THIRD SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 53254/99
by Vytautas KARALEVIČIUS
against Lithuania
The European Court of Human Rights (Third Section), sitting on
6 June 2002 as a Chamber composed of
MrG. Ress, President,
MrI. Cabral Barreto,
MrP. Kūris,
MrB. Zupančič,
MrJ. Hedigan,
MrsM. Tsatsa-Nikolovska,
MrK. Traja, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 5 October 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the partial decision of 17 October 2000,
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, Vytautas Karalevičius, is a Lithuanian national, who was born in 1952 and lives in Šiauliai. The respondent Government were represented by their Agent, Mr G. Švedas, of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Criminal proceedings
The applicant was suspected of having committed various fraudulent offences between October 1992 and October 1993. In 1994 criminal proceedings on three counts of cheating, suppression of documents and false accounting were instituted against him. As the applicant had absconded from the investigation, on 21 November 1994 the prosecutors declared him a wanted person.
On 24 September 1996 the applicant was arrested in Moscow on an extradition request by the Lithuanian authorities. He was extradited to Lithuania on 30 December 1996.
On 31 December 1996 the Šiauliai City District Court ordered the applicant’s detention on remand until 31 January 1997 on suspicion of his suppressing documents. The court referred to the dangers of the applicant absconding and committing further offences. On 24 January 1997 the court extended the term to 31 March 1997, on 28 March to 31 May 1997 and on 30 May to 13 June 1997.
On 5 June 1997 the case was transmitted to the Šiauliai City District Court. On 6 August 1997 the court committed the applicant for trial. On the same date the court also ordered the applicant’s detention, stating that his remand must remain unchanged. No term of the detention was specified.
On 10 September 1998 the Šiauliai City District Court convicted the applicant of cheating and suppressing documents but acquitted him of false accounting. He was sentenced to five years’ imprisonment and his property was confiscated. The court ordered him to pay 615,264 Lithuanian litai (LTL) of damages in favour of a bank.
On 2 March 1999 the Šiauliai Regional Court amended the first instance judgment insofar as it concerned the damages against the applicant, reducing the amount to 476,000 LTL.
Upon the applicant’s cassation appeal, on 29 June 1999 the Supreme Court quashed the above decisions and returned the case for a new first instance examination.
On 30 July 1999 the Šiauliai City District Court ordered the applicant’s detention on remand until 1 September 1999 on suspicion of his having cheated and suppressed documents. The court referred to the danger of the applicant absconding. The District Court also noted that on 29 June 1999 the Supreme Court had not ruled on the applicant’s remand. On 31 August 1999 the term of the applicant’s detention was extended until 15 November 1999. On 30 December 1999 the Šiauliai District Court extended the term of the applicant’s remand in custody “until a court judgment would be taken in the case”.
On 6 March 2000 the Šiauliai District Court convicted the applicant of suppressing documents and acquitted him of cheating. 476,000 LTL were awarded against the applicant in damages in favour of a bank. The sentence of five years’ imprisonment was reduced by one third due to an amnesty law. The applicant was released in the courtroom as he was deemed to have already completed his sentence because of the time he had spent on remand. The court also ordered his release on bail, with home arrest, until the entry into force of the judgment. The applicant and his lawyer were present during the hearing.
On 4 May 2000 the Šiauliai Regional Court rejected the applicant’s appeal. On that date the conviction took effect for the purposes of domestic law and the bail constraints ceased. The applicant and his representative were present at the appeal hearing.
On 24 October 2000 the Supreme Court examined the applicant’s cassation appeal. The court amended the lower decisions, reducing the applicant’s sentence to three years’ imprisonment. The applicant and his defence counsel were present before the Supreme Court. That decision was final.
2. Conditions of detention
The applicant submits that from 2 January 1997 until 22 September 1999 he was held at the Šiauliai Remand Prison (Šiaulių tardymo izoliatorius). From 22 to 28 September 1999 he was held at the Kaunas Central Police Department Remand Prison (Kauno vyriausiojo policijos komisariato areštinė). On 28 September 1999 he was again detained at the Šiauliai Remand Prison until his release on 6 March 2000.
