PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGES O’LEARY, JELIĆ AND GUYOMAR

1. The applicant in the present case complained of a violation of Articles 5 §§ 1, 3 and 4 of the Convention in relation to his arrest in February 2018 on suspicion of bribery.

The Chamber has found, unanimously, that there has been no violation of Article 5 § 1, rejecting the applicant’s arguments to the effects that the impugned arrest was unlawful, arbitrary and unnecessary.

As regards the alleged lack of promptness in bringing the applicant before a judge (Article 5 § 3) and the alleged absence of the required possibility of judicial review of his arrest (Article 5 § 4), the Chamber, by a majority in the latter regard, has rejected the complaints as inadmissible due to them being manifestly ill-founded in the first case and out of time in the second.

2. For the reasons explained below, we are unable, regretfully, to join our colleagues in rejecting the complaint in relation to Article 5 § 4 of the Convention due to a failure to respect what was, at the relevant time, the six-month rule.

Given the highly unusual nature of the applicant’s case – involving as it has done domestic courts, the Court of Justice of the European Union (CJEU) and now this Court, with the criminal trial of the applicant still ongoing – we also consider it necessary to make some additional comments in relation to the complaint under Article 5 § 1 of the Convention.

3. The facts of the case are outlined in the Chamber judgment. When arrested on 17 February 2018 the applicant was serving as the Governor of the Central Bank of Latvia. He had been a member of the General Council of the European Central Bank (ECB) since Latvia’s accession to the European Union in 2004 and a member of its Governing Council since Latvia joined the euro area in 2014. His arrest followed an investigation by the Latvian Anti-Corruption Office (KNAB). The applicant was released on 19 February 2018, forty-six hours after his arrest but the charges were maintained and his criminal trial commenced on 9 July 2019. The KNAB ordered a number of measures in his regard, including a prohibition of his performing his duties as Governor of the Central Bank of Latvia.

4. The general principles relating to Article 5 § 1 of the Convention and the requirements relating to the reasonable suspicion, purpose and lawfulness required under sub-paragraph (c) of that provision are set out clearly in paragraphs 46 and 47 of the Chamber judgment. There is little to add thereto. The standard imposed by Article 5 § 1 (c) does not presuppose that the police have sufficient evidence to bring charges at the time of arrest or while the applicant is in custody (see, for example, Petkov and Profirov v. Bulgaria , nos. 50027/08 and 50781/09, § 52, 24 June 2014). It is well-established that the facts which raise a suspicion need not be of the same level as those necessary to justify a conviction, or even the bringing of a charge ( Merabishvili v. Georgia [GC], no. 72508/13, § 184, 28 November 2017). National authorities are under an obligation, however, to provide a sufficient factual basis justifying a person’s initial detention ( Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § 321, 22 December 2020).

5. As is clear from the Chamber judgment and the relevant judgments of the CJEU, the Court has handed down a decision in relation to Article 5 of the Convention against the background of:

(a) the applicant being charged in June 2018 on charges of bribery and money-laundering by the prosecutor, an indictment further supplemented in May 2019;

(b) a judgment by the CJEU in February 2019 in a direct action brought by the applicant and the ECB annulling the decision of the KNAB to the extent that it temporarily prohibited the applicant from performing his duties as Governor of the Central Bank of Latvia (Case C-202/18 and C-238/18 Rimšēvičs and the ECB v. Republic of Latvia , EU:C:2019:139);

(c) the applicant’s criminal trial which is still pending before the District Court, Riga;

(d) the decision of the latter court in December 2019 to suspend that trial before the oral stage in order to ascertain, via a preliminary reference, the existence and scope of any immunity, pursuant to EU law, held by the applicant;

(e) the preliminary ruling of the CJEU in November 2021 in relation to the extent of and limits to the immunity enjoyed by a governor of a central bank of a (Euro) Member State (Case C-3/20 Criminal Proceedings against AB and Others , EU:C:2021:969); and

(f) the fact that from the moment he was charged with a criminal offence the applicant was entitled to the protection of Article 6 of the Convention and the rights of defence and right to a fair trial guaranteed thereunder.

As emphasised in paragraph 48 of the Chamber judgment questions relating to the fairness of the criminal proceedings still pending do not form part of the present case.

6. Two Grand Chamber judgments have been handed down by the CJEU in relation to the applicant’s case. Never before has this Court had to determine an Article 5 § 1 (c) complaint in such circumstances.

