SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 51392/07
by Elijus GIEDRIKAS
against Lithuania
The European Court of Human Rights (Second Section), sitting
on 14 December 2010 as a Chamber composed of:
Françoise Tulkens, President,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Nona Tsotsoria,
Kristina Pardalos,
Guido Raimondi, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 14 November 2007,
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, Mr Elijus Giedrikas, is a Lithuanian national who was born in 1971 and lives in Panevėžys. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Criminal proceedings
On 20 July 1999 a prosecutor instituted criminal proceedings in a case where a hostage had been taken in the territory of Lithuania, then removed and held in the Republic of Latvia.
On 10 November 1999 the applicant was arrested and questioned as a suspect in that case. On 11 November 1999 he was charged with taking a hostage and remanded in custody.
On 7 March 2000 the prosecutor ordered that the applicant be released from custody on bail.
On 6 December 2001 the prosecutor informed the applicant that a milder remand measure – the obligation not to leave his place of residence – would be imposed on him.
On 11 April 2006 the prosecutor of the Panevėžys Regional Prosecutor’s office discontinued the pre-trial investigation with regard to the applicant since the prosecution of the crime had become time-barred. The authorities also revoked the obligation for the applicant not to leave his place of residence.
The applicant appealed, arguing that the criminal proceedings in his case had been protracted and that the prosecutors, not being able to collect evidence against him, had been stalling the pre-trial investigation until the prosecution would become time-barred. Moreover, whilst the pre-trial investigation had been pending, he was obliged not to leave his place of residence and therefore could not travel, search for a job or participate in employment competitions. The applicant requested the prosecutors to reopen the pre-trial investigation and to discontinue his case on rehabilitation grounds.
By a ruling of 16 June 2006, the prosecutor dismissed the applicant’s request as unfounded. The prosecutor observed that the case was complicated as it involved twelve suspects and a crime which had been committed in the territories of two States – Lithuania and Latvia. It followed that the length of the pre-trial investigation was reasonable and did not violate the applicant’s right to a trial within a reasonable time. The prosecutor also observed that the crime had been committed in 1999 and that the national law provided for a five year term to prosecute it. Therefore it had been correctly decided to discontinue the pre-trial investigation as having become time-barred.
The applicant appealed.
On 16 March 2007 the Panevėžys City District Court found that the domestic law indeed provided for a possibility to discontinue the criminal proceedings as being time-barred. It observed, however, that a person’s guilt could be established only by a judgment of a court. By discontinuing the criminal proceedings as time-barred the applicant had been left accused of a crime with all the legal and moral consequences stemming from that. As under the domestic law the pre-trial judge could not himself discontinue the criminal proceedings on rehabilitation grounds, the Panevėžys City District Court returned the case to the prosecutor and ordered him to rectify the situation.
On 11 April 2007 the prosecutor again discontinued the pre-trial investigation with regard to the applicant on the ground that the prosecution had become time-barred. The applicant appealed.
On 16 August 2007 the Panevėžys City District Court, having examined the evidence collected during the pre-trial investigation, decided that there was no proof that the applicant had committed the crime with which he had been charged. Consequently, the pre-trial investigation in respect of the applicant had to be discontinued by way of acquittal. The Panevėžys City District Court further noted that even though on 16 March 2007 the case had been returned to the prosecutor, the latter failed to perform any actions for five months and had ignored the court’s ruling by repeating his original decision. The court decided that, in order to avoid further delays, it was competent to resolve the question itself, and ruled that the pre-trial investigation of the applicant had been discontinued on the ground that no crime had been committed.
The prosecutor challenged the decision, lodging a petition to the President of the Panevėžys City District Court.
On 31 August 2007 the President of the Panevėžys City District Court adopted the final procedural decision and dismissed the appeal.