The applicant gives the following account of the detention conditions at Šiauliai Remand Prison:
Living space for one prisoner amounted to 1.5 square metres. The applicant states that he lived and slept in cells of less than 20 square metres where from 10 to 15 inmates were held. There was an open toilet in each cell. They lacked ventilation and had a strong smell due to the inmates’ smoking and toilet use. The cells were very humid and cold, particularly during the winter. The insufficiency of the living space was aggravated by the scarce time for strolling in the prison yard (one hour daily). Prison bedding was in an awful and dirty condition. All washing had to be done by hand in a sink in the cell. There was a constant lack of hot and cold water. The applicant had access to a shower only once in 15 days. Food was prepared and served in awful conditions. Only 6 LTL per day were allocated for an inmate’s catering.
The Government specify, in connection with the applicant’s detention conditions at the Šiauliai Remand Prison:
From 2 January 1997 until 24 August 1998 the applicant was held at the cell no. 11 of the prison which accommodated 11 detainees at the time. The overall capacity of the cell was 16.65 square metres, i.e. 1.51 square metres per detainee.
From 24 August 1998 until 22 June 1999 he was held in the cell no. 86 which accommodated 9 inmates. The cell’s capacity was 17.78 square metres, i.e. 1.97 per detainee.
From 22 June 1999 until 28 December 1999 the applicant was held in the cell no. 87 which accommodated 10 inmates. The capacity of cell was
19.7 square metres, i.e. 1.97 per detainee.
From 7 January 2000 until 12 January 2000 he was held in the cell no. 37 which had 4 inmates, including the applicant. The cell’s capacity was
7.68 square metres, i.e. 1.92 per detainee.
From 12 January 2000 until 3 March 2000 the applicant was held in the cell no. 34 which accommodated 2 inmates. The capacity of the cell was
7.9 square metres, i.e. 3.95 per inmate.
The Government state that the cells had toilets separated by
1.2 metres-high partitions. The cells had windows, and the lighting was adequate. Inmates were allowed to smoke, but persons could apply to the prison administration to be transferred to a no-smoking cell upon request. In 1997 the sanitation facilities were renovated. In 1998 a new heating system was installed. After the renovation in 1999-2000 of the prison bath, possibilities were afforded for each detainee to use the bath once a week. In 2000 industrial laundry facilities were procured, therefore allowing for adequate washing of inmates’ clothes and bedding.
According to the Government, the general detention and catering conditions in the prison were constantly monitored by the competent State authorities. No deviations from the relevant domestic regulations were established in the prison regarding the temperature and humidity conditions.
The applicant complained to the Ombudsman about the conditions of detention at the Kaunas Central Police Department Remand Prison.
On 3 August 2000 the Ombudsman found that the prison had no windows or outside yard in which the applicant could exercise. The Ombudsman concluded inter alia that the applicant’s rights under Article 3 of the Convention had been violated. However, he rejected the applicant’s allegations that there had been cockroaches and rats in the cell, or that the prison had lacked dishes for eating.
3. Censorship of the applicant’s correspondence with the Convention organs
The applicant alleges that his letters to the European Commission of Human Rights of 12 and 13 October 1998, and to the European Court of Human Rights of 28 March, 13 July, 26 August, 5, 8 and 17 November,
26 December 1999, 15 and 30 January, 2, 7, 9, 13, 21, 25 and 29 February, 2 and 5 March 2000 were censored by the administration of the Šiauliai Remand Prison.
The applicant also alleges that the letters addressed to him by the Registry of the European Court of Human Rights of 17 November 1998,
21 April, 9 and 10 August, 8 October, 14 December 1999, 17 January 2000, 1, 21 and 23 February, 3 and 9 March 2000 were opened up and read in his absence by the administration of the Šiauliai Remand Prison.
B. Relevant domestic law and practice
1. Detention conditions and censorship of correspondence
The relevant domestic provisions regarding the applicant’s complaints have been summarised in the Valašinas v. Lithuania (no. 44558/98, 24.7.2001, §§ 92-97, ECHR 2001-VIII) and Puzinas v. Lithuania
(no. 44800/98, 14.3.2002, § 15-17) judgments.
Rule 75 of the Remand Centres Internal Rules (Kardomojo kalinimo vietų vidaus tvarkos taisyklės) provides that the remand centre administration cannot open letters of detainees addressed to the European Court or Commission of Human Rights if those letters were given to the administration to be sent in a closed envelope. Rule 83 provides that the remand centre administration shall familiarise the detainee with a reply to his correspondence within three days following receipt of the letter addressed to the detainee. Therefore, all letters received by the detainees are not given to them and are kept in their files by the remand centre administration.
