Communicated on 13 March 2014
SECOND SECTION
Application no. 1886/06
Alvydas ALBRECHTAS
against Lithuania
lodged on 19 December 2005
STATEMENT OF FACTS
The applicant, Mr Alvydas Albrechtas, is a Lithuanian national, who was born in 1962 and is currently serving a prison sentence in Pravieniškės prison. He is represented before the Court by Mr R. Girdziušas, a lawyer practising in Kaunas.
A. The circumstances of the case
1. The facts of the case, as submitted by the applicant, may be summarised as follows.
2. On 26 May 1995 a businessman, G.R., was killed in the heart of Vilnius, when a bomb detonated under his car. As it transpires from the materials before the Court, on 21 October 2001 the Vilnius Regional Court convicted three persons, G.B., I.M. and V.J., of that crime. The court established that it was a contract killing, because an unidentified person did not want to return to G.R. a considerable sum of money (between 230,000 and 280,000 United States Dollars, hereinafter “USD”), which he had borrowed from G.R. to buy butter for export to Azerbaijan. The court also established that the unidentified person was known under the alias “Alius”. The fifth person involved in the murder, O.L., was hiding.
3. In 1998 prosecutor I.M. began to suspect that the applicant was involved in G.R.’s murder. The prosecutor collected information about the applicant’s property. He also established that the telephone number linked to the murder was registered in the company “Animus”, registered in Kaunas; it was the applicant who had used that telephone number. The applicant also had a prior conviction (in 1985). The police also had information that in 1990-1995 the applicant had belonged to an organised criminal group in Kaunas and had been involved in fraud. In 1990 the authorities had opened another criminal case in respect of the applicant on the charge of fraud, but in 1993 the pre-trial investigation in respect of the applicant had been terminated for lack of evidence.
4. It appears that at least until 2000 it was the prosecutor I.M. who led the pre-trial investigation in the case.
5. On 1 March 2002, on the basis the testimony of G.B., another prosecutor, J.L., who had taken over the investigation into G.R.’s murder, concluded that it was likely that the applicant was “Alius”. G.B. also named the telephone number of “Alius” and stated that he could recognize “Alius”, if he saw him. “Alius” was thus linked to a telephone number belonging to the “Animus” company. That telephone number had been used in March-May 1995.
On 1 March 2002 the prosecutor J.L. ordered the Vilnius organised crime police (Organizuotų nusikaltimų tyrimo tarnyba) to establish the applicant’s place of residence, to obtain his telephone records, to find information about his bank accounts and property and to establish his connections with G.R.
6. On 2 September 2002 the Vilnius organised crime police informed the prosecutor J.L. in writing that the applicant did not live in the apartment where he was registered in Kaunas. The police admitted that they could not locate the applicant but promised to notify the prosecutor about the applicant’s whereabouts once they found him.
7. On 2 September 2002 prosecutor J.L. considered that there was sufficient evidence to charge the applicant with having organised G.R.’s murder and took a decision to charge him (Nutarimas patraukti kaltinamuoju) with that crime. The decision gave an account of the facts as construed by the prosecutor and contained a detailed description of the crime, including the time-frame, the links between the applicant and the persons convicted (G.B., I.M. and V.J.) and O.L., and the sums of money paid for its execution. The decision did not contain any references to the evidence against the applicant.
8. The same day, the prosecutor J.L. announced a search for the applicant and ordered Vilnius organised crime police to conduct it. The prosecutor also addressed the Vilnius City First District Court with a request that the applicant be detained once arrested. For the prosecutor, taking into account that the crime could attract a life sentence, and that at that time the applicant could not be located, it was likely that the applicant had fled from justice. The same day, the Vilnius City First District Court authorised the applicant’s pre-trial detention in absentia.
On the basis of that court decision, on 17 January 2005 the prosecutor J.L. issued a European Arrest Warrant in respect of the applicant.
