BUTKEVICIUS v. LITHUANIA

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48297/99
by Audrius BUTKEVIČIUS
against Lithuania

The European Court of Human Rights (Third Section), sitting on 28 November 2000 as a Chamber composed of

MrJ.-P. Costa, President,

MrL. Loucaides,

MrsF. Tulkens,

MrK. Jungwiert,

Sir Nicolas Bratza, elected to sit in respect of Lithuania,

MrsH.S. Greve,

MrM. Ugrekhelidze, judges,

and Mrs S. Dollé, Section Registrar,

Having regard to the above application introduced on 10 May 1999 and registered on 25 May 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated,

Decides as follows:

THE FACTS

The applicant is a Lithuanian national, born in 1960. He is a former Minister of Defence and Member of the Seimas (Parliament) from 1996 to 2000.

A.The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 12 August 1997 the applicant was apprehended in a hotel lobby by the security intelligence and the prosecuting authorities while accepting an envelope containing 15,000 United States dollars (USD) from KK. The latter, a senior executive of a troubled oil company (hereinafter referred to as “the company”), had previously informed the intelligence authorities that the applicant had requested 300,000 USD for his assistance in obtaining the discontinuance of criminal proceedings concerning the company’s vast debts. For slightly more than an hour the applicant was questioned in the hotel lobby. His explanations were recorded and he was allowed to leave the hotel.

On 14 August 1997 the Prosecutor General requested the Seimas to permit the institution of criminal proceedings against the applicant. On 19 August 1997 the Seimas agreed. On 20 August 1997 criminal proceedings were instituted. On 14 October 1997 the applicant was charged with attempting to cheat (obtaining property by deception).

On 20 October 1997 the Prosecutor General applied to the Seimas, requesting permission to detain the applicant on remand. On 28 October 1997 permission was given. On the same day a prosecutor requested the Vilnius City Second District Court to order the applicant’s detention on remand. That same day the applicant was brought before a judge of the Vilnius City Second District Court who issued a warrant for the applicant’s arrest on the grounds that he might obstruct the establishment of the truth in the case, inter alia, by exploiting the media and influencing witnesses. The applicant was duly detained.

On 30 October 1997 the judge extended the term of the applicant’s detention on remand until 30 November 1997 in the presence of the parties for the same reasons as before.

On 3, 5 and 7 November 1997 the applicant appealed against his detention on remand. He requested a hearing. On 11 November 1997 a judge of the Vilnius Regional Court dismissed the applicant’s appeal without hearing the parties.

From 27 November 1997 to 5 December 1997 the applicant and his counsel had access to the case-file.

On 5 December 1997 the applicant requested the prosecutor to discontinue the proceedings. On a number of occasions he also requested the prosecutor to vary the remand. These requests were rejected. 

On 8 December 1997 a judge of the Vilnius City Second District Court extended the term of the applicant’s detention on remand until 31 December 1997. On 9 December 1997 the applicant appealed. On 11 December 1997 the Regional Court informed him that no appeal lay against that decision. 

On 29 December 1997 the Prosecutor General confirmed the bill of indictment, which was transmitted to the Vilnius Regional Court.

From 1 to 5 January 1998 the applicant submitted numerous applications to courts, the prison administration, the Ombudsman and the Seimas, alleging that his detention had been unlawful. On 7 January 1998 the Ombudsman concluded that from 31 December 1997 the applicant had been held in detention unlawfully.

On 8 January 1998 the Vilnius Regional Court committed the applicant for trial. The court also decided that the applicant’s detention on remand “shall remain unchanged”. No term for that detention was specified.

On 19 February 1998 the Vilnius Regional Court granted the applicant’s request to question a defence witness from Belgium. The court sent several fax communications to the witness to testify at hearings scheduled for 4 and 13 March 1998. The witness did not appear.

On 23 February 1998 the Vilnius Regional Court ordered expert opinions on the applicant’s health. On 25 February 1998 the experts’ conclusions were produced, recommending the applicant’s outpatient treatment. 

On 23 March 1998 the Vilnius Regional Court adjourned the case and ordered the prosecuting authorities to submit new material evidence under Articles 256 § 4 and 283 § 3 of the Code of Criminal Procedure. The Regional Court noted that the Belgian witness had submitted his travel and subsistence expenses to be paid in advance by the court if he were to go to Lithuania. The court stated that it could only reimburse, not advance, these expenses under Article 122 of the Code of Criminal Procedure. As the witness refused to travel without this advance, the court held that it had exhausted all possibilities to question the witness in Lithuania. The court invited the prosecution to obtain the testimony of the Belgian witness and specified the questions to be put to him. In the same decision the court also decided that the applicant’s detention on remand “shall remain unchanged”. No term or grounds for this were specified. The court authorised the applicant’s medical examination in hospital. The applicant’s counsel was present at the hearing. 

On 24 March 1998 the applicant appealed, claiming that the Vilnius Regional Court had not properly invited the Belgian witness to testify at the trial, and that his detention on remand was unlawful.

By letter of 9 April 1998 the Prosecutor General requested the assistance of the Belgian Ministry of Justice to question the witness in Belgium. The Prosecutor General specified the questions to be put to the witness on the basis of the court decision of 23 March 1998. The Prosecutor General also requested the Belgian authorities to enable two Lithuanian prosecutors and an interpreter to participate in the questioning.

On 4 May 1998 the applicant applied to the Vilnius Regional Court and the prosecuting authorities, requesting his representatives’ participation in the questioning of the Belgian witness.

On 6 May 1998 the Belgian authorities questioned the witness. Two Lithuanian prosecutors observed the questioning. The witness refused to answer any of the questions formulated in the letter of the Prosecutor General of 9 April 1998. Instead he read out his statement about the circumstances of the case as known to him.  

On 12 May 1998 the applicant submitted a further appeal against the decision of 23 March 1998, stating that the court’s decision to adjourn the case for the submission by the prosecuting authorities of new evidence showed its lack of impartiality and independence, and that it had breached the principles of the equality of arms and an adversarial procedure. The applicant also requested the Court of Appeal to apply to the Constitutional Court to examine the compatibility with the Constitution of the domestic statutes on which the decision of 23 March 1998 was based.

