CEDH · CASELAW;CLIN;ENG — 10 octobre 2023

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Legal summary November 2023 Rimšēvičs v. Latvia (dec.) - 31634/18 Decision 10.10.2023 [Section V] Article 35 Article 35-1 Exhaustion of domestic remedies Effective domestic remedy New criminal procedure remedy together with civil compensation claim, an effective remedy to be exhausted for alleged breach of presumption of innocence by public officials’ statements made outside trial: inadmissible Facts – The applicant held the post of Governor of the Central Bank of Latvia at the material time. In February 2018 criminal proceedings were initiated against him on suspicion of bribery. Various public statements ensued made by high-ranking Latvian officials on the applicant’s culpability outside of the trial. In June 2018 the prosecutor’s office brought charges against him for aggravated bribery and in July 2019 sent the criminal case file to the District Court for trial. In September 2020 the case was still pending before that court. Law – Article   35 §   1: The Court considered that the question which remedies needed to be exhausted in respect of allegations about a violation of the presumption of innocence depended inevitably on the particular facts of and the domestic law applicable to the case. In the present case there had been no action or decision taken by the trial judge in the course of the trial itself which had had an impact on the applicant’s presumption of innocence. The issues at the heart of the applicant’s complaint had solely been the various statements that public officials had made outside of the trial. The Government had submitted that the applicant could and should have raised his complaint within the criminal proceedings under section   19(4) of the Criminal Procedure Law which had entered into force on 25   October 2018. Under that provision a complaint alleging a violation of the presumption of innocence by statements of those not involved in criminal proceedings could be submitted by the individual concerned in the course of the ongoing criminal proceedings, without waiting for the adjudication of the case. The authority in charge of the proceedings could, on the basis of a reasoned complaint by the individual concerned, acknowledge a violation of the presumption of innocence and ensure that that acknowledgement was publicised. A copy of the request should also be submitted for evaluation to the authority which could decide on the liability of the official in question. The remedy, therefore, depending on the circumstances, could also lead to the punishment of the official who had made the impugned statement. That provision had been specifically introduced to provide an effective domestic remedy for alleged violations of the presumption of innocence caused by statements of those not involved in criminal proceedings, in accordance with the relevant requirements of EU Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings and having regard to the Court’s case-law. The Court observed that, if there were acknowledgement by the authority in charge of the criminal proceedings under section 19(4) of the Criminal Procedure Law, a civil claim on the basis of the Civil Law would serve as a supplementary element through which a person could obtain compensation. Various procedures for acknowledging or putting an end to the infringement of the presumption of innocence in the context of criminal proceedings together with civil-law remedies had been considered by the Court to be effective within the meaning of the Convention. In the present case, such acknowledgement could be obtained through the use of section   19(4). A complaint thus under that provision together with a civil claim for compensation under the Civil Law could be considered an effective domestic remedy for the alleged breach of the presumption of innocence. While the requirement for the applicant to exhaust domestic remedies was normally determined with reference to the date on which the application was lodged with the Court, there might be exceptions justified by the particular circumstances of a case. In the instant one, although section   19(4) had entered into force four months after the applicant had lodged his application with the Court, it had already been in force for more than eight months when his case had arrived at the District Court for adjudication. Even though subsequently the judge in charge of the case had been released from her position and the proceedings had been suspended for two years following a preliminary ruling request to the CJEU by the trial court on issues relating to the immunity from legal proceedings of the governor of a central bank of a Member State, there had clearly been periods in which the applicant could have raised his complaint before the trial court pursuant to section   19(4). By doing so he could have afforded the national authorities the opportunity to acknowledge the alleged violation. Given that there were no time-limits for making use of that remedy, the applicant could still make use of it, including in an appeal against a first-instance judgment of the trial court. Depending on the findings of the court, the applicant could in addition seek compensatory redress before the civil courts in accordance with the relevant provision of the Civil Law. The Court saw no exceptional circumstances which could have absolved the applicant from the obligation to avail himself of those remedies. The existence of mere doubts regarding the effectiveness of a particular remedy would not absolve an applicant from the obligation to try it. As the applicant had not raised his complaint before the domestic authorities – in the course of the criminal proceedings and in civil proceedings – the Court, reiterating the subsidiary character of the Convention machinery, found that he had failed to exhaust domestic remedies in respect of his complaint under Article   6 §   2. Conclusion : inadmissible (non-exhaustion of domestic remedies). (See also Brusco v.   Italy (dec.), 69789/01 , 6 September 2001; Nogolica v.   Croatia (dec.), 77784/01, 5   September 2002, Legal Summary ; Nagovitsyn and Nalgiyev v.   Russia (dec.), 27451/09 and 60650/09, 23   September 2010, Legal Summary ; Łatak v.   Poland (dec.), 52070/08, 12   October 2010, Legal Summary ; Balan v.   Moldova (dec.), 44746/08, 24   January 2012, Legal Summary ; Vučković and Others v.   Serbia (preliminary objection) [GC], 17153/11 et al., 25   March 2014, Legal Summary ; Stella and Others v.   Italy (dec.), 49169/09 et al., 16   September 2014, Legal Summary ; Beshiri and Others v.   Albania (dec.), 29026/06 et al., 17   March 2020, Legal Summary ; Shmelev and Others v.   Russia (dec.), 41743/17 et al., 17   March 2020, Legal Summary ; Olkhovik and Others v.   Russia (dec.), 11279/17 et al., 22   February 2022, Legal Summary ; Rimšēvičs v.   Latvia , 56425/18 , 10   November 2022)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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