advokāta palīgs ) K.G. The applicant himself was not brought to the three hour-long hearing until its very end when he was given an opportunity to make a final statement ( tiesājamā pēdējais vārds ), which, according to the verbatim record of the hearing as reported in the decision of the appeal court, he refused to do. According to the applicant, he was brought to the hearing directly from a prison hospital and was feeling unwell due to headaches caused by a head trauma. He insisted that the judge interrupted him and did not allow him to finish his statement.

By a judgment of the Riga City Centre District Court of 22 September 2008 the applicant was found guilty of two episodes of robbery. Concerning the question of the applicant ’ s expulsion from the court room, the court noted that the applicant had repeatedly disobeyed instructions of the judge and had attempted to injure himself. Furthermore, as regards the applicant ’ s legal representation, the court noted that the applicant had refused the services of the lawyer secured by his relatives (apparently U.B.) and had insisted on being allowed to be represented by another lawyer (apparently A.K.) who had needed additional time to prepare for the hearing. The court considered that the applicant was attempting to abuse his rights “so that the term of his pre-trial detention would run out and the proceedings would become unreasonably lengthy”. It was for that reason that the court had decided to secure the applicant ’ s legal representation by a State-paid advocate (apparently K.G.).

The applicant was sentenced to a prison term of ten years.

The applicant appealed, arguing, inter alia , that the first-instance court had heard the case in his absence, which had been caused by the unjustified decision of that court to expel him from the courtroom, and that advocate A.K. had not been allowed to represent him at the hearing of 22 September 2008. With respect to the latter, the applicant cited the verbatim record of the hearing of 22 September 2008, from which it appeared that the court had decided that the applicant would be represented by K.G., and not by A.K., “in order to observe the time-limit set down by the procedure”. The applicant also complained that he had not been able to make his final statement to the court due to his health condition.

The applicant ’ s appeal was examined by the Riga Regional Court on 14 January 2009. The applicant was represented by advocate I.K. The appeal court rejected the appeal in full. With regard to the applicant ’ s expulsion from the court room the court referred to the applicant ’ s attempt to injure himself during the hearing of 11 February 2008 and further referred to the statements of the police officers who had been present during the hearing of 15 September 2008 to the effect that the applicant had been banging his head against the bars of the “cage” in the courtroom and had been bleeding from forehead. The appeal court held that the applicant ’ s repeated attempt to injure himself had been correctly deemed as an attempt to disrupt the proceedings and therefore the applicant ’ s expulsion from the courtroom had been justified.

With regard to the first-instance court ’ s refusal to allow the applicant to be represented by A.K., the Regional Court noted that the applicant had “protracted the proceedings by unfounded dismissals of [court-appointed] lawyers”. Furthermore, the appeal court considered that the applicant had not informed the first-instance court about his agreement with A.K. in due time. Hence the first-instance court had not erred in ensuring the applicant ’ s defence by K.G.

With regard to the complaint about the inability to make the final statement to the first-instance court, the appeal court noted that the applicant ’ s medical fitness to do so had been confirmed by a written statement from the prison hospital where he had been treated.

The applicant and his counsel submitted appeals on points of law, in which they disputed the appeal court ’ s decision in full, including its reasoning concerning the applicant ’ s expulsion from the court room and the fact that he was not represented by A.K.

The appeals on points of law were rejected by a decision of the Senate of the Supreme Court that was adopted on 2 April 2009.

On 9 August 2009 the applicant submitted a constitutional complaint to the Constitutional Court, in which he, inter alia , challenged the constitutionality of section 468 of the Criminal Procedure Law, which permits the replacement of defence counsel. On 23 September 2009 the Constitutional Court refused to initiate constitutional proceedings, finding that the applicant ’ s complaint pertained not to the alleged unconstitutionality of the impugned legal provision as such but to the interpretation given to that provision by the criminal courts, which was a question falling outside the Constitutional Court ’ s jurisdiction.

B. Relevant domestic law

1 . Expulsion from the courtroom

The possibility to expel an accused from the courtroom is set down in section 296(2) of the Criminal Procedure Law:

“The accused ... may be expelled from the courtroom pursuant to a decision of the court if he substantially disrupts the order. The hearing may be continued after the expulsion of the accused if the court has decided that the participation of the accused is not mandatorily required and only for such time as there is a reason to believe that the accused might continue to disrupt the order during the hearing.”

Pursuant to section 297 of the Criminal Procedure Law, if the accused is allowed to participate in the hearing after having been expelled, the presiding judge shall explain to the accused the procedural steps taken during the time he has not been present. Paragraph 2 of the same section provides that the accused should be allowed to make a final statement, even after having been expelled previously. Until 1 January 2006 section 298 of the Criminal Procedure Law provided for a possibility to appeal against a decision to expel the accused to a higher court. After that date a decision to expel the accused is not amenable to appeal.

2 . Representation of the accused

Pursuant to section 71(2) and (5) of the Criminal Procedure Law, the accused in the first-instance court has a right to invite ( uzaicināt ) defence counsel or to ask the court to provide him with one as well as to request the court to replace the defence counsel if there are legal obstacles to the particular advocate ’ s participation in the case. The legal obstacles are enumerated in section 87 and concern advocates ’ prior involvement or other links to the case in question.

Section 467(1) of the Criminal Procedure Law provides that the examination of the case is to be adjourned if the defence counsel has not appeared at the hearing “and it is impossible to replace him”. Section 468(1) provides that “if further participation of the defence counsel in criminal proceedings is not possible within a reasonable time, the defence counsel may be replaced”. Pursuant to the second paragraph of the same section the replacement of the defence counsel does not mandate the examination of the case ab initio .

COMPLAINTS

The applicant complains under various paragraphs of Article 6 of the Convention that the criminal proceedings against him were not fair, in particular because the first-instance court had held hearings in his absence and had deprived him of the right to defend himself in person and through legal assistance of his own choosing .

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? In particular, taking into account the fact that the applicant was absent from the first part of the hearing of 22 September 2008, w as he able to defend himself in person , as required by Article 6 § 3 (c) of the Convention?

2 . Was the applicant able to defend himself through legal assistance of his own choosing at the hearings of 15 and 22 September 2008 , as required by Article 6 § 3 (c) of the Convention?