KIRINS v. LATVIA - 34140/07 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2017] ECHR 16 (12 January 2017)

In the case of Kirins v. Latvia,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Angelika Nußberger, President,
          Erik Møse,
          Khanlar Hajiyev,
          Faris Vehabović,
          Yonko Grozev,
          Carlo Ranzoni,
          Mārtiņš Mits, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 29 November 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 34140/07) 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 Andrejs Kirins (“the applicant”), on 30 July 2007.

2. The applicant, who had been granted legal aid, was represented by Mrs J. Kvjatkovska, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Mrs K. Līce.

3. The applicant alleged, in particular, that contrary to Articles 13 and 3 of the Convention he had not been awarded appropriate compensation for bodily injuries inflicted on him by a police officer. He also complained under Article 6 of the Convention that the damages proceedings had been unfair and had not complied with the reasonable time requirement.

4. On 15 June 2010 the above complaints were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1971 and lives in Daugavpils.

A. Background information

6. On 16 January 1995 Inspector S.K. of the Daugavpils City Police arrested the applicant and took him to the police station. The applicant, who had category 2 disability status in relation to his eyesight, did not offer any resistance. Subsequently, S.K. beat up the applicant by delivering several blows to his head, near to his eyes. When the applicant fell to the ground, S.K. kicked him at least once in the chest.

7. After this injury, the deterioration of the applicant’s sight accelerated, leading to retinal detachment. In 1995 and 1996 he had several eye operations, including three in a hospital in Moscow, but the retinal detachment continued to progress. In April 1996 he was granted category 1 disability status for complete loss of vision.

B. Criminal proceedings against S.K.

8. On 30 January 1995 criminal proceedings were initiated against S.K. On the same date the applicant was joined as a civil party to those proceedings.

9. In February 1995 a forensic medical report was drawn up. It stated that on 16 January the applicant had sustained numerous injuries, which by their nature were considered moderate, resulting in long-term health problems of more than twenty-one days and permanently reducing his capacity to work by at least a third.

10. On 22 March 1995 charges were brought against S.K. and on 8 August 1995 the case was sent to the Daugavpils Court for adjudication.

11. S.K. did not appear at the first hearing on 1 November 1995. The Daugavpils Court held that the case could not be heard in his absence and issued a warrant for his arrest. In December 1995 the warrant was sent to the Daugavpils police station.

12. During the same hearing the applicant’s lawyers asked the trial court to order a second forensic medical report in an attempt to establish the nature and seriousness of the injuries sustained. The prosecutor supported the request and the Daugavpils Court ordered a report.

13. In January 1998, January 1999 and August 1999 the Daugavpils Court asked the Daugavpils police station for information about the measures taken and results achieved in executing the arrest warrant. In reply to each request the police sent identical responses stating that S.K. was wanted and that the trial court would be informed when he was caught. In August 1999 the police informed the Daugavpils Court that, according to information received, S.K. had left Latvia.

14. In December 1996 the forensic medical service reminded the Daugavpils Court that it had not received any original medical documents. In July 1998 and January 1999 the Daugavpils Court asked the Russian authorities for assistance in obtaining originals of medical records relating to the applicant’s operations (see paragraph 7 above). For unknown reasons the documents were not obtained and as a result, the report could not be drawn up.

15. On 16 November 1999 the prosecutor asked the trial court to order a forensic medical examination to confirm the classification of the offence. After the initial forensic medical report the applicant’s health had deteriorated and he had completely lost his sight. According to the prosecutor, there were therefore grounds to consider that that might be related to the injuries which had been inflicted on the applicant in 1995. The Daugavpils Court upheld the prosecutor’s request and ordered the third forensic medical examination. A medical panel was asked to comment on what kind of trauma had caused the injuries; whether the applicant had lost his sight as a result of the injuries inflicted on him in 1995; to what extent he had been incapacitated before the injuries and their severity.

16. On 7 December 1999 a medical report was drawn up. It stated that on 16 January 1995 the applicant had sustained injuries which by their nature were considered minor, resulting in health problems of no more than six days. The report continued that prior to the injuries the applicant had had serious and progressively deteriorating myopia. The applicant’s sight problems had become worse as a result of the head injuries sustained on 16 January 1995, and that had led to further deterioration of his sight.

It was also noted that, under domestic law, the worsening of a pre-existing condition did not as such serve as grounds for reclassifying the seriousness of an injury. Serious eye disorders could develop and result in the loss of sight even without trauma. In the light of the above, the report did not establish a direct causal link between the injuries inflicted on the applicant in 1995 and his loss of sight.

17. In April 2000 the Daugavpils Court refused to grant the applicant’s request for another medical report for lack of reasoning.

18. From June 2000 to February 2003 a total of five hearings were postponed because experts, doctors, including an ophthalmologist, did not attend and several medical experts needed to be called. In particular, on two occasions between 27 September 2001 and 9 January 2002 and between 18 December 2002 and 24 February 2003 hearings were postponed at the request of the applicant, as he had asked for a doctor and a forensic expert to be summoned.