9. By a letter of 2 February 2005, the Vilnius organised crime police informed the prosecutor J.L. that the applicant had crossed the Lithuanian State border to Latvia on 27 December 2004. The police were to continue searching for the applicant and would notify the prosecutor about the results.
10. On 24 May 2005 the Vilnius organised crime police informed the prosecutor J.L. that the applicant had returned to Lithuania and about the places where he could be found. The prosecutor then ordered the applicant’s apprehension.
11. The applicant was arrested at 10.00 a.m. on 25 May 2005 in Kaunas, in a car park. The applicant’s temporary arrest record (Įtariamojo laikino sulaikymo protokolas) specified that the applicant had been arrested in the context of the criminal case on suspicion that he had organised G.R.’s murder. The record mentioned the court decision of 2 September 2002 to detain the applicant, the European arrest warrant and the applicant’s prior conviction. The record also indicated that the applicant had been hiding from the prosecutor for a long time. The applicant signed the record of his arrest. He also signed the prosecutor’s decision of 2 September 2002 to charge him with having organised G.R.’s murder (see paragraph 7 above).
12. The same day, that is, on 25 May 2005, the prosecutor issued a notice of suspicion (Pranešimas apie įtarimą), which reiterated the prosecutor’s account of the facts surrounding G.R.’s murder, as described in the decision of 2 September 2002 to charge him with the crime (see paragraph 7 above). No evidence was mentioned in the document.
13. On 26 May 2005, the prosecutor submitted to the Vilnius City Second District Court a request to detain the applicant pending trial (Pareiškimas skirti suėmimą). The request contained the prosecutor’s account of the crime, as described in the decision to charge the applicant and in the notice of suspicion (see paragraphs 7 and 12 above). It mentioned that the evidence linking the applicant to G.R.’s murder was “witnesses’ and other persons’ testimony, records of identification by one person, records or searches and other data”. The document did not explain any particular piece of evidence against the applicant.
14. On 26 May 2005, in the presence of the prosecutor J.L., the applicant and his lawyer, the Vilnius City Second District Court authorised the applicant’s detention pending trial for three months. As the record of the hearing shows, at the start thereof the applicant’s lawyer asked the court to see the materials of the pre-trial investigation on the basis of which his client was being detained. The lawyer admitted that he could acquaint himself with the prosecutor’s request to the court for the applicant’s detention (Pareiškimu skirti suėmimą), the record of the applicant’s questioning (Įtariamojo apklausos protokolu – the Court does not have a copy of this document) and the notice of suspicion (Pranešimu apie įtarimą). However, no other materials had been disclosed to him, even though the Supreme Court’s guidelines provided otherwise (see paragraph 38 below). For the applicant’s lawyer, the information shown to him was not sufficient to understand what the basis was for suspecting the applicant of the murder and thus for detaining him. The lawyer insisted that he had a right to consult those materials in the case-file, which the prosecutor had given to the court so that the court could ascertain whether it was lawful to detain his client.
15. In reply, the prosecutor J.L. submitted that the lawyer had been shown “what was necessary”. Moreover, the pre-trial investigation materials were not to be made public, in accordance with Article 177 of the Code of Criminal Procedure. In the applicant’s case, he could not yet see the entire case-file, because that would prejudice the success of the pre-trial investigation. The grounds to detain the applicant were that he had been searched for [since 2002], and a European arrest warrant had been issued in respect of him. The prosecutor insisted that the lawyer could see only the “initial materials (pradinę medžiagą)” as to why it was necessary to detain his client. The record of the hearing also indicates that the prosecutor then submitted “the pre-trial investigation file concerning the applicant and the reasonableness of his detention to the court. The court examined the materials as provided by the prosecutor. The court then decided that the lawyer’s request to see the materials was to be denied, having evaluated those materials, as to disclose them could be harmful for effective investigation”.
