Communicated on 13 December 2013

FOURTH SECTION

Application no. 53126/11 M.K. against Latvia lodged on 10 August 2011

STATEMENT OF FACTS

1. The applicant, M.K., is a Russian national and is currently detained in prison .

A. The circumstances of the case

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

1 . Applicant in the status of a witness in the criminal proceedings into drug trafficking

( a ) Institution of the investigation

3. In September 2010 the applicant expressed willingness to uncover an organised crime, drug trafficking.

4. In view of the assurance by a prosecutor that only a judge would have access to his personal information, the applicant gave evidence against S. in April 2011.

5. On 5 May 2011 the applicant testified at the trial against the accused S.

( b ) Access to the applicant ’ s personal information

6. On 9 May 2011, S. ’ s lawyer requested permission to consult a court file in a different set of criminal proceedings against the applicant. The file contained the applicant ’ s personal information, including his identity code, address and his mother ’ s and his brother ’ s personal information. On 16 May 2011 the lawyer made copies from the file.

( c ) Applicant ’ s request for protection

7. According to the applicant ’ s submission, he received threats from S.

8. Due to S. ’ s request for asylum he was transferred to a different detention facility. There, according to the applicant, S. had an opportunity to transmit the information on the applicant ’ s family to his associates.

9. The applicant believed that revenge would be taken against his family. He further indicated that while in detention he had already been physically maltreated on 14 April 2011.

10. On 3 August 2011, the applicant requested that he be afforded witness protection. The request was made to the Senate of the Supreme Court ( Augstākās tiesas Senāts ), the Prosecution for the Investigation of Drug Trafficking Crimes ( Narkotiku nelikumīgas aprites noziegumu izmeklēšanas prokuratūra ), the Office of the Prosecutor General ( Ģenerālprokuratūra ) and the Chancery of the President of Latvia ( Latvijas Valsts prezidenta kanceleja ).

11. His submissions were forwarded to a judge of the Riga City Latgale District Court ( Rīgas pilsētas Latgales priekšpilsētas tiesa ). However, the applicant was informed that the judge was on leave between 25 July and 21 August 2011 and therefore his motion would be decided after the judge ’ s return to the office on 22 August 2011.

12. A guilty verdict was handed down against S. in September 2011.

13. While the domestic law required that a decision on protection measures be taken within ten days from receipt of the request, it was delivered within around sixty days. In particular, on 10 October 2011, the applicant was granted protection pursuant to section 6(1) of the Persons Special Protection Law ( Personu speciālās aizsardzības likums ). His mother was granted protection pursuant to section 4(2) of the Law (see paragraph 26 below).

( d ) Implementation of protection measures

14. However, on 13 and 17 October 2011 the applicant was not provided a separate escort contrary to the domestic law (see paragraph 26 below). The applicant himself therefore had to ask that the prison request his separate transport. The authority responsible for the witness protection had neither informed the prison nor the escort. Also, no adequate security arrangements were put in place during visits or walks in the prison in the course of which other persons had easy access to the applicant. He therefore was compelled to go for walks very rarely. Further, his mother was not afforded protection when she travelled to work early in the morning and returned home late in the evening. Nor was she ensured a confidential place of residence, a different place of work, relocation to a different country or new identity documents.

15. As a result, the applicant feared for his and his family ’ s health and life. In the applicant ’ s submission, members of the organised group involved in large-scale drug dealing were at liberty and could travel freely across Europe. In the applicant ’ s view, concerns for his and his family ’ s security would exist also following S. ’ s conviction, and in view of the domestic authorities failing to implement the protection measures.

2 . Criminal proceedings against the applicant on the charges of appropriation and computer fraud

( a ) Institution of the investigation

16. On 11 June 2006 the applicant was detained on suspicion of appropriation.

17. On 13 June 2006 he was applied a prohibition to leave his place of residence. On 10 July 2009 th at restriction was lifted.

