AS TO THE ADMISSIBILITY OF
Application No. 34578/97
by Juozas JECIUS
against Lithuania
The European Commission of Human Rights sitting in private on
1st December 1997, the following members being present:
Mr S. TRECHSEL, President
Mrs G.H. THUNE
MM E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 30 December 1996
by Juozas JECIUS against Lithuania and registered on 24 January 1997
under file No. 34578/97;
Having regard to:
- the report provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
9 June 1997 and the observations in reply submitted by the applicant
on 29 July 1997;
Having deliberated;
Decides as follows:
THE FACTS
A. Particular circumstances of the case
The applicant is a Lithuanian citizen born in 1948. He resides
in Panevezys, Lithuania. The applicant is represented before the
Commission by Dr. K. Stungys, solicitor, of Vilnius.
The facts of the case as submitted by the parties may be
summarised as follows:
The applicant was suspected of a murder committed on 14 May 1994.
In May 1995 the case was struck off because of the absence of evidence.
The applicant was arrested on 8 February 1996. On the same date,
with the authorisation (sankcija) of the Deputy Prosecutor General, the
Chief Commissioner of the Criminal Police ordered the applicant's
preventive detention (prevencinis sulaikymas). On 9 February 1996 a
judge of the Vilnius Regional Court (apygardos teismas) confirmed the
preventive detention. The applicant appealed against the arrest,
stating inter alia that he had not been informed of the reason for his
detention or of any charge against him. On 19 February 1996 a judge of
the Vilnius Regional Court dismissed the appeal.
No investigation was made during the preventive detention. On
20 February 1996 the applicant again requested information as to the
reasons for his arrest under the "preventive detention" rule. It
appears from an undated letter of the President of the Criminal
Division of the Vilnius Regional Court, and from a letter of
29 March 1996 of a prosecutor of the Office of the Prosecutor General,
that no exact reason was given for the applicant's arrest under the
"preventive detention" rule.
On 8 March 1996 the murder case was reopened. The applicant was
kept in preventive detention until 14 March 1996 when the Deputy
Prosecutor General authorised the applicant's detention on remand
(suemimas) on suspicion of having committed murder.
On 22 April 1996 the applicant submitted an application to the
Chief Prosecutor of Panevezys Region, claiming that there was no
evidence to suspect him of having committed or prepared an offence, and
that his preventive detention and subsequent detention on remand were
incompatible with Articles 50, 95 - 104 of the Code of Criminal
Procedure, and Article 5 para. 1 (c) of the Convention. On
24 April 1996 the Chief Prosecutor dismissed the application on the
ground that the arrest could be justified merely by reference to the
gravity of the alleged offence.
On 17 May 1996 the applicant submitted an application to the
Prosecutor General further arguing that there was no reasonable
suspicion against him, and that his arrest and detention infringed his
rights under Article 5 para. 1 (c) of the Convention. On 21 May 1996
a prosecutor of the Panevezys Regional Prosecutor's Office (apygardos
prokuratura) dismissed the application, referring to the gravity of the
offence and arguing that the arrest had been ordered on the basis of
the case-files as a whole. On 4 June 1996 a renewed application by the
applicant's representative was dismissed on the same grounds by the
Chief Prosecutor of Panevezys Region.
The pre-trial investigation was concluded on 29 May 1996. The
authorised term of the applicant's arrest expired on 4 June 1996. From
30 May to 10 June 1996 the applicant and his counsel were given access
to the case-files. Other suspects in the case had access to the case-
files until 14 June 1996. According to Article 226 para. 6 of the Code
of Criminal Procedure, the period of access by the accused and his
counsel to case-files is not counted towards the overall term of pre-
trial investigation and detention. Thus the time-limits thereof do not
run during this period.
The applicant, after having had access to the case-files,
submitted his observations and pleadings to the prosecution arguing
that the accusation and arrest were ill-founded. On 11 June 1996 a
prosecutor of the Panevezys Regional Prosecutor's Office dismissed the
application. The prosecutor held that the case-files contained
sufficient evidence of the applicant's guilt. The prosecutor also
stated that during the preventive detention the applicant could not be
interrogated as an accused person, and that no material had been
collected during that period.
On 13 June 1996 the prosecutor informed the administration of the
prison in which the applicant was being remanded that his detention was
"automatically extended until 14 June 1996" and that the case had been
transmitted to the Chief Prosecutor of Panevezys Region to confirm the
bill of indictment. No formal decision on remand was taken.
On 21 June 1996 an amendment to the Code of Criminal Procedure
entered into force, and the reservation of Lithuania in respect of
Article 5 para. 3 of the Convention expired. The amended Article 10 of
the Code of Criminal Procedure provides that a decision to arrest a
person can be ordered only by a court or judge.
On 24 June 1996 the Chief Prosecutor of Panevezys Region wrote
a letter to the administration of the prison informing them that the
case had been transmitted to the Panevezys Regional Court, and that in
respect of the applicant a remand measure - detention - had been
ordered. No formal decision as to the applicant's detention was taken.
On 1 July 1996 the Panevezys Regional Court informed the
administration of the prison that on 31 July 1996 a court hearing would
be held and directions for trial of the applicant and other accused
would be given. Again, no formal order to detain the applicant was
issued.
On 31 July 1996, in the directions hearing, a judge of the
Panevezys Regional Court decided "to maintain the remand measure" in
respect of the applicant. The applicant's counsel was present at the
hearing.
On 16 October 1996, after deliberations from 14 to 16 October,
the applicant being present, the Chamber of the Criminal Division of
the Panevezys Regional Court decided that the applicant was to remain
in custody. The term of the applicant's detention was extended to 15
February 1997. The Court ordered additional investigation measures.
On 28 October 1996 the applicant appealed against this decision
to the Court of Appeal. He also lodged applications with the Prosecutor
General, the administration of the prison, and the Parliamentary
Commissioner (Ombudsman). The applicant claimed that the courts, in the
directions hearing of 31 July 1996, and in the decision of
16 October 1996, had not properly decided to detain him because,
without any explanations of the grounds of detention, they had simply
prolonged a non-existing decision to arrest that had expired on
4 June 1996. The applicant stated that, as a consequence, Article 20
of the Constitution of the Republic of Lithuania and Article 5 of the
European Convention of Human Rights were infringed.
On 21 November 1996 the Ombudsman drew the attention of the
Minister of Internal Affairs, the Prosecutor General, the Director of
the Department for Correctional Institutions, and the Director of the
prison to the fact that, in his view, the applicant "had been remanded
in detention illegally from 14 June 1996 until 31 July 1996, which
infringed Article 20 of the Constitution of the Republic of Lithuania
... and Article 5 para. 1 (c) of the Convention".
On 25 November 1996 the applicant again lodged an appeal with the
Court of Appeal emphasising the main grounds of his application of
28 October 1996.
On 27 November 1996 the Criminal Chamber (baudziam*j* byl*
kolegija) of the Court of Appeal dismissed the appeal against the
decision of 16 October 1996 because, under Article 372 para. 4 of the
Code of Criminal Procedure, decisions of a court or judge at first
instance ordering, varying or revoking remand measures could not be the
subject of appeal. In considering the decision of the Regional Court
of 31 July 1996 as to the applicant's remand, the Court of Appeal held
that:
"It is conceivable that this question was not decided
absolutely correctly. However, this category of decisions
cannot be appealed against to the Court of Appeal."
On 30 November 1996 the applicant lodged a cassation appeal with
the President of the Supreme Court (Auksciausiasis Teismas).
On 30 December 1996 the President of the Criminal Division of the
Supreme Court informed the applicant's representative that the appeal
could not be examined. He admitted that the applicant "was kept in
detention from 4 June 1996 to 31 July 1996 without the remand measure
being extended". He emphasised however that the "ground of appeal
cannot overturn the provision of law that a decision ordering, varying
or extending a remand measure (Article 372 of the Code of Criminal
Procedure) ... cannot be the subject of appeal".