16. When questioned at that hearing, the applicant acknowledged that he had known O.L. However, he denied knowing G.B., I.M. and V.J. – the persons already convicted for G.R.’s murder. The applicant also maintained that he had never had a nickname “Alius”. He admitted that his wife lived in Ireland and that he had a lot of property – an apartment in Kaunas and another one in Neringa; he was the main shareholder of the company “Animus mobilis”, and had shares in an African company. The applicant and his lawyer mentioned that the applicant had never been hiding from the investigators: after 1995 he had changed identity documents, crossed the State border, taken part in car rally competitions, in 2003 won the President’s cup, and even been elected president of the Lithuanian rally committee.
17. For the Vilnius City Second District Court, the evidence that the applicant had organised G.R.’s murder was “testimony of witnesses and other suspects, records when other persons had recognized the applicant, records of searches and other factual data”.
Turning to the grounds to detain the applicant, the court noted that on 2 September 2002 the search for the applicant had been announced and on 17 January 2005 a European Arrest warrant had been issued. It followed that the applicant had been hiding from the prosecutor for more than two years. He had a prior conviction. Other persons, who had taken part in G.R.’s murder, had been sentenced to life imprisonment. For the court, it was also paramount that the applicant was suspected of having committed a very serious crime, for which he could be sentenced to life imprisonment. That circumstance alone was sufficient to believe that the applicant would flee from justice.
18. On 7 June 2005 G.B. was shown the applicant in person and recognized him as “Alius”.
19. On 13 June 2005 the applicant’s lawyer appealed against the court order of 26 May 2005 to detain his client for three months. He complained that the judge had not allowed him to see the case-file and maintained that the procedure thus had not been adversarial. The lawyer admitted that the applicant had a prior conviction, but that had been years ago. In support of his claims that it was safe to leave the applicant at large, the lawyer provided the court with documents about the applicant’s family and work situation.
20. On 27 June 2005 the Vilnius Regional Court dismissed the applicant’s appeal. For the court, factual data – G.B.’s testimony, records of G.B. having recognized the applicant from a photograph and in person, the European Arrest Warrant and the explanations of the parties allowed the conclusion that the applicant had been detained lawfully.
21. The applicant’s pre-trial detention was then upheld and prolonged by further court rulings. His lawyers and/or the applicant were present at those hearings. The prosecutor J.L. also took part in the hearings, insisting on the fact that the applicant’s escape was likely because of him having been hiding from justice for the last three years. The prosecutor even noted that the applicant had land in Africa and his wife lived abroad. The courts noted that the applicant was a wealthy man and had large sums of money at his disposal. It was therefore reasonable to believe that he would hide from investigators if not detained. The courts also noted that G.B., one of the persons already convicted for the 1995 car bombing, had identified the applicant as the person who had put a contract out on G.R.
22. One of the rulings to uphold the applicant’s pre-trial detention was adopted by the Vilnius Regional Court on 24 November 2005. Having confirmed the aforementioned grounds to keep the applicant detained, including the argument that he had been hiding from justice since 2002, the Vilnius Regional Court also noted evidence that the applicant had tried, through third persons, to influence the witness G.B. and his family, so that G.B. would not testify against the applicant.
23. By a judgment of 25 April 2006 the Vilnius Regional Court found the applicant guilty of having organised the murder of G.R. In finding against the applicant, the trial court relied on the testimony of G.B. Even though the applicant denied his involvement in the crime and insisted that G.B. was slandering him, the trial court observed that G.B.’s testimony to the effect that the crime had been organised by a certain “Alius” had been consistent since G.B. was questioned during the pre-trial investigation in 1998. Moreover, G.B. had recognised the applicant from photographs and during a police line-up. Above all, evidence against the applicant also included testimony of nine other witnesses – the applicant’s and G.R.’s former business partners, a police officer, and the brother of G.R.’s widow. Telephone records also showed that in April and May 1995 numerous conversations had taken place between the applicant, R.G., O.L. and G.B. In addition, extracts from the bank accounts of the applicant’s company, customs declarations and documents from Kaunas municipality showed the financial dealings between the applicant and G.R.