On 21 May 1998 the Court of Appeal dismissed this appeal insofar as it concerned the decision to require the prosecution to submit new evidence. The appellate court found that the decision had been based on valid provisions of domestic criminal procedure, and that there was no requirement to apply to the Constitutional Court upon the applicant’s request. The Court of Appeal held that no appeal lay against the decision of 23 March 1998 insofar as it concerned the applicant’s detention. The applicant and his counsel were present at the appellate hearing.

On 22 May 1998 medical experts concluded that the applicant was suffering from a brain disease. They recommended that he be sent to an outside hospital, as no adequate treatment was available in the prison.

On 1 July 1998 the trial before the Vilnius Regional Court was resumed. The statement by the Belgian witness was read to the court. That same day the applicant alleged that the evidence of the Belgian witness had been obtained in breach of his defence rights. He pleaded in addition that the said witness had refused to come to Lithuania as a result of the non-diplomatic behaviour of the court, and the unlawful enquiries about him in Belgium by the Lithuanian Interpol.

On 13 July 1998 the Vilnius Regional Court extended the term of the applicant’s detention until 17 August 1998. On 23 July 1998 the detention was extended until 30 November 1998. The court referred to the strength of the evidence in the case-file and the likelihood of the applicant influencing witnesses, warranting his further remand in custody. Defence counsel was present at the hearings.

The applicant’s appeals against the decisions of 13 and 23 July 1998 were dismissed by the Court of Appeal on 21 July and 12 August 1998 respectively. The applicant’s counsel had been present at the appellate hearings.

On 5, 19 February, 1 July, 21 October and 3 November 1998, the Vilnius Regional Court rejected the applicant’s requests to lift the remand in custody. His defence counsel was present at the hearings.

On 18 November 1998 the Vilnius Regional Court found the applicant guilty of attempting to obtain property by deception.

The court rejected the applicant’s defence that he had been incited to commit an offence as a result of the conspiracy between KK and the security intelligence authorities. In this regard the court found that on 24 July 1997 the applicant had himself requested KK to contact him, and during their first meeting on 31 July 1997 the applicant had demanded money in return for him using his authority over certain prosecutors with a view to discontinuing the criminal case involving KK’s indebted company. The latter had secretly made audio recordings of that first meeting and of their second meeting on 1 August 1997, which had also taken place at the applicant’s behest. On that latter date KK, on his own initiative, had presented the recording to the security intelligence authorities. The next day KK had written to the latter, stating that the applicant had demanded 300,000 USD to discontinue the criminal case.

The court noted that the third meeting between the applicant and KK on 7 August 1997 had also been secretly taped by KK on an audio recorder supplied by the security intelligence authorities. During the meeting the applicant had demanded the first instalment of 30,000 USD for his “services”. On 10 August 1997 KK had been handed over 15,000 USD in cash from the budget of the security intelligence service. On 11 August 1997 the applicant had called KK and had offered to meet him at the hotel the next day. During the meeting on 12 August 1997, which had been secretly recorded by a mobile video and the audio recorders of the security intelligence authorities, KK had handed the applicant 15,000 USD. Having received the money, the applicant had demanded that the next payment be effected the following week. The applicant had been apprehended immediately thereafter.

The Regional Court rejected the applicant’s allegations that KK had been in contact with the security intelligence authorities before 1 August 1997, that KK had been given a mobile phone by the security service, that the applicant’s telephone conversations had been wiretapped, or that he had been subjected to clandestine surveillance techniques other than the secret recordings of the applicant’s meetings with KK on 7 and 12 August 1997. On the basis of these recordings and the evidence given by KK, the representatives of various State authorities and other witnesses, the Regional Court found that the applicant had intended to cheat KK by demanding money for his assistance in discontinuing the criminal case. The court held that no incitement of the applicant had been effected, either by KK or by a State authority.

The court also found there had been no domestic irregularities regarding the use by the security intelligence service of the recording devices or the supply of State money to KK. The Regional Court held in particular that the recordings of the applicant’s meetings with KK were made by mobile,
non-stationary devices, with the result that those recordings could not be considered as intrusive techniques within the meaning of the Operative Actions Act. The court ruled that those recordings could thus be carried out in regard to a Member of Parliament, and that no specific authorisation was necessary to make them. The Regional Court admitted this evidence as lawful.    

The Regional Court noted that the statement of the Belgian witness was irrelevant as he had refused to testify or answer the questions formulated by the prosecuting authorities on behalf of the court.

The court took no account of the applicant’s explanations to the authorities on his arrest on 12 August 1997 because the applicant had not been given a lawyer or granted defence rights during the hour of questioning. The court ruled that such evidence could not be lawfully admitted.

The Regional Court also noted that on 12 August 1997 the applicant’s liberty had been effectively limited, but that that restriction was compatible with Article 22 of the Seimas Statute because the applicant had been caught while committing an offence.

The court dismissed as unsubstantiated the applicant’s allegations that he had borrowed the money from KK, or that he had needed the cash to arrange for the legal defence of KK’s company in an American civil court.

The applicant was sentenced to five years and six months’ imprisonment and fined 50,000 Lithuanian litai (LTL). Half of his property was confiscated.

The applicant and his counsel were present before the first instance court. 

The applicant appealed, stating inter alia that he had been the victim of provocation, that he had been subjected to unlawful, clandestine, surveillance techniques, that he had been unlawfully apprehended on 12 August 1997, that he had not been given legal assistance during his questioning by the authorities that day, that he had not had full access to the case-file after the pre-trial investigation had been concluded, that certain evidence had been unlawfully withheld from the case, that certain unlawful evidence had been taken into account, that not all witnesses of his choosing had been questioned, that the order of 23 March 1998 for the collection of further material evidence was unlawful in the context of the finding of the Constitutional Court of 5 February 1999, that his lawyers had not participated in the questioning of the Belgian witness, that the experts had not been impartial and their conclusions wrong, that not enough expert examinations had been carried out, that the court had not been impartial, and that the court had wrongly interpreted evidence and unfairly convicted him. The applicant referred in particular to Articles 3, 5 and 6 of the Convention.

