TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): I would like to draw attention that this section includes very broad formulation, namely the criminal proceedings may be reopened if it has been determined that lawful grounds for decision to terminate proceedings did not exist, or if new circumstances have been disclosed.
AP1 (Applicant): As the unilateral declaration in the present case admits that the physical treatment of the applicant by the police officers and the effectiveness of the investigation of the applicant's complaints did not meet the standards enshrined in Article 3, thus this unilateral declaration suggests that lawful grounds for adoption of the decision to terminate the criminal proceedings had not existed in the present case, so it corresponds with section 393 of the criminal procedure law.
AP1 (Applicant): So although the Article 3 in the present case requires an official investigation of the applicant's complaints, in practice it never took place.
AP1 (Applicant): As we know that firstly the police office on 19 March 2001 had terminated the criminal proceedings against the responsible police officers due to the lack of corpus delicti, and following the unilateral declaration and the decision of the court of 10 February 2009, the Latvian Prosecutor's Office refused to reopen investigation, stating that the unilateral declaration could not constitute a ground for reopening of the criminal proceedings.
AP1 (Applicant): And no other, any other mechanism to remedy the breach of the applicant's rights was offered.
AP1 (Applicant): I also would like to mention briefly that the Prosecutor's Office refused also to reopen the criminal proceedings in which the applicant himself had been convicted.
AP1 (Applicant): In the applicant's view, these criminal proceedings were based on evidences that had been acquired using violence.
AP1 (Applicant): Thus, in the applicant's view, these criminal proceedings also should be reopened.
AP1 (Applicant): And to sum up, the refusal of the Prosecutor's Office to reopen the relevant criminal proceedings in the present case constitutes a violation of the state's procedural obligation enshrined in Article 3 of the Convention.
AP1 (Applicant): Now I would like to draw attention also to one another case.
AP1 (Applicant): It's case of Alexej Svobodrushko.
AP1 (Applicant): The applicant in the present case, Viktor Sieranovich, was arrested and tried together with another individual, Alexej Svobodrushko.
AP1 (Applicant): And the terminated criminal proceedings concerned physical violence against both these individuals.
AP1 (Applicant): It's the same decision to terminate the criminal proceedings against the responsible police officers.
AP1 (Applicant): Alexej Svobodrushko applied to the Strasbourg Court as well, but in that case, the Court adopted not decision, but judgment of 11th December 2012 and found that the investigation of the ill-treatment of Alexej Svobodrushko had not been effective and independent, and there had accordingly been a violation of Article 3.
AP1 (Applicant): Thus, firstly, there are not any doubts that the investigation in this case against Viktor Sieranovich was not effective, because it's the same investigation.
AP1 (Applicant): And secondly, I would like to draw attention that Alexej Svobodrushko is entitled, according to the Latvian law, the Latvian criminal procedure law, to renewal of criminal proceedings against the responsible police officers and criminal proceedings in which he had been convicted in connection with the Court's judgment, what is so-called newly disclosed circumstance.
AP1 (Applicant): The applicant in this case, Viktor Sieranovich, is in similar situation, but he is not entitled to reopening of the criminal proceedings.
AP1 (Applicant): I would like to say that Article 46 of the Convention, from this article, it follows that a judgment in which the Court finds a breach imposes on the respondent state a legal obligation not just to pay the sum awarded by way of just satisfaction, but also to choose general and also individual measures to put an end to the violation found by the Court and to redress so far as possible the effects.
AP1 (Applicant): And I think that the situation of the applicant cannot depend on purely procedural matter.
AP1 (Applicant): Whether a breach of the rights of the applicant is recognized by the Court's judgment or by a unilateral declaration of the government, I cannot see reasons to put applicants in the cases where the Court, where the government submitted unilateral declarations in different situation in comparison to the applicants in cases where the Court adopted judgments.
AP1 (Applicant): And I would like also to draw the attention to the terms of the Latvian government's unilateral declaration, which suggests that the government undertakes to adopt all necessary measures in order to provide an effective remedy.
AP1 (Applicant): And the decision of the Court of 10 February 2010 also recognizes the right of the applicant to exercise other appropriate remedies to obtain redress.