19. On 10 April 2002, at the request of Daugavpils Court, a panel of experts drew up the fourth medical report which stated that the applicant had suffered at least one blow to his right eye and to his thorax. The injuries sustained by him were considered minor. The report continued by stating that on 16 January 1995 the applicant had suffered injuries to his head that had resulted in a serious worsening of his eye disorder (myopia) with the recurrence of retinal detachments in both eyes followed by further deterioration of his sight. The worsening of a pre-existing condition, including after earlier injuries, did not in itself provide a basis for determining a more serious classification of bodily injury. A severe and progressive eye disorder (myopia) could deteriorate and lead to retinal detachment even if no injuries had been suffered, and eventually lead to complete loss of vision. The experts concluded that the applicant’s head injuries of 16 January 1995 had no direct causal link with the subsequent deterioration of his vision and his category 1 disability status.

20. On 23 February 2003 the applicant lodged a claim with the trial court for compensation for pecuniary and non-pecuniary damage.

21. On 27 February 2003 the Daugavpils Court found guilty S.K. in absentia for abusing his official power in a violent and disrespectful manner. He was sentenced to three years’ imprisonment.

22. In relation to the applicant’s civil claim the Daugavpils Court held that the total amount claimed, namely 156,853 Latvian lati (LVL) (around 224,075 euros (EUR)) and 8,400 United States dollars (USD) had not been supported by evidence. The majority of the documents confirming payment of the medical expenses had been submitted in German and English, and in order to invite a translator it would have to delay the adjudication. In addition, the applicant had not stated which part of the expenses related to the consequences of the injuries sustained. Accordingly, the trial court decided as follows:

“To recognise the [applicant’s] rights to compensation from the State for material, pecuniary and non-pecuniary damage caused by the criminal offence, and to remit (nodot) the question of the precise amount to be awarded/enforced (piedzīt) to the court to decide in civil proceedings”.

The judgment became final on 11 March 2003.

C. Civil proceedings for damages

23. On 20 April 2004 the Riga Regional Court registered the applicant’s civil claim dated 23 March 2003 against the Ministry of the Interior and the State Police. The applicant claimed compensation for damage caused by the criminal offence committed by Inspector S.K. In the claim the applicant relied on the operative part of the judgment of the Daugavpils Court (see above), section 27 of the Law on Police and various provisions of the Civil Law which regulated tort liability. Relying on sections 2347 and 2349 of the Civil Law in particular, the applicant claimed pecuniary and non-pecuniary (morālo kaitējumu) damages of LVL 197,624.31 (EUR 282,320) for blindness, mutilation and disfigurement (sakropļojums un izķēmojums), loss of future income (atrautā peļņa) and medical expenses.

24. On 2 February 2006 the Riga Regional Court, acting as a first-instance court, relied, amongst other provisions, on Article 92 of the Constitution and section 27 of the Law on Police, and accepted the applicant’s civil claim in part. He was awarded LVL 90,000 (EUR 128,500) in non-pecuniary damages for the damage caused to his health and LVL 4,502.81 (EUR 6,432.58) in pecuniary damages from both defendants on a pro rata basis for his medical expenses.

25. According to the Riga Regional Court, the applicant’s claim for compensation for non-pecuniary damage came within the scope of section 2349 of the Civil Law, a lex specialis providing no specific criteria for awarding compensation. The court referred to the findings of the experts in the criminal proceedings and stated that the applicant’s bodily injuries caused by the police officer might have been the reason for the worsening of his eye disorder (myopia) that had resulted in a rapid deterioration of his sight and eventually complete loss of vision.

26. On 27 September 2006 the Supreme Court reviewed the case following appeals by the applicant, the State Police and the Ministry of the Interior. It ruled that the first-instance court had been incorrect in concluding that the applicant’s injuries had amounted to mutilation and disfigurement under section 2349 of the Civil Law. The applicant’s claim for compensation for non-pecuniary damage was dismissed. The pecuniary damages were reduced to LVL 4,427.81 (EUR 6,325.44).

27. Regarding the applicant’s claim for pecuniary damages, the Supreme Court ruled that the judgment adopted in the criminal proceedings against S.K. only proved that he had committed a crime using violence against the applicant. The four usual criteria for establishing tort liability and compensation thus had to be satisfied (see paragraph 30 below). In the judgment of 27 February 2003 the first and fourth criteria had been established. The Supreme Court analysed all the medical data before it concerning the applicant’s health and concluded that the State Police were liable to pay pecuniary damages to the applicant for his medical expenses under section 2347 of the Civil Law.

28. Regarding the applicant’s claim for non-pecuniary damages, the Supreme Court concluded that the loss of the applicant’s sight had occurred under specific circumstances, including his previous state of health. It was also noted that the loss of his sight was not directly linked to the bodily injuries sustained by him on 15 January 1995. There was therefore no evidence to prove that his bodily injuries had amounted to mutilation or disfigurement, as provided in section 2349 of the Civil Law.

29. In a preparatory meeting on 22 February 2007 the Senate of the Supreme Court dismissed an appeal on points of law by the applicant as not raising any relevant legal issues.