On 17 February 1999 the Court of Appeal rejected the appeal, finding inter alia that the applicant had had full access to the case-file, that no evidence relevant to the circumstances of the case had been withheld, and that no unlawful evidence had been taken into account by the court. The Court of Appeal held that the restriction on the applicant’s freedom of movement on 12 August 1997 had been compatible with Article 22 of the Seimas Statute. The court further held that the expert conclusions had been produced and witnesses, including those on behalf of the applicant, had been questioned in accordance with the requirements of domestic criminal procedure. The appellate court ruled that the procedural order of 23 March 1998 had been taken in accordance with the domestic law applicable at the material time. It noted in addition that a defence witness from Belgium had not been questioned by the trial court, but that his statement had been recorded by the Belgian authorities and eventually examined and rejected as irrelevant by the first instance tribunal. No breaches of the applicant’s defence rights were found in this regard.

The Court of Appeal also noted that the applicant had not been subjected to any special measures such as surveillance or wiretapping, other than the secret recording by mobile audio and video devices of his conversations with KK on 1, 7 and 12 August 1997. The court ruled that the use of those mobile devices required no authorisation by a judicial or other authority under the Operative Actions Act, and thus could be admitted as lawful evidence under domestic criminal procedure. The court further held that the actions of KK, supervised by the security service, had been lawful, and that he had not instigated the commission of the offence. It emphasised that all the meetings between the applicant and KK had taken place on the initiative of the former, and that during those meetings the applicant had demanded money insistently for the purported “mediation” in discontinuing the criminal case against the company. The applicant had thus been fairly convicted. The applicant and his counsel were present at the appellate hearing. 

The applicant lodged a cassation appeal. On 11 May 1999 the Supreme Court rejected it, finding that the lower courts had properly decided the case. The court mentioned that it had no competence to examine the applicant’s allegations about the unlawfulness of his detention on remand. The applicant and his counsel were present before the Supreme Court.

On an unspecified date, an impeachment procedure was initiated against the applicant in the Seimas. On 15 June 1999 the Parliament refused to impeach the applicant and did not annul his mandate as a Member of Parliament (“MP”).  

On 17 March 2000 the Vilnius City Third District Court ordered the applicant’s release on licence. He was released on 20 March 2000. 

By a final decision of 14 September 2000, the Higher Administrative Court refused the applicant the right to stand as a candidate in the next parliamentary election in view of his conviction.

The media campaign in connection with the applicant’s case

The applicant’s arrest on 12 August 1997 and the subsequent criminal proceedings were discussed in the course of a large-scale media campaign on a nation-wide basis.

On 14 August 1997 an article entitled “Efforts of the MP to get out of a scrape seem ridiculous to the prosecutor” was published in the biggest national daily “Lietuvos Rytas”:

“The Prosecutor general confirmed that [he had] enough sound evidence of the guilt of A. Butkevičius.”

On 15 August 1997, an article entitled “The Chairman of Seimas does not doubt the guilt of A. Butkevičius” was published in “Lietuvos Rytas”:

“When asked whether or not he doubts that A. Butkevičius accepted a bribe, the Chairman of Seimas said: ‘on the basis of the material in my possession I entertain no doubt.’ ”

The Prosecutor General was quoted in an article entitled “A. Butkevičius prepares for battle and prison” of 16 August 1997 in the daily “Respublika”:

“I qualify the offence as an attempt to cheat … .”

The Chairman of Seimas, quoted in an article entitled “Criminal proceedings will be instituted against A. Butkevičius” of 20 August 1997 in “Lietuvos Rytas”:

“One or two facts were and are convincing. [The applicant] took the money while promising criminal services.”

The Chairman of Seimas, in an article entitled “Defence counsel of A. Butkevičius succeed in politicising the bribe case” of 6 October 1998 in “Lietuvos Rytas”, was quoted as saying that “the Centre and the New Union [parties] co-ordinate the defence of the bribetaker” and that these parties try to protract the proceedings and artificially “victimise” the applicant. In this article the Chairman of Seimas was also quoted, when stating his opinion on the alleged tactics of the applicant to delay the proceedings:

“No doubt, the defendant is involved here with purported witnesses from Brussels; [the applicant] could even call someone from Madagascar [so that] another half year would be wasted … .”  

B.Relevant domestic law and practice

Restriction on the liberty of a Member of Parliament

Article 22 § 3 of the Seimas Statute provides that an MP enjoys immunity from restriction on freedom, except in cases when he is caught committing an offence. In such cases the Prosecutor General shall immediately inform Parliament.

Arrest and detention on remand

The Code of Criminal Procedure (Baudžiamojo proceso kodeksas):

Article 10 (in force since 21 June 1996):

“No one shall be arrested or detained save by virtue of a decision of a court or judge.”

Article 52 § 2 and 58 § 2 of the Code provide that the accused and, respectively, their counsel have the right to submit requests and appeal against acts and decisions of an interrogator, investigator, prosecutor or court.

Article 104:    

“Detention on remand shall be used only … in cases where a statutory penalty of at least one year’s imprisonment is envisaged. … .

The grounds for the detention on remand shall be the reasoned suspicion that the accused will:

1) abscond from the investigation and trial;

(2) obstruct the determination of the truth in the case [influence other parties or destroy evidence];

(3) commit new offences … whilst suspected of having committed crimes provided in Articles … 274 [cheating], 275 [embezzlement] of the Criminal Code … .”

Article 104-1 (in force from 21 June 1996 until 24 June 1998):

“… the arrested person shall be brought before a judge within not more than 48 hours … . The judge must hear the person as to the grounds of the arrest. The prosecutor and counsel for the arrested person may take part in the inquiry. After having questioned the arrested person, the judge may maintain the arrest order by designating the specific term of detention, or vary or revoke the remand … .

After the case has been transmitted to the court … [it] can order, vary or revoke the detention on remand.”

The amended Article 104-1 (in force since 24 June 1998) provides that the prosecutor and defence counsel must take part in the first judicial inquiry of the arrested person, unless the judge decides otherwise. The amended provision also provides that the court should extend the detention on remand before its expiry.

Article 106 § 3 (in force from 21 June 1996 until 24 June 1998):

“For the purpose of extending the term of detention on remand a judge … must convene a hearing to which defence counsel and a prosecutor and, if necessary, the detainee shall be called. The judge decides whether or not to extend the term of detention on remand. … .”

The Code in force since 24 June 1998 makes obligatory the attendance of the detainee at the remand hearings.

Article 109-1 (in force from 21 June 1996 until 24 June 1998):

“An arrested person or his counsel shall have the right during pre-trial investigation to lodge [with an appellate court] an appeal against the arrest. … . With a view to examining the appeal, there may be convened a hearing to which the arrested person and his counsel or only counsel shall be called. The presence of a prosecutor is obligatory at such a hearing.

