CEDH · CASELAW;CLIN;ENG — 18 janvier 2007

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .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 } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 93 January 2007 Estrikh v. Latvia - 73819/01 Judgment 18.1.2007 [Section III] Article 8 Article 8-1 Respect for family life Respect for private life Prohibition of long-term family visits to detained applicant and his subsequent deportation: violation   Facts : The applicant arrived in the Republic of Latvia as a member of the ex-USSR armed forces located in the territory of Latvia. He lived with a Latvian citizen and had a child with her. After military forces were withdrawn from Latvia, the applicant lived there on the basis of a temporary residence permit, and, upon expiry of the residence permit, he left Latvia. Within a five year period he visited Latvia three times with a visa. With the validity of the last visa having expired the applicant continued tolivein Latvia illegally. He was apprehended by the police and taken into custody on suspicion of having committed robbery. Criminal proceedings were brought against him. He spent the whole period of his detention from February 1998 to August 2002 in a remand prison, where long-term family visits were prohibited. On 11   June 2002 a regional court found the applicant guilty of robbery and sentenced him to four years and six months' imprisonment. It was decided that on his release from prison, the applicant would be expelled from Latvia. The applicant appealed. While his appeal was still pending he was deported to the Russian Federation. Law : Article   8 – Applicant's right to long-term visits : When the applicant was arrested, he had been living in a partnership for more than five years. In an earlier case the Court had already expressed doubts as to the compatibility of national regulation with the requirements of Article   8(2). Conclusion : violation (unanimously). Applicant's expulsion from Latvia :According to the wording of the decision of the Citizenship and Migration Authority (CMA) of 29   July   2002, the applicant was expelled pursuant to Article   24of the Criminal Code on the basis of the judgment ordering his deportation from Latvia. There was no reference to Article   38   of the Law on Entry and Residence in the Republic of Latvia in the decision, which should have been there if the applicant was to be expelled because of the administrative provisions regarding the entry and stay of foreigners in Latvia. The Court therefore concludes that the applicant was expelled on the basis of the judgment of 11 June 2002. The applicant appealed this judgment. According to Article   357 of the Criminal Procedure Code, the judgment had not become final as his appeal was still pending. Thus, there was no lawful basis for the applicant's deportation and it was contrary to the requirements of Article   48 of the Law on Entry and Residence in the Republic of Latvia of Foreign Citizens and Stateless Persons. It follows that the applicant's deportation was not “in accordance with law” and as such contrary to the requirements of Article   8. Even considering that the applicant was expelled, as suggested by the Government, in the course of the administrative proceedings, the Court notes that he appealed against the decision of the CMA to the Central District Court of the City of Riga. The court required rectification of the form of the appeal, setting a time-limit for it. However, the applicant was expelled without being given a possibility to rectify the deficiency. Accordingly, his expulsion while his appeal against the decision of the CMA was still pending was not “in accordance with law” either. Conclusion : violation (unanimously). Article   5 – The Court notes that period to be taken into consideration for the examination of this complaint began on 19   February   1998, when the applicant was arrested, and lasted until 11   June   2002, when the Riga Regional Court delivered its judgment, that is four years, three months and 20 days. i . Applicant's detention between 20   February 1998 and 20 April 1999 The Court noted that a preventive measure was imposed on the applicant on 20 February 1998 by a judge of the district court. Thereafter, his detention had been periodically extended by a judge of the district court until 20 April 1999. The reasons given in all the orders extending the applicant's pre-trial detention were brief and abstract. The orders had been drafted using a standard form. They repeated from one order to the next the same grounds for detention in the same words. The reasons which might have justified the applicant's initial detention became less relevant with time. The Court could accept that, as submitted by the Government, the fact that the applicant resided in Latvia illegally could have been one of the specific reasons for his continued detention. However, it was not mentioned in any court order. ii . Applicant's detention between 21   April 1999 and 23   August   2000 The Court further observed that between 21   April 1999, when the order authorising his detention had expired, and 23   August 2000, when the investigating prosecutor decided to refuse to release the applicant, he was kept in prison on the basis of a provision which the Court had previously found to be so vague that it raised doubts as to its precise implications and was open to more than one interpretation. It did not clearly state that there was a requirement to keep the defendant in detention, still less that it was possible to do so without a warrant. In reality the automatic extension of the applicant's pre-trial detention during this period of time was the result of a generalised practice on the part of the Latvian authorities which had no precise basis in legislation and had clearly been designed to compensate for the deficiencies in the Criminal Procedure Code. iii . Applicant's detention between 23   August and 7   September 2000 The decision refusing the release of the applicant was taken by the investigating prosecutor on 23 August 2000. It is true that in accordance with Article   1(1) of the Law on Public Prosecutor's Office, a prosecutor can be regarded as an “officer authorised by law to exercise judicial power”. However, in the instant case, the prosecutor in charge of investigation exercised concurrent investigating and prosecuting functions as he drew up the indictment and represented the prosecuting authorities before the first and second instance trial court. Thus his status could not offer guarantees against arbitrary or unjustified continuation of detention as he was not endowed with the attributes of “independence” and “impartiality” required by Article   5(3). iv .   Applicant's detention between 7 September 2000 and 11   June   2002 The judge of the Riga Regional court gave no reasons justifying the applicant's continued detention. The Court considers that the suspicion that the applicant had committed a crime, which was part of a complex criminal case, and the fact that the applicant was residing in Latvia illegally might have justified his continued detention. However, the judge of the Riga Regional court said nothing about these reasons. Furthermore neither the applicant nor his defence counsel ever had a chance to comment in this respect. Moreover, it took two years for the first instance court to commence adjudication of the case. This was contrary to the time-limits set by Article   241 of the Criminal Procedure Code and thus infringed the principle of legal certainty protected by the Convention. Conclusion : violation (unanimously). Article   41 – EUR 5,000 for non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes