Communicated on 25 April 2016
FOURTH SECTION
Application no. 72252/11
Tomas LEŠČIUKAITIS
against Lithuania
lodged on 25 October 2011
STATEMENT OF FACTS
The applicant, Mr Tomas Leščiukaitis, is a Lithuanian national who was born in 1976 and lives in Garliava. He is represented before the Court by Mr V. Sirvydis, a lawyer practising in Kaunas.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 24 December 1997 the applicant was appointed as a junior inspector in the police. He was responsible for the investigation of economic crimes.
On 26 March 2003 a criminal investigation was started against the applicant. He was suspected of forging important documents and appropriating value added tax.
On 2 April 2003 the applicant was suspended from performing his official duties after being placed under arrest for one month.
On 22 March 2006 the Kaunas Regional Court found the applicant guilty of fraud and abuse of office. The court stated that the applicant had been employed at the division which investigated economic crimes, however, he had abused his position and had wilfully appropriated value added tax. The applicant was sentenced to four years and six months’ imprisonment.
On 28 March 2008 the Court of Appeal dismissed an appeal by the applicant. The court stated that his appeal contradicted itself. The applicant had denied his guilt, but at the same time he had acknowledged that he had known that other people had been engaged in illegal activities and he had still acted as an intermediary between them.
On 1 April 2008 the applicant was dismissed from the police after the judgment of the Court of Appeal became final.
On 21 October 2008 the Supreme Court returned the case to the Court of Appeal for fresh examination. The Supreme Court held that the judgment of the Court of Appeal had not been sufficiently reasoned when it came to the application of the provisions of the Criminal Code and the assessment of evidence.
On 23 September 2010 the Court of Appeal stated that only one witness could confirm that the applicant had received half of the value added tax, but it also held that that witness had only presented his evidence as his own view of the matter and not as a known fact. He had also testified that there had been no discussion with the applicant about seizing the value added tax. Therefore, the Court of Appeal held that it had not been proved that the applicant had gained any personal benefit. The court also stated that the applicant, as a police officer, had undoubtedly understood the illegality of his actions, although he had claimed otherwise. He had also acted as an intermediary between two other people in an exchange of money and documents. However, the Court of Appeal stated that the applicant’s alleged crime fell under a different provision of the Criminal Code than the one he had originally been accused under, and that the court could not assess the applicant’s crime under that specific provision without overstepping the limits of the appeal. As for abuse of office, the court held that the applicant’s participation in the crime had not been proved and that he had communicated with the other people in a personal capacity rather than an official one. The applicant was therefore acquitted.
On 4 October 2010 the applicant asked the police to annul their dismissal decision and to reinstate him. The police, however, refused and stated that the Court of Appeal had not said anything about reinstating the applicant or about his dismissal being illegal.
The applicant started court proceedings to be reinstated and to have his salary paid from 2 April 2003, when he had been suspended, until the execution of the court’s judgment. The applicant also asked for a renewal of the term for submitting his complaint because the term to complain about being dismissed from work was one month under domestic regulations. The applicant had been dismissed on 1 April 2008, however, he claimed that the grounds to annul the decision to dismiss him had only arisen after the court proceedings had ended on 23 September 2010 and he had been finally acquitted. On 3 February 2011 the Kaunas Regional Administrative Court renewed the term for submitting the complaint. The court also annulled the order to dismiss the applicant from the police, and ordered that he be reinstated and paid his average salary from 2 April 2003 until the execution of the judgment.
The police appealed, so did the applicant and asked to be awarded with pecuniary and non-pecuniary damages. On 7 June 2011 the Supreme Administrative Court adopted a judgment dismissing the applicant’s complaint. The court stated that the applicant had complained about the dismissal order of 1 April 2008 but found that he had only submitted his claim to be reinstated on 18 January 2011. The Supreme Administrative Court held that the dismissal decision had been a very important issue for the applicant and that he should have started court proceedings within a month of his dismissal. The court also stated that the lower court had put too much weight on the applicant’s acquittal. Finally, the court held that the question of damages under Article 6.272 § 1 of the Civil Code had to be submitted to the civil and not the administrative courts and therefore that complaint was also dismissed.
B. Relevant domestic law
Article 53(1)(8) of the Statute on the Internal Service provides that an officer can be dismissed from his job if he has been convicted of a premeditated crime or a misdemeanour by a final court judgment.
Article 33(1) of the Law on Administrative Proceedings provides that a complaint must be brought before an administrative court within a month of the disputed act being published or served on an interested party.
Article 6.272 § 1 of the Civil Code allows a civil claim to be lodged in respect of pecuniary and non-pecuniary damage caused by the unlawful actions of investigating authorities or the courts. The Article in question makes provision for compensation for unlawful conviction, unlawful arrest or detention or for the application of unlawful procedural measures in enforcement proceedings. The relevant part of the provision reads as follows:
Article 6.272. Liability for damage caused by the unlawful actions of preliminary investigation officials, prosecutors, judges and the courts
“1. Damage resulting either from unlawful conviction, unlawful arrest as a suppressive measure, unlawful detention, the application of unlawful procedural measures in enforcement proceedings, or the unlawful imposition of an administrative penalty (arrest) shall give rise to full compensation by the State, irrespective of the fault of the preliminary investigation officials, prosecution officials or courts.”
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention about the refusal to reinstate him or pay him any compensation solely on the basis of the limitation period being counted from the date of his dismissal, rather than from the date the court proceedings were terminated. He complains that his right of access to a court was breached.
The applicant also complains under Article 13 of the Convention that he did not have an effective remedy because when he was dismissed the criminal proceedings were still ongoing and his complaint would not have been successful. He further claims that a complaint to the domestic courts within one month of his dismissal, as required under domestic regulations, would not have been an effective remedy.
QUESTIONS TO THE PARTIES
1. Was the refusal to reinstate the applicant and pay him any compensation by dismissing his complaint solely on the basis of the limitation period in line with Article 6 § 1 of the Convention?
2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 6 § 1, as required by Article 13 of the Convention?
The applicant is requested to provide copies of his lawsuit and appeal submitted to the administrative courts.
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