TrustHLT/LaCour huggingface dataset:
GR1 (Government): There is nothing in the criminal procedure law that would limit which facts or circumstances could be declared a sufficient basis for reopening, provided these facts or circumstances are of legal nature and significance as required by the criminal procedure law.
GR1 (Government): Indeed, I wish to draw the court's attention to the applicant's written observations of 8th May of this year, where he essentially agrees with the government's stats, and I quote, the grounds for reopening of criminal proceedings in connection with newly disclosed circumstances are rather broad, and that the relevant provisions of the criminal procedure law should be interpreted in a way that it provides for reopening of criminal proceedings following the government's unilateral declaration, end of quote.
GR1 (Government): Let me repeat, there is nothing in the Latvian domestic legislation that would prevent reopening of proceeding following the court's decision where the court accepts unilateral declarations submitted by the government.
GR1 (Government): The domestic practice supports this conclusion.
GR1 (Government): Just last year, following the court's judgment finding Article VI violation in the case of Cezniks versus Latvia, the competent authorities reopened their respective criminal proceedings.
GR1 (Government): In the framework of these reopened proceedings, the facts concerning alleged ill-treatments of the applicants are also examined.
GR1 (Government): I wish to emphasize that ill-treatments of the applicants in the Cezniks case was the subject of unilateral declaration the government submitted under Article III of the convention.
GR1 (Government): Therefore, to suggest that the government submits unilateral declarations merely to avoid responsibility is inappropriate, to say the least.
GR1 (Government): But now I wish to emphasize the following arguments.
GR1 (Government): The criminal proceedings can be reopened if the finding of the violation, be it in a court's judgment or in a decision, is of such a nature that it contains new substantial information, that is new facts or evidence that could and should be examined, and therefore the most appropriate form of redress would be reopening of proceedings and their conduct in accordance with the requirements of the convention should the applicant so request.
GR1 (Government): With these considerations in mind, let us look briefly at the cases where the reopening of proceedings following establishment of a violation has been deemed necessary.
GR1 (Government): And let us compare these sample cases with the present case.
GR1 (Government): The courts, although it clearly does not have jurisdiction to order reopening of proceedings, under certain circumstances has indicated that reexamination of the case or reopening of proceedings would constitute the most efficient, if not the only means of achieving restitutio integrum.
GR1 (Government): However, in majority of the cases where the court has acknowledged that retrial or reopening of the case would be an appropriate way of redressing the violation, concern the proceedings that entail breaches of requirements of Article 6 of the convention.
GR1 (Government): And in any case, they concern proceedings that were decisive for the status of the applicant concerned.
GR1 (Government): In the present case, such proceedings would be those that resulted in the applicant's conviction.
GR1 (Government): But as I emphasized a moment ago, the complaints related to these proceedings have been declared manifestly ill-founded.
GR1 (Government): And the present case concerns only the discontinued criminal investigation into the applicant's ill-treatment.
GR1 (Government): I also wish to emphasize that in the present case, unlike for example, the case of Cesnik's that I mentioned a moment ago, in the present case, there's no question about the impact the applicant's ill-treatment might have had on the fairness of the proceedings determining the charges brought against the applicants.
GR1 (Government): Instead, the present case bears resemblance to those Article 3 cases, such as Sapoškovs v. Latvia,
GR1 (Government): Timofejevi v. Latvia, Vovruško v. Latvia,
GR1 (Government): where the court has found that investigation into the applicant's ill-treatment by the police was ineffective, including due to significant delays and thus a violation of procedural aspect of Article 3.
GR1 (Government): In none of these Article 3 cases, the question of reopening of the respective proceedings has ever been raised during the proceedings before the court or in the context of the execution of court's judgments.
GR1 (Government): Now I wish to underline that the present case is also clearly different from the cases that reveal continuing violation, most notably a disappearance of a person, as for example, in the cases against Turkey, such as Toktul v. Turkey, CA v. Turkey,
GR1 (Government): and Taksin Açar v. Turkey.
