RIMŠĒVIČS v. LATVIA

 
 
 
Communicated on 13 May 2019
 
FIFTH SECTION
Application no. 56425/18
Ilmārs RIMŠĒVIČS
against Latvia
lodged on 28 November 2018
STATEMENT OF FACTS
1.  The applicant, Mr Ilmārs Rimšēvičs, is a Latvian national, who was born in 1965 and lives in Langstiņi. He is represented before the Court by Mr S. Vārpiņš, a lawyer practising in Riga.
A.  The circumstances of the case
2.  The facts of the case, as submitted by the applicant, may be summarised as follows.
3.  The applicant is the Governor of the Bank of Latvia (Latvijas Banka). He is also a member of the Governing Council of the European Central Bank.
1.  Criminal proceedings against the applicant
4.  On 15 February 2018 the Bureau for the Prevention and Combating of Corruption (Korupcijas novēršanas un apkarošanas birojs – the “KNAB”) instituted proceedings against the applicant on suspicion of bribery in relation to the events that had taken place in 2013-2014.
5.  On 16 February 2018 the applicant’s home and office were searched while he was abroad. Investigator A.R. called to inform him that he had to appear before the KNAB.
6.  On 17 February 2018 the applicant arrived in Latvia and, on his own volition, together with a lawyer, arrived at the KNAB. Upon his arrival, at 6.14 p.m., the applicant was arrested. Between 6.16 and 6.59 p.m. the investigator drew up an arrest record specifying that a witness had identified him as perpetrator. The applicant signed the record, noting that his arrest was unjustified. The applicant referred to Article 5 of the Convention and requested to be immediately brought before an investigating judge.
7.  The applicant was questioned and involved in other investigative activities from 6.16 p.m. until 10 a.m. the following day.
8.  On 18 February 2018 the applicant was transported to and placed in a short-term detention cell, where he remained for a further period of thirty hours, that is, until the expiry of the time-limit for arrest without a judicial warrant. According to the applicant, during those thirty hours no further investigative activities were carried out in his presence.
9.  On 19 February 2018, at 4.50 p.m. the applicant was released.
10.  On the same day, at 5.51 p.m., the applicant was officially declared a suspect in the criminal proceedings and several restrictive measures were imposed on him (a prohibition to hold office, an obligation to pay surety of 100,000 euros (EUR), a prohibition to leave the country without prior authorisation, and a prohibition to approach certain persons). The prohibition to hold office has since been removed by the judgment of the Court of Justice of the European Union 26 February 2019.
2.  Review of the applicant’s complaints
11.  In reply to the applicant’s complaint (see paragraph 6 above), on 21 February 2018, the investigator issued a decision. She considered that the applicant’s request to be brought before an investigating judge had not been justified. The Criminal Procedure Law did not provide for such a possibility. At the same time, she explained that the applicant could lodge a complaint with a supervising prosecutor against this decision (and about any action taken by her) within ten days of its receipt.
12.  On 22 February 2008 the applicant lodged a complaint with the supervising prosecutor about the alleged unlawfulness of his arrest.
13.  On 13 March 2018 the supervising prosecutor dismissed the applicant’s complaint. The domestic forty-eight hours’ time-limit had not been breached. Article 5 § 1 (c) of the Convention had been complied with as the applicant had been released. Article 5 § 4 was only applicable in domestic review proceedings before a court. Moreover, she noted that the applicant had not lodged a complaint against the 21 February 2018 decision.
14.  On 23 March 2018 the applicant lodged a complaint with a superior prosecutor. He explained that he had received the 21 February 2018 decision only on 26 February 2018, that is, after having lodged the complaint about the alleged unlawfulness of his arrest.
15.  On 23 April 2018 the superior prosecutor dismissed the applicant’s complaint. He explained that a suspect had to be brought before an investigating judge within 48 hours of his arrest only if further deprivation of liberty was to be applied. In compliance with section 268(2) of the Criminal Procedure Law, the applicant had been declared a suspect and had been released. There had been no breach of Article 5 of the Convention since the applicant had been released and he could have lodged a complaint with the investigating judge by himself.
16.  By a final decision of 28 May 2018 another prosecutor upheld the previous replies and dismissed the applicant’s complaint.
B.  Relevant domestic law
17.  The relevant sections of the Criminal Procedure Law (Kriminālprocesa likums) provide as follows:
Section 263 – Arrest
“Arrest is the deprivation of the liberty of a person, for a period of time of up to 48 hours, without a decision of an investigating judge, if there are grounds for arrest.”
Section 264 – Grounds for Arrest
“(1) A person may be arrested only if there are reasons to believe that a criminal offence has been committed for which a punishment of deprivation of liberty may be applied, and if there are one of the following grounds:
...
2) a person has been indicated as the perpetrator of a criminal offence by a victim or another person who saw the event or directly acquired such information in another manner;
...”
Section 268 – Time-limit for Arrest
“(1) The person conducting the proceedings shall without delay, but not later than within 48 hours, decide [whether or not] to declare the arrested person as a suspect or an accused and to impose a restrictive measure.
(2) After the arrested person has been declared as a suspect or an accused and, if it is necessary, his or her questioning, the person directing the proceedings shall without delay decide to release such person from a short-term detention facility if such restrictive measure has been applied, which is not related to the deprivation of liberty.
(3) If the arrested person has been declared as a suspect or an accused and, in case of necessity interrogated, but the restrictive measure selected by the person directing the proceedings is related to the deprivation of liberty, the person may be placed in a short-term detention facility until he or she is brought before an investigating judge, taking into account that the 48-hours’ time-limit runs from the time of the actual arrest.”
COMPLAINTS
18.  The applicant complains that his arrest was not made in accordance with law and that he was not immediately brought before the investigating judge to challenge the arrest despite his explicit request. He relies on Article 5 §§ 1 (c) and 3 of the Convention in this respect.
QUESTIONS TO THE PARTIES
1.  Was the applicant deprived of his liberty “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention (see Creangă v. Romania [GC], no. 29226/03, § 84, 23 February 2012, and Mooren v. Germany [GC], no. 11364/03, §§ 72‑81, 9 July 2009)?
 
2. In particular, was the applicant’s detention from 10 a.m. on 18 February 2018 and onwards free from arbitrariness and was it necessary in the circumstances of the case (see, for a recent authority, S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, §§ 75-77, 22 October 2018, with further references)?
 
3.  Was the applicant brought promptly before a judge or other officer authorised by law to exercise judicial power, as required by Article 5 § 3 of the Convention (see Gutsanovi v. Bulgaria, no. 34529/10, §§ 153-55 and 157-58, ECHR 2013 (extracts), and Döner and Others v. Turkey, no. 29994/02, §§ 53-54 and 57-58, 7 March 2017)?
 
4.  Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention (see Döner and Others v. Turkey, no. 29994/02, §§ 63 and 68, 7 March 2017, and Petkov and Profirov v. Bulgaria, nos. 50027/08 and 50781/09, §§ 66-67, 24 June 2014)?

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