24. The Vilnius Regional Court also noted that eleven years had passed since the crime had been committed. The applicant had not been hiding during that time, even though “without reason (nepagrįsta)” a search for him had been called for. During all the years since 1995 the applicant had not breached the law; there was no information in the case-file about his involvement in organised crime. Moreover, the applicant worked, supported his family, had two minor children, and took part in public activities. Accordingly, under Article 49 of the old Criminal Code (see paragraph 40 below), it was within the court’s powers to apply the statute of limitations and not to convict the applicant. Even so, given the seriousness of the crime for which the old Criminal Code had provided capital punishment and the new Criminal Code provided life imprisonment, the court held that the applicant still posed a danger to society. The court lastly found that because of the fault of pre-trial investigation officers the applicant was being penalized only after many years had passed since the crime. To impose a very severe punishment on him therefore would not be just. Eight years of deprivation of liberty in a correctional home were appropriate. The time which the applicant had spent in pre-trial detention – from 25 May 2005 until 25 April 2006 was to be counted towards that period.
25. On 18 May 2007 the Court of Appeal acquitted the applicant and ordered his release from detention. The applicant was ordered not to leave his place of residence without informing the authorities and his travel documents were taken. The Supreme Court later quashed the decision to acquit the applicant and returned the case for fresh examination.
26. On 13 March 2009 the Court of Appeal again acquitted the applicant. He was relieved from the obligation not to leave his place of residence and his travel documents were returned.
27. The very same day, and on the basis of Article 257 of the Code of Criminal Procedure, the Court of Appeal adopted a separate ruling. It held that prosecutor J.L. who had ordered the search for the applicant on 2 September 2002, had acted outside the law. A search for a suspect search could be ordered if the place of residence of the suspect was unknown to the investigators, who, if that was the case, had to take measures to find the suspect. The applicant, however, had never been hiding from the investigators. On the contrary, he had lived in his apartment in Kaunas, taken part in car rally competitions abroad, and even received the President’s cup for his 2003 participation in the car rally “Around Lithuania”, got a prize place in the “1,000 kilometres car race” in Lithuania and the same year been elected president of the car rally committee. The applicant had also crossed the Lithuanian State border by car and as an airline passenger at least ten times, worked at his private company and paid social security contributions. All those events had taken place during the time when the search for the applicant, ordered on 2 September 2002, was being conducted. None of the applicant’s family members had received any inquiries about the applicant’s whereabouts from the police or had ever been visited by police officers. The applicant had not been summoned to the prosecutor’s office either.
28. In the light of the above, the Court of Appeal concluded that the prosecutor J.L. had deliberately and unnecessarily (nepagrįstai) ordered the search for the applicant, without first having summoned him, and without having taken any real measures to establish his whereabouts. For the Court of Appeal, the prosecutor had then deliberately misled the courts in 2005 by providing them with clearly untrue information when those courts were about to decide whether to detain the applicant. This showed that the prosecutor had other goals, but it was not for the Court of Appeal to establish what those other goals had been. Nevertheless, because of that it was possible that the applicant had been unlawfully detained for almost two years – from 25 May 2005 until 18 May 2007. The Court of Appeal thus asked the Attorney General’s Office to verify whether the prosecutor’s actions did not constitute abuse of office, which is a crime under Lithuanian law.