AP1 (Applicant): And in the applicant's view, there is a corresponding obligation of the government to provide this appropriate individual remedy.
AP1 (Applicant): I also would like to say that if the Court makes a conclusion that states have legal obligation to put an end to the breach in individual case and make reparation for its consequences, only if the Court has adopted a judgment that it unfortunately would considerably diminish the role of the unilateral declarations, which in general is a good mechanism.
AP1 (Applicant): And now I would like briefly to say some words on Article 13.
AP1 (Applicant): I agree that Article 13 of the Convention does not provide that the state shall necessarily reopen the relevant criminal proceedings in all cases.
AP1 (Applicant): But there should be a relevant mechanism, a relevant procedure for examination of an individual case.
AP1 (Applicant): In an individual case, of course, the principle of legal certainty might prevail.
AP1 (Applicant): It might be situations that statutory limitation period has elapsed already.
AP1 (Applicant): But it might be established only if the relevant proceedings take place.
AP1 (Applicant): At least this is so in the Latvian legal system.
AP1 (Applicant): It's said explicitly by the Latvian criminal procedure law that the existence of the newly disclosed circumstances shall be determined by an investigation.
AP1 (Applicant): But I also would like to explain that according to the criminal law of Latvia, a person may not be held criminally liable in most cases if two to 15 years, depending on severity of a crime, has elapsed.
AP1 (Applicant): But the length of the statutory limitation period may be established only after investigation and after conclusion as to what crime is performed, because statutory limitation periods are different for different crimes.
AP1 (Applicant): But in the present case, the prosecutor's office refused to reopen both criminal proceedings, stating that the government's unilateral declaration are not grounds for reopening the criminal proceedings, and they do not try to perform investigation to find this right balance between legal certainty and rights of the applicant.
AP1 (Applicant): And besides, if we speak about statutory limitation period, then it's only concerning the criminal proceedings against the responsible police officers, because there are no statutory limitation periods for criminal proceedings in which the applicant himself can be convicted.
AP1 (Applicant): And finally, I would like to touch briefly also the competence of the court.
AP1 (Applicant): The applicant considers that nothing prevents the court to examine the merits of his application under Article 3 to decide whether the refusal to investigate the applicant's complaints lead to a situation that general legal prohibition of torture and inhuman and degrading treatment becomes ineffective in practice.
AP1 (Applicant): And the court is also competent to review the merits of application under Article 13 of the Convention to examine whether the applicant had an effective remedy before a national authority, in order to obtain reparation of consequences of the breach of his rights.
AP1 (Applicant): It's true that the text of decision of 10 February 2009 of the court does not suggest that the court considered whether the applicant might need to claim reopening of the relevant criminal proceedings.
AP1 (Applicant): But had the court in its decision drawn attention to whether the Latvian law, namely the criminal procedure law, sections 393 and 655, provided the right of the applicant to reopen the criminal proceedings, the court probably would come to the positive answer, because the law actually provides this right.
AP1 (Applicant): As I said already, section 393 has a very broad formulation, and the meaning of section 655 of this law is also to provide reopening of criminal proceedings in all cases when the circumstances indicate that a convicted person is not guilty or testify on guilt of another person.
AP1 (Applicant): And here the unilateral declaration of the government recognizes guilt of the police officers.
AP1 (Applicant): It's a warning that the police officers acted not according to Article 3 of the Convention, and also raises doubt that the applicant's guilt in the relevant proceedings was not proved by reliable evidences.
AP1 (Applicant): Nevertheless, if the court considers that it is prevented by reason of its decision of 10 February 2009, to examine the merits of the current application, the applicant would like to ask the court to restore his application in case number 547-02 to the list of cases of the court under Article 37, paragraph 2 of the Convention.
AP1 (Applicant): The fact that the government refuses to improve the consequences of the breach of the applicant's rights, contrary to their commitment in the unilateral declaration, to adopt all necessary measures in order to provide an effective remedy.
AP1 (Applicant): In the applicant's view constitutes exceptional circumstances, I'm sorry, mentioned in Article 37, paragraph 2 of the Convention.
Dean Spielmann (JudgeP): Est-ce qu'il y a des questions de la part des juges?