On 14 January 1997 the Chamber of the Criminal Division
(baudziam*j* byl* skyriaus teisej* kolegija) of the Supreme Court
decided that a chamber of three judges rather than a single judge
should consider the merits of the murder case.
The applicant instituted civil proceedings against the
administration of the prison for keeping him in detention without any
formal order. On 26 February 1997 a judge of the Siauliai District
Court (apylinkes teismas) dismissed the claim. The judge held that the
administration's actions had been based on "the authorisation of the
prosecutor, letters informing of the extension of the detention,
decisions of the judge and court". On 28 April 1997 the Civil Chamber
of the Siauliai Regional Court upheld the decision of the District
Court.
The applicant lodged a request to have the remand measure
changed, the ground being that he had developed a heart illness during
the proceedings. On 17 March 1997 the Chamber of the Criminal Division
of the Panevezys Regional Court dismissed the request. The Court held
that its decision could not be appealed against.
On 9 June 1997 the Chamber of the Criminal Division of the
Pavevezys Regional Court acquitted the applicant of all charges due to
the absence of proof. The applicant's detention was lifted and he was
released.
The prosecution and other defendants in the case appealed against
the judgment at first instance. On 27 August 1997 the Chamber of the
Criminal Division of the Court of Appeal annulled the judgment of the
Regional Court. The case was referred back to the prosecution for
further investigation.
On 22 October 1997 a prosecutor of the Panevezys Regional
Prosecutor's Office informed the applicant that the criminal case in
his respect was discontinued by a decision of 21 October 1997.
B. Relevant domestic law
Relevant provisions of the Constitution of the Republic of
Lithuania (Lietuvos Respublikos Konstitucija) are as follows:
(Translation)
Article 20 para. 3:
"A person arrested in flagrante delicto, must, within 48
hours, be brought to court for the purpose of determining,
in the presence of the detainee, the validity of the
detention. If the court does not order the arrested
person's detention, the person shall be released
immediately."
Article 30 para. 1:
"Any person whose constitutional rights or freedoms are
violated shall have the right to apply to court."
Relevant provisions of the Code of Criminal Procedure
(Baudziamojo proceso kodeksas), previous version:
(Translation)
Article 10 (in force until 21 June 1996):
"No one shall be arrested save by virtue of a decision of
a court, order of a judge or on the authorisation of a
prosecutor ... ."
Article 50-1 (in force until 30 June 1997):
"... in accordance with the procedure established by law
... and having sufficient reasons to suspect that a person
might commit a serious offence provided for in Articles 75,
227-1 and 227-2 of the Criminal Code ... [banditism;
criminal association; terrorising a person] ... and with a
view to preventing such an act, the Chief of the Department
of Police ... may, by reasoned decision, and with the
authorisation of the Prosecutor General or his deputy ...
order the arrest of the person.
... within 48 hours, in the presence of the police officer
who took a decision to arrest, and the prosecutor who
authorised it, ... a president of a district court, a judge
of a regional court or a president of a division of a
regional court shall decide on the lawfulness of the
arrest.
The judge, in deciding the question of the lawfulness of
the arrest, may on his own discretion bring before him the
person so arrested; however, the judge may decide in the
absence of the arrested person ... .
The person so arrested ... can appeal against the decision
of the judge to a higher judge ... .
The decision of the higher judge is final and cannot be the
subject of appeal ... .
... pursuant to the authorisation of a prosecutor, and
confirmed by a judge, a person may be thus be detained for
no longer than two months ... ."
Article 104 (in force until 21 June 1996):
"Detention as a remand measure shall be used only where
based on the order of a court or judge, or the
authorisation of a prosecutor ... ."
Relevant provisions of the Code of Criminal Procedure which are
in force, including the amendments of 21 June 1996 and 17 July 1996:
(Translation)
Article 10 (in force since 21 June 1996):
"No one shall be arrested save by virtue of a decision of
a court or judge."
Article 52 para. 2:
"The accused person has the right ... 8) to appeal against
acts and decisions of an interrogator, investigator,
prosecutor and court."
Article 104-1 (in force since 21 June 1996):
"... the arrested person shall be brought before a judge in
not more than 48 hours ... The judge must hear the person
as to the grounds of his detention. The prosecutor and the
counsel of the arrested person may take part in the
inquiry. After having questioned the arrested person, the
judge may maintain the decision to order detention on
remand by designating the term of detention, or vary or
revoke the remand measure.
... after the case has been transmitted to court ... [the
court] can order, vary or revoke the detention on remand /
arrest."
Article 104-4 (in force since 21 June 1996):
"A decision to order detention on remand / arrest shall be
brought to the attention of the person arrested at the
moment of his arrest. If it is impossible to do so
immediately, the person shall be informed about the
decision as soon as possible ... ."
Article 106 (in force since 21 June 1996):
"... for the purpose of extending the term of detention on
remand / arrest ... a judge must convene a hearing to which
a counsel and prosecutor and, if necessary, the arrested
person shall be called.
... throughout the proceedings the detention on remand
cannot be extended beyond two thirds of the maximum term of
the sentence of deprivation of liberty provided by law for
the most serious alleged offence."
Article 109-1 (in force since 21 June 1996):
"An arrested person or his counsel shall have the right
during pre-trial investigation to lodge an appeal with the
appellate court against the detention on remand / arrest.
... the decision taken by a judge of the appellate court
is final and cannot be the subject of appeal.
Repeated appeals shall be determined when examining the
extension of the term of the detention on remand / arrest."
Article 226 para. 6:
"The period when the accused and his counsel have access to
case-files is not counted towards the overall term of pre-
trial investigation and arrest. Where there are several
accused persons, the period during which all the accused
and their counsel have access to the case-files is not
counted towards the overall term of pre-trial investigation
and arrest."
Article 249:
"A judge individually or a court in a directions hearing,
in deciding whether to bring the accused before the court,
shall decide ... 11) whether the remand measure has been
selected appropriately."
Article 267:
"The defendant has the right ... 3) to submit requests."
Article 372 para. 4 (in force since 17 July 1996):
"Decisions of courts ... ordering, varying or revoking a
remand measure ... cannot be the subject of appeal."
The Law on Detention on Remand (Kardomojo kalinimo *statymas)
(Articles 6, 9, 35) provides that a person may be held in detention on
remand / arrest only where there is an order issued by a court or
judge, or (before 21 June 1996) by a prosecutor.
C. Reservation of the Republic of Lithuania
The Lithuanian reservation to Article 5 para. 3 of the Convention
provides as follows:
"The provisions of Article 5 para. 3 of the Convention
shall not affect the operation of Article 104 of the Code
of Criminal Procedure of the Republic of Lithuania (amended
version no. I-551, July 19, 1994) which provides that a
decision to detain in custody any persons suspected of
having committed a crime may also, by decision of a
prosecutor, be so detained. This reservation shall be
effective for one year after the Convention comes into
force in respect of the Republic of Lithuania."
COMPLAINTS
1. Under Article 5 para. 1 of the Convention the applicant complains
that he was arrested on 8 February 1996 under the "preventive
detention" rule without any reason or charge. He was then kept in
detention on remand without any domestic decision from 4 June 1996 to
31 July 1996. The applicant further complains that, since the term of
his detention on remand, designated on 14 March 1996, expired on 4 June
1996, the decision of the Panevezys Regional Court of 31 July 1996 to
"maintain the remand measure" did not order detention "in accordance
with a procedure prescribed by law". In his opinion, it was done so
only on 16 October 1996. The applicant asserts that thus his detention
was in breach of Article 5 para. 1 of the Convention.
2. Under Article 5 para. 2 of the Convention the applicant
complains that he was arrested under the "preventive detention" rule
without being informed of the reasons for his arrest or any charge
against him. He states that neither he nor his lawyer were informed as
to what dangerous act he might engage in.
3. Under Article 5 para. 3 of the Convention the applicant complains
that he was not "brought promptly before a judge or other officer
authorised by law" from the moment of his arrest under the "preventive
detention" rule on 8 February 1996 up to the time of the court
deliberations which commenced on 14 October 1996.