In the 2019 annulment decision, the CJEU held that the Republic of Latvia had not established that relieving the applicant from his office as Governor of the Central Bank of Latvia “was based on sufficient evidence establishing that he had been guilty of serious misconduct, within the meaning of the second subparagraph of Article 14.2 of the Protocol on the Statute of the European System of Central Banks (ESCB) and the ECB”. At first sight the finding by the CJEU and the finding of no violation of Article 5 § 1 of the Convention might appear to conflict. However, as is clear from the annulment decision, the CJEU is not competent to rule on the criminal liability of an ECB governor and its role is not to interfere with preliminary criminal investigations conducted by competent prosecution and judicial authorities. Its role is limited to determining if a temporary prohibition on performance of ECB duties is justified by serious misconduct. As is clear from paragraphs 91 to 96 of the CJEU annulment ruling and from paragraph 52 of the Chamber judgment, the Latvian government appears to have failed to provide to the CJEU in the expedited direct action on immunity pending before the latter (see paragraphs 93 – 95 of the judgment in Case C-202/18 and C-238/18), material which it did provide to the Court when the latter was called to apply its established case-law on the existence of reasonable suspicion.

Furthermore, and more importantly, when the District Court of Riga suspended the criminal trial with a view to clarifying the nature, extent and effects of any immunity which might benefit the applicant, the CJEU provided a much more comprehensive answer in response to the questions posed by the trial court (see paragraphs 77 and 85 to 90 of the preliminary ruling in Case C-3/20).

7. This leads us to the fundamental basis on which we felt able to join the majority and find that there had been no violation of Article 5 § 1 of the Convention in the applicant’s case, notwithstanding his continued reliance before this Court on the immunity which had been the subject of the two important CJEU rulings outlined above.

Having suspended the trial in December 2019 to await the preliminary ruling of the latter court, the applicant’s trial was resumed in December 2021. The Court was not provided with the decision of the District Court of Riga in response to that preliminary ruling. We regret that the respondent State, already criticised by one European court for a lack of timely provision of evidence, may equally have deprived this Court of this important decision. We note, however, the terms of the CJEU’s preliminary ruling, namely that it falls in the first place to the authority responsible for prosecution or to the competent criminal court to determine whether (EU) immunity from legal proceedings applied or not in a given case. Only in case of doubt were the national authorities ordered to request the opinion of the ECB.

Since the referring District Court resumed the criminal trial on receipt of the aforementioned preliminary ruling and did not seise the ECB, the Chamber has proceeded on the basis that the applicant did not benefit from the immunity sought as the acts the subject of the pending criminal proceedings did not relate to the performance of his functions as a member of the Governing Council of the ECB. Should this basis turn out to be incorrect, all interested parties, whether the applicant or the ECB, presumably have at their disposal other remedies.

8. We consider it important to emphasise at the outset that the Chamber judgment reveals the existence of a systemic deficiency in Latvia, namely the absence of the judicial review required by Article 5 § 4 of the Convention. That provision requires judicial review by a “court” that has the competence to “decide” the “lawfulness” of the detention and to order release if the detention is unlawful.

9. The majority reject the Government’s objection based on non-exhaustion – a constitutional complaint being considered an ineffective remedy ˗ only to accept their objection relating to the failure to comply with what was then the six-month rule. For the reasons explained below, we consider the logic of the majority position somewhat problematic.

10. We do not contest that prosecutorial review could not be considered an effective remedy in respect of the applicant’s complaint about the absence of a judicial review of the lawfulness of his detention. However, in our view, it is only in this case that the Court clearly establishes that there was no remedy open to the applicant to challenge the absence of the required Article 5 § 4 judicial review.

11. It appears to us that the majority conflate two different things – a remedy pursuant to Article 5 § 4 to decide the lawfulness of detention and order release if unlawful (which is implicitly found in this judgment to be lacking in Latvia) and a remedy to raise before the domestic courts this lacuna in Latvian law when it comes to Article 5 § 4 requirements. The majority judgment seems to proceed on the basis that since reliance on the constitutional remedy would not have led to the applicant’s release it was not an effective remedy to be exhausted before complaining to this Court about the systemic deficiency which the judgment implicitly recognises.

12. Given the uncertainty as to the availability of remedies in Latvian constitutional law, we do not consider that the applicant knew or ought to have known in 2018 that he did not have any domestic remedies available to him to complain about the systemic absence in Latvia of judicial review of the lawfulness of his detention as required by Article 5 § 4 of the Convention. The close interrelationship between the requirements contained in Article 35 § 1 as to the exhaustion of domestic remedies and the six-month period implies a consistent and comprehensive approach of the legal situation in which the applicant found himself. In the present case, we fear that the appreciations made successively by the majority concerning these two elements amount to an excessively formalistic and, accordingly, unfair outcome.