Euroopa Inimõiguste Kohus
18.01.2007
Facts
The applicant arrived in 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 After military forces were withdrawn from Latvia, the applicant lived there on the basis of a temporary residence permit, and, upon expiry of the residence permit, he left Latvia.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 5-year period he visited Latvia 3 times with a visa. With the validity of the last visa having expired the applicant continued to live in Latvia. 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 4 years and 6 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 Russia.
Complaint
The applicant complained that during the pre-trial investigation he was not permitted to exchange correspondence with his relatives and to receive long-term visits from his partner through the whole period of his detention and that he was unlawfully deported from Latvia, in breach of Article 8 of the Convention.
The Court also considered it appropriate to examine the applicant's complaints under Article 5 about the excessive length of his detention on remand and its unlawfulness between April 1999 until August 2000 under Article 5 (3) of the Convention.
Court’s ruling
The applicant was expelled based on 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 based on the judgment of June 2002. The applicant appealed this judgment. According to 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. It follows that the applicant's deportation was not “in accordance with law” and as such contrary to the requirements of Article 8.
Regarding the long-term visits, applying the first criterion of the foreseeability test to the present case, the Court notes that the restriction on long-term visits by his partner and their child had some basis in national law applicable at the time, however, the Court reiterated that it had already expressed doubts as to the compatibility of national regulation with the requirements of Article 8. Regulations were not accessible to the public and thus the applicant could not foresee its application. Thus, there was a breach of Article 8.
The Court noted several issues with the applicant's pre-trial detention, including the routine and abstract justifications provided by district court judges, the lack of legal basis for detention between April 1999 and August 2000, the decision to refuse release by an investigating prosecutor lacking the requisite independence and impartiality between, and the absence of reasoning from the national court for continued detention until June 2002, compounded by the lengthy delay in commencing the trial. Thus, the Court found a violation of Article 5.