Dean Spielmann (JudgeP): Tel n'est pas le cas, alors je propose qu'on continue tout de suite avec la représentante du gouvernement pour la réplique.
GR1 (Government): I fear that to some extent the arguments of the government have been misrepresented.
GR1 (Government): Let me reiterate once again, at no point we suggest that there is a difference between judgments and decision when it comes to reopening.
GR1 (Government): There is no difference.
GR1 (Government): Domestic proceedings can be reopened either when the finding of violation is in the judgment or in decision accepting declaration.
GR1 (Government): What matters is not the form, but the content.
GR1 (Government): I don't have to remind this court or the distinguished counsel for the applicant, there are numerous judgments of this court finding violation of procedural aspect of Article 3.
GR1 (Government): There are very few category of cases out of these Article 3 cases where reopening is deemed necessary.
GR1 (Government): It is highly regrettable that the number of Article 3 violations, procedural aspect violations, including in the Latvian cases, including the case of Vovruško mentioned by the applicant's representative, but unfortunately the reason for the violation of Article 3 are ineffective investigation that took place and that cannot be remedied.
GR1 (Government): If the evidence was not gathered in 1998, is there any chance an evidence could be gathered in 2008?
GR1 (Government): I highly doubt it.
GR1 (Government): Therefore as regrettable as it is, there are cases where a recognition of a violation or finding of a violation in a court judgment, in addition to the monetary compensation, is a measure to remedy the violation.
GR1 (Government): In those exceptional circumstances where finding of a violation either in a judgment or a declaration provides new information, either on the interpretation of the law or the new facts, the proceedings are reopened.
GR1 (Government): Again I can recall that in the Latin practice there are several instances where proceedings have been reopened following the finding of a violation.
GR1 (Government): In one case this court found that a court trying the applicant was not independent and impartial.
GR1 (Government): Obviously that is an exceptional circumstance that has direct impact on the status of the applicant and the proceedings was opened in the case of Lovens v. Latvia.
GR1 (Government): For example, in the case of Baltinč v. Latvia, this court indicated that the domestic court
GR1 (Government): had failed to examine a certain claim by the applicant.
GR1 (Government): Therefore this court indicated, clearly indicated something lacking in the examination of the domestic court, that the domestic court should re-examine.
GR1 (Government): Therefore the domestic proceedings were reopened.
GR1 (Government): In the case of Česniks I mentioned today, it's not only the facts and the violation contained in the judgments of the court, it's also the facts contained in the unilateral declaration that are re-examined.
GR1 (Government): So to reiterate, nothing in our position or the domestic legislation of Latvia suggests that reopening is only possible when there is a judgment of the court.
GR1 (Government): That is not the case.
GR1 (Government): Reopening is also possible where there is a decision and the examples we offered I hope clarify that.
GR1 (Government): And the second point I'd like to address at this stage is that it is clear and there's no doubt about that, that reopening is an exceptional measure in the course of execution of the court's judgments.
GR1 (Government): Therefore to claim that there is an obligation in all cases of violation to reopen domestic proceedings is manifestly misinterpreting what this conventional system is all about.
GR1 (Government): I once again repeat that reopening can be required in those particular cases where the consequences for the applicants are extremely negative or where there are obvious new information or evidence or interpretation of the law that can be examined.
GR1 (Government): But this present case is not such a case.
GR1 (Government): And I once again refer to the case of Vavruško that yes indeed he was co-accused of the applicants in the present case.
GR1 (Government): No reopening in Vavruško case either.
GR1 (Government): And Vavruško case is very well under the examination by the committee of ministers on the measures the Latvian government has taken to execute the judgment.
GR1 (Government): At no point the question of reopening has come up for the simple fact that reopening can serve no practical purpose.
GR1 (Government): And therefore in our statement we refer to the need to ensure rights that are practical and effective, not theoretical and illusory.
GR1 (Government): Reopening in these cases would in our opinion be this illusory and theoretical approach to the rights.
GR1 (Government): Just to conclude, the government maintains that in the present case there are no exceptional circumstances warranting reopening.
GR1 (Government): I once again recall that the present case is only about discontinued criminal investigation into the applicants ill treatment and not about the conviction of the applicants.