4. The applicant alleges a violation of the right under Article 5
para. 3 of the Convention "to trial within a reasonable time" because
he was kept in custody from 8 February 1996 until 9 June 1997.
5. Under Article 5 para. 4 of the Convention the applicant complains
of the refusal of the Court of Appeal and of the President of the
Criminal Division of the Supreme Court to examine appeals against the
detention.
6. The applicant also invokes Article 6 para. 1 of the Convention.
He complains that, pursuant to Article 106 of the Code of Criminal
Procedure, and given the offence that was alleged, he could have been
kept in detention on remand for 10 years. This might have infringed his
right to a "hearing within a reasonable time".
7. He also invokes the right under Article 6 para. 3 (b) of the
Convention "to have adequate time and facilities for the preparation
of his defence". He asserts that the above provision of the Convention
has been violated because the five days from 30 May to 4 June 1996,
during which the applicant was given access to the case-files, were not
counted towards the period of his detention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 30 December 1996 and registered
on 24 January 1997.
On 11 April 1997 the Commission decided to communicate the
application to the respondent Government and to invite them to submit
written observations on the admissibility and merits.
The Government's written observations were submitted on
9 June 1997. The applicant replied on 29 July 1997.
THE LAW
1. Under Article 5 para. 1 (Art. 5-1) of the Convention the
applicant complains that he was arrested on 8 February 1996 under the
"preventive detention" rule without any reason or charge. He was then
kept in detention on remand without any domestic decision from 4 June
1996 to 31 July 1996. The applicant further complains that, since the
term of his detention on remand, designated on 14 March 1996, expired
on 4 June 1996, the decision of the Panevezys Regional Court of 31 July
1996 to "maintain the remand measure" did not order detention "in
accordance with a procedure prescribed by law". In his opinion, it was
done so only on 16 October 1996. The applicant asserts that thus his
detention was in breach of Article 5 para. 1 (Art. 5-1) of the
Convention.
Article 5 para. 1 (Art. 5-1) of the Convention reads so far as
relevant as follows:
"... 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 ... ."
The Government in their observations refer to the decision of the
Panevezys Regional Court of 31 July 1996 in which the judge found no
violation of domestic law in respect of the applicant's detention.
The applicant maintains that his detention was in breach of
Article 5 para. 1 (Art. 5-1) of the Convention. He states that his
arrest under the "preventive detention" rule was unlawful, and that
from 4 June 1996 until 31 July 1996 there was no domestic decision for
his detention on remand.
In the light of the parties' submissions, the Commission finds
that the applicant's complaints under Article 5 para. 1 (Art. 5-1) of
the Convention as to the legality and lawfulness of his detention raise
complex questions of fact and law, the determination of which should
depend on an examination of the merits. This part of the application
cannot therefore be regarded as manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other
ground for declaring it inadmissible has been established.
2. The applicant complains under Article 5 para. 2 (Art. 5-2) of the
Convention that he was not informed of the reason for his detention
under the "preventive detention" rule or of any charge against him.
Article 5 para. 2 (Art. 5-2) reads as follows:
"Everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his
arrest and of any charge against him."
Under Article 26 (Art. 26) of the Convention, the Commission may
only deal with a matter after all domestic remedies have been
exhausted, and within a period of six months from the date on which the
final decision was taken. Only a remedy which is "effective" can be
considered for this purpose (No. 9136/80, Dec. 10.7.81, D.R. 26, p.
242). In the absence of such remedy, the six months period mentioned
in Article 26 (Art. 26) runs from the act, decision or event which is
itself alleged to be in violation of the Convention (No. 7379/76, Dec.
10.12.76, D.R. 8, pp. 211, 213; No. 14807/89, Dec. 12.2.92, D.R. 72,
p. 148; No. 19601/92, Dec. 19.1.95, D.R. 80, p. 46). Where it concerns
a continuing situation, it runs from the end of the given situation
(No. 15299-15300-15318/89, Dec. 4.3.91, D.R. 68, p. 216).