( b ) Applicant ’ s complaints about the investigation

18. In 2011 and 2012 the applicant complained vigorously to various State institutions about the conduct of the criminal proceedings, also raising the issue of their delay.

19. Numerous responses by the State authorities followed. Amongst those, in a letter dated 10 February 2012 the chief prosecutor of the Riga City Latgale District Prosecution ( Rīgas pilsētas Latgales priekšpilsētas prokuratūra ) noted that the supervising prosecutor had not made sufficient progress with the pre-trial investigation. Also, in a letter dated 20 February 2012 the chief prosecutor affirmed that the delay in the pre-trial investigation was unjustified.

( c ) Refusal of the domestic authorities to discontinue the proceedings on account of their excessive duration

20 . On 1 March 2012 the chief prosecutor of the pre-trial investigation oversight division affirmed that investigators and prosecutors had made several violations of the Criminal Procedure Law in the proceedings. The chief prosecutor, however, with regard to the applicant ’ s request to discontinue the criminal proceedings based on their excessive duration, reasoned that the applicable law (see paragraph 25 below) vested a prosecuting authority with the right but not the obligation to terminate the criminal proceedings where their completion was impossible within a reasonable time. On those grounds the applicant ’ s motion was refused. The decision was not subject to a further appeal.

21. The applicant also motioned the investigator that criminal proceedings against him be terminated on account of their excessive duration. The prosecution affirmed at two levels on 10 May and 18 June 2012, respectively, that the Criminal Procedure Law gave the right but did not foresee the duty to terminate the criminal proceedings where their completion was impossible within a reasonable time.

( d ) Transfer of the case to a court

22. On 27 June 2012 the prosecutor of the Riga City Latgale District issued a decision on transfer to the court of the criminal case against the applicant on the charges of appropriation and computer fraud.

23. It was the prosecution ’ s case that the applicant , as an employee at a petrol station in Riga , had between 9 and 10 June 2006 appropriated several prepaid mobile phone cards and funds received from the customers, altogether for the sum of LVL 2,167.99. On the prosecution allegation he had attempted at the same place and time to appropriate the sum of LVL 4,200 by entering false data in the automated data processing system for execution of money transfers. The prosecution indicated that in the course of the pre-trial investigation the applicant had admitted to the incriminated criminal conduct. The prosecution proposed five witnesses.

24. The case is currently pending before the Riga City Latgale District Court .

B. Relevant domestic law

1 . Criminal proceedings within a reasonable time

25. The provisions pertinent to criminal proceedings within a reasonable time have been laid down in Trūps v. Latvia ( ( dec. ), no. 58497/08 , §§ 16-24, 20 November 2012).

2 . Witness protection in criminal proceedings

26. The relevant provisions of the Persons Special Protection Law read as follows:

Section 4 Right to Special Protection

“(1) The following persons who testify or have testified in criminal proceedings (hereinafter – a person testifying in criminal proceedings) have the right to special protection:

1) ...a witness or other person, who testifies or has testified on a serious or very serious crime;

...

3) a person whose endanger may influence a person testifying in criminal proceedings.

(2) A person who does not testify in criminal proceedings, but participates in the uncovering, investigation or adjudication of a serious or a very serious crime, and a person who is in danger in connection with the activity of the said persons (hereinafter – other protected person) have the right to a special protection. ”

Section 6 R eason an d Basis of Special Protection

“ (1) A reason for the assignment of a special protection is a real occurred threat to a person ’ s life, health or other legal interests, expressed real threat or sufficient grounds to believe that a threat may occur due to a testimony given or participation in the uncovering, investigation or adjudication of a crime.

(2) A basis for the assignment of a special protection is:

1) a written submission by a person testifying in the criminal proceedings or his or her representative or defence and a proposal by a prosecuting authority;

2) an initiative of a court where a reason for the assignment of a special protection arises during adjudication;

3) a written submission by other protected person or his or her legal representative.”