GR1 (Government): And I respectfully request the court to find that either the application is inadmissible or that there has been no violation.
Dean Spielmann (JudgeP): Miss Nikuļceva.
AP1 (Applicant): Of course, I am very happy that the government and I, we are on the same opinion about the Latvian criminal procedure laws, that actually it allows reopening of the criminal proceedings, not only in the case of the judgment of the court, but also in cases of unilateral declarations.
AP1 (Applicant): But here I would like to draw attention that the government's agents' opinion cannot replace what was really done by the Latvian authorities.
AP1 (Applicant): And if we look into the decision of the Latvian prosecutor's office of 20 December 2010, then the prosecutor's office refused reopening of the criminal proceedings just because the unilateral declaration is not findings of an international judicial body, and not because of other reasons as it's explicitly said in this decision.
AP1 (Applicant): And I would like also to draw attention that the fact that evidence cannot be got ahead after 17 years, that it might be difficult to perform investigation now, that maybe statutory limitation period has elapsed.
AP1 (Applicant): It's also just opinion of the government agent, because what the applicant required, applicant requires the prosecutor's office to open this investigation and to decide on these questions, to evaluate, are there any new evidences, is it possible to find any new facts during investigation?
AP1 (Applicant): And no.
AP1 (Applicant): Are there statutory limitation period or no?
AP1 (Applicant): But it never was performed, and it may not be replaced by evaluation of the agent, because the agent is not in the position to perform investigation in criminal cases.
AP1 (Applicant): And I also would like to mention that I cannot agree that the question is about minor bodily injuries of the applicant, and that the statutory limitation period has elapsed already, because the criminal case against the police officers was on exceeding of official powers, and it's absolutely another case, maybe in connection with violence or connection with torture.
AP1 (Applicant): And secondly, I would like to say about some words on negative consequences to the applicant, and here I would like again to remind that the applicant actually asked to reopen two criminal proceedings.
AP1 (Applicant): And I guess that for everybody it's clear that if we speak about the criminal proceedings in which the applicant himself had been convicted, that they concern him directly.
AP1 (Applicant): But it's of paramount importance for the applicant also to receive investigation in this case against the police officers.
AP1 (Applicant): Even at the end, maybe it really might be situations that the statutory limitation period already had elapsed.
AP1 (Applicant): Nevertheless, it's very important for the applicant to know who did it and the recognition of their responsibility.
Dean Spielmann (JudgeP): I thank the parties for their interventions.
Guido Raimondi (JudgeP): I declare open the public hearing on the merits in the case of Georgia versus Russia number two.
Guido Raimondi (JudgeP): The case was lodged with the court on 11 August 2008 on Article 33 of the Convention by the government of Georgia.
Guido Raimondi (JudgeP): The application was allocated to the fifth section of the court, pursuant to Rule 51, Paragraph 1 of the rules of the court.
Guido Raimondi (JudgeP): A chamber constituted within that section declared the application admissible on 13 December 2011.
Guido Raimondi (JudgeP): On 3 April 2012, the chamber decided to relinquish jurisdiction in favor of the Grand Chamber, none of the parties having objected to the relinquishment.
Guido Raimondi (JudgeP): On 6 March 2014, the president of the Grand Chamber granted leave to the Human Rights Center of the University of Essex under Rule 44, Paragraph 3 of the rules of the court to submit written comments as a third party.
Guido Raimondi (JudgeP): From 6 to 17 June 2016, a delegation of judges took oral evidence from 33 witnesses in Strasbourg.
Guido Raimondi (JudgeP): The government of Georgia are represented by Mr. Gocha Lordkipanidze, Deputy Minister of Justice,
Guido Raimondi (JudgeP): and by Mr. Beka Dzamashvili, government agent of Georgia
Guido Raimondi (JudgeP): at the court, assisted by Mr. Ben Emmerson, QC, Mr. Rodney
Guido Raimondi (JudgeP): Dixon, QC, counsel, and by Mrs. Tamar Rostiashvili, Mrs. Mariam
Guido Raimondi (JudgeP): Bilikhodze, Mrs. Nana Tchanturidze,
Guido Raimondi (JudgeP): and Mr. Giorgi Nakashidze, advisors.
