Last Updated on October 3, 2020 by LawEuro
FIFTH SECTION
DECISION
Application no. 35198/13
Olga PERŠTEINA
against Latvia
The European Court of Human Rights (Fifth Section), sitting on 2 April 2019 as a Committee composed of:
André Potocki, President,
Mārtiņš Mits,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 13 May 2013,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Olga Peršteina, is a Latvian resident, who was born in 1973 and lives in Stopiņi parish. She does not hold Latvian citizenship.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. By a final decision of 5 July 2011 the applicant was convicted of inflicting moderate bodily injuries on a minor. She was sanctioned to community service of 180 hours and ordered to pay compensation of 1,126.70 Latvian lati (LVL, approximately EUR 1,603) to the victim.
4. In 2014 the applicant’s advocate lodged an application for de novo examination of the case on the basis of chapter 63 of the Criminal Procedure Law (see paragraph 10 below). He argued that the applicant had not received the benefit of all reasonable doubts. The courts had based their findings on conflicting and inconclusive evidence and had not explained why certain evidence was considered to have stronger weight. On 11 November 2014 the Supreme Court dismissed the application noting that the evidence had been properly assessed and the decisions were well reasoned. There were no breaches of the Criminal Law or the Criminal Procedure Law.
5. On 18 January 2011 the applicant applied for Latvian citizenship. On 17 August 2011 her application was refused with a reference to the Citizenship Law, which lists criminal conviction as an obstacle for obtaining Latvian citizenship. The decision stated that an appeal could be lodged before the Administrative District Court. It also stated that the applicant could reapply after the criminal record was removed.
6. On 21 September 2011 the applicant was sent a bailiff’s notification inviting her to pay the compensation awarded to the victim by 13 October 2011.
7. On 17 April 2013 the bailiff reminded the applicant that she had failed to pay the judgment debt. The applicant was invited to pay the debt by 6 May 2013. This notice also indicated that the recovery of said debt would be made from an apartment belonging to the applicant. By this notice the applicant was prohibited from alienating, placing a lien, or transferring the possession of this apartment to another person.
8. On 2 April 2014 the bailiff sent the applicant a repeated invitation to pay the debt so that it would not be recovered from her immovable property. The new deadline for compliance was set at 21 April 2014. The bailiff also informed the applicant of her right to apply to the court seeking either postponement of the enforcement or its division into instalments.
9. On 7 August 2018 the bailiff notified the parties to the proceedings that the debt had been paid. On 16 October 2018 the applicant informed the Court that all restrictions placed on her immovable properties, bank accounts and limited liability companies had been removed.
B. Relevant domestic law
10. Chapter 63 of the Criminal Procedure Law regulates the procedure on reviewing judgments and decisions which have entered into force. It provides that a decision or judgment that has not been examined in cassation proceedings and has become final may be examined de novo if: (1) the judgment or decision has been adopted by an unlawful composition of the court; (2) a judge has been absent during the court deliberations; or (3) there have been breaches of the Criminal Law and significant breaches of the Criminal Procedure Law that have exacerbated the situation of the convicted person (for more information see Dāvidsons and Savinsv. Latvia, nos. 17574/07 and 25235/07, §§ 24-26, 7January 2016).
11. Section 11 of the Citizenship Law lists the restrictions on naturalisation. It, inter alia, provides that a person, who has been found guilty – in Latvia or abroad – of an offence that at the time of application for citizenship is examined is classified as a criminal offence under the Latvian law, cannot be granted citizenship.
COMPLAINTS
12. The applicant complained under Article 6 §§ 1 and 2 of the Convention that she had been convicted despite reasonable doubts about her guilt. In particular, certain evidence had been missing, the court had ignored an expert conclusion submitted by her, and it had failed to order an additional investigation.
13. Invoking Article 3 of the Convention and Article 4 of Protocol No. 7 to the Convention the applicant complained that the enforcement of the judgment debt was directed at her apartment where she lived together with her mother and minor daughter.
14. Invoking Article 3 of the Convention and Article 4 of Protocol No. 7 to the Convention the applicant further complained that due to her criminal conviction she was deprived of her right to acquire citizenship.
THE LAW
15. The final decision with respect to the applicant’s criminal conviction was taken on 5 July 2011. According to the Court’s established case-law, an application for the reopening of proceedings or the use of similar extraordinary remedies cannot, as a general rule, be taken into account for the purposes of Article 35 § 1 of the Convention (see Jeronovičs v. Latvia [GC], no. 44898/10, § 120, 5 July 2016). The Court has already held that the review procedure enshrined in chapter 63 of the Criminal Procedure Law constitutes such an extraordinary remedy (see Dāvidsons and Savins, nos. 17574/07 and 25235/07, § 37, 7January 2016). In the present case, there are no exceptional circumstances meriting the recourse to this extraordinary remedy to be taken into account for the determination of the six-month time-limit (contrast, mutatis mutandis, Schmidt v. Latvia, no. 22493/05, §§ 67-71, 27 April 2017). Hence, as the application with the Court was lodged on 13 May 2013, the complaints under Article 6 are out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
16. With respect to the complaint that the enforcement of the applicant’s judgment debt was directed at the apartment in which her family lived, the Court considers that the applicant’s grievance falls within the scope of Article 8 (see, for example, Rousk v. Sweden, no. 27183/04, § 134, 25 July 2013). In the present case, however, the applicant was only notified that the apartment was considered a property against which the recovery could be made. The said apartment was never put up for auction and at no point were the applicant’s rights to live in her apartment limited (contrast Zehentner v. Austria, no. 20082/02, § 54, 16 July 2009, and Vrzić v. Croatia, no. 43777/13, § 59, 12 July 2016; see also the references cited in Bjedov v. Croatia, no. 42150/09, §§ 59-61, 29 May 2012). Accordingly, there has been no interference in the applicant’s right to respect for her home, and the complaint must be rejected in accordance with Article 35 §§ 3(a) and 4 of the Convention.
17. With respect to the complaint about the applicant’s inability to acquire Latvian citizenship, the Court has held that a right to acquire or retain a particular nationality is not guaranteed by the Convention or its Protocols. Nevertheless, the Court has not excluded the possibility that an arbitrary denial oonality might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual (see Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, § 77, ECHR 2002-II, and Petropavlovskis v. Latvia,no. 44230/06, § 73, ECHR 2015). In the present case, however, the applicant has not demonstrated that she has pursued the remedies available domestically. Firstly, it does not transpire that the applicant lodged an application before the administrative courts. Secondly, the Citizenship Law expressly lists criminal conviction as an obstacle for obtaining citizenship. If the applicant considered that it was this proscription that violated her human rights, it was incumbent on her to bring proceedings before the Constitutional Court (see Larionovs and Tess v. Latvia (dec.), nos. 45520/04 and 19363/05, §§ 142 and 148, 25 November 2014). Accordingly, with respect to this complaint the applicant has failed to exhaust the available domestic remedies, and it must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 25 April 2019.
Milan Blaško André Potocki
DeputyRegistrar President
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