Information Note on the Court’s case-law 211

October 2017

Kalēja v. Latvia - 22059/08

Judgment 5.10.2017 [Section V]

Article 6

Criminal proceedings

Article 6-1

Reasonable time

Length of proceedings where accused was initially treated as a witness: violation

Article 6-3-c

Defence through legal assistance

Absence of legal assistance for accused during initial phase when she was treated as a witness: no violation

Fac ts – The applicant worked as an accountant in a building management company and fulfilled the duties of a cashier. In December 1997 her colleagues reported to the police that illicit cash withdrawals had been made. On 15 January 1998 the applicant gave a w ritten explanation to the police and on 16 January 1998 criminal proceedings were instigated. The applicant was not informed of that decision at the time. Instead she was issued with a summons to testify and was interviewed on that same date. A witness sta tement record was drawn up and she was informed of the rights and obligations of witnesses. In the following years she was interviewed as a witness on five more occasions. On 27 January 2005 she was officially charged with misappropriation of funds, thus b ecoming an accused person, and was informed of her right to have a lawyer. In November 2006 the applicant was convicted of misappropriation of property and on 29 November 2007 the Supreme Court dismissed her appeal on points of law.

Before the European Court the applicant complained about the length of the criminal proceedings against her and that, prior to 27 January 2005, she had been interviewed as a witness and as such had not had the right to legal assistance.

Law – Article 6 § 1

(a) Period to be taken into consideration – In criminal matters, the “reasonable time” referred to in Article 6 § 1 began to run as soon as a person was “charged”. A “criminal charge” existed from the moment an individual was officially notified by the competent authority of an allegation that he had committed a criminal offence, or from the point at which his situation had been “substantially affected” by actions taken by the authorities as a result of a suspicion against him.

The applicant had not bee n officially informed about any charges against her before 2005. However, the domestic authorities had been looking into allegations she had committed an offence from the very beginning of the criminal investigation. The police had summoned the applicant n ot only on 16 January 1998, but also on five more occasions in the subsequent years, for her to give further statements – all in relation to the various episodes of the alleged misappropriation of the company’s funds. She was also summoned twice for a conf rontation. The domestic authorities were looking into specific allegations against the applicant from the very first day of the criminal investigation and throughout the pre-trial proceedings although her procedural status remained that of a witness.

Takin g into account that there had been a suspicion against the applicant, as evidenced, inter alia , by the decision of 16 January 1998 to institute criminal proceedings, and that she was questioned about her involvement from the start of the criminal proceedings and throughout them, the applicant had been substantially affected on 16 January 1998. The period to be taken into consideration, therefore, began on 16 January 1998 and ended on 29 November 2007, when the Supreme Court dismissed her appeal on points of law. The criminal proceedings thus lasted nine years and ten months at three levels of jurisd iction.

(b) Reasonableness of the length of proceedings – It took the domestic authorities more than seven years and nine months to complete the pre-trial investigation. Serious deficiencies in the investigation were eliminated only after the case had be en sent back three times for further investigative measures. It was precisely because of those deficiencies – which had not been resolved in a timely manner – that the pre-trial investigation had lasted for an exceptionally long period and not because the case had been complex or had involved many witnesses. There had also been certain periods of inactivity on the part of the domestic courts. Although the applicant had not been kept in detention pending the determination of criminal charges against her, the charges against her did carry the weight of a prison sentence. In the circumstances of the case the overall length of the criminal proceedings against the applicant was excessive.

Conclusion : violation (unanimously).

Article 6 §§ 1 and 3 (c): The applican t was already substantially affected on 16 January 1998 and it was therefore on that date that the right to legal assistance provided in Article 6 § 3 (c) became applicable. The domestic law at the material time did not provide the right to legal assistanc e for witnesses* and it was undisputed that the applicant, while having the procedural status of a witness, was not informed of any right to legal assistance. In the absence of “compelling reasons” the Court had to apply a very strict scrutiny to its overa ll fairness assessment.

The applicant’s statements remained unchanged during the pre-trial investigation and trial. She did not confess to the crime in question at any stage of the proceedings. Her statements were not cited as evidence when convicting her . Instead, her conviction was based on the testimony of numerous witnesses and other case material. She was given ample opportunity to contest the evidence used against her during the pre-trial investigation and trial. She exercised her rights in that rega rd at all stages of the proceedings. While it was regrettable that the applicant could not benefit from legal assistance during the pre-trial stage, the overall fairness had not been irretrievably prejudiced by the absence of legal assistance during that s tage.

Conclusion : no violation (unanimously).

Article 41: EUR 4,000 in respect of non-pecuniary damage.

(See also Ibrahim and Others v. the United Kingdom [GC], 50541/08, 13 September 2016, Informat ion Note 199 )

*. The new Criminal Procedure Law, which took effect on 1 October 2005, expressly provides the right of witnesses to legal assistance.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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