2. Lawfulness of detention
The relevant domestic provisions regarding the applicant’s complaints have been summarised in the Stašaitis v. Lithuania judgment (no. 47679/99, 21.3.2002, §§ 51-53) and the Daktaras v. Lithuania decision (no. 42095/98, 11.1.2000).
3. Preventive measures before a judgment becomes final
Pursuant to Article 398 of the Code of Criminal Procedure, a first instance judgment does not become effective pending the determination of an appeal. The first instance judgment becomes effective on the date when the appeal decision was taken. If the first instance judgment was not appealed against, it becomes effective on the date when the relevant
time-limit for an appeal expired. Articles 333 and 347 of the Code of Criminal Procedure provide that the trial court may impose a preventive measure such as home arrest in the judgment convicting a person, pending the time while that judgment has not become effective.
COMPLAINTS
1. Under Article 3 of the Convention the applicant complains that the conditions of his detention at Šiauliai and Kaunas remand prisons amounted to a breach of this provision.
2. Under Article 5 of the Convention the applicant complains that his detention was unlawful. In particular, he claims that there were no grounds for his detention, and that it was not authorised in accordance with the procedure established by domestic law.
3. Under Articles 6 and 7 of the Convention the applicant complains that the criminal proceedings against him were too long and unfair. In particular, he alleges that he could not defend himself or question witnesses, that the courts were not impartial, and that the conviction was wrong.
4. Under Article 6 of the Convention the applicant also complains that he was not permitted to act as a representative of a third person in criminal proceedings against that person.
5. Under Article 8 of the Convention the applicant complains about the censorship by the Lithuanian prison authorities of his letters to and from the Convention organs.
6. Under Article 2 of Protocol No. 4 to the Convention the applicant complains that his home arrest by the judgment of 6 March 2000 unjustifiably interfered with his freedom of movement.
THE LAW
1. The applicant alleges a violation of Article 3 of the Convention, which provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Government state that the applicant did not exhaust domestic remedies as required by Article 35 § 1 of the Convention in regard to this part of the application. In particular, they submit that the applicant’s complaints relate to the conditions of his pre-trial detention, and that he should have complained in this respect to the courts which examined the lawfulness of his pre-trial detention. Furthermore, he should have used in this respect the possibility under Article 52 of the Code of Criminal Procedure to submit requests for bail, relying on the allegedly inhuman detention conditions. The Government do not comment on the merits of the applicant’s Article 3 allegations.
The applicant argues that no adequate remedies were available to him, and that the impugned detention conditions breached Article 3 of the Convention.
The Court recalls that there is no obligation under Article 35 § 1 of the Convention to have recourse to remedies which are inadequate
(see, Valašinas v. Lithuania (dec.), no. 44558/98, 14.3.2000). In the above mentioned Valašinas case the applicant complained about the conditions of imprisonment following his conviction, and the Court found that no adequate domestic remedies were available in this respect.
In the present case, by contrast, the general conditions of pre-trial detention are at issue, with the exception of the period of the applicant’s detention from 10 September 1998 to 29 June 1999, when he was detained on the basis of his conviction (also see below). In any event, the Court observes that the Government have failed to demonstrate that any adequate remedies existed, in theory or in practice, warranting departure from the Court’s conclusions in the Valašinas decision. In particular, it has not been shown, on the basis of a specific provision of domestic criminal law or the case-law of national courts, that the general detention conditions, if found to be inhuman or degrading, would render a period of pre-trial detention unlawful within the meaning of that law. Furthermore, there is no evidence that the remedy suggested by the Government would be capable of affording the applicant adequate redress, including a possible award of damages and costs, in regard to the alleged violation of Article 3 of the Convention. The Court does not therefore share the view of the Government that the applicant should have applied to the courts authorising or reviewing the lawfulness of his remand in custody or examining his requests for bail, in order to complain about the general detention conditions. Nor is there any evidence that other adequate legal remedies existed in this respect. The Court concludes therefore that this part of the application cannot be rejected for non-exhaustion.
a) To the extent that the applicant complains about the detention conditions at the Kaunas Central Police Department Remand Prison, the Court notes that the applicant was detained there for six days from 22 to
28 September 1999. While the detention conditions there, namely the absence of windows and a stroll yard, were established as unsatisfactory by the Ombudsman, the Court considers that the applicant failed to demonstrate that the impugned treatment in that prison attained the minimum level of severity required for it to fall within the ambit of Article 3 of the Convention, given in particular the very short duration of that period of detention and the absence of a medical document or other evidence showing a suffering or damage to the health of the applicant as a result of his keeping at the Kaunas Central Police Department Remand Prison (see, mutatis mutandis, Valašinas v. Lithuania,
no. 44558/98, 24.7.2001, §§ 100-113, ECHR-VIII 2001). It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
b) To the extent that the applicant complains about the detention conditions at the Šiauliai Remand Prison, the Court considers, having regard to the parties’ observations, 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 part of the application 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.