The decision taken by the judge at appellate instance is final and cannot be the subject of a cassation appeal.

A further appeal shall be determined when examining the extension of the term of the detention on remand.”

The present Article 109-1 (in force since 24 June 1998) now provides for an appeal to a higher court and a hearing against a decision ordering or extending the term of detention both at the stage of pre-trial investigation and trial, in the presence of the detainee and his counsel, or only his counsel.

Article 226 § 6 (in force until 24 June 1998):

“The period when the accused and his counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention. Where there are several accused persons, the period during which all the accused and their counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention.”

Since 24 June 1998 this period is no longer relevant for remand decisions.

Article 249 § 1:

“A judge individually or a court in a directions hearing, in deciding whether to commit the accused for trial, shall determine: … ;

11) whether the remand has been selected appropriately; … .”

Article 250 § 1:

“After having decided that there is a sufficient basis to commit the accused for trial, a judge individually or a court in a directions hearing shall determine: … ;

2) the remand in respect of the accused; … .” 

Article 267 § 1:

“The defendant has the right to: … ;

3) submit requests; … ;

11) appeal against the judgment and decisions of a court.”

Article 277:

“In the course of the trial, a court may decide to order, vary or revoke a remand in respect of the defendant.”

Article 372 § 4 (in force until 1 January 1999):

“Decisions of courts … ordering, varying or revoking a remand … cannot be the subject of appeal … .”

Fairness of proceedings, independence and impartiality of court

Article 14:

“In administering justice in criminal matters, judges are independent and obey only the law. Judges decide criminal cases in accordance with the law and based on their conscience, in conditions which make it impossible for them to be affected by outside matters. Any interference with the judge’s or court’s actions in administering justice is prohibited and gives rise to liability under the law.”

Article 76:

“A court … shall assess evidence according to [its] inner conviction, based on an extensive, full and objective review of all the circumstances of the case, in accordance with the law and legal conscience.

No evidence shall have a prejudicial influence on a court … .”

Article 29 § 3 states that a judge cannot participate in the examination of a case at any stage of the proceedings if he has an interest in its outcome. Pursuant to paragraph 4 of this provision, parties to the proceedings may point out circumstances that would raise doubts as to the judge’s impartiality.

Pursuant to Article 31 a judge, in respect of whom there are lawful grounds to fear a lack of impartiality, must withdraw. On the same ground, the judge can be challenged by the defendant and other parties to the case.

Where the case is examined by a chamber of judges, the challenge in respect of a judge is determined by the other judges of the chamber. When the whole chamber is challenged, the chamber itself determines the relevant application by a simple majority vote.   

Article 427 § 3 provides that a cassation chamber president, when announcing the composition of the cassation court, must ask the parties whether they challenge the judges.

Presumption of innocence

Article 31 § 1 of the Constitution reads:

“A person shall be considered innocent until proved guilty in accordance with law by a final judgment of the court.”

Article 11 § 2 of the Code of Criminal Procedure provides:

“No one shall be declared guilty of having committed an offence or punished by a criminal penalty save by a court judgment in accordance with law.”

Collection of new material evidence

The former provisions of Articles 256 § 4, 260 § 4 and 283 § 3 (in force until 30 July 1999) stated that the court could of its own motion adjourn the case if the pre-trial investigation was incomplete, ordering the investigator or prosecutor to submit new material evidence.

On 5 February 1999 the Constitutional Court found that the provisions of the Code of Criminal Procedure enabling the court to order the collection of new material evidence was incompatible with the principles of impartiality and independence, and thereby incompatible with the Constitution.

The present provisions of Article 256 § 4 (in force since 30 July 1999) and Article 283 § 3 (in force since 8 March 2000) entitle the court to adjourn the case and order the collection of new material evidence only when the prosecuting authorities so request. In the absence of such a request, where the pre-trial investigation is incomplete, the court may remit the case for further pre-trial investigation (Article 255 § 1 (1), in force since 30 July 1999). 

Calling of witnesses

Under Article 122, a witness has the right to claim reimbursement of his travel expenses and other costs incurred in appearing before the court.

Article 175 provides that a witness must be called by way of a written communication.

Article 300 § 1 provides that the court must hear the parties’ opinions when a particular witness fails to appear at the trial. The court may decide to continue or adjourn the examination of the case. 

Pursuant to Article 316 § 1 (2), the witness statements shall be read out before the court when the witness has refused to testify at the trial. 

Operative Actions Act

The Operative Actions Act (Operatyvinės veiklos įstatymas) lists a number of intrusive techniques, which may be used by law enforcement or security intelligence authorities for the purpose of investigating crimes. Under Article 4 § 1 of the Act, the authorities may engage in those techniques only where there is “initial information” about a serious crime which is being committed or prepared. 

Articles 2 § 6 and 4 § 5 of the Act provide that intrusive techniques such as surveillance and tapping require specific authorisation and cannot be applied in regard to an MP if that technique is carried out by use of stationary devices.

COMPLAINTS

1.The applicant complains under Article 5 § 1 of the Convention that he was unlawfully deprived of his freedom on 12 August 1997 as he had an MP’s immunity, and that he was subsequently unable to contest that violation of his rights. 

2.The applicant further complains under Article 5 § 1 that his detention from 28 October to 30 November 1997 was unlawful. He states that there were no valid reasons to order his arrest on 28 October 1997. On that date the court allegedly breached various requirements of domestic criminal procedure as it did not invite the applicant’s counsel to attend, but heard the Prosecutor General instead. Domestic law did not require that a person be brought before the court, which issued the arrest warrant. In the applicant’s opinion, the arrest warrant was improper, as the judge did not mention that the Deputy Prosecutor General had in fact been present at the hearing of 28 October 1997. Furthermore, domestic law allegedly required that on 30 October 1997 the judge orders detention rather than extend its term. In addition, the applicant claims that the decisions of 28 and 30 October 1997 did not include the factual account concerning the date, place, time and circumstances of the alleged offence. Moreover, these decisions did not refer to any reasons for his detention, in breach of domestic criminal procedure.

3.The applicant also complains under Article 5 § 1 that from 30 November 1997 until 8 December 1997 there was no valid court order authorising his detention on remand.