29. On 19 June 2009 the Deputy Attorney General concluded that prosecutor J.L. had not committed a crime. On the contrary, it was the police officers who had not performed their duties properly. In particular, once the prosecutor had started suspecting the applicant of contract murder, on 1 March 2002 the prosecutor J.L. had asked the police to establish the applicant’s whereabouts and his connections with G.R. By a letter of 29 March 2002 the police had informed the prosecutor J.L. that they would need more time to perform those actions. In addition, on 2 September 2002 the Vilnius criminal police had informed the same prosecutor that the applicant did not live in the apartment where he was registered in Kaunas and it was not possible to establish his actual place of residence (see paragraphs 5–7 above). Accordingly, it was not possible for the prosecutor J.L. to summon the applicant for questioning. In addition, to summon for questioning the person whose accomplices had been sentenced to life imprisonment (see paragraph 2 above) was hardly a measure to be considered justified for the purpose of a successful pre-trial investigation. The Deputy Attorney General also established that prosecutor J.L. had followed up on his request to the police investigators and on 29 October 2002 had once again asked them what actions had been performed to find the applicant. On 10 December 2002 the Kaunas organised crime police had informed their colleagues in Vilnius that the applicant’s place of residence was unknown. Moreover, on 2 February 2005 the police had informed the prosecutor J.L. that the applicant had left Lithuania on 27 December 2004 and that police were continuing to search for him. It was only on 24 May 2005 that the criminal police informed the prosecutor J.L. that the applicant had returned to Lithuania and about his possible whereabouts. The same day the prosecutor had ordered the police officers to search those places and to apprehend the applicant, who was arrested the following day.
In sum, given that the search for the applicant had in fact (realiai) been ordered on 2 September 2002 and as of that day transferred to the Vilnius organised crime police to conduct, the prosecutor J.L.’s actions were based in law and facts. There was nothing to conclude that he had misled the courts, when they were deciding whether or not to detain the applicant.
30. For the Deputy Attorney General, even though the prosecutor J.L. had mentioned the facts about the search for the applicant and the European Arrest Warrant in his requests to the court to detain the applicant (see paragraphs 13 and 15 above), this was neither important nor the main ground to hold him detained. On the contrary, the courts took notice of the applicant’s connections abroad, the fact that he had property abroad, his wealth and the gravity of the crime he was suspected of. Furthermore, the applicant and his lawyer had actively exercised defence rights. It followed that the applicant’s right to liberty had been restricted on a lawful basis.
31. Lastly, the Deputy Attorney General established that it was a certain police investigator whose actions when executing the search for the applicant had been erratic. However, even though his actions could be qualified as a disciplinary offence, that policeman no longer worked in the police force, thus he could not be punished.
The Deputy Attorney General thus refused to open a pre-trial investigation on the basis of the facts mentioned in the Court of Appeal ruling of 13 March 2009. The decision was sent to be included in the applicant’s criminal case-file.
32. By a ruling of 3 November 2009 the Supreme Court again returned the applicant’s criminal case to the appellate instance for new examination.
33. On 25 October 2011 the Court of Appeal found the applicant guilty of having organised G.R.’s murder so that the applicant and other persons would not have to repay G.R. a debt of USD 200,000–280,000. The Court of Appeal requalified the applicant’s actions from Article 105 § 8 of the old Criminal Code, to Article 129 § 2 (9) of the new Criminal Code. He was sentenced to five years of deprivation of liberty.
The applicant states that the same day he was arrested and started serving his sentence.
34. On 8 May 2012 the Supreme Court held that it was not correct to decide the question of the statute of limitations under the old Criminal Code, as had been done by the trial court on 25 April 2006 (see paragraph 24 above), and the applicant should have been convicted under the new Criminal Code. The Supreme Court then upheld the trial court’s reasoning not to apply the statute of limitations to the applicant. Likewise, the trial court’s verdict that the applicant was guilty under Article 105 § 8 of the old Criminal Code, as well as eight years of deprivation of liberty sentence imposed by the trial court, were to be maintained.
35. In October 2012 the applicant asked the Supreme Court to reopen the criminal proceedings, arguing an erroneous application of domestic law concerning the statute of limitations.