2. The applicant alleges a violation of Article 5 § 1 of the Convention, which provides, insofar as relevant, as follows:
“1. 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:
(a) the lawful detention of a person after conviction by a competent court;
... ;
(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 submit that the applicant’s detention on remand was authorised in accordance with the domestic law, on suspicion of his having committed an offence. Furthermore, he was held in detention on the basis of a conviction by the competent court. In the view of the Government, the applicant’s detention complied with Article 5 § 1 of the Convention.
The applicant disputes the Government’s submissions.
The Court recalls that Article 5 § 1 of the Convention requires that any period of detention be compatible with domestic law and not arbitrary
(see, Jėčius v. Lithuania, no. 34578/97, 31.7.2000, § 56, ECHR 2000-IX).
a) To the extent that the applicant complains about his detention from
30 December 1996 until 13 June 1997, it is undisputed that the courts were competent to decide the question of the applicant’s detention by taking an appropriate decision in this connection (Articles 10, 104 and 106 of the Code of Criminal Procedure as then in force), and that this period was covered by the valid orders authorising the applicant’s remand in custody. The applicant’s detention during this period was thus compatible with domestic law for the purpose of Article 5 § 1 of the Convention. Nor there is any evidence that the detention was arbitrary, given that the applicant had been suspected of committing various offences, and that he had absconded from the investigation (see Stašaitis v. Lithuania (dec.),
no. 47679/99, 28.11.2000). Consequently, the applicant’s detention from
30 December 1996 to 13 June 1997 was “lawful” within the meaning of 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 of the Convention.
b) As regards the period of the applicant’s detention from 13 June 1997 to 6 August 1997, the Government claim that that period of detention had been justified by the fact that the case had been transmitted to the trial court. The applicant argues that the circumstance mentioned by the Government could not replace a valid detention order during this period.
The Court has had regard to the parties’ observations on this aspect of the case. It considers that this aspect 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.
c) To the extent that the applicant complains about his remand in custody from 6 August 1997 to 10 September 1998, the Court recalls the previously cited judgment of Jėčius (loc. cit., §§ 65-70) whereby it held that a period of detention based on the court order declaring that the remand in custody must remain unchanged was “lawful” within the meaning of Article 5 § 1 of the Convention. The Court finds no reason to draw a different conclusion in the present case (also see point (a) above).
Accordingly, this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 § 3 of the Convention.
d) Insofar as the applicant complains about his detention from
10 September 1998 until 29 June 1999, the Court observes that this period of detention was based on the conviction of 10 September 1998 whereby the first instance court imposed the sentence of five years’ imprisonment for the criminal offences committed by the applicant. Despite the fact that until the date of the appeal decision (2 March 1999) the applicant was considered as a remand prisoner under domestic law (Articles 398-399 of the Code of Criminal Procedure), for the purposes of the Convention he was a person convicted by a competent court, pursuant to Article 5 § 1 (a) of the Convention, throughout the impugned period (see the Daktaras decision cited above).
It is true that the conviction was subsequently quashed by the Supreme Court on 29 June 1999. However, this very fact does not itself render the underlying period of the applicant’s detention “unlawful” within the meaning of Article 5 § 1 (a) of the Convention. The Court has consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law (see, inter alia, Bozano v. France, no. 9990/82, 18.12.1986, § 55, Series A no. 111; Benham v. the United Kingdom, no. 19380/92, 10.6.1996, § 42, ECHR 1996-III).
There is no evidence in the present case that the trial court which convicted and sentenced the applicant lacked competence in this respect, or that the appellate court wanted jurisdiction to confirm the sentence on appeal. The Court also notes in addition that the Supreme Court did not acquit the applicant while quashing the conviction at cassation level. Consequently, from 10 September 1998 until 29 June 1999 the applicant was detained in accordance with the requirements of Article 5 § 1 (a) of the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
e) As regards the period of the applicant’s detention from 29 June 1999 to 30 July 1999, the Government argue that the Supreme Court, by quashing the applicant’s conviction on 29 June 1999, reinstated the previous decisions authorising the applicant’s remand in custody. The applicant argues that neither the domestic law, nor Article 5 § 1 of the Convention permitted his remand in custody during that period.