4.He next complains that his detention from 8 to 31 December 1997 breached Article 5 § 1 of the Convention.

5.The applicant then complains under Article 5 § 1 that from 31 December 1997 until 8 January 1998 there was no valid court order relating to his remand in custody. 

6.He also complains under Article 5 § 1 of the Convention about his detention after 8 January 1998. He alleges that on 8 January and 23 May 1997 the Regional Court erred in domestic law when it decided that his detention on remand “shall remain unchanged”. In the applicant’s opinion, the term of his remand in custody had expired on 31 December 1997, and the court should have ordered a new remand measure. As a result, his detention on the basis of those orders breached the procedure prescribed by domestic law under Article 5 § 1 of the Convention.

7.Under Article 5 § 4 of the Convention, the applicant complains that the judge of the Vilnius Regional Court on 11 November 1997 did not hear the parties when examining his appeal against detention. The applicant alleges that, due to a statutory bar, he was not able to challenge the decision of 8 December 1997 extending the term of his detention. Moreover, on 8 January 1998 the judge did not recognise the unlawfulness of the applicant’s remand up to that date. Nor was his appeal against the decision of 23 March 1998 examined. The decisions of 5 and 19 February and 1 July 1998 dismissing the applicant’s requests for release also were not proper remedies within the meaning of Article 5 § 4. The applicant concludes that he had no court review of his detention, as required by Article 5 § 4.

8.Under Article 6 § 1 of the Convention, the applicant complains that he was denied a fair trial by an impartial tribunal.

First he claims that the media campaign surrounding the trial was prejudicial to the “fairness” of the proceedings in breach of Article 6 § 1.

He also alleges that he was a victim of incitement by KK and the authorities. The applicant complains that the domestic courts wrongly dismissed his version of events. The applicant further complains that the courts failed to notice that KK and the security intelligence authorities had long been in contact before the first meeting between KK and the applicant, and that the “provocation” against him had been organised and supported by certain high ranking Lithuanian politicians. Moreover, the domestic courts failed to find that the secret recording of the applicant’s meetings with KK, and the fact that the security intelligence authorities gave KK money to pay the applicant, were in breach of domestic law.

Under the above provision, the applicant next complains that the domestic courts failed to establish that certain evidence was withheld from the case-file. Furthermore, the courts wrongly interpreted domestic law, admitting certain other evidence, which was unlawful.

The applicant also states that the domestic courts improperly assessed evidence given by the witnesses and the experts, thereby breaching the principle of fairness.

Under Article 6 § 1 the applicant next complains that on 23 March 1998 the Vilnius Regional Court adjourned the case and ordered the collection of new material evidence. In the applicant’s view, this decision was defective in domestic law as the powers of a court to order the collection of new material evidence were deemed incompatible with the Constitution by a decision of the Constitutional Court on 5 February 1999.

The applicant further complains that the two judges who convicted him at first instance reached different conclusions on the merits of a very similar criminal case at the end of 1999. The failure by the judges to follow their precedent in the applicant’s case demonstrates the unfairness of the proceedings.

He also complains that the judges in his case were biased as they failed to notice a breach of domestic law and the Convention in respect of his detention on remand.

Moreover, the applicant claims that the composition of the
seven-member chamber of the Supreme Court due to examine the applicant’s case on 11 May 1999 was changed on 10 May 1999, i.e. one day before the cassation hearing, one of the judges being replaced. The applicant alleges that the date of replacement was falsified by the President of the Criminal Division of the Supreme Court as being 27 April 1999. In the applicant’s view, the judge appointed to sit one day before the hearing was not competent to perform his judicial functions properly, and that this falsification disclosed the bias of the Supreme Court in his regard.

9.Under Article 6 § 1 of the Convention the applicant further complains that he was denied a right of appeal against the decision of the Vilnius Regional on 23 March 1998 regarding new material evidence. Moreover, he was refused access to the Constitutional Court for an examination of the compatibility with the Constitution of the domestic statutes upon which the decision of 23 March 1998 was based.             

10.By letter of 25 September 2000 the applicant seems to complain about unfairness and a lack of impartiality as regards his ineligibility as a candidate in the parliamentary elections. He invokes no specific provision of the Convention in this connection. 

11.The applicant complains under Article 6 § 2 of the Convention that the statements of the Prosecutor General published on 14 and 16 August 1997 breached the presumption of innocence.

He next complains under Article 6 § 2 that the Chairman of Seimas, in his statements published on 15 and 20 August 1997 and 6 October 1998, said that he had “no doubt” as to the applicant being a “bribetaker” and stated that the applicant “[had taken] the money while promising criminal services”, thereby breaching the presumption of innocence. 

12.Under Article 6 § 3 (b) and (c) of the Convention, the applicant complains that when he was questioned on 12 August 1997 he was not given the assistance of a lawyer, although one was requested. Furthermore, his defence rights under these provisions were breached by the law of 29 December 1998 amending the Code of Criminal Procedure, whereby the courts became entitled to impose discriminatory pecuniary penalties on practising lawyers for failure to attend trial hearings without proper cause.

13.Under Article 6 § 3 (d) of the Convention, the applicant complains that his defence rights were violated as the courts refused his applications to question all witnesses of his choosing or to obtain certain expert examinations. The applicant further complains about the authorities’ failure to ensure the attendance and examination before the Lithuanian court of a defence witness from Belgium. The need to question such a vital witness by the court and the parties was proved by the decision of 19 February 1998, whereby the Vilnius Regional Court decided to invite the witness to appear at the trial. However, the lack of appropriate diplomatic behaviour by the trial court, and the alleged unlawful enquiries about him in Belgium by the Lithuanian Interpol, resulted in the witness’s refusal to travel to Lithuania. Furthermore, on 23 March 1998 the court unlawfully invited the prosecuting authorities to obtain the testimony of this witness. His defence counsel was unable to take part in the subsequent questioning of the witness by the Belgian authorities in the presence of two Lithuanian prosecutors, despite the applicant’s requests for their participation. The applicant also alleges that thereby the equality of arms principle was breached.   

14.Under Article 8 of the Convention, the applicant complains that he was subjected to unlawful surveillance and wiretapping, and that the recordings of his meetings with KK breached this provision.