D. Other relevant information

30. In a letter dated 21 October 2010 addressed to the Government, the Supreme Court stated that there were no grounds for the national courts to extend the scope of the applicant’s claim and decide on the awarding of non-pecuniary damages on the following grounds. The applicant had claimed pecuniary and non-pecuniary damages for injuries sustained as a result of police ill-treatment. In this regard he had relied on sections 2347 to 2349 of the Civil Law, which provided that compensation could be claimed for mutilation and disfigurement. In order to determine whether the consequences of the alleged injuries were those stipulated in the legal provision, the domestic courts had to establish the essential conditions of tort liability, namely (i) unlawful conduct, (ii) damage, (iii) a causal link between the unlawful conduct and damage claimed and (iv) fault. In the applicant’s case, no such conclusions could be drawn on the basis of the medical documents. The applicant had lost his sight owing to various coexisting circumstances, not as a result of the injuries sustained in January 1995.

31. The Supreme Court also stated that with the amendments of 1 March 2006 the Civil Law contained a general legal provision (section 1635 of the Civil Law) for claiming non-pecuniary damages. Nevertheless, it did not have retroactive effect and therefore the national courts could not apply it in the applicant’s case. According to the Supreme Court, no such obligation could be inferred from any other legal acts on the account that the subject matter of the present civil dispute did not concern the public law obligation which the Latvian State had undertaken in the area of human rights.

32. Furthermore, the Supreme Court indicated that in the applicant’s case the ten-year statutory limitation period for claiming damages had started to run on 11 March 2003, the day the final judgment in the criminal case became effective. The Supreme Court therefore considered that the applicant still had the right to rely on Article 92 of the Constitution and lodge a claim for compensation for damage caused by a criminal offence. In that regard the Supreme Court referred to the judgment of 16 December 2009 in the so-called “Talsi tragedy” case, in which it ruled that a person has the right to receive compensation for violations of his or her human rights.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Legislation on the right to compensation

33. The relevant Articles of the Constitution (Satversme) and provisions of the Civil Law (Civillikums) (before and after the amendments that were effective from 1 March 2006) pertaining to compensation for pecuniary and non-pecuniary damage are quoted in full in Zavoloka v. Latvia (no. 58447/00, §§ 15-19, 7 July 2009). Sections 1635 and 1779 are also mentioned in the case of Holodenko v. Latvia (no. 17215/07, § 45, 2 July 2013).

B. Criminal Code/Code of Criminal Procedure

34. The Criminal Code (Latvijas Kriminālkodekss), in force at the material time and effective until 1 April 1999, provided that any abuses of power connected with violence, firearms or actions that could cause anguish and offend a victim’s dignity were punishable by two to ten years’ deprivation of liberty (Article 162¹(2)).

35. Under Article 307 of the former Code of Criminal Procedure (Latvijas Kriminālprocesa kodekss), in force until 1 October 2005, the courts in criminal proceedings may, in exceptional circumstances, recognise a victim’s right to receive compensation and leave the civil courts to decide the precise amount of the claim.

C. Civil Law

36. Before the amendments of 1 March 2006, section 1635 of Civil Law (Civillikums), provided as follows:

“1635 Any infringement, i.e. any unlawful act by its nature, gives to the victim the right to seek compensation from the person who had caused it, insofar as he or she may be held responsible for such an act.

Note: the concept of an act is understood in the broad sense and encompasses not only action but also an omission”.

37. After the amendments of 1 March 2006, section 1635 provides as follows:

“1635 Any infringement, i.e. any unlawful act by its nature which has caused damage (including moral harm) gives to the victim the right to seek compensation from the person who had caused it, insofar as he or she may be held responsible for such an act.

By moral harm should be understood any physical or mental suffering resulting from the infringement ... .

When the unlawful act under the second paragraph of this article takes the form of a criminal offense against life, health, morals, sexual integrity, freedom, honor or dignity of a person, against family or against a minor, it is presumed that the victim has suffered mental harm as a result of such an act. In all other cases, the victim must prove the existence of a moral harm.

Note: the concept of an act is understood in the broad sense and encompasses not only action but also an omission.”

38. Under section 2347 of the Civil Law, if a person is responsible for inflicting bodily injury upon another person through an illegal action, the respective person shall compensate the victim the medical expenses and the loss of future income. Under section 2349 of the Civil Law, the domestic courts shall award compensation for bodily injuries which had caused mutilation and disfigurement.

D. Civil Procedure Law

39. Section 7(2)) of Civil Procedure Law (Civilprocesa likums) provides that if a civil claim has not been examined in the criminal proceedings, the victim may apply to the civil courts.

40. Section 74(2)(6) provides that in civil proceedings parties have the right to submit requests to court.

41. Under section 96(3) a judgment that has come into effect in criminal proceedings is binding on the court adjudicating a case regarding the civil liability of the person against whom the judgment was made only with respect to the issues of whether a criminal act occurred and whether it was committed by that person.

E. Law on Police

42. The Law on Police (Likums par policiju), as in force at the material time, provided that a police officer was liable for any unlawful actions in accordance with the procedures specified by law. If a police officer violated an individual’s rights and lawful interests, the police authorities are to take measures to redress the violation and award compensation for damage caused (section 27(1)).

