FIFTH SECTION

CASE OF KIRŠTEINS v. LATVIA

(Application no. 36064/07)

JUDGMENT

STRASBOURG

20 October 2016

This judgment is final but it may be subject to editorial revision.

In the case of Kirsteins v. Latvia,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Erik Møse, President,
	Yonko Grozev,
	Mārtiņš Mits, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 27 September 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 36064/07) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Mr Jānis Kiršteins (“the applicant”), on 7 June 2007.
2.  The applicant was represented by Mr M. Ioffe, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Ms I. Reine who was succeeded by Ms K. Līce.
3.  On 24 January 2008 the complaint concerning the length of the proceedings was communicated to the Government and the remainder of the application was declared inadmissible.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1927 and lives in Rīga.
5.  On 10 August 1998 the Office of the Prosecutor General separated materials of the criminal case no. 81204496 and initiated new criminal proceedings in respect of the applicant’s activities during the period from 1948 to 1953, when he was an investigator at the Ministry of State Security of the Soviet Socialist Republic of Latvia. According to the Office of the Prosecutor General, the applicant had participated in political repressions of the Soviet regime.
6.  On 23 October 1999 the prosecutor informed the applicant that he was suspected of having committed genocide. More specifically, the Office of the Prosecutor General alleged that the applicant had participated in military operations against members of the Latvian armed resistance, collected evidence in criminal proceedings against them, arrested them and their supporters and collected evidence and arrested people who had possessed anti-Soviet manuscripts. On the same date the prosecutor for the first time questioned the applicant as a suspect.
7.  From 29 October 1999 to 28 December 1999 the applicant was detained on remand.
8.  On 25 November 1999 the applicant was charged with crimes against humanity and genocide.
9.  On 26 July 2000 the prosecutor drafted the bill of indictment and sent the case to the Riga Regional Court for adjudication. The indictment concerned seven different episodes involving thirteen alleged victims.
10.  On 23 October 2002 the applicant’s new defence counsel requested the Riga Regional Court to postpone at least for three weeks the hearing, which was scheduled for 24 October 2002, so that he would have enough time to acquaint himself with the applicant’s criminal case file.
11.  On 24 October 2002 the hearing was postponed indefinitely due to the responsible judge’s illness.
12.  On an unknown date the applicant’s criminal case was taken over by another judge of the Riga Regional Court. On 14 September 2004 the judge informed the applicant’s defence counsel that the hearing was scheduled for 11 October 2004.
13.  The Riga Regional Court held hearings on 11, 12 and 18 October 2004. The next hearing was scheduled for 13 December 2004. However, on 7 December 2004 the judge informed the applicant that the hearing was postponed to 21 March 2005 due to a protracted examination of another criminal case.
14.  On 21 March 2005 the Riga Regional Court continued examination of the applicant’s criminal case and on 4 April 2005 the court delivered its judgment, acquitting the applicant.
15.  The prosecutor appealed against the judgement. On 19 December 2005 the Criminal Cases Chamber of the Supreme Court quashed the first-instance court’s judgment and remitted the case to the first-instance court. This decision was finalised on 16 March 2006.
16.  On 23 March 2006 the applicant’s defence counsel appealed against the appellate court’s decision of 19 December 2005. With a decision of 28 April 2006 the Senate of the Supreme Court quashed this decision and remitted the case to the appellate court.
17.  On 2 May 2006 the judge of the Criminal Cases Chamber of the Supreme Court scheduled the appeal hearing for 7, 8 and 9 February 2007.
18.  Upon the prosecutor’s request, on 7 February 2007 the appellate court suspended the case pending an expert medical report on the applicant’s capacity to participate in the hearing and to serve a prison sentence.
19.  On 17 April 2007 the court’s decision ordering the forensic examination was forwarded to the State Centre for Forensic Medical Examination. On 24 April 2007 also the applicant’s criminal case file was sent to this institution. On 28 August 2007 the State Centre for Forensic Medical Examination delivered the results of the forensic examination.
20.  Following the applicant’s forensic expertise, the examination of the applicant’s criminal case before the appellate court was continued on 27 and 28 February 2008. On 7 March 2008 the appellate court upheld the judgment of the Riga Regional Court of 4 April 2005 acquitting the applicant. The decision was finalised on 9 May 2008.
21.  On 19 May 2008 the prosecutor appealed against this decision.
22.  With a final decision of 27 August 2008 the Senate of the Supreme Court upheld the decision of the appellate court.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