2. Civil proceedings
The applicant instituted proceedings for non-pecuniary damage against the Republic of Lithuania. He argued that from 10 November 1999 to 31 August 2007 he had been a suspect in a criminal case, the proceedings lasted unduly long and therefore caused him great moral suffering. The applicant claimed 8,000,000 Lithuanian litas (LTL, approximately 2,317,000 euros (EUR)) in non-pecuniary damages and LTL 3,200
(EUR 927) which he paid for his defence in criminal proceedings.
In a decision of 10 June 2009 the Panevėžys Regional Court relied on Article 6.272 of the Civil Code and Article 6 § 1 of the European Convention on Human Rights and granted the applicant’s claims in part. The court found that when instituting criminal proceedings and charging the applicant the authorities followed the law. Moreover, the rules of criminal procedure were observed when remand measures – detention, bail, obligation not to leave his place of residence – were imposed on the applicant. The Panevėžys Regional Court found, however, that the pre-trial investigation in the applicant’s case had not been conducted with sufficient intensity and speediness, too few procedural actions had been performed and none at all for certain rather long periods. In contrast, no actions of the applicant that would have contributed to the length of proceedings were established. As a result, there was a breach of the applicant’s right to a trial within a reasonable time, enshrined in Article 6 § 1 of the Convention.
As to the non-pecuniary damage award, the first instance court acknowledged that the criminal proceedings at issue had caused the applicant much distress. The applicant was dismissed from his job and negatively portrayed in the press. His situation was further compounded by the length of the proceedings, the serious nature of the charges against him and the fact that he had to endure various remand measures. Those negative repercussions extended to the applicant’s family members. In the light of the above and having considered the practice of the European Court of Human Rights, the Panevėžys Regional Court deemed it equitable to award the applicant a sum of LTL 8,000 (EUR 2,317) for non-pecuniary damage he had sustained. Moreover, noting that the criminal proceedings against the applicant were discontinued on rehabilitation grounds, the court also decided that the State should cover the applicant’s defence costs in the sum of LTL 3,200.
On 14 May 2010 the Court of Appeal upheld the above decision, fully concurring with the first instance court to the effect that the length of the criminal proceedings was not justified. The award for non-pecuniary damage remained at LTL 8,000. The appellate court however lowered the sum for the applicant’s legal costs by LTL 1,000, because it was established that those costs were incurred on 27 December 2007 that is four months after the criminal proceedings had been discontinued.
The applicant submitted an appeal on points of law; however, by a ruling of 20 August 2010 the Supreme Court refused to examine it as raising no important legal issues.
On 17 September 2010 the Ministry of Justice ordered a bank to transfer to the applicant the sum of LTL 10,200, in “compensation for pecuniary and non-pecuniary damage”.
B. Relevant domestic law and practice
Article 6.272 of the Civil Code allows a civil claim for pecuniary and non-pecuniary damage, in view of the unlawful actions of the investigating authorities or court, in the context of a criminal case. The provision envisages compensation for an unlawful conviction, an unlawful arrest or detention, the application of unlawful procedural measures of enforcement. According to recent domestic case-law, this provision may also allow claims for damages arising from the excessive length of criminal proceedings (see Norkūnas v. Lithuania, no. 302/05, § 26, 20 January 2009).
The court practice also provides that on the basis of the above legal norm civil liability of the State arises irrespective of whether there was guilt of the investigating authorities or court. For the liability to arise it is sufficient that the authorities’ actions (inaction) would be unlawful, that they had caused damage and there must also be a causal link between those actions (inaction) and damage (the Supreme Court’s ruling of 4 February 2009 in civil case no. 3K-3-5/2009 and the ruling of 20 April 2007 in civil case no. 3K-3-169/2007).
Furthermore, Article 6.272 of the Civil Code is to be applied directly – a court must apply it in a civil case for damages irrespective of whether a procedural measure, which the plaintiff alleges has caused damage, had ever been challenged in criminal proceedings (the Supreme Court’s ruling of 7 June 2006 in civil case no. 3K-7-183/2006).