F. Examples of domestic case-law concerning claims against the State for non-pecuniary damages

43. In one of the so-called “Talsi tragedy” cases, in September 2006 the claimants brought a civil claim against the Ministry of Interior and the State Rescue Service. They claimed compensation for non-pecuniary damage caused by an incident in 1997 in which the claimants’ child died owing to the negligence of State officials. The claimants relied, inter alia, on Article 92 of Constitution and section 1635 of the Civil Law.

44. On 16 December 2009 the Senate of the Supreme Court (case no. SKC-579/2009) examined the case in an extended composition (paplašinātā tiesas sastāvā) of seven judges instead of the usual three and awarded compensation for the non-pecuniary damage caused in 1997. The Senate dismissed an appeal on points of law by the defendants, who had argued that the fundamental rights chapter of the Constitution, which had come into effect on 6 November 1998, could not be applied retroactively. The Senate established that the State’s obligation to guarantee respect for human rights derived from the Convention and from Article 1 of the Constitution, which established that the Republic of Latvia was a democratic republic. Even before the amendments to the Constitution, the Constitutional Law of 10 December 1991 had set out similar principles. Accordingly, since there had been a violation of the claimants’ rights protected both under the Convention and the Constitution, the State was obliged to award compensation for non-pecuniary damage.

45. In another civil case (no. SKC-315, final decision adopted by the Senate on 25 April 2007), a claimant initiated civil proceedings against the State in September 2005 for pecuniary and non-pecuniary damages for serious injuries he had sustained at the hands of prison guards in June 1995, before the Convention came into effect in Latvia. In the claim he relied, inter alia, on section 2349 of the Civil Law and Articles 3 and 13 of the Convention. The domestic courts partly upheld the claim and awarded him LVL 10,000 in non-pecuniary damages under section 2349 for his injuries. They dismissed the remainder of the applicant’s claim for non-pecuniary (moral) damages, stating that section 1635 of the Civil Law provided for compensation for moral damage from 1 March 2006, but did not have retroactive effect. The domestic courts also dismissed as unfounded the applicant’s reliance on the Convention, which was not binding for the Republic of Latvia at the time of the events in question.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

46. The applicant complained that the domestic proceedings in which his damages claim had been adjudicated had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

A. Admissibility

1. The parties’ observations

47. The Government raised several inadmissibility arguments in relation to the criminal and civil proceedings in which the applicant’s damages claim had been examined. In relation to both sets of proceedings they argued, firstly, that the applicant had not had victim status as he had never expressed any oral or written complaints pertaining to any delays. Accordingly, the applicant had not considered himself to be a victim of a violation of Article 6.

48. Secondly, the Government argued that the applicant had failed to exhaust domestic remedies. In their view, he could have asked the domestic courts to expedite both sets of proceedings by relying on section 74(2)(6) of the Civil Procedure Law (see paragraph 40 above). He could have also asked for disciplinary measures to be taken against the judges who had failed to ensure compliance with his rights under Article 6 § 1 of the Convention.

49. Lastly, in relation to the criminal proceedings the Government argued that the applicant had not complied with the six-month rule as they had already concluded on 11 March 2003.

50. The applicant argued that he had had no effective remedies and that the six-month time-limit should be calculated from the date of adoption of the final judgment in the second set of proceedings.

2. The Court

(a) Victim status and the exhaustion of domestic remedies

51. The Court reiterates that, in principle, an applicant’s ability to claim to be a victim of a violation of a Convention right will depend on the redress the domestic remedy will have afforded him or her (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 182, ECHR 2006-V). In terms of a breach of the reasonable time requirement, remedies are considered effective if they can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see Sürmeli v. Germany [GC], no. 75529/01, § 99, ECHR 2006-VII and the case-law cited therein).

52. In respect of complaints concerning the excessive length of judicial proceedings in Latvia, the Court has already found that owing to its discretionary character, the remedy under section 74(2)(6) of the Civil Procedure Law cannot be considered a mechanism for accelerating the proceedings (see Veiss v. Latvia, no. 15152/12, § 68, 28 January 2014). Similarly, the Court has already concluded that at the material time there were no compensatory remedies for excessively lengthy proceedings (ibid. § 71).

53. Given that there were no effective remedies in place which could deprive the applicant of his victim status, the Court dismisses the Government’s objection concerning the applicant’s alleged lack of victim status and the non-exhaustion of domestic remedies.

(b) Six-month rule

54. With regard to observance of the six-month rule, the Court reiterates that Article 6 § 1 is applicable to civil parties in criminal proceedings if from the moment the applicants are joined as civil parties until the conclusion of the criminal proceedings the civil and criminal limbs remain closely linked (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 62, ECHR 2002-I).

55. In the course of the criminal proceedings the domestic courts recognised the applicant’s right to compensation for the ill-treatment inflicted by the police officer and decided to transfer the assessment of the amount of compensation to the civil courts (see paragraph 22 above). As in the case of Liģeres v. Latvia (no. 17/02, § 58, 28 June 2011), the Court also finds in this case that both sets of proceedings, criminal and civil, were closely linked. The Court therefore considers that it would be inappropriate to separate them and assess their length in isolation.

