24 November 2010

THIRD SECTION

Application no. 11160/07 by D.F. against Latvia lodged on 20 February 2007

STATEMENT OF FACTS

THE FACTS

1 . The applicant, Mr D . F . , is a Latvian national who was born in 1963 and is currently serving a prison sentence in R Ä« ga .

A. The circumstances of the case

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

3 . The applicant alleges that for an extended period of time in the 1990s he was a police informant on criminal matters in Balvi . Apparently that collaboration was officially documented by the police and the applicant was paid for it. Over time, the criminal fraternity in Balvi became aware of his role as an informant and as a result he was assaulted and threatened with murder on several occasions. The applicant then moved to RÄ“zekne .

4 . On 6 October 2005 the applicant was arrested on charges of rape of his partner ’ s minor daughter and of indecent assault on her minor son.

1. Attacks against the applicant and responses received

5 . The applicant was transferred to Daugavpils prison on an unspecified date and he stayed there until 13 October 2006 (see below, paragraph 16). During his stay at that prison the applicant was subjected to constant physical violence by other prisoners. Among other things, the applicant indicates that he lost several teeth as a result of the beatings received. In his submission, the violence against him was a direct consequence of his earlier collaboration with the police, which had become known in the prison, which held numerous inmates from Balvi . The applicant also indicated that the nature of the crimes he was suspected of made him the target of abuse by other prisoners.

6 . The applicant furthermore noted that the administration of Daugavpils prison moved him frequently from one cell to another, thus exposing him to an even greater number of other prisoners. To a complaint in that respect the applicant received a response from the Prison Administration on 19 June 2007, in which it was indicated that the placement of detainees in cells was at the discretion of each individual prison and that in the applicant ’ s case the administration of Daugavpils prison had made its decisions “taking into account the available space in cells, psychological factors, level of education and state of health”.

7 . A similar response was given to the applicant by Daugavpils prison, whose director on 21 August 2007 informed him that when the applicant had informed the administration about specific prisoners who were hostile towards him he had then been held in isolation from those specific persons.

8 . On 28 August 2007 the Prison Administration confirmed that response and further noted that there was nothing in the applicant ’ s case file that would indicate that the applicant had lost his teeth in conflicts with other prisoners in Daugavpils prison. According to the response, the applicant had visited a dentist in Daugavpils on three occasions between November 2006 and January 2007, during which the roots of several teeth were extracted, but had not visited a dentist in Matīsa prison.

9 . According to the information obtained by the applicant from the medical department of Matīsa prison, in 2007 he had visited the dentist there on no fewer than seven occasions.

10 . According to the applicant, he complained to the director of Daugavpils prison on several occasions about violence between prisoners, as well as about being placed with other hostile prisoners, but he did not receive any replies of any kind.

2. Requests to ensure safety

11 . In November 2005 the applicant requested the public prosecutor charged with investigating the criminal charges against him to arrange for his transfer to Matīsa prison, which has a section designated for holding detainees who have worked for law-enforcement institutions or collaborated with those institutions. The prosecutor rejected the applicant ’ s request, pointing out that he had refused to cooperate with the criminal investigation of his case.

12 . On 17 January 2006 the applicant repeated his request. This time the investigating prosecutor agreed to order the applicant ’ s transfer to Matīsa prison in exchange for a plea bargain. The applicant submits that he felt pressured to accept that arrangement and the plea bargain was signed on 20 January. On 26 January, thinking that his transfer had already been ordered, the applicant revoked his agreement. However, he was not transferred to Matīsa prison and was informed that his case had already been sent for adjudication in court. The public prosecutor never ordered the applicant ’ s transfer to Matīsa prison.

13 . On 24 March 2006 the applicant ’ s case file was marked by Rēzekne police with a note that he was to be held in isolation from other detainees. According to the applicant that recommendation was ignored by the authorities of Daugavpils prison but was taken into account at Central prison when he was temporarily escorted to Rīga to read the case file at the Supreme Court.

14 . On 31 March 2006 the Prison Administration ( Ieslodzījuma vietu pārvalde ) refused to order the applicant ’ s transfer to Matīsa prison. It firstly referred to Prison Administration Order no. 114 of 6 August 2004 “On placement of convicted persons in institutions of deprivation of liberty” ( Ieslodzījuma vietu pārvaldes 2004. gada 6. augusta rīkojums Nr. 114 “Par notiesāto izvietošanas kārtību brīvības atņemšanas iestādēs ” ), according to which “a certain category of prisoners” were to serve their sentences in Matīsa prison. The applicant was informed that the Prison Administration had no information concerning his ties with law-enforcement institutions. The Prison Administration further indicated that a decision on the applicant ’ s transfer could only be made after his conviction had become final.

15 . A similar response was given by the Prison Administration on 27 June 2006, adding that the Administration had had no opportunity to check the applicant ’ s statements concerning his collaboration with the police. Practically identical responses were given on 7 and 25 August 2006. None of the responses of the Prison Administration contained any indication as to the possibility of appeal.