23.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows in its relevant part:
“In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
24.  The Government contested that argument.
25.  The Court reiterates that, in criminal matters, the “reasonable time” referred to in Article 6 § 1 begins to run as soon as a person is “charged”. “Charge”, for the purposes of Article 6 § 1, may be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test whether “the situation of the [suspect] has been substantially affected” (see Eckle v. Germany, 15 July 1982, § 73, Series A no. 51, and McFarlane v. Ireland [GC], no. 31333/06, § 143, 10 September 2010).
26.  The parties disagreed as to the date from which the length of the criminal proceedings against the applicant should be calculated. The applicant submitted that he had been informed of the criminal proceedings in respect of his activities during the period from 1948 to 1953 immediately after their opening on 10 August 1998. However, the Government argued that 23 October 1999, the date when the applicant was first questioned as a suspect, should be taken into account as the starting point.
27.   The Court notes that the applicant did not provide any further details about, let alone substantiate, the allegation that he had been informed of the criminal proceedings immediately after their opening on 10 August 1998. The Court considers therefore that it has not been demonstrated that the situation of the applicant was substantially affected prior to his being formally questioned as a suspect. Hence, the period to be taken into account began on 23 October 1999 (compare Larionovs and Tess v. Latvia (dec.), nos. 45520/04 and 19363/05, § 183, 25 November 2014). It ended on 27 August 2008 with the decision of the Senate of the Supreme Court. It lasted therefore eight years and ten months for three levels of jurisdiction.
A.  Admissibility
28.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
29.  According to the Court’s well-established case-law, the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).
30.  The Court notes that the case was complex, involving sensitive and intricate questions of a historic and legal nature. The proceedings concerned seven different episodes involving thirteen alleged victims.
31.  The Court considers that the applicant cannot be deemed responsible for the delays encountered. It appears that the State authorities bear the main responsibility for the excessive length of the proceedings.
32.  In particular, the Court observes that it took more than four and a half years before the first-instance court adopted a judgment. There was a long period of inactivity by the first-instance court: the case was sent to the court on 26 July 2000 but the first hearing was scheduled for 24 October 2002, that is after more than two years. Moreover, this hearing was postponed indefinitely due to judge’s illness. The first hearing commenced only on 11 October 2004, namely more than four years after the date when the case had been sent to court for adjudication.
33.  During the first set of proceedings the appellate court and the Senate of the Supreme Court decided the case swiftly, that is within one year.
34.  However, the Court notes that after the remittal of the case to the appellate court on 28 April 2006 it took two years before the appellate court delivered its decision. There were two periods of inactivity by this court. The first hearing of 7 February 2007 commenced within nine months after the remittal of the case. On that date the appellate court suspended the case pending an expert medical report regarding the applicant’s state of health. The next hearing was scheduled and held on 27 February 2008, that is only six months after the date when the State Centre for Forensic Medical Examination had delivered the results of the forensic examination. Thus, a delay of fifteen months in total at this stage of criminal proceedings was also attributable to the State authorities.
35.  In the light of the above, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
36.  There has accordingly been a breach of Article 6 § 1 of the Convention.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
37.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
38.  The applicant claimed 5,000 United States dollars (USD) and 1,430 Latvian lati (LVL) (in total approximately 6,550 euros (EUR)) paid in legal costs to his lawyers during the criminal proceedings in respect of pecuniary damage and EUR 30,000 in respect of non-pecuniary damage.
39.  The Government contested these claims.
40.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 3,000 under that head.
B.  Costs and expenses
41.  The applicant did not submit a claim for the costs and expenses incurred before the domestic courts and the Court. Accordingly, the Court will not award him any sum on that account.
C.  Default interest
42.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaint concerning the length of the proceedings admissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 20 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Milan Blaško	Erik Møse
	Deputy Registrar	President