COMPLAINT
Under Article 6 § 1 of the Convention, the applicant complained about the length of the criminal proceedings against him.
THE LAW
The applicant argued that the length of the criminal proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
A. The parties’ submissions
The Government argued that at the domestic level the applicant had already received an adequate redress for the damage due to the violation of his right to a trial within a reasonable time. Therefore the applicant could no longer claim to be a victim within the meaning of Article 34 of the Convention.
The applicant maintained his complaint.
B. The Court’s assessment
The Court recalls that the applicant’s status as a “victim” within the meaning of Article 34 of the Convention depends on the fact whether the domestic authorities acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate redress in relation thereto. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Cocchiarella v. Italy [GC], no. 64886/01, § 71, ECHR 2006‑V and Cataldo v. Italy (dec.), no. 45656/99, 3 June 2004).
The Court notes that on 10 June 2009 the Panevėžys Regional Court and on 14 May 2010 the Court of Appeal found that the applicant’s right to a trial within a reasonable time had been violated and, making an assessment on an equitable basis, provided for redress of a compensatory nature by awarding him just satisfaction in respect of non-pecuniary damage in the amount of LTL 8,000. The Lithuanian courts thus acknowledged that there had been a violation of the applicant’s right to have his criminal case decided within a reasonable time. The Court considers that such acknowledgment satisfies in substance the first condition laid down in the Court’s case law.
The applicant’s victim status then depends on whether the redress afforded was adequate and sufficient having regard to just satisfaction as provided for under Article 41 of the Convention (see Dubjaková v. Slovakia (dec.), no. 67299/01, 19 October 2004).
In this connection, the Court recalls that in length-of-proceedings cases one of the characteristics of sufficient redress which may remove a litigant’s victim status relates to the amount awarded. The amount depends, in particular, on the characteristics and effectiveness of the remedy.
The Court can also perfectly well accept that a State which has introduced a remedy, which is designed to afford compensation, will award amounts which – while being lower than those awarded by the Court – are not unreasonable, on condition that the relevant decisions, which must be consonant with the legal tradition and the standard of living in the country concerned, are speedy, reasoned and executed very quickly (see, mutatis mutandis, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 206, ECHR 2006‑V).
Turning to the actual sum awarded to the applicant by the Lithuanian courts, the Court finds that the compensation granted in the present case is lower compared with the sums awarded for comparable delays in the Court’s case-law. It would emphasise, in this respect, the importance of a reasonable amount of just satisfaction being awarded in the domestic system for the remedy in question to be considered as effective under the Convention. Whether the amount awarded may be regarded as reasonable, however, falls to be assessed in the light of all the circumstances of the case. These include not merely the duration of the proceedings in the specific case but the value of the award judged in the light of the standard of living in the State concerned, and the fact that under the national system compensation will in general be awarded and paid more promptly than would be the case if the matter fell to be decided by the Court under Article 41 of the Convention (see Dubjaková, cited above).
In the light of the material in the file and having regard to the particular circumstances of the case, the Court considers that the sum of LTL 8,000 awarded to the applicant as the compensation for non-pecuniary damage by the domestic courts can be considered reasonable and therefore appropriate redress for the violation suffered. In this context the Court also notes that on 17 September 2010, that is less than one month after the civil proceedings for non-pecuniary damage were terminated by the Supreme Court, a payment of LTL 10,200 was ordered to the applicant’s account. Accordingly, the Court considers that the regularisation arrangements proposed to the applicant by the Lithuanian authorities constitute an adequate and sufficient remedy for his complaint under Article 6 § 1 of the Convention.
In these circumstances, the Court holds that the applicant can no longer be considered to be a victim of a violation of Article 6 § 1 of the Convention. The present application should be rejected, therefore, as inadmissible, pursuant to Article 35 §§ 3 and 4 thereof.
For these reasons, the Court by a majority
Declares the application inadmissible.
Stanley NaismithFrançoise Tulkens Registrar President
Full & Egal Universal Law Academy