36. By a ruling of 10 December 2012, the Supreme Court denied the applicant’s request.
B. Relevant domestic law and practice
37. Article 177 of the Code of Criminal Procedure provides that the materials of the criminal investigation file are not public. Until the case has been transferred to the court for examination, those materials may be made public only with the prosecutor’s permission and only inasmuch as it is allowed. Pursuant to Article 181, a suspect or his lawyer may see the pre-trial investigation materials and make copies. However, if the prosecutor considers that this could obstruct the success of the investigation, he may forbid the suspect or his lawyer from seeing all or part of the criminal file. This decision by the prosecutor may be appealed to the court. Once the pre-trial investigation is over and the bill of indictment has been drawn up, the defence may see the entire criminal file.
38. The Supreme Court Senate’s Ruling No. 50 “On Courts’ Practice When Imposing Pre-trial Detention”, adopted on 30 December 2004, provides that when a judge decides whether pre-trial detention should be imposed on a suspect, the judge must verify whether there is sufficient evidence to the effect that the suspect has committed the crime. The suspect and his lawyer have a right to see that evidence (point 4).
39. Article 257 of the Code of Criminal Procedure stipulates that if, when hearing a criminal case, the court discovers that another person could have committed a crime, the court notifies that fact to a prosecutor.
40. Article 49 of the old Criminal Code, in force until 1 May 2003, provided that a person could not be prosecuted if more than ten years had passed from the day when a very serious crime was committed. That being so, the courts retained discretion whether to apply the statute of limitations to a person who had committed a crime which could attract the death penalty. Prescription stopped running if a person was hiding from justice. In 1995 murder to obtain pecuniary advantage (dėl savanaudiškų paskatų) could be punished by up to the death penalty (Article 105 § 8 of the old Criminal Code). Under Article 129 § 2 (9) of the new Criminal Code, in force as of 1 May 2003, such crime could be punished by up to life imprisonment.
41. Article 6.272 § 1 of the Civil Code allows a civil claim for pecuniary and non-pecuniary damage in the event of unlawful actions by the investigating authorities or a court in the context of a criminal case. The provision envisages compensation for an unlawful conviction, arrest or detention, or for the application of unlawful procedural measures of enforcement, or an unlawful administrative penalty.
COMPLAINT
The applicant complains under Article 5 of the Convention that during the hearing of 26 May 2005 at the Vilnius City Second District Court he and his lawyer were denied access to any information as to the grounds to place him in pre-trial detention. The applicant notes that after G.R.’s murder in 1995, he lived in Lithuania without hiding from the authorities. He had changed his identity documents, paid taxes, had a job, crossed the State border a number of times, and taken part in car rally competitions. Accordingly, he had a right to know why it was suddenly necessary to detain him. However, upon the prosecutor’s request, the criminal case-file materials were made fully available to the court, which after having consulted the file, held that it was lawful to detain the applicant. Given that it was only the prosecutor and the court who had seen those materials, the applicant could not effectively challenge the validity of the grounds to detain him, in breach of his right to adversarial proceedings.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to “equality of arms”, under Article 5 § 4 of the Convention, on account of the fact that during the proceedings concerning the applicant’s detention the courts examined the applicant’s criminal case-file, as presented by the prosecutor, but those documents were not disclosed to the applicant or his lawyer (see, among other authorities, Garcia Alva v. Germany, no. 23541/94, §§ 39-43, 13 February 2001; Lietzow v. Germany, no. 24479/94, § 47, ECHR 2001‑I; Musuc v. Moldova, no. 42440/06, §§ 51-56, 6 November 2007; Piruzyan v. Armenia, no. 33376/07, §§ 116-119, 26 June 2012; Sefilyan v. Armenia, no. 22491/08, §§ 103-105, 2 October 2012; Emilian-George Igna v. Romania, no. 21249/05, §§ 28-34, 26 November 2013; X.Y. v. Hungary, no. 43888/08, §§ 50-52, 19 March 2013)?
The parties are requested to provide the Court with a copy of the Vilnius Regional Court’s judgment of 21 October 2001 in the criminal case concerning G.R.’s murder.
Full & Egal Universal Law Academy