Excessive length of preliminary investigation and entitlement to legal assistance in the preliminary examination
JUDGMENT
Kalēja v. Latvia 5/10/2017 (no. 22059/08)
SUMMARY
Entitlement of a witness to a preliminary examination. Excessive length of the preliminary examination and no legal assistance at this stage in the absence of accusation against him. Infringement of the right to a fair trial regarding the duration of the investigation, but no violation of his access to the legal assistance due to the lack of irreversible influence of the criminal proceedings.
PROVISION
Article 6
PRINCIPAL FACTS
The applicant, Ineta Kalēja, is a Latvian national who was born in 1961 and lives in Rīga.
An accountant for a building management company, she had criminal proceedings instituted against her in January 1998 for manipulating data in order to conceal illicit cash withdrawals. She was not informed of this decision. From the start of the criminal investigation she was however questioned about her involvement in the alleged misappropriation of the company’s funds and then on five more occasions in the following years. Throughout this time she was told that she had the status of a witness, which meant that she had certain rights, including the right not to testify against herself, but that she was not entitled to legal assistance. The pre-trial investigation took seven years and nine months to complete, during which time many witnesses were questioned and a number of audits carried out. Furthermore, in 2000, 2001 and 2002 the prosecuting authorities sent the case back to the police to carry out another audit, collect further evidence and question more witnesses as they had found that the investigation had been deficient and chaotic.
Ms Kalēja was eventually officially charged in January 2005 with 19 episodes of misappropriation of funds. She thus became an accused person in the criminal proceedings and was prohibited from changing her place of residence. She was also informed of her right to have a lawyer, although in subsequent interviews she did not request that a lawyer be present.
Ms Kalēja did not confess to the crime at any stage of the proceedings. She made the same statements throughout the pre-trial investigation and trial. In particular, she admitted to three instances of taking cash and annulling the relevant cash transactions but denied that she had misappropriated those funds.
Those statements were not cited as evidence when Ms Kalēja was subsequently convicted at first instance in November 2006. The first instance court based its decision on witness testimony, the results of the audits, the electronic cash register records and relevant bills and receipts. She was given a three-year suspended prison sentence, which was subsequently reduced to two years on appeal. The appeal court also quashed five out of the 19 episodes of misappropriation for lack of evidence. Ms Kalēja’s appeal on points of law was ultimately dismissed in November 2007 by the Senate of the Supreme Court.
THE DECISION OF THE COURT
The length of the proceedings
The Court acknowledged that Ms Kalēja had not actually officially been informed of the charges against her before 2005. However, the authorities had been looking into specific allegations against her from the very first day of the criminal investigation in January 1998. The police had therefore considered her a suspect from 1998 and had continued to do so during the entire pre-trial proceedings, as evidenced by the fact that she had been questioned – albeit with the procedural status of a witness – on a number of occasions throughout that time. Accordingly, the Court considered that the criminal proceedings had begun in January 1998 and lasted until November 2007, when the Senate of the Supreme Court had dismissed Ms Kalēja’s appeal on points of law. The proceedings had thus lasted nine years and ten months in total.
More than seven of those nine years and ten months had been taken up by the authorities completing the pre-trial investigation. That had not been because the case was complex or involved many witnesses, but because the prosecutors had identified serious shortcomings in the investigation and on three occasions had sent the case back to the police for further investigation. Bearing in mind that Ms Kalēja had not significantly contributed to that delay and given what had been at stake for her, namely a prison sentence, the Court found that the overall length of the proceedings had been excessive, in breach of Article 6 § 1.
The legal assistance
The Court found that Ms Kalēja’s right to legal assistance had been restricted from January 1998 – when she was given the status of witness – to January 2005 – when she had become an accused person in the criminal proceedings, because at that time domestic law did not provide for the right to a lawyer for witnesses. Furthermore, the Court could not see any compelling reason to justify such a restriction during that time.
However, although Ms Kalēja had not been able to have the benefit of the rights provided for suspects under domestic law, she had enjoyed other procedural safeguards. In particular, she had been informed of her rights as a witness throughout the investigation, including her right not to testify against herself. Not having a lawyer had not apparently undermined that right as Ms Kalēja had maintained her defence position throughout the proceedings. Besides, she had not been held in detention during the investigation, and had not therefore been prevented from requesting legal assistance before and after her questioning with the police, if she had wished to. She had also been given ample opportunity to contest the evidence used against her during the pre-trial investigation and trial. She had indeed exercised that right at all stages of the proceedings, including on appeal when her conviction for five of the 19 episodes of misappropriation had been quashed. Lastly, although she could have benefited from legal assistance from the moment when she had been officially charged and become an accused, she had not requested that a lawyer be present in subsequent interviews.
Moreover, Ms Kalēja’s conviction had not been based on her statements, but on the testimony of numerous witnesses and other case material.
Consequently, although it was regrettable that Ms Kalēja could not benefit from legal assistance during the pre-trial stage from 1998 to 2005, the Court found that the overall fairness of the criminal proceedings against her had not been irretrievably prejudiced. There had therefore been no violation of Article 6 §§ 1 and 3 (c).
Just satisfaction (Article 41)
The Court held that Latvia was to pay Ms Kalēja 4,000 euros (EUR) for non-pecuniary damage(echrcaselaw.com editing).