GR1 (Government): In such cases, reopening, even after considerable time, could indeed ensure restitutio in integrum to the applicant's concerns.
GR1 (Government): In the present case, however, the applicant has failed to submit any arguments showing that he continues to suffer very serious negative consequences as a result of this continued criminal investigation.
GR1 (Government): It cannot be denied that this continued criminal investigation could have created some disappointment to the applicants, but to claim that such disappointment is anywhere near the grief and anguish suffered by the families of the disappeared persons is to manifestly misrepresent the issue.
GR1 (Government): Mr. President, the above considerations clearly show
GR1 (Government): that irrespective of the form in which the violation of the convention has been established, unilateral declaration or judgments of the court, the reopening of proceedings is an exceptional measure that in no way can be regarded as a right a person can seek protection of.
GR1 (Government): The mere fact of the existence of the courts finding a violation of the convention, or in this case, a decision accepting unilateral declaration cannot per se be considered as newly disclosed circumstances necessarily leading to the reopening.
GR1 (Government): Let me reiterate once again that the reopening of proceedings is an exceptional measure to be used when because of the facts of the particular case, no other form of redress is sufficient.
GR1 (Government): Therefore, any claims to the effect that under procedural aspect of Article 3 of the convention, there is a general obligation to reopen proceedings following finding of a violation are manifestly inadmissible, ratione materia.
GR1 (Government): Considering the facts of the present case I outlined just a moment ago, I once again wish to note that there is nothing in the present case that would qualify as exceptional circumstances warranting reopening of the discontinued criminal investigation.
GR1 (Government): I also wish to refer to the applicant's observations where he expressly seeks reopening of discontinued criminal proceedings, and I quote, in order to recognize the responsibility of the police officers and to punish them, end of quote.
GR1 (Government): This clearly illustrates that the applicant aims not at elimination of continuing negative circumstances if such existed at all, but at punishing third parties, which in itself, of course, is incompatible with the provisions of the convention.
GR1 (Government): To summarize, there is nothing in the convention or the court's case law that creates an obligation for the domestic authorities to reopen proceedings whenever there's a violation of the convention established.
GR1 (Government): Reopening is and remains an exceptional measure, and in the present case, there are no exceptional circumstances that would justify this measure.
GR1 (Government): I will now turn to the government's unilateral declaration of 30th April, 2008, in order to establish whether there is something to suggest that the government undertook obligations that go beyond those stemming from these general considerations.
GR1 (Government): That is to say, the question is whether the government, in the context of the first proceedings before the court, undertook to reopen this continued criminal investigation.
GR1 (Government): First of all, I must emphasize that the purpose of the unilateral declaration submitted in 2008 was to acknowledge a violation, to offer compensation, and as a result, to terminate the proceedings before the court.
GR1 (Government): The reason for the unilateral declaration was the fact that there were indeed significant shortcomings that occurred during the investigation of the applicant's ill treatment.
GR1 (Government): Notably, the investigation was not effective, since there were unsubstantiated periods of inactivity, and the medical evidence about the actual origin of the applicant's injuries was contradictory.
GR1 (Government): It turned out that the applicant had underwent the medical examination two days after his apprehension, when it apparently was no longer possible to determine the exact time and origin of the minor, I recall, minor bodily injuries sustained by the applicants.
GR1 (Government): In other words, already at the time of investigation, it was impossible to determine whether they had been sustained before or during the apprehension.
GR1 (Government): It must be stressed that the nature of these shortcomings are such that they cannot be remedied through repeated investigation.
GR1 (Government): That is to say, so many years after the incident, it is no longer practically possible to establish how the applicant sustained the injuries and the persons responsible.
GR1 (Government): Therefore, recognition of the violation and offer of the compensation in a unilateral declaration.
GR1 (Government): At the same time, the government has never acknowledged that any of the actions by the police officers following the applicant's apprehension in 1998 had been incompatible with the provisions of the criminal procedure law at the material time.
GR1 (Government): In other words, contrary to the applicant's allegations, neither the domestic authorities during the investigation nor the government in the unilateral declaration had ever acknowledged the guilt of the police officers because it was not established during the investigations.
GR1 (Government): Thus, having regards to the context, purpose, and contents of the government's unilateral declaration, the said declaration in no way can be interpreted as government's commitment to reopen the discontinued criminal investigation after the court had accepted this declaration.
GR1 (Government): And to be very clear, the reason the domestic authorities in the present case refused the reopening was not because the violation of the convention was established in the unilateral declaration, but because the unilateral declaration did not and, due to the nature of the shortcomings just described, could not contain any new facts or evidence that were unknown at the moment of termination of the investigation, but that could be useful in the investigation de novo to remedy these shortcomings.
GR1 (Government): At this stage, I wish to recall that, despite the fact that the criminal investigation was discontinued, the applicant still had the right to seek compensation for the alleged ill-treatment by the police officers in the course of civil proceedings.
GR1 (Government): I wish to further emphasize that the court has, on several occasions, acceded to the findings of the Latvian Supreme Court.
GR1 (Government): That's, and I quote, a decision to discontinue criminal proceedings due to the lack of corpus delicti exercises no prejudicial effect in civil proceedings.
GR1 (Government): End of quote.
GR1 (Government): I refer you to the court's judgment in the case of Y versus Latvia of 21st October, 2014, as a source of relevant case law.
GR1 (Government): Hence, a civil court could adjudicate the applicant's claim for compensation of damages in the absence of a judgment in the criminal case against the police officers, as the threshold for awarding damages in civil proceedings, of course, is lower from the one required for the establishment of criminal responsibility.
GR1 (Government): However, this remedy has never been used by the applicants, despite even the fact that the court, this court, in the decision accepting the government's unilateral declaration striking the applicant's complaints, itself has expressly recalled this possibility.
GR1 (Government): Before concluding, I will make few remarks concerning the applicant's claim for just satisfaction.
GR1 (Government): The applicant, in his claim of just satisfaction, requests, and I quote, compensation for non-pecuniary damage in the total amount of 50,000 euros.
GR1 (Government): I note that the applicant has failed to submit any additional requests for compensation of costs and expenses.
GR1 (Government): I maintain the government's observations of 24th of April, 2013, and I wish to emphasize that the applicant has failed to provide a single argument that would substantiate any causal link between non-pecuniary damage he might have suffered and the possible violation at question.
GR1 (Government): Therefore, the government invites the court to reject the applicant's claim for compensation of non-pecuniary damage as manifestly ill-founded.
GR1 (Government): I have come to the conclusion of my statement, and will now summarize the government's position and will restate the most important points.
GR1 (Government): First of all, under the convention, there is no general obligation to reopen proceedings whenever there has been a violation of the convention, because reopening is and remains an exceptional measure that in no way can be regarded as a right a person can seek to enforce.
GR1 (Government): Secondly, in the present case, the government's unilateral declaration cannot per se be considered as newly disclosed circumstances, as it contains no new facts or any other substantial information that would serve as a basis for the reopening of discontinued criminal investigation.
GR1 (Government): That is to say, the reason for the refusal to reopen the discontinued criminal investigation was not the form in which the violation of the convention was established, that is, unilateral declaration, as opposed to court's judgment, but the contents of the documents.
GR1 (Government): In other words, the fact that this particular finding of a violation did not reveal anything that could be material in the investigation.
GR1 (Government): Moreover, the applicant does not continue to suffer very serious or other negative consequences as a result of discontinued criminal investigation.
GR1 (Government): Finally, the reopening of criminal investigation about minor bodily injuries sustained by the applicants 17 years ago could not reasonably ensure restitutio in integrum to the applicants.
GR1 (Government): This purely formal reopening would be impractical and would contravene the core aims of convention to secure rights that are effective and practical.
GR1 (Government): Moreover, currently, the reopening is time-barred.
GR1 (Government): Another effective and accessible remedy, that is, request for compensation for the alleged ill-treatment in the course of civil proceedings, has never been used by the applicants.
GR1 (Government): In the light of the above mentions and taking into account the arguments contained in its written submissions, the government invites the Grand Chamber to conclude that applicants' complaints are inadmissible or, alternatively, that in the present case, there has been no violation of procedural aspects of Article 3 and Article 3.13 of the convention.
Dean Spielmann (JudgeP): I call now Miss Nikuļceva.
AP1 (Applicant): Mr. President, honorable members of the Grand Chamber of the Court, on my opinion, there
AP1 (Applicant): are two very important following questions in this case.
AP1 (Applicant): Firstly, the member states, whether the member states of the Convention, in the cases if the Court has already found a breach of the Convention.
AP1 (Applicant): If they have only obligation of payment of some sum of money, or also a legal obligation to provide individual redress, individual justice for the applicant for the consequences of the breach of his rights so far as possible in the practice.
AP1 (Applicant): And secondly, if the states have this obligation, does it extend only to the cases if the Court has adopted a judgment, or also to the cases when the states itself recognized breach of the Convention and submitted unilateral declarations?
AP1 (Applicant): Finally I would like to say some words about facts, in addition as was mentioned by the government agent.
AP1 (Applicant): The present case really is closely linked with the previous case, Yerenovich v. Latvia,
AP1 (Applicant): with application number 547-02.
AP1 (Applicant): In that case, the applicant claimed inter alia, among many other violations, that in April of 1998, following his arrest, he had been beaten by the police officers, and that the investigation into his compliance had been ineffective.
AP1 (Applicant): And I would like to mention that in that case, firstly the government submitted a proposal for friendly settlement, but the applicant decided not to accept it.
AP1 (Applicant): And one of the reasons was that the investigation of the alleged violations had not been carried out by the Latvian authorities.
AP1 (Applicant): Then the Latvian government submitted the unilateral declaration, as was already mentioned, and the Court adopted its decision of 10 February 2009, and struck out the application of its list of cases.
AP1 (Applicant): Following the decision of the Court and unilateral declaration, the applicant submitted to the prosecutor's office an application and asked to reopen both criminal proceedings.
AP1 (Applicant): The criminal proceedings in which he had been convicted, and the criminal proceedings against the responsible police officers about his physical ill treatment.
AP1 (Applicant): And the prosecutor's office refused to reopen criminal proceedings, and what I would like to underline is that the prosecutor's office refusal was on the formal grounds.
AP1 (Applicant): They performed no investigation.
AP1 (Applicant): They explained that the unilateral declaration of the government cannot be considered as findings of an international judicial body, as mentioned by the criminal law of Latvia.
AP1 (Applicant): And then the applicant applied to the Court.
AP1 (Applicant): Now I would like to say some words about excursion of domestic remedies.
AP1 (Applicant): The applicant, in this case, in the present case, had only one possible domestic remedy.
AP1 (Applicant): This is to ask to reopen the relevant criminal proceedings in connection with so-called newly disclosed circumstances.
AP1 (Applicant): And those newly disclosed circumstances in the present case are the unilateral declaration and the decision of the Court of 10 February 2009.
AP1 (Applicant): No other mechanisms exist in the Latvian law in this case for providing an investigation into the applicant's complaints about ill treatment of him by the police officers.
AP1 (Applicant): And there are no disputes that the applicant has exhausted this domestic remedy.
AP1 (Applicant): I cannot agree with the opinion of the government that the applicant had the right to lodge a civil claim in order to seek compensation for damages caused by the state police.