The Commission notes that the applicant's preventive detention
was ordered on 8 February 1996, and lasted until 14 March 1996. It
appears from the undated letter of the President of the Criminal
Division of the Vilnius Regional Court, and from the letter of
29 March 1996 of a prosecutor of the Office of the Prosecutor General,
that no exact reason was given for the applicant's arrest under the
"preventive detention" rule.
In the instant case, the Commission notes that, under the then
Article 50-1 of the Code of Criminal Procedure, there was no formal
requirement for the domestic authorities to inform the applicant of the
specific reason for his preventive detention following the order
thereof.
The applicant thus had no "effective" domestic remedy available
to him to obtain information as to the reasons for his preventive
detention or to contest the refusal thereof. Therefore, the six months
period in this respect began on 14 March 1996, i.e. the date when the
applicant's preventive detention ended.
However, the application was introduced before the Commission
only on 30 December 1996, which is more than six months from
14 March 1996.
It follows that the applicant's complaint under Article 5 para.
2 (Art. 5-2) must be rejected pursuant to Article 27 para. 3
(Art. 27-3) of the Convention.
3. The applicant complains under Article 5 para. 3 (Art. 5-3) that
he was not "brought promptly before a judge or other officer
authorised by law". He asserts that in the initial period of his
detention from 8 February to 21 June 1996 he was not brought before a
prosecutor, and that from 21 June to 14 October 1996 - after the
amendment to the Code of Criminal Procedure came into force and the
reservation of Lithuania with respect to Article 5 para. 3 (Art. 5-3)
expired - he was not brought promptly before a court or judge until the
court deliberations which commenced on 14 October 1996.
Article 5 para. 3 (Art. 5-3) of the Convention reads as follows:
"Everyone arrested or detained in accordance with the
provisions of paragraph 1.c of this Article shall be
brought promptly before a judge or other officer authorised
by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial.
Release may be conditioned by guarantees to appear for
trial."
The Government assert that the Lithuanian law (Article 104-1 of
the Code of Criminal Procedure, in force since 21 June 1996) provides
that "the arrested person shall be brought before a judge in not more
than 48 hours". However, in the Government's view, the guarantee
contained in Article 5 para. 3 (Art. 5-3) of the Convention applies to
the initial moment of detention which, in this case, occurred before
the expiry of the Lithuanian reservation in respect of Article 5 para.
3 (Art. 5-3) of the Convention. The Government thus argue that, since
the applicant's detention on remand was ordered on 14 March 1996, he
was not then and thereafter entitled to be brought promptly before a
judge or any other officer. The Government also state that there was
no provision in the Law amending the Code of Criminal Procedure, under
which a person, detained by an authorisation of a prosecutor before 21
June 1996, had the right to be brought before a judge.
The applicant considers that the Government cannot hide behind
their own failure to bring him before a proper officer when he was
initially arrested in order to justify their failure to bring him
before a judge or any other officer thereafter.
The Commission notes that the applicant was formally brought
before a judge for the first time on 14 October 1996. Until that date,
he was not brought before a judge or before any other officer
throughout the period of his preventive detention from 8 February 1996,
or his detention on remand from 14 March 1996.
Consequently, the Commission finds that this part of the
application raises complex questions of fact and law, including
questions concerning the reservation of Lithuania to Article 5 para.
3 (Art. 5-3) of the Convention, the determination of which should
depend on an examination of the merits. This complaint cannot therefore
be regarded as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention. No other ground for declaring
this complaint inadmissible has been established.
4. The applicant claims that he has been denied the right to trial
within a reasonable time in violation of Article 5 para. 3
(Art. 5-3) of the Convention.
The Commission notes that the applicant was initially arrested
on 8 February 1996. He was then detained until 9 June 1997 when the
court at first instance acquitted him. The applicant's detention thus
lasted for 16 months and 1 day.
The Commission 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. This complaint cannot therefore
be regarded as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention. No other ground for declaring
it inadmissible has been established.
5. Under Article 5 para. 4 (Art. 5-4) of the Convention the
applicant complains of the refusal of the Court of Appeal and the
President of the Criminal Division of the Supreme Court to examine
appeals against his detention on remand.