Accordingly, the Government’s objection in this regard must be rejected.

56. The Court considers that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ observations

57. In relation to the criminal proceedings the applicant argued that in 1999 the trial court had already been aware that the defendant had been evading justice, but it had taken four more years to convict him in absentia. Moreover, the delays he had caused had been based on justified requests which had not required the courts to delay the case for such long periods. In any event, he had raised his two requests when the proceedings had already been pending for six years.

58. In relation to the length of the civil proceedings the applicant disagreed with certain facts and contended that he had submitted his civil claim as early on as 23 March 2003, not 20 April 2004 as incorrectly stated by the Government.

59. The Government pointed to several factors which contributed to delays in the criminal proceedings, such as the defendant’s absence, the applicant’s requests to have several hearings adjourned and the complexity of the case. They noted that it was necessary to clarify whether the injuries sustained by the applicant had caused his blindness. In relation to the civil proceedings, the Government noted that they had been concluded in two years and ten months and had therefore fully complied with the speediness requirement.

2. The Court

(a) Period to be taken into consideration

60. The Court reiterates that in cases where an applicant is first joined as a civil party claiming damages in the criminal proceedings and then institutes separate civil proceedings, the combined length of proceedings is relevant for the purposes of Article 6 § 1 of the Convention (see, mutatis mutandis, Codarcea v. Romania, no. 31675/04, §§ 78-85, 2 June 2009).

61. The Court observes that the applicant’s damages claim was first examined in criminal proceedings which lasted a total of eight years, one month and eleven days at one level of jurisdiction. It was later examined in civil proceedings which lasted a total of two years, ten months and four days at three levels of jurisdiction.

62. In the combined proceedings the period to be taken into consideration for the purposes of this complaint is eight years, six months and nineteen days at four levels of civil and criminal courts. The period began on 27 June 1997 when the Convention entered into force in respect of Latvia, and ended on 22 February 2007 when a final decision in respect of the applicant was taken in the civil proceedings.

63. The Court has excluded the period from 30 January 1995 to 27 June 1997 which falls outside the Court’s temporal jurisdiction, and the period from 11 March 2003 to 20 April 2004 when no proceedings were pending. Nevertheless, in assessing the reasonableness of the length, account must be taken of the state of the proceedings at the time the Convention entered into force in respect of Latvia (see Lavents v. Latvia, no. 58442/00, § 86, 28 November 2002). The Court therefore notes that on that date the proceedings had been already pending for two years, four months and twenty-seven days.

(b) Reasonableness of the length of proceedings

64. The Court reiterates that 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 as well as what was at stake for the applicant (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, and Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). Moreover, given the absolute nature of the rights guaranteed under Article 3 of the Convention and the interests at stake for alleged victims of Article 3 violations, in proceedings related to the alleged excessive use of force by State officials the domestic authorities are under a positive obligation to carry out an effective investigation into the allegations with particular diligence (see Krastanov v. Bulgaria, no. 50222/99, §§ 68 and 70, 30 September 2004).

65. The Court observes at the outset that the criminal case concerned charges brought against a police officer for excessive use of physical force, which proved to be uncontested, against the applicant who had category 2 disabled status at the material time.

66. The criminal case had two elements adding to its complexity. Namely, the evading of justice by the accused S.K., and the need to invite forensic medical experts to report on the seriousness of the injuries sustained, including on the causal link between these injuries and the alleged deterioration of the applicant’s health.

67. As to the conduct of the applicant, the Court observes that the proceedings were postponed twice at his request so that witnesses could be summoned (see paragraph 18 above). The overall period of delays attributable to him did not exceed six months which, given the overall length of the combined proceedings, is not significant. Moreover, there is nothing to suggest that he made use of his procedural rights with undue delay (contrast Idalov v. Russia [GC], no. 5826/03, § 189, 22 May 2012).

68. The Court however notes the long period of delay attributable to the authorities. Firstly, the most significant delay of nearly three years was due to the absence of the accused S.K. at the initial stages of adjudication of the criminal case. In this connection, apart from the standard annual letters in which the police informed the trial court that the accused was wanted (see paragraph 13 above), there is no information about the measures taken in the search for his whereabouts. Secondly, even though the second forensic medical report was ordered as early as December 1995 and the medical experts soon after repeatedly asked the Daugavpils Court to produce various medical documents, it appears from the case file that any activities in that regard had not been carried out until 1998 (see paragraphs 12 and 14 above).

69. The applicant’s subsequent claim for damages in the civil courts was examined in two years and ten months at three levels of jurisdiction (see paragraphs 23-29 above). Nevertheless, this period must be examined in the light of all the circumstances of the case. To this effect the Court observes that overall the combined proceedings lasted eleven years, including the two-year period which fell outside the Court’s jurisdiction (see paragraph 63 above). Given that the aim of the proceedings was to provide compensation for excessive use of force by a police officer, the domestic authorities did not act with the requisite diligence expected from them in this type of cases.

70. In the light of the above, the Court finds that the proceedings exceeded a reasonable time within the meaning of Article 6 and that there has, accordingly, been a violation of that Article.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION

71. Relying on Article 6, the applicant complained that the domestic proceedings in which his damages claim had been adjudicated had been unfair. In particular, even though the trial court had recognised his right to compensation from the State for both pecuniary and non-pecuniary damage, in the course of subsequent civil proceedings his claim for non-pecuniary damages had been dismissed. The applicant also relied on Articles 3 and 13 of the Convention, complaining that he had not been awarded appropriate compensation for the bodily injuries inflicted on him by a police officer.

72. The Court observes from the applicant’s initial complaints (see paragraph 3 above) and the parties’ observations that the applicant primarily complained that he had not been able to receive compensation from the State in the form of non-pecuniary damages for an alleged Article 3 violation committed by a State official. Being master of the characterisation to be given in law to the facts of the case and having regard to the similarity of the issues raised, the Court decides to examine the applicant’s complaints under Article 13 in conjunction with Article 3 of the Convention, which read as follows:

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

73. The Government argued that the applicant had failed to exhaust domestic remedies. Notably, he could have relied on Article 92 of the Constitution or, from 1 March 2006, on section 1635 of the Civil Law and asked for compensation for non-pecuniary damage caused by ill-treatment at the hands of a police officer. In this connection, the Government referred to one of the “Talsi tragedy” cases (see paragraph 43 above).

74. The applicant did not comment on this issue.

75. The Court considers that the non-exhaustion arguments raised by the Government are closely related to the very substance of the complaint under Article 13 of the Convention, and should be joined to the merits.

76. The Court, having regard to the conviction of the perpetrator S.K. for abusing his official power by inflicting numerous injuries on the applicant, notes that it is not in dispute that the applicant had an arguable complaint under Article 13 in conjunction with Article 3 of the Convention.

77. Accordingly, the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ observations

(a) The applicant

78. The applicant maintained that he had not received any compensation for damage caused by his ill-treatment by the police, apart from a small amount in respect of medical expenses.

79. He contended that the final judgment in the criminal proceedings entitled him to pecuniary and non-pecuniary damages. In this connection, he argued that the Government had provided a misleading translation of the pertinent pieces of national legislation. Namely, section 307 of the Criminal Procedure Code provided that a victim in criminal proceedings had the right “to receive compensation”, and therefore the civil courts did not have discretion to award or not award pecuniary and non-pecuniary damages. They only had to decide the exact amount of compensation.

80. Next, the applicant argued in essence that the domestic courts had arbitrarily interpreted the domestic law when they had decided to dismiss his claim for non-pecuniary damages. In this connection, he submitted that reference to the wrong legal provision in his claim could not have deprived him of compensation for non-pecuniary damage. He relied on the jura novit curia doctrine and contended that in his particular case, taking into consideration the fact that the damages proceedings had altogether lasted twelve years, it had been for the domestic courts to associate the facts raised by him with the correct legal provision in a manner compatible with the general principles of national and international law.

81. The applicant also contended that the alleged lack of a causal link between the injuries and his blindness could have only affected the amount of compensation. In this connection, he referred to various medical reports indicating that the injuries had accelerated the loss of his sight, but claimed that the national courts had overlooked that evidence.

82. Lastly, the applicant pointed to the fact that the explanations provided by the Supreme Court and relied on by the Government had been drafted by one of the judges who had adopted the contested decision in the civil proceedings.

(b) The Government

83. The Government argued that the domestic courts in the criminal and civil proceedings had assessed different issues in relation to the applicant’s compensation claim. They referred to section 307 of the Criminal Procedure Code and contended that in the course of the criminal proceedings the Daugavpils Court - owing to the applicant’s own failure to submit documents substantiating his claim as a victim - had only recognised his right “to claim compensation” for pecuniary and non-pecuniary damage. The amount of the claim had been left to the civil courts to decide (see paragraph 22 above).

84. The Government also referred to section 96 of the Civil Procedure Law, arguing that civil courts were bound by the findings of criminal courts only insofar as they directly concerned the nature of the crime committed and the defendant’s guilt. Therefore, when establishing the State’s civil liability in the civil proceedings, the civil court had to establish whether there was a causal link between the injuries inflicted on the applicant by the State agent and the alleged deterioration of the applicant’s health.

85. In respect of the applicant’s claim for non-pecuniary damages, the Government argued that the national authorities should not bear responsibility for legal errors made by the applicant, whose claim had been too narrow in scope. In his claim he had relied on legislation which provided for compensation for pecuniary and non-pecuniary damage for mutilation or disfigurement only (see paragraph 33 above). On this head the applicant’s civil claim for pecuniary damages (medical expenses) had been partly upheld but the claim for non-pecuniary damages had been dismissed on the grounds that the domestic courts could not establish a causal link between the unlawful actions of the State authorities and the applicant’s loss of sight. Consequently, the civil court could not conclude that the applicant had either been mutilated or disfigured. Furthermore, the Government referred to the Supreme Court’s letter of 21 October 2010 (see paragraphs 30-32 above) and asserted that the applicant would have had much better prospects of success if he had claimed compensation for non-pecuniary damage for an unjustified violation of his rights, as done by the claimants in the “Talsi tragedy” case. Moreover, the applicant could still use this remedy.

2. The Court

(a) General principles

86. The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured. The effect of that provision is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and grant appropriate relief. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint. However, the remedy required by Article 13 must be “effective” in practice as well as in law (see Jeronovičs v. Latvia [GC], no. 44898/10, § 107, 5 July 2016). Where an applicant alleges ill-treatment at the hands of a State agent in breach of Article 3, the Court has repeatedly found that two measures are necessary to provide sufficient redress. Firstly, the State authorities must have conducted a thorough and effective investigation capable of leading to the identification and punishment of those responsible. Secondly, an award of compensation to the applicant is required where appropriate or, at least, the possibility of seeking and obtaining compensation for the ill-treatment, with a level of compensation awarded at domestic level commensurate to the alleged violation (see Gäfgen v. Germany [GC], no. 22978/05, §§ 116 and 118, ECHR 2010).

87. In relation to compensation, the Court reiterates that in the event of a breach of Articles 2 and 3 of the Convention, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should, in principle, be available as part of the range of possible remedies (see McGlinchey and Others v. the United Kingdom, no. 50390/99, § 66, ECHR 2003-V).

(b) Application of the general principles

(i) Effective investigation

88. As to the existence of a thorough and effective investigation, the Court observes that the applicant was a civil party to criminal proceedings initiated against a police officer for the use of excessive force against him. The trial court recognised the State official’s guilt and sentenced him to imprisonment.

89. In the light of the above, the Court is satisfied that the above mechanism provided an investigation into the alleged ill-treatment in compliance with the standards of Article 3 of the Convention.

(ii) Award of compensation

90. The applicant initiated civil proceedings against the State for pecuniary and non-pecuniary damages. He relied on the judgment of the trial court which had found the police officer guilty of willful ill-treatment. He also relied on various tort liability provisions of the Civil Law (see paragraph 23 above).

91. In relation to the claim for pecuniary damages, the Court observes that in the civil proceedings referred to above the applicant was partly successful to the extent that he recovered his medical expenses (see paragraph 26 above). As far as it may be understood from the applicant’s observations that he was dissatisfied with the amount of compensation for pecuniary damage (see paragraph 78 above), the Court reiterates that the domestic courts are clearly in a better position to determine the existence and quantum of such damages (see Burdov v. Russia (no. 2), no. 33509/04, § 100, ECHR 2009). In the present case the Court sees no reason to call into question the domestic courts’ assessment of the evidence and their conclusions in that regard.

92. Turning next to the availability of non-pecuniary damages, the Court observes that the remainder of the applicant’s claim was dismissed by the appellate court on the grounds that it could not establish the necessary conditions of tort liability under section 2349 of the Civil Law for mutilation and disfigurement (see paragraph 27 above).

93. According to the applicant, the civil courts had to rely on the findings of the criminal courts and award him non-pecuniary damages. The Government however noted the strictly distinct nature of criminal and civil proceedings, and blamed the applicant for diminishing his prospects of successful redress by relying on a specific tort liability provision under section 2349 of the Civil Law (see paragraph 85 above).

94. The Court does not consider that it should make an assessment on the question to what extent under domestic law civil courts in damages proceedings were bound by criminal courts’ findings, or whether in the present case the actions of a State official could have triggered tort liability under section 2349 of the Civil Law for disfigurement. In this connection, the Court reiterates that it is primarily for the national authorities, notably the courts, to resolve problems with the interpretation of national legislation (see, among other authorities, Perez v. France [GC], no. 47287/99, § 82, ECHR 2004-I). What the Court finds important to assess is whether, given that in the civil proceedings the applicant brought to the domestic court’s attention an “arguable complaint” under the Convention, national law did allow the substance of that complaint to be dealt with and reparation to be made for the non-pecuniary damage caused (see, mutatis mutandis, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI). To that effect the Court will examine in turn the mechanisms which, according to the Government, provided or could have provided more success to the applicant’s claim for non-pecuniary damages for his Article 3 grievances (see paragraph 73 above).

(α) Strict liability provision under the Constitution

95. As to the Government’s first argument that the applicant had to claim compensation under Article 92 of the Constitution, the Court reiterates at the outset that the issue of exhaustion of remedies is normally determined by reference to the date the application was lodged with the Court, unless the specific circumstances of a case justify an exception (see Baumann v. France, no. 33592/96, § 47, ECHR 2001-V (extracts)).

96. In the present case the final decision in the compensation proceedings in the applicant’s case was adopted in February 2007 and the application was lodged in July 2007. The Court notes that even though the first-instance court had in February 2006 awarded the applicant non-pecuniary damages under, inter alia, Article 92 of Constitution (see paragraph 24 above), that judgment was quashed by a higher court on the grounds that the conditions of liability had not been met (see paragraph 26 above).

The Court further notes that in the case of Bazjaks v. Latvia (no. 71572/01, § 133, 19 October 2010), the Government failed to demonstrate that claiming compensation under Article 92 of the Constitution was an effective remedy with regard to Article 3 complaints. In the present case, however, the Government referred to a judgment in one of the “Talsi tragedy” cases (see paragraph 43 above). That example of case-law shows that it was not until 2009 that the Senate, in a plenary session, decided for the first time the legal grounds for awarding compensation for non-pecuniary damage caused in the circumstances that happened before the Convention came into effect. Noting that the general statutory provision providing the right to claim non-pecuniary damages did not have retroactive effect prior to 1 March 2006 (see paragraph 31 above), at the time the applicant’s case was reviewed by the civil courts the legal grounds for claiming non-pecuniary damages cannot be established in cases where, as in the case of the applicant, specific tort liability provisions could not be invoked.

97. Noting that there are no examples of domestic case-law in which the national courts had at the material time applied Article 92 of the Constitution alone for awarding non-pecuniary compensation, the Court is not persuaded that at the relevant time that remedy was effective and available to the applicant in theory and practice.

(β) General tort liability provision under the Civil Law

98. As regards the Government’s next argument that the applicant had failed to rely on section 1635 of the Civil Law (as effective from 1 March 2006) and claim compensation for non-pecuniary damage in the civil courts, the Court reiterates that, as it had been confirmed by the Supreme Court, the invoked provision did not have retroactive effect (see paragraph 31 above).

99. To the extent it could be understood from the Government’s arguments that the applicant had to rely on section 1635 of the Civil Law and institute new damages proceedings following the change in the domestic case-law in 2009 (see paragraphs 43-44 and 84 above), the Court reiterates that the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, examining whether, given all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see Akdivar and Others v. Turkey, 16 September 1996, § 69, Reports of Judgments and Decisions 1996-IV).

100. As held above, at the material time, i.e. before March 2006, the applicant invoked damages proceedings which provided him a redress to his pecuniary losses (see paragraph 91 above). There were no other provisions which, if relied on by the applicant before 1 March 2006, would have given him more success in obtaining pecuniary or non-pecuniary damages.

101. Furthermore, the Court emphasises that the applicant sought non-pecuniary damages for willful ill-treatment by State officials in breach of Article 3. Given the fundamental importance of the prohibition of torture and inhuman and degrading treatment (see, for example, Jeronovičs v. Latvia, cited above, § 105), it would be even more important that the authorities put in place a compensatory remedy the exhaustion of which does not impose a disproportionate burden on the applicant. To this effect, the Court notes its findings in relation to the length of the compensatory remedy the applicant had already exhausted (see paragraphs 64-69 above) and does not observe that there were any mechanisms in place which had allowed the domestic courts to expedite any subsequent civil proceedings. In these circumstances, the Court considers that the requirement for the applicant to bring further civil proceedings would impose on him a disproportionate burden.

102. It follows that the Government’s preliminary objection of non-exhaustion of domestic remedies must be dismissed.

103. In the light of the above, the Court dismisses the Government’s objection that the applicant had failed to exhaust domestic remedies.

104. The foregoing considerations are sufficient to enable the Court to conclude that the applicant was not provided with a remedy within the meaning of Article 13 of the Convention by which he at the material time could obtain appropriate redress for his Article 3 grievances.

105. Accordingly, there has been a violation of Article 13 in conjunction with Article 3 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

106. Lastly, the applicant also made other complaints under Articles 3 and 5 of the Convention in relation to facts which had occurred before the Convention entered into force in respect of Latvia on 27 June 1997.

107. 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 remaining complaints are incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

108. 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

109. The applicant claimed 300,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.

110. The Government contested this claim.

111. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects the claim. On the other hand, it awards the applicant EUR 9,200 in respect of non-pecuniary damage.

B. Costs and expenses

112. The applicant also claimed LVL 75 (EUR 107) for the costs and expenses incurred before the domestic courts.

113. The Government contested this claim, arguing that the applicant had failed to prove that he had actually incurred the expenses claimed.

114. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, given that no documents were submitted pertaining to the expenses claimed, the Court rejects the claim.

C. Default interest

115. 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. Joins to the merits the Government’s preliminary objection in relation to the admissibility of the complaint about the alleged violation of Article 13 in conjunction with Article 3 of the Convention, and dismisses it;

2. Declares the application admissible regarding the complaints under Article 6 (reasonable time requirement) and Article 13 in conjunction with Article 3 of the Convention, and the remainder of the application inadmissible;

3. Holds that there has been a violation of Article 6 of the Convention;

4. Holds that there has been a violation of Article 13 in conjunction with Article 3 of the Convention;

5. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 9,200 (nine thousand two hundred 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;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 12 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Angelika Nußberger
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> KIRINS v. LATVIA - 34140/07 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2017] ECHR 16 (12 January 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/16.html Cite as: [2017] ECHR 16, CE:ECHR:2017:0112JUD003414007, ECLI:CE:ECHR:2017:0112JUD003414007