THE LAW

1.The applicant complains that the authorities’ actions against him on 12 August 1997 (apprehending him in a hotel lobby and questioning him for an hour) amounted to an unlawful deprivation of liberty in breach of Article 5 § 1 of the Convention, given his immunity as a Member of Parliament. 

Article 5 § 1 provides, insofar as relevant, as follows:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … ;

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; … .”

However, in accordance with Article 35 § 1 of the Convention, the Court may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the “final” domestic decision. Where a complaint is made about the absence of an adequate remedy against a particular act, which is alleged to be in breach of the Convention, the date when that act takes place is “final” for the purposes of the six months’ rule (see the Valašinas v. Lithuania decision, no. 44558/98, 14.3.2000).  

As the applicant claims that he had no legal remedies within the meaning of Article 35 § 1 in connection with the alleged deprivation of liberty on 12 August 1997, the Court observes that this event occurred more than six months before the application was introduced, with the result that this complaint was submitted out of time.

It follows that this part of the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2.The applicant next complains under Article 5 § 1 of the Convention about his arrest on 28 October 1997 on suspicion of attempted cheating. The applicant argues that his arrest and detention from 28 October to 30 November could not be regarded as “lawful” given defence restrictions and various procedural irregularities in the decisions of the District Court authorising his detention on 28 and 30 October 1997. He further claims that his detention on remand from 28 October until 30 November 1997 involved various procedural irregularities under domestic law, in breach of this Convention provision.

The Court recalls that Article 5 § 1 requires that any period of detention be compatible with domestic law and not arbitrary. A period of detention is, in principle, “lawful” if it is based on a court order. Even flaws in the detention order do not necessarily render the underlying period of detention “unlawful” within the meaning of Article 5 § 1 (see the Jėčius v. Lithuania judgment, no. 34578/97, 31.7.00, § 56).

However, it is undisputed that on 28 and 30 October 1997 the District Court acted within its jurisdiction insofar as it had power to entertain the prosecutor’s application and to make an appropriate order in respect of the applicant’s detention under Articles 10, 104 and 104-1 of the Code of Criminal Procedure. The Court observes that Article 104-1 of the Code lays down no particular procedure for the hearing of the prosecutor’s application, let alone a requirement for the judge to hear the parties before the appropriate decision is made. Nevertheless, the parties were both heard on 28 and 30 October 1997.

Nor can it be said that the applicant’s remand in custody on the basis of those orders was arbitrary. He was detained on suspicion of his having committed an offence, given the risk that he might obstruct the establishment of the truth in the case, inter alia, by exploiting the media and influencing witnesses. The Court does not find that the District Court acted in bad faith or that it failed to apply the relevant domestic legislation correctly. Therefore, even if there may have been certain procedural defects in those orders, they were not of such a nature or degree as to render the underlying period of detention “unlawful” within the meaning of Article 5 § 1.

Consequently, it has not been established that the detention orders of 28 and 30 October 1997 were invalid in domestic law, or that the period of detention authorised by those orders was incompatible with Article 5 § 1 of the Convention.

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

3.The applicant further complains under Article 5 § 1 that from 30 November to 8 December 1997 there was no valid court order as to his detention, following the expiry of the time-limit ordered on 30 October 1997.

According to the Government, the applicant’s detention on remand for this period was justified by the suspicion that he had committed an offence and by his access to the case-file under the former Article 226 § 6 of the Code of Criminal Procedure.

The applicant argues that the circumstances mentioned by the Government could not replace a valid detention order for the said period.

The Court has had regard to the parties’ observations on this aspect of the case. It considers that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. It cannot therefore be regarded as manifestly
ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4.To the extent that the applicant complains under Article 5 § 1 of the Convention about his detention from 8 to 31 December 1997, the Court notes that this period was covered by the judicial detention order of 8 December 1997 taken in accordance with Articles 10, 104-1 and 106 of the Code of Criminal Procedure. The detention during this period was thus compatible with domestic law and there is no evidence it was in anyway “unlawful” for the purposes of Article 5 § 1.

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

5.The applicant further complains under Article 5 § 1 about the absence of a valid court order authorising his detention on remand from 31 December 1997 to 8 January 2000, following the expiry of the time-limit set on 8 December 1997. 

The Government submit that this period of detention was justified by the fact that the case had been transmitted to the trial court. The applicant argues that the courts were not thereby relieved of the obligation to issue a valid detention order.

In the light of the parties’ observations, the Court finds that this part of the application also raises complex questions of fact and law, the determination of which should depend on an examination of the merits. It cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

6.The applicant finally complains under Article 5 § 1 that his detention on remand after 8 January 2000 was unlawful in domestic law. He complains that on 8 January 1998 and 23 March 1998 the trial court decided that his detention on remand “shall remain unchanged”. In the applicant’s opinion, after the expiry of the term of his detention on 31 December 1997, a new detention order should have been issued to justify his continuing remand in custody.

The Government argue that, by way of the decisions of 8 January and 23 March 1998, the Regional Court authorised the applicant’s detention on remand in accordance with domestic requirements.

The Court recalls the previously cited judgment of Jėčius v. Lithuania (loc. cit. §§ 65-70) in which it held that a domestic court decision declaring that the remand in custody “shall remain unchanged”, does not of itself render the detention invalid in domestic law, or the ensuing detention unlawful for the purposes of Article 5 § 1 of the Convention. The Court finds no reason to draw a different conclusion in the present case.

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

7.The applicant next alleges a violation of Article 5 § 4 of the Convention, which provides as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Government state that the domestic law afforded the applicant ample opportunity to contest the lawfulness of his detention, namely to submit requests for release which were reviewed by the domestic courts. In addition, the trial court on many occasions of its own motion controlled the appropriateness of the applicant’s detention, and the appellate court examined the applicant’s allegations about the unlawfulness of his detention in his appeal against the conviction, thereby affording him the guarantees of Article 5 § 4 of the Convention.

The applicant argues that the lack of appropriate procedural guarantees during the appeal hearing on 11 November 1997, and the subsequent absence of a possibility to contest the lawfulness of his detention due to the statutory bar under the former provision of Article 372 § 4 of the Code of Criminal Procedure, breached his rights under this Convention provision.

The Court has had regard to the parties’ observations on this aspect of the case. It considers that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. It cannot therefore be regarded as manifestly
ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

8.The applicant next alleges that he was deprived of a fair trial by an impartial tribunal in breach of Article 6 § 1 of the Convention, which provides, insofar as relevant, as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ... .”

