The ECHR found a violation of the requirements of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of Article 6 of the Convention for the Protection of Human Ri Сведения: 2018-09-03 16:39:22

The ECHR judgment of 05 October 2017 in the case of Kaleja v. Latvia (application No. 22059/08).

In 2008, the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to Latvia.

The case successfully examined the applicant's complaint about the length of the criminal proceedings against him, as well as the fact that the applicant was initially interrogated as a witness in a criminal case, without the right to legal assistance. There has been a violation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

 

CIRCUMSTANCES OF THE CASE


The applicant worked as an accountant in a construction company and acted as a cashier. In December 1997, her colleagues reported to the police that an illegal cash withdrawal had been made. On 15 January 1998 the applicant gave a written explanation to the police, and on 16 January 1998 criminal proceedings were instituted. At that time, the applicant was not informed of this decision. She was only given a summons for the conversation, and on the same date she was questioned. A record was made of the witness's interrogation, and she was informed of the rights and duties of the witness. In subsequent years she was interrogated as a witness five more times. On January 27, 2005, she was formally charged with misappropriation of funds, and she received the status of an accused. The applicant was informed of her right to counsel. In November 2006 the applicant was convicted of embezzlement, and on 29 November 2007 the Supreme Court rejected her appeal.

At the Court, the applicant complained of the length of the criminal proceedings against her and that, before 27 January 2005, she had been questioned as a witness and as such did not have the right to legal assistance.


ISSUES OF LAW


Concerning compliance with article 6, paragraph 1, of the Convention. (a) The period to be taken into account. In criminal cases, the "reasonable time" provided for in paragraph 1 of Article 6 of the Convention begins to flow from the time of the "charge" of the person. "Criminal charge" exists from the moment when a person is officially notified by the competent authority about the existence of grounds to believe that he committed the crime or from the moment when the situation of the person is "significantly affected" by the actions committed by the authorities because of suspicions against him.

The applicant was not officially notified of any charges against her until 2005. However, the domestic authorities considered the possibility of committing a crime from the very beginning of the criminal investigation. The police summoned the applicant not only on 16 January 1998, but also five more times in subsequent years to take her further testimony in connection with various episodes of alleged misuse of the company's funds.

She was also twice summoned for the confrontation. The domestic authorities had suspicions against the applicant from the first day of the criminal investigation and throughout the preliminary investigation, although her procedural status of the witness remained.

Whereas, there was a suspicion of the applicant as evidenced in particular by the decision of 16 January 1998 to institute criminal proceedings and that she was interrogated about her involvement from the very beginning of the criminal proceedings and throughout her entire situation, the current situation has influenced the applicant since January 16, 1998. Consequently, the period that must be taken into account began on January 16, 1998, and ended on November 29, 2007, when the Supreme Court rejected her cassation appeal. Thus, the criminal proceedings lasted nine years and 10 months in three instances.

(b) Reasonableness of the duration of the proceedings. It took the authorities of Latvia more than seven years and nine months to complete the preliminary investigation. Serious shortcomings in the investigation were eliminated only after the case was returned three times for additional investigative actions. Precisely because of these shortcomings, which were not resolved in time, the preliminary investigation continued exceptionally long, and not because of the complexity of the case or the participation of many witnesses. There have also been periods of inaction by domestic courts. Although the applicant was not detained at the time of the criminal charges brought against her, charges against her were threatened with imprisonment. In view of the circumstances of the case, the overall length of the criminal proceedings against the applicant was excessive.


DECISION


There has been a violation of Article 6 of the Convention (unanimously).

Concerning compliance with paragraph 1 and subparagraph "c" of paragraph 3 of Article 6 of the Convention. The situation began to affect the applicant significantly from January 16, 1998, and therefore on that date the right to legal assistance provided for in Article 6 (3) (c) of the Convention became applicable.

Domestic legislation did not provide for the right to legal assistance for witnesses during the period relevant to the circumstances of the case, and it was not disputed that the applicant, who had procedural status as a witness, was not informed of the right to legal assistance. In the absence of "urgent reasons", the Court had to conduct a very rigorous analysis of the overall assessment of the fairness of the proceedings. The new Criminal Procedure Law, which entered into force on October 1, 2005, directly provides for the right of witnesses to legal assistance.

The applicant's testimony remained unchanged during the preliminary investigation and the trial. She did not confess to committing this crime at any stage of the proceedings. Her testimony was not used as evidence against her. The applicant's conviction was based on the testimony of numerous witnesses and other case materials. She was given the opportunity to challenge the evidence used against her during the preliminary investigation and the trial. She used her rights in this regard at all stages of the proceedings. Although it is regrettable that the applicant could not avail herself of legal assistance at the pre-trial stage, the general fairness of the proceedings was not irreparably diminished by the lack of legal assistance at this stage.


DECISION


The requirements of Article 6 of the Convention were not violated (unanimously).


COMPENSATION


In the application of Article 41 of the Convention. The Court awarded the applicant EUR 4,000 in respect of non-pecuniary damage.

 

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