16 . On 5 October 2006 the applicant received a response from the criminal police, informing him that his collaboration had been confirmed and that the State Police on 5 October 2006 had requested the Prison Administration to transfer him to Matīsa prison. The transfer took place on 13 October 2006.

3. Criminal proceedings against the applicant

17 . By a judgment of 22 March 2006 Latgale Regional Court convicted the applicant of the offences as charged, and sentenced him to thirteen years ’ and one month ’ s imprisonment with police monitoring for a further three years. In deciding to convict the applicant, the first-instance court relied on the testimony of his partner ’ s daughter given during the trial and the statements of her son, which were read out at the hearing. The court also heard statements from two more witnesses and took into account the statements of the applicant ’ s partner and her mother, which were read out during the hearing. It also relied on two reports from expert psychologists. The applicant ’ s “confession” was summarised in the judgment and was followed by a notice that he had retracted the confession before the hearing. The applicant alleges that he tried to submit to the court a written statement of his reasons for confessing (namely, that he wished to be transferred to Matīsa prison). However, given the choice of either having his statement read out at the hearing and admitted in evidence or not having it admitted in evidence, he chose the latter, since he did not want to disclose his past collaboration with the police in a public forum.

18 . On 5 December 2006 the Supreme Court rejected the applicant ’ s appeal against the judgment of the first-instance court by joining the lower court ’ s reasoning. With regard to the applicant ’ s confession, the appeal court noted that he had given conflicting accounts as to why it had been written. Specifically, on one occasion he explained that it had been done to ensure his transfer to another prison, while in a letter to the president of the first-instance court he had explained that he had confessed because he had been in such a psychological state that he did not care what would happen. Taking into account the differing explanations, the appeal court chose not to believe them.

19 . The Senate of the Supreme Court on 1 February 2007 refused to accept the applicant ’ s appeal on points of law, since it was held that he had failed to substantiate his appeal with any significant violation of substantive or procedural law.

20 . On 16 July 2007 the applicant requested the Senate of the Supreme Court to reopen the proceedings in his case due to violations of the procedural law and the Convention which had allegedly been committed during the original proceedings. That request was denied on 10 August 2007, since requests for reopening could only be submitted by a public prosecutor or by an attorney acting on behalf of the convicted person. No state-provided legal aid was available for reopening proceedings.

21 . The applicant eventually obtained legal representation and on 14 March 2008 the Senate did consider his request for reopening of the proceedings, and rejected it on the merits.

B. The relevant law

1. The relevant documents of the Council of Europe

22 . The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter “the CPT”) has developed standards relating to the treatment of persons deprived of their liberty. The following are its standards concerning violence between prisoners (document no. CPT/ Inf /E (2002) 1, Rev. 2009, paragraph 27):

“ The duty of care which is owed by custodial staff to those in their charge includes the responsibility to protect them from other inmates who wish to cause them harm. In fact, violent incidents among prisoners are a regular occurrence in all prison systems; they involve a wide range of phenomena, from subtle forms of harassment to unconcealed intimidation and serious physical attacks.

Tackling the phenomenon of inter-prisoner violence requires that prison staff be placed in a position, including in terms of staffing levels, to exercise their authority and their supervisory tasks in an appropriate manner. Prison staff must be alert to signs of trouble and be both resolved and properly trained to intervene when necessary. The existence of positive relations between staff and prisoners, based on the notions of secure custody and care, is a decisive factor in this context; this will depend in large measure on staff possessing appropriate interpersonal communication skills. Further, management must be prepared fully to support staff in the exercise of their authority. Specific security measures adapted to the particular characteristics of the situation encountered (including effective search procedures) may well be required; however, such measures can never be more than an adjunct to the above-mentioned basic imperatives. In addition, the prison system needs to address the issue of the appropriate classification and distribution of prisoners.

Prisoners suspected or convicted of sexual offences are at a particularly high risk of being assaulted by other prisoners. Preventing such acts will always pose a difficult challenge. The solution that is often adopted is to separate such prisoners from the rest of the prison population. However, the prisoners concerned may pay a heavy price for their – relative – security, in terms of much more limited activities programmes than those available under the normal prison regime. Another approach is to disperse prisoners suspected or convicted of sexual offences throughout the prison concerned. If such an approach is to succeed, the necessary environment for the proper integration of such prisoners into ordinary cell blocks must be guaranteed; in particular, the prison staff must be sincerely committed to dealing firmly with any signs of hostility or persecution. A third approach can consist of transferring prisoners to another establishment, accompanied by measures aimed at concealing the nature of their offence. Each of these policies has its advantages and disadvantages, and the CPT does not seek to promote a given approach as opposed to another. Indeed, the decision on which policy to apply will mainly depend on the particular circumstances of each case. ”

23 . In its report on visit to Latvia in 2002 (v isit to Latvia of 24 September to 4 October 2002 ), the CPT expressed serious concern about the frequent occurrence of violence between prisoners in Daugavpils prison (paragraph 69). In this regard, it reiterated that the prison authorities had a duty to take proactive measures to prevent such violence (paragraph 71).