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.
f) To the extent that the applicant complains about his detention from
30 July 1999 until 15 November 1999, the Court observes that this period was covered by the valid court orders authorising the applicant’s remand in custody (see the Stašaitis decision and the Jėčius judgment cited above,
loc. cit.; also see points (a) and (c) above). Consequently, the applicant’s detention from 30 July 1999 to 15 November 1999 was “lawful” within the meaning of Article 5 § 1 of the Convention.
Accordingly, this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 § 3 of the Convention.
g) As regards the period of the applicant’s remand in custody from
15 November 1999 to 30 December 1999, the Court notes the Government’s statement that that period was “duly authorised”, but also notes that the Government have not specified which particular court order authorised that period of the applicant’s detention. The applicant argues that there was no valid order covering that period.
Having regard to the parties observations, the Court considers that this aspect 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.
h) Finally, to the extent that the applicant complains about his remand in custody from 30 December 1999 until his release on 6 March 2000, the Court observes that a valid court order was taken authorising the applicant’s detention during that period (see the Stašaitis decision and the Jėčius judgment cited above, loc. cit.; also see points (a), (c) and (f) above). It follows that that period of his remand in custody was “lawful” within the meaning of Article 5 § 1 of the Convention.
Accordingly, this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 § 3 of the Convention.
3. The applicant also alleges a violation of Articles 6 and 7 of the Convention in connection with the criminal proceedings against him.
Article 6 provides, insofar as relevant, as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ... .”
Article 7 states, insofar as relevant, as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. ... .”
The Government submit that the applicant’s trial was speedy and fair, while the applicant contests their submissions.
a) To the extent that the applicant alleges violation of his right to trial “within a reasonable time” under Article 6 of the Convention, the Court notes that the proceedings against the applicant were instituted on an unspecified date in 1994, i.e. before the entry into force of the Convention with regard to Lithuania (20 June 1995). The Court is not competent ratione temporis to examine the proceedings insofar as they relate to a period prior to that date. In any event, the Court notes that since November 1994 the applicant had absconded from the investigation, with the result that no procedural acts could be conducted in connection with the investigation of the offences alleged against him until his extradition on 30 December 1996. If counted from the moment of the extradition, the proceedings lasted until 24 October 2000, i.e. for three years, nine months and 24 days.
The Court considers that the case could be regarded as complex, given the fraudulent nature of the offences alleged against the applicant. Furthermore, it must be noted that the case was reviewed by the domestic courts at three levels of jurisdiction. In view of these circumstances, even if some periods may be identified as causing delay, the Court finds that the proceedings viewed as a whole may not be deemed unduly long (see, by contrast, Šleževičius v Lithuania, no. 55497/00, 13.11.2001, where a violation of the “reasonable time” requirement was found in a criminal case which did not reach trial after more than four years of the investigation).
The Court finds therefore that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
b) To the extent that the applicant alleges other breaches of Article 6 of the Convention in connection with the criminal case against him, 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, inter alia, the Daktaras decision cited above).
The key element in this respect is that the applicant had ample opportunities, personally or through his defence counsel, to state his case and to challenge the evidence that he considered false before the courts at three levels of jurisdiction. There is no evidence of a lack of subjective or objective impartiality of the courts, nor an indication of any procedural disadvantage of the applicant vis-à-vis the prosecution during the trial. It must be noted that the Convention does not guarantee, as such, the right to examine all witnesses of one’s choosing; it has not been alleged in the present case that the witnesses which were called by the trial court were not examined on the same conditions by both parties. There has thus been no violation of the principles of the equality of arms or a breach of the applicant’s defence rights (see, mutatis mutandis, Butkevičius v. Lithuania (dec.), no. 48297/99, 28.11.2000). Accordingly, it has not been shown that the trial was unfair.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
c) To the extent that the applicant invokes Article 7 of the Convention, the Court notes that it is undisputed that, at the time when the alleged offence was committed, suppressing documents constituted a crime under national law, as envisaged by the first paragraph of the above provision. It follows that this aspect of the case is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
4. The applicant also complains that he was not permitted to participate as a representative in a criminal case against a third person, in breach of Article 6 of the Convention.