Guido Raimondi (JudgeP): The governments of the Russian Federation are represented by Mr. Mikhail Galperin, representative
Guido Raimondi (JudgeP): of the Russian Federation at the court, assisted by Mr. Michael Swainston, QC, Mr. Paul Wright,
Guido Raimondi (JudgeP): Mr. Richard Blakeley, Mr. Edward Harrison, Mr. Khristofor
Guido Raimondi (JudgeP): Ivanyan, Mr. Vasily Torkanovskiy, Mrs. Valentina Podyukova,
Guido Raimondi (JudgeP): counsel, and by Mrs. Yana Borisova, Mr. Pavel Smirnov,
Guido Raimondi (JudgeP): Mr. Aleksandr Gorshkov, and Mr. Stanislav Shkodenko, advisors.
Guido Raimondi (JudgeP): I also welcome a group of visiting judges from Georgia and a group of visiting judges from the Russian Federation who are attending the hearing today.
Guido Raimondi (JudgeP): I would explain that in addition to interpreting in the two official languages of the court, English and French, interpreting into Georgian and Russian has been authorized for the benefit of the visiting judges from Georgia and the Russian Federation.
Guido Raimondi (JudgeP): Having consulted the representatives of the parties, I have determined the order of addresses as follows.
Guido Raimondi (JudgeP): Mr. Emmerson, for the government of Georgia, will speak first.
Guido Raimondi (JudgeP): And then Mr. Galperin and Mr. Swainston,
Guido Raimondi (JudgeP): for the government of the Russian Federation.
Guido Raimondi (JudgeP): I call Mr. Emmerson.
AP1 (Applicant): this year marks the centenary of Georgia's Declaration of Independence from Imperial Russia.
AP1 (Applicant): Ever since 1918, Georgia has striven towards building a social democracy on the European model.
AP1 (Applicant): Russia has never accepted this choice and has subjected Georgia throughout the last 100 years to various military and political campaigns aimed at crushing the spirit of democracy and independence in the country.
AP1 (Applicant): This year's centenary celebrations are sadly muted because the Russian Federation is once again in belligerent occupation of Georgian territory.
AP1 (Applicant): This occupation began as long ago as the 1990s.
AP1 (Applicant): But today's hearing is focused on events that occurred in 2008, almost exactly 10 years ago.
AP1 (Applicant): During the first week of August 2008, separatist forces in the Khinvali region of Georgia began to mobilize for a conflict.
AP1 (Applicant): They had been armed and trained by the Russian Federation and began shelling ethnic Georgian villages in the region known by Russia as South Ossetia.
AP1 (Applicant): On the evening of the 7th of August 2008, approximately 31,000 Russian ground forces entered Georgia, crossing South Ossetia and Abkhazia and moving into the rest of Georgian territory.
AP1 (Applicant): They joined Russian forces that were already deployed in those regions.
AP1 (Applicant): The Georgian civilian population was confronted by the largest and most powerful army in Europe.
AP1 (Applicant): The notion that the Russian forces were there to keep the peace is, we say, a transparent myth.
AP1 (Applicant): As the events unfolded, it became clear that far from being neutral in the conflict, Russia was, in fact, the driving force behind it.
AP1 (Applicant): Genuine peacekeepers don't bomb villages, terrorize, murder, and lock up ordinary civilians, torch their houses or steal their belongings, drive them out and occupy their lands.
AP1 (Applicant): But that's exactly how the Russian forces behaved, working hand in hand with the local militia who they controlled and let loose on the Georgian population.
AP1 (Applicant): We've seen this pattern in other conflicts.
AP1 (Applicant): In the Balkan Wars, it came to be known by the term ethnic cleansing.
AP1 (Applicant): The evidence proves the commission of widespread convention violations, both during the two days of active hostilities and after hostilities had ceased, as Russian forces advanced unopposed through large swathes of Georgia, even threatening to take the capital, Tbilisi.
AP1 (Applicant): Between the 8th and 12th of August, Russian military aircraft carried out more than 100 aerial attacks on Georgian territory.