24 . Similar concerns were expressed in the wake of the CPT ’ s 2004 visit (v isit to Latvia of 5 to 12 May 2004 ). The report once again expressed concern about the frequency and severity of allegations of violence between prisoners in Daugavpils prison (paragraph 43). The Latvian authorities were repeatedly called upon “to take special precautions to protect ... vulnerable prisoners from all forms of abuse” and “to develop strategies with a view to addressing the problem of inter-prisoner violence”.

2 . Relevant domestic law

25 . At the moment of the applicant ’ s arrest, the placement of persons who had been detained but not convicted was gove rned by Cabinet Regulations No. 211 (of 29 April 2003) entitled “The rules of internal order in investigative prisons” ( Ministru kabineta noteikumi N r. 211 “ Izmeklēšanas cietumu iekšējās kārtības noteikumi ” ), which remained in force until 1 April 2006. Paragraph 19 provided that detained persons were to be placed in cells and decisions on when and whether to move them were to be based on internal security, the crime on which the detention was based, personal characteristics and psychological factors.

26 . From 20 April 2006 the placement of detainees was governed by the Law on Detention Procedure ( Apcietinājumā turēšanas kārtības likums ), section 11(4) and (5) of which provided that detained persons were to be held separately from those who had been convicted and that employees and former employees of certain exhaustively listed institutions (the Prison Administration and so on) as well as their spouses and immediate family, were to be placed separately from other detainees.

27 . On 18 July 2006 the Law on Detention Procedure was amended. In the version in force until 13 October 2006 (when the applicant was moved to MatÄ«sa prison) a new section 11(6) was a dded, which provided that first ‑ time detainees were to be held separately from others. The same paragraph also provided that “detainees are placed in cells, taking into account internal security as well as (as far as possible) [their] personal characteristics and psychological factors”.

COMPLAINTS

In his application to the Court, which was introduced on 20 February 2007, t he applicant complained under Article 3 of the Convention that through the fault of the prosecutor who refused to transfer him to Matīsa prison he had been subjected to violence, humiliation and physical as well as mental suffering .

He further alleged that Article 13 had been violated, because he had been unable to obtain a transfer to Matīsa prison, which was a right guaranteed to him by law.

Under the same Article the applicant complained that the first-instance court had ignored his complaints about the actions of the prosecutor.

The applicant complained under Article 14 that he had not been transferred to Matīsa prison, unlike former policemen in a comparable situation.

Lastly, by referring to Article 6 §§ 2 and 3 of the Convention, the applicant complained that he had been convicted merely on the basis of his fraudulently obtained confession and without any other proof of his guilt apart from the witnesses ’ lies.

In a letter despatched to the Court on 18 July 2007 the applicant put forward additional arguments concerning the alleged violation of Article 6 of the Convention. In particular, he argued that a judge of the first-instance court had been biased, that a medical expert ’ s opinion had not been obtained even though it was compulsory under domestic law, and that the legal assistance provided by his counsel had been of inadequate quality.

In a letter of 20 August 2007 the applicant invoked Article 6 § 3 (c) of the Convention and complained that his request for reopening of the proceedings had been rejected on 10 August 2007 because it had not been submitted by an attorney, while it was impossible in practice for him to obtain representation for that purpose.

In a letter of 1 April 2008 the applicant complained, under Article 6 of the Convention, about the refusal of the Senate of the Supreme Court to reopen the proceedings on 14 March 2008.

QUESTIONS TO THE PARTIES

1. Was the applicant attacked by other prisoners in Daugavpils prison? If so, has he been subjected to inhuman or degrading treatment within the meaning of Article 3 of the Convention? Taking into account the Latvian authorities ’ refusal to transfer the applicant to the specialised section of Matīsa prison or otherwise respond to his requests to ensure his security during the time from his arrest until 13 October 2006, has there been a failure to protect the applicant from ill-treatment or the threat of ill-treatment in breach of Article 3 of the Convention (see, for example, Rodić and Others v. Bosnia and Herzegovina (no. 22893/05, 2 7 May 2008)? Has he exhausted the domestic remedies within the meaning of Article 35 § 1 of the Convention?

2 . Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3, as required by Article 13 of the Convention?

T he Government are requested to submit a copy of Prison Administration Order no. 114 of 6 August 2004 “On placement of convicted persons in institutions of deprivation of liberty” ( Ies lodzījuma vietu pārvaldes 2004. gada 6. augusta rīkojums Nr. 114 “Par notiesāto izvietošanas kārtību brīvības atņemšanas iestādēs ” ).