The Court observes that the rights under Article 6 can only be invoked by a person who is “charged with a criminal offence” or who’s “civil rights and obligations” are determined by way of the impugned proceedings. There is no evidence that the criminal case at issue concerned a determination of the applicant’s “civil rights and obligations”, or that the procedure involved a “criminal charge” against him. It follows that the applicant cannot claim to be a victim of a violation of the Convention in this respect within the meaning of Article 34 of the Convention. This aspect must therefore be rejected pursuant to Articles 34 and 35.
5. The applicant complains that the censorship of his correspondence with the Convention organs breached Article 8 of the Convention, which states as 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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Government submit that the applicant should have applied to the courts authorising the lawfulness of his remand in custody and examining his requests for bail, in order to complain about the censorship of his correspondence with the Convention organs. The Government admit, on the other hand, that the “actions of the Šiauliai Remand Prison administration in regard to [the applicant’s] correspondence complied with the Remand Centres Internal Rules”. The Government conclude that the applicant did not exhaust domestic remedies in this respect.
The applicant argues that no adequate remedies were available to him, and that the censorship of his correspondence with the Convention organs breached Article 8 of the Convention.
The Court recalls its finding above that a complaint to the criminal courts competent to authorise the applicant’s detention on remand or to examine his requests for bail was not an adequate remedy in regard to a complaint about the allegedly inhuman or degrading detention conditions. Similarly, it has not been shown that the same avenue would be capable, in theory or in practice, of remedying and affording adequate redress in respect of the alleged censorship of the applicant’s correspondence with the Convention organs, even more so as certain censorship was permitted under the Remand Centres Internal Rules (see the ‘Relevant domestic law part’ above). Consequently, this part of the application cannot be rejected for
non-exhaustion of domestic remedies.
Having regard to the parties’ observations, the Court 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. This part of the application 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 also complains that his home arrest ordered on 6 March 2000 breached his freedom of movement under Article 2 of Protocol No. 4 to the Convention, which provides, insofar as relevant, as follows:
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”
The Government submit that the home arrest constituted an interference with the applicant’s freedom of movement, but that that interference was compatible with the above provision, given in particular the need to guarantee the applicant’s attendance before a competent legal authority before the judgment of 6 March 2000 became final.
The applicant argues that by 6 March 2000 he had completed the sentence of imprisonment imposed by the judgment of that date. In the applicant’s view, the home arrest ordered by the same judgment thus constituted an unjustified interference with his freedom of movement.
The Court notes that it is undisputed that the applicant’s home arrest amounted to an interference with his freedom of movement under Article 2 of Protocol No. 4. Such interference constitutes a breach of this provision unless it was carried out “in accordance with the law”, pursued one or more legitimate aim or aims as defined in paragraph 3 of this provision, and was “necessary in a democratic society” to attain them.
The Court notes that the interference at issue was prescribed by the domestic law (Articles 333 and 347 of the Code of Criminal Procedure), and that it pursued the legitimate aim, namely the prevention of crime and the protection of the rights and freedoms of others, in view of the fact that on
6 March 2000 the applicant had been convicted of a criminal offence and damages had been awarded against him in favour of a third person.
The Court also considers that the interference was “necessary in a democratic society” in that it served exclusively as a temporary preventive measure to ensure the applicant’s attendance before a competent legal authority pending the time while the first instance judgment was not effective, given in particular that an appeal could be lodged against the conviction by any of the parties, and that an appeal court had full competence to examine all aspects of fact and law regarding the first instance judgment and to amend or quash it if appropriate. The fact that the applicant had previously absconded from the investigation only reinforces the conclusion that a preventive measure as such imposed in the present case was justified in the circumstances.
Accordingly, this complaint discloses no violation of Article 2 of Protocol No. 4. Hence, this part of the application must be rejected as manifestly ill-founded under Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously,
Declares admissible, without prejudging the merits, the applicant’s complaint under Article 3 of the Convention about the conditions of his detention at the Šiauliai Remand Prison, the complaint under Article 5 about the lawfulness of his detention from 13 June 1997 until 6 August 1997, from 29 June 1999 to 30 July 1999 and from 15 November 1999 until 30 December 1999, and the complaint under Article 8 about the censorship of his correspondence with the Convention organs while in prison;
Declares inadmissible the remainder of the application.
Vincent BergerGeorg Ress
RegistrarPresident
Full & Egal Universal Law Academy