Section 10 D ecision on a P erson ’ s Special P rotection

“ (1) A decision on the assignment of a special protection shall be taken immediately but no later than within ten days from the receipt of a submission or a proposal.

...”

Section 16 Measures of S pecial Protection

“(1) A person ’ s special protection shall be ensured ... also by the following measures of special protection:

1) the protected person ’ s guarding;

2) the securing of a protected person ’ s conversations against unauthori s ed interception and his or her correspondence against unauthorised control;

3) the protected person ’ s removal to other unknown (confidential) residential premises;

4) the issuance of a passport and other identity documents with different personal identity data;

5) the change of a protected person ’ s permanent place of residence and a place of work;

6) the protection of a protected person ’ s data and their non-issuance from the State information systems;

7) the relocation of a protected person to another State in accordance with concluded international treaties or agreement with that State;

8) the insurance of a protected person ’ s property, if necessary;

9) the escort of a detained or convicted protected person separately from other detainees;

10) the protected person ’ s identity change.

...”

27 . The pertinent provisions of the Criminal Pro cedure Law are worded as follows:

Section 304 Decision on the Assignment of Special Procedural Protection or its Refusal

“ (1) A decision on the assignment of special procedural protection shall be taken, to the extent possible, immediately but not later than within ten days.

...”

C. Other texts

28 . Recommendation Rec (2005)9 of the Committee of Ministers of the Council of Europe to member states on the protection of witnesses and collaborators with justice reads:

“ II. General Principles

“ 1 . Appropriate legislative and practical measures should be taken to ensure that witnesses and collaborators of justice may testify freely and without being subjected to any act of intimidation.

2. While respecting the rights of the defence, the protection of witnesses, collaborators of justice and people close to them should be organised, where necessary, before, during and after the trial.

3. Acts of intimidation of witnesses, collaborators of justice and people close to them should, where necessary, be made punishable either as separate criminal offences or as part of the offence of using illegal threats.

...”

COMPLAINT S

1. The applicant complains under Article s 5 and 13 of the Convention about the failure of the domestic authorities to react promptly and adequately to the danger to him and his family due to the applicant testifying in criminal proceedings for organised crime, drug trafficking, that his and his family ’ s personal information was accessible to a lawyer of the defendant in those proceedings and that the domestic authorities have not ensured adequate protection to him and his family, which has caused the applicant to fear for his and his family ’ s life and health.

2. The applicant complains under Article 6 of the Convention about the length of the criminal proceedings on charges of appropriation and computer fraud pending against him for more than seven years which the domestic authorities have refused to terminate based on to their excessive length.

QUESTIONS TO THE PARTIES

1. D id the State authorities comply with their obligation under Article 2 of the Convention in connection with the applicant ’ s engagement and testimony in the criminal proceed ings in the status of a witness (see R.R. and Others v. Hungary , no. 19400/11 , 4 December 2012 ) ?

2. Did the State authorities comply with their obligation under Article 3 of the Convention in connection with the applicant ’ s engagement and testimony in the criminal proceedings in the status of a witness?

Did the applicant suffer treatment contrary to Article 3 of the Convention, including the manner in which the State authorities reacted to the applicant ’ s request for the protection and the manner in which the protection for the applicant and his mother was implemented? In particular, was the applicant ’ s mental anxiety beyond the threshold of severity under Article 3 of the Convention ?

3 . D id the State authorities comply with their obligation under Article 8 of the Convention in connection with the applicant ’ s engagement and testimony in the criminal proceedings in the status of a witness , including the manner in which the State authorities reacted to the applicant ’ s request for the protection and the manner in which the protection for the applicant and his mother was implemented ?

Were the applicant ’ s rights under Article 8 violated?

4 . Did the criminal proceedings against the applicant comply with the reasonable time guarantee under Article 6 § 1 of the Convention?

Has the applicant exhausted available domestic remedies ( Trūps v. Latvia ( dec. ), no. 58497/08 , 20 November 2012) ? Were they effective in the circumstances of the case ?