Article 5 para. 4 (Art. 5-4) reads 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 submit that the applicant had the right to apply
to a court which would have resolved the question of the lawfulness of
his detention. They submit that until 31 July 1996, when a judge took
a decision to bring him before a court, the applicant, as an "accused"
under Article 52 para. 1 of the Code of Criminal Procedure, was
entitled to appeal against any acts and decisions of an interrogator,
investigator, prosecutor and court. From 31 July 1996 to
16 October 1996 the applicant, as a "defendant" under Article 267 para.
3 of the Code of Criminal Procedure, was entitled to "submit requests".
From 16 October 1996, when the case was referred back to the
prosecution, the applicant again became an "accused".
The applicant notes that the Government acknowledge the fact that
he had the right to apply to court to challenge the lawfulness of his
detention. However, in his view, the Lithuanian courts, in examining
his complaints, did not recognise such right as they referred solely
to Article 372 para. 4 of the Code of Criminal Procedure which
contradicts Article 30 of the Constitution and other relevant
provisions of domestic law to which the Government referred in their
observations.
The Commission recalls that on 21 June 1996 the amendment to the
Code of Criminal Procedure came into force, and the grounds
and procedure ordering detention on remand (arrest) were changed.
Even though the new system provided for detention on
remand after 21 June 1996 to be ordered only by a court or judge, no
new procedure was introduced for review of detention of persons
arrested prior to 21 June 1996 by a prosecutor. This is also confirmed
by the Government in their comments on the facts of the case where they
submit that after 21 June 1996 there was no possibility of
reconsidering the detention that had been authorised by a prosecutor
prior to 21 June 1996.
The Commission finds that this complaint raises complex questions
of fact and law, and that its determination should depend on an
examination of the merits. This complaint cannot therefore be regarded
as manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention, and no other ground for declaring it
inadmissible has been established.
6. The applicant also invokes Article 6 para. 1 (Art. 6-1) of the
Convention. He complains that, pursuant to Article 106 of the Code of
Criminal Procedure, and given the offence with which he was charged,
he could have been kept in detention on remand for 10 years. This might
have infringed his right to a "hearing within a reasonable time".
Article 6 para. 1 (Art. 6-1) of the Convention reads so far as
relevant as follows:
"In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing
within a reasonable time ... ."
The Commission first notes that this complaint is based on a
hypothetical assumption of what might happen in the future. However,
someone who only fears the risk of a future violation of the Convention
in his regard cannot "claim to be a victim" within the meaning of
Article 25 (Art. 25) of the Convention (No. 7945/77, Dec. 4.7.78, D.R.
14, p. 228). In any event, the Commission considers that the length of
the criminal proceedings against the applicant did not exceed the
"reasonable time" requirement under Article 6 para. 1 (Art. 6-1) of the
Convention.
It follows that this complaint must be rejected as being
manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of the
Convention.
7. He also invokes the right under Article 6 para. 3 (b)
(Art. 6-3-b) of the Convention "to have adequate time and facilities
for the preparation of his defence". He asserts that the above
provision of the Convention has been violated because the five days
from 30 May to 4 June 1996, during which the applicant was given access
to the case-files, were not counted towards the period of his
detention.
Article 6 para. 3 (Art. 6-3) reads so far as relevant 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 ..."
The Commission notes that this complaint relates solely to a
period of five days in the investigation phase of the proceedings.
During that period the applicant with his counsel were in fact given
access to the case-files, that is, facilities were being granted for
the preparation of his defence.
It follows that this part of the application must be rejected as
being manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of
the Convention.
For these reasons, the Commission:
by a majority, DECLARES INADMISSIBLE:
- the applicant's complaints that he was not informed of
any reasons for his arrest under the "preventive detention"
rule, and that he did not "have adequate time and
facilities for the preparation of his defence",
- the applicant's complaint that he was deprived of the
right to a "hearing within a reasonable time";
by a majority, DECLARES ADMISSIBLE, without prejudging the
merits, the remainder of the application.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy