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THIRD
SECTION
DECISION
Application no. 17458/10
NadeZda DEMENTJEVA
against Latvia
The
European Court of Human Rights (Third Section), sitting on 13 March
2012 as a Committee composed of:
Alvina
Gyulumyan, President,
Ineta
Ziemele,
Mihai Poalelungi, judges,
and
Marialena Tsirli, Deputy
Section Registrar,
Having
regard to the above application lodged on 16 March 2010,
Having
regard to the comments submitted by the Latvian Government,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Ms NadeZda Dementjeva, is a Latvian national who was born
in 1952 and lives in Rīga. The Latvian
Government (“the Government”) are represented by their
Agent, Mrs I. Reine.
The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
10 September 1997 criminal proceedings were initiated against the
applicant as a suspect of having committed fraud. The applicant was
questioned as a witness in this respect.
- On
30 April 1998 the Office of the Prosecutor decided to bring charges
against the applicant. After having obtained information that the
applicant has fled to Australia and applied for an asylum there, in
June 1998 the Rīga Central District Court ordered the
applicant’s detention. On the same day the applicant’s
search was launched.
- On
12 April 2001 the applicant was arrested at the Rīga airport and
got acquainted with the charges brought against her. She was detained
on remand until 8 September 2003 when the preventive measure was
changed to police surveillance.
- Meanwhile,
in October and December 2001 the Office of the Prosecutor requested
the authorities of Ukraine and Australia to provide judicial
assistance in the applicant’s criminal case.
- On
12 March 2002 the criminal case was referred to the Rīga
Regional Court. The criminal proceedings involved twenty-one victims
and ten witnesses. In April 2003, aiming to reduce the case-load of
the Rīga Regional Court the applicant’s criminal case was
among those transferred to another court, however it was later sent
back and the Rīga Regional Court scheduled the first hearing for
August 2003.
- In
August 2003 two hearings were postponed - one at the applicant’s
request and the other due to the failure of the witnesses to appear
at the hearing.
- On
8 September 2003 prosecutor asked the court to refer the criminal
case back to the Office of the Prosecutor in order to modify the
criminal charges brought against the applicant to more severe ones.
- On
26 February 2004 the additional charges were brought against the
applicant and the criminal case was remitted to the trial.
- From
16 March 2005 until 8 July 2009 fifteen hearings were scheduled
before the lower and the appellate courts with an average interval of
three months. Thirteen times the hearings were postponed on the
request of the applicant or her defence counsel out of which on eight
occasions the applicant requested to postpone the hearing due to her
health condition and on further five occasions the delays were caused
due to the illness or other reason of absence of the applicant’s
defence counsel.
- In
August 2005, after having received the first request to postpone the
hearing due to the applicant’s hospitalisation, the lower court
obtained confirmation from the applicant’s physician that her
in-patient medical treatment would not exceed ten days. In March 2007
the lower court and in December 2008 the appellate court stayed the
criminal proceedings for five and six months respectively in order to
carry out a forensic medical examination with regard to the
applicant’s health condition. According to the results of the
examination the applicant was fit to participate at the hearing.
- In
October 2007, with respect to various requests to postpone the
hearings due to the health condition of the applicant’s defence
counsel, the appellate court asked the counsel to confirm whether she
would be able to defend the applicant during the next hearing
scheduled for November 2007. At the same time the appellate court
ordered to grant the applicant’s appearance under constraint;
however, this order was not executed in that the applicant’s
whereabouts could not be located. During the hearing of November 2007
the defence counsel demanded further postponement due to the
applicant’s health.
- On
11 December 2007 the applicant was convicted by a decision of the
Rīga Regional Court and sentenced to five years’
imprisonment. The applicant appealed and the first appellate hearing
was scheduled for 28 May 2008.
- In
July 2009, after various postponements of the hearings (see paragraph
11, above), the Criminal Chamber of the Supreme Court stayed the
appeal without examination due to the absence of the applicant and
her counsel. The court concluded that the applicant had lost her
interest to pursue the appeal.
- In
August 2009 the Criminal Chamber of the Supreme Court refused to
accept the applicant’s and her counsel’s appeals on
points of law as they had been submitted out of time. On 23 September
2009 the Senate of the Supreme Court upheld the decision.
COMPLAINTS
- The
applicant complained under Article 6 § 1 of the Convention of
the excessive length of criminal proceedings.
- She
further brought complaints under Articles 3, 6, 8 and 14 of the
Convention and Protocol No. 12 to the Convention concerning the
criminal proceedings brought against her.
THE LAW
A. Complaint concerning the length of criminal
proceedings
- The
applicant complained that the length of the criminal 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 parts:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
period to be taken into consideration with respect to criminal
proceedings began on 12 April 2001 and ended on 23 September 2009. It
thus lasted eight years and five months for three levels of
jurisdiction.
- The
Government considered that the criminal case was complex and the
delays were mainly caused by the conduct of the applicant and her
representative. The Government emphasized that according to the
Court’s case-law, in particular Lavents v. Latvia, no.
58442/00, the delays caused by the medical treatment and
hospitalisation of the applicants are to be considered as force
majeure and as such could not be attributable to the authorities.
Therefore the applicant’s complaint should be dismissed as
manifestly ill-founded.
- The
applicant commented that since 2005 her health condition had
deteriorated preventing her from attending the proceedings.
- The
Court reiterates that the reasonableness of the length of the
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).
- Even
assuming that the criminal case was of some complexity in view of the
number of victims and witnesses involved as well as the need for
cooperation from the authorities of third State, the criminal case
was referred to the court without excessive delays (see paragraphs 5
and 7, above). It is true that the lower court returned the criminal
case back to the Office of the Prosecutor in order to carry out
further investigation, therefore causing a delay of about eighteen
months which was undisputedly attributable to the authorities
(Bragadireanu v. Romania, no. 22088/04, § 120, 6
December 2007). The impact of this delay on the average length of the
criminal proceedings must be assessed, however, in the light of the
other circumstances of the case.
- The
Court observes that there were fifteen hearings scheduled at average
intervals of three months before the lower and the appellate courts
(see paragraph 11, above). The Court notes that on numerous occasions
throughout the proceedings the applicant and her counsel requested
postponements of hearings relying on their poor health condition.
Even assuming that, disregarding the conclusions of the medical
examinations ordered by the courts (see paragraph 12, above), the
applicant was at certain periods unfit to participate at the
hearings, there is no evidence that during a period of over three
years she had attempted to follow the proceedings at least with an
assistance of her defence counsel (to the contrary see Zawadzki v.
Poland, no. 34158/96, § 78, 20 December 2001 and Lavents
v. Latvia, no. 58442/00, § 101, 28 November 2002). It
is noteworthy that throughout the proceedings only one request to
postpone the hearing concerned a procedural demand by which the
applicant exercised her defence rights, for which she could not be
blamed (see, amongst others see, Svetlana Orlova v. Russia,
no. 4487/04, § 46, 30 July 2009).
- The
Court further observes that the national courts can not be held
responsible for failing to discipline the parties to attend the
hearings (to the contrary see Tugarinov v. Russia, no.
20455/04, § 43, 29 April 2010). In addition to the
aforementioned medical examinations ordered by the lower and the
appellate courts, the latter had also ordered the applicant’s
attendance under constraint (see paragraph 13, above) and had taken
measures in order to secure the appearance of the defence counsel
(ibid.).
- Making
an overall assessment of the complexity of the case, the conduct of
all the concerned as well as the total length of the proceedings, the
Court considers that in the particular circumstances of this case the
proceedings could not be considered as excessively long.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
B. Other complaints
- The
applicant alleged violations under Articles 3, 6, 8 and 14 of the
Convention and Protocol No. 12 to the Convention.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court considers
that the remainder of the application does not disclose any
appearance of a violation of any of the above Articles of the
Convention. It follows that these complaints are inadmissible under
Article 35 § 3 as manifestly ill founded and must be
rejected pursuant to Article 35 § 4 of the Convention
For these reasons, the Court unanimously
Declares the application inadmissible.
Marialena Tsirli Alvina Gyulumyan
Deputy Registrar President