The Government submit that the courts, being composed of professional judges, fairly and impartially assessed the evidence before them, regardless of the press campaign surrounding the trial which was prompted by the fact that the applicant is a famous politician. The Government state that the applicant’s allegations of prejudice by the courts are unjustified.

As regards the applicant’s complaint about the media campaign surrounding the trial, the Court recalls that a virulent press campaign can adversely affect the fairness of a trial by influencing public opinion, and, consequently, jurors called upon to decide the guilt of an accused. At the same time, the Court notes that the press coverage of current events is an exercise of freedom of expression guaranteed by Article 10 of the Convention. If there is a virulent press campaign surrounding the trial, what is decisive is not the subjective apprehensions of the suspect concerning the absence of prejudice required of the trial courts, however understandable, but whether, in the particular circumstances of the case, his fears can be held to be objectively justified (see the Daktaras v. Lithuania decision, no. 42095/98, 11.1.00)

The Court notes that the applicant’s arrest and trial were discussed nation-wide by the media. The Court considers that the interest of the media in the “Butkevičius case” was largely the result of the applicant’s prominent place in Lithuanian politics. Therefore, although various State officials discussed the applicant’s case in the media, it cannot be said that the coverage was prompted by the authorities.

The Court also notes that the press extracts on which the applicant relies do not constitute a unanimous and outright condemnation of the applicant. While statements about the case were made by the Prosecutor General and the Chairman of Seimas, the Court observes that no such comments were made by any judge. In addition, the charges against the applicant were determined by professional judges who were less likely than a jury to be influenced by the media (see, mutatis mutandis, ibid.). On the basis of the material in the case-file and, in particular, taking account of the reasoned judgments adopted by the domestic courts at three instances, the Court finds no indication of bias by the courts or prejudice towards the applicant as a result of the media campaign surrounding the trial.

The applicant further complains under Article 6 § 1 of the Convention that he was incited to commit an offence as a result of the conspiracy against him by KK and the authorities, and that he was convicted on the basis of unlawfully obtained recordings of his meetings with KK.

The Court recalls that it is not its task to review alleged errors of fact and law committed by the domestic judicial authorities and that, as a general rule, it is for the national courts to assess the evidence before them and to apply domestic law. The Court’s task is to ascertain whether the proceedings as a whole were fair (see the Bernard v. France judgment, no. 22885/93, 23.4.98, ECHR 1998-II, § 37). Furthermore, while Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation by national law. Even if the conviction was in part based on evidence which had bee unlawfully obtained, this does not necessarily mean that the principle of fairness within the meaning of Article 6 was violated (see the Schenk v. Switzerland judgment, no. 10862/84, 12.7.88, ECHR 1988-II, §§ 45-48).

The Court notes that, in contrast to the Schenk case, the tape recordings of the present applicant’s conversations were not obtained in breach of domestic law. The courts at three instances examined in depth and rejected as unsubstantiated the applicant’s complaints in this respect. In addition, the domestic courts found that the submissions made by the applicant during his conversations with KK were made voluntarily, there being no entrapment and the applicant being under no inducement to make such submissions (also see the Khan v. the United Kingdom judgment, no. 35394/97, 12.5.00, § 36). It is also to be noted that, in contrast to the Khan case where only one tape recording was admitted as evidence which then constituted the basis for that applicant’s conviction, three recordings were made of the present applicant’s meetings with KK, disclosing the applicant’s consistent plans formed on his own initiative, rather than at the instigation of others. As a result of those recordings the applicant was apprehended on 12 August 1997 while committing an offence. The applicant’s allegations about the alleged “provocation” against him are thus unfounded.

Moreover, the applicant was convicted not only on the basis of the secretly taped material, but also by reference to the statements of KK and the security intelligence officers, who testified that the applicant was apprehended while actually committing the offence.

In any event, such evidence is not the determinative factor in the Court’s conclusion. The key element is that the applicant had ample opportunity to challenge both the authenticity and use of the recordings. The Court notes that at each level of jurisdiction the domestic courts assessed the effect of admission of the evidence on the fairness of the trial by reference to domestic criminal procedure, and the courts discussed, amongst other matters, the statutory basis for the applicant’s surveillance and the admission of the evidence in the case. The fact that the applicant was unsuccessful at each step makes no difference (see, mutatis mutandis, the Khan judgment cited above, §§ 37-40). The Court finds therefore that the use at the applicant’s trial of the secretly taped material did not conflict with the requirements of fairness guaranteed by Article 6 § 1 of the Convention.

To the extent that the applicant alleges partiality of courts on the basis of the decisions that the judges took or failed to take in the case, the Court notes that the applicant contests the competence of judges in carrying out their statutory functions rather than presents any evidence, whether applying a subjective or objective test, of the courts’ lack of impartiality within the meaning of Article 6 § 1 (see, by contrast, the Daktaras v. Lithuania judgment, no. 42095/98, 10.10.2000, §§ 30-38).

To the extent that the applicant complains that the Supreme Court in his case lacked impartiality due to the change in composition the day before the cassation hearing and the alleged falsification of the date of the change, the Court notes that at no stage during the cassation hearing did the applicant raise this grievance or challenge any judge. He thus failed to exhaust domestic remedies in regard to this complaint as required by Article 35 § 1 of the Convention. In any event, the Court finds that there is no evidence that the Supreme Court lacked impartiality within the meaning of Article 6 § 1.

As regards the applicant’s other complaints about fairness and impartiality, the Court finds them unsubstantiated. They do not, therefore, disclose any violation of Article 6 § 1 of the Convention. 

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

9.The applicant then complains under Article 6 § 1 of the Convention of a denial of “the right to a court” to contest, by way of an appeal to a higher criminal court or access to the Constitutional Court, the decision of the Regional Court of 23 March 1998 ordering the collection of new material evidence. However, the Court notes that this procedural step did not determine “a criminal charge” within the meaning of Article 6 § 1 of the Convention and, moreover, Article 6 § 1 does not guarantee such a right of appeal.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4.

10.As regards the applicant’s apparent complaint about a violation of the principles of fairness and impartiality in the administrative proceedings resulting in his ineligibility to stand as a parliamentary candidate, the Court recalls that such proceedings are of a purely public law character, having no repercussions on the applicant’s civil rights within the meaning of Article 6 § 1 of the Convention (see the Pierre-Bloch v. France judgment, no. 24194/94, 21.10.1997, § 50). Accordingly, Article 6 is not applicable in this context.