AP1 (Applicant): Firstly, the criminal proceedings are decisive for determination of responsibility of the police officers.
AP1 (Applicant): There cannot be investigation about physical violence against the applicant in civil proceedings.
AP1 (Applicant): And secondly, what is also very important, on 10 February 2009, it's when the court adopted the decision, the statutory limitation period for lodging a civil claim has already elapsed because the statutory limitation period is 10 years.
AP1 (Applicant): It's according to the civil law of Latvia.
AP1 (Applicant): And it's counted from April 1998 when the applicant had been beaten by the police officers.
AP1 (Applicant): Now I would like to speak about Article 3 of the Convention.
AP1 (Applicant): I think that there are no disputes that Article 3 requires that there should be an effective, independent, impartial, prompt, and subject to public scrutiny, official investigation where an individual makes a credible assertion that he has suffered ill treatment at the hands of agents of the state.
AP1 (Applicant): And in this case, the Latvian authorities never performed such official and effective investigation.
AP1 (Applicant): And the question is, was there the fact that the government in their unilateral declaration has admitted the breach of Article 3, means that Latvia, Latvian authorities, are set free from obligation to investigate the applicant's complaints about physical ill treatment on the merits.
AP1 (Applicant): And here I would like to refer to Article 1 of the Convention, which provides an obligation of the states to secure to everyone the rights and freedoms defined in the Convention.
AP1 (Applicant): And from this article, and also from the very essence of the Convention, on my opinion it follows that the investigation of the applicant's complaints on the merits may not be replaced only by money and only by recognition of the breach of the applicant's rights.
AP1 (Applicant): Thus, from Article 3, Article 3 of the Convention still enshrines an obligation of Latvian authorities to provide effective investigation, and the opposite conclusion would make the Convention rights illusory and ineffective, and in the present case, as we speak about Article 3, the general legal prohibition of torture and inhuman and degrading treatment would become ineffective in practice.
AP1 (Applicant): Now I mentioned the obligation to provide an investigation.
AP1 (Applicant): It's not the same as reopening of the criminal proceedings.
AP1 (Applicant): And I can agree that in general it's up to the government to choose a remedy, but nevertheless the government should provide at least one remedy.
AP1 (Applicant): A remedy should be there, and this remedy should be effective in law and in practice.
AP1 (Applicant): But as I already mentioned, in the present case there are no other mechanisms except of reopening of criminal proceedings.
AP1 (Applicant): To some extent, I can agree about exceptional nature of reopening of the criminal proceedings.
AP1 (Applicant): The reopening of criminal proceedings is an exceptional measure from the domestic viewpoint, in domestic legal system.
AP1 (Applicant): But a judgment of this court and also unilateral declarations are in any case exceptional situations.
AP1 (Applicant): So I cannot agree that criminal proceedings, if this is the only possibility to investigate physical violence against the applicant, should be reopened not in all cases, but also in some or exceptional cases.
AP1 (Applicant): In the present case, if this is the only way, the criminal proceedings should necessarily, mandatory, be reopened.
AP1 (Applicant): No, unfortunately I cannot agree also with the opinion of the government that only new facts or evidences that could be used in the investigation may be considered as being grounds for reopening of the criminal proceedings.
AP1 (Applicant): Obviously not only new facts or evidences, but also wrong interpretation of the law are grounds for reopening of the proceedings.
AP1 (Applicant): And it's also to the Latvian law, the criminal procedure law of the Latvia establishes that grounds for reopening of the criminal proceedings are also decisions of the Constitutional Court of Latvia, judgments of this court, and these courts do not find any new facts or evidences.
AP1 (Applicant): Besides, I also would like to say some words about the government opinion expressed in writing in their memorial, that reopening of the criminal proceedings against the police officers, in the present case is regulated not by section 655 of the criminal procedure law, that's a norm that actually was applied by the prosecutor's office, but by another norm, by section 393 of the criminal procedure law.