It follows that this part of the application is also incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4.

11.The applicant complains that the statements of the Prosecutor General published in the press on 14 and 16 August 1997, and the statements of the Chairman of Seimas published on 15 and 20 August 1997 and 6 October 1998 breached Article 6 § 2 of the Convention, which provides as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Government submit that the impugned statements did not violate the presumption of innocence. According to the Government, account must be taken of the context in which the statements were made, namely, the fact that the applicant had been apprehended while committing an offence and the sufficiency of evidence which might justify lifting the applicant’s parliamentary immunity and instituting criminal proceedings. The impugned statements must be interpreted as explaining to the public the need to bring criminal proceedings against the applicant, and not as declaring him guilty of an offence. Furthermore, the statement of the Chairman of Seimas on 6 October 1998 that the applicant was a bribetaker did not breach the presumption of innocence because the applicant had not been charged with an offence of bribery. The Government conclude that the applicant’s rights under Article 6 § 2 were not thereby breached. 

The applicant contests the Government’s submissions, claiming that the statements at issue violated the presumption of innocence. He notes that the Government accept the authenticity of the impugned statements which amount to declarations of his guilt for offences with which he was or was not charged. In the applicant’s view, the wording of those declarations cannot be justified by the need to inform the public about probable or pending criminal proceedings. 

In the light of the parties’ observations, the Court finds that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. It cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

12.The applicant further complains about a violation of his defence rights under Article 6 § 3 (b) and (c) of the Convention, which provides as follows:

“Everyone charged with a criminal offence has the following minimum rights: … ;

(b)  to have adequate time and facilities for the preparation of his defence;

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; … .”

To the extent that the applicant complains about his questioning in the absence of a lawyer on 12 August 1997, the Court notes that the trial court excluded this evidence as being unlawful, and the applicant’s conviction was not founded on such evidence. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. 

To the extent that the applicant complains about the risk of penalties being imposed on his lawyers, the Court finds no evidence that this risk ever materialised or in what way the applicant’s rights under Article 6 § 3 (b) and (c) have been thereby impaired.  

It follows that this part of the application and must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

13.Under Article 6 § 3 (d) of the Convention, which guarantees to everyone the right “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”, the applicant complains that the authorities failed to ensure the attendance of a Belgian defence witness at the trial, and that this person’s subsequent questioning in Belgium breached his defence rights. In the applicant’s view, these circumstances also breached the equality of arms principle under Article 6 § 1 of the Convention. 

The Government point out that the trial court tried to obtain this witness’ attendance, in accordance with the domestic procedural requirements. However, the witness refused to travel to Lithuania without an advance of his expenses. The Government claim that the court proposed that the applicant cover these expenses which would be reimbursed upon the witness’ appearance at the trial, an offer which the applicant refused. Steps were then taken for the evidence to be taken in Belgium, during which the Lithuanian prosecutors were only allowed a passive role under Belgian criminal procedure. In any event, this procedure had no effect on the applicant’s defence rights and the principle of equality of arms, as the witness refused to answer the prosecutors’ questions, only submitting to the Belgian prosecutors his statement about the case. As this statement was subsequently considered irrelevant by the trial court, it was fully competent to refuse a further examination of the Belgian witness. The Government conclude that Article 6 §§ 1 and 3 (d) of the Convention were not breached in this respect.

The applicant argues that the failure of the trial court to question the witness and his questioning in Belgium in the absence of his representatives breached the above Convention provision.

The Court recalls that Article 6 § 3 (d) of the Convention does not give the defence an absolute right to question every witness or expert it wishes to call. The essential aim of this provision, together with Article 6 § 1, is equality of arms (see the Vidal v. Belgium judgment, no. 12351/86, 22.4.92, ECHR A-235-B, § 33). The principle of equality of arms means that both the prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party.

The Court notes that witnesses, including those on the applicant’s behalf, were questioned, and expert examinations were carried out in the present case. The Court’s task is to review the way in which the witnesses’ and experts’ evidence was taken, not to re-assess its relevance to the finding of the applicant’s guilt.   

To the extent that the applicant complains that the authorities improperly handled his request to examine a defence witness from Belgium, the Court finds that in the circumstances of the case, recapitulated in the Government’s submission above, reasonable steps were taken. It notes, in particular, the passive role assigned to the Lithuanian prosecutors in Belgium, that witness’ refusal to answer specific questions and the ultimate inadmissibility of the statement obtained. Therefore great weight cannot be attributed to the absence of the applicant’s representatives during the Belgian procedure.

The Court concludes that the handling by the authorities of the applicant’s request to question the Belgian witness did not breach the applicant’s defence rights or the principle of equality of arms. Nor is there an indication in the present case of a violation of the above provision in connection with the examination of other witnesses or experts.

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

14.The applicant finally alleges a violation of Article 8 of the Convention, which provides as far as relevant follows:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society … for the prevention of disorder or crime … .”

To the extent that the applicant complains of general surveillance and wiretapping, the Court observes that the domestic courts at three instances rejected as unsubstantiated such allegations. Moreover, there is nothing in the case-file, which might detract from that conclusion. The Court finds therefore that there has been no interference with the applicant’s rights under Article 8 of the Convention in this respect.

To the extent that the applicant complains about the secret recordings of his meetings with KK which served as a basis for his arrest and conviction, the Court notes that those recordings were obtained in accordance with the Operative Actions Act and domestic criminal procedure, as established by the national courts in the case. The Court also considers that the interference with the applicant’s rights under Article 8 § 1 of the Convention pursued the legitimate aim of crime prevention, and was proportionate to that aim. Accordingly, it may be said that the interference was necessary within the meaning of Article 8 § 2.

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by majority

Declares admissible, without prejudging the merits, the applicant’s complaints under Article 5 § 1 of the Convention about the lawfulness of his detention from 30 November to 8 December 1997 and from 31 December 1997 to 8 January 1998, his complaint under Article 5 § 4 about the inability to contest the lawfulness of his detention, and the complaints under Article 6 § 2;

Declares inadmissible the remainder of the application.

S. Dollé              J.-P. Costa
RegistrarPresident

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