AS TO THE ADMISSIBILITY OF
Application No. 32104/96
by Ona MACIONIENE
against Lithuania
The European Commission of Human Rights (Second Chamber) sitting
in private on 15 January 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 June 1996 by Ona
MACIONIENE against Lithuania and registered on 2 July 1996 under file
No. 32104/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1941, is a Lithuanian national residing
in Vilnius. She owns a firm called "Konstanta". The facts of the case
may be summarised as follows.
Prior to 20 June 1995, the date on which Lithuania deposited its
instrument of ratification of the Convention and made a declaration
under Article 25 of the Convention, the applicant was involved in
several sets of proceedings, administrative and judicial, related to
her and her firm's assessment to tax.
On 18 October 1995 the President of the Supreme Court (Lietuvos
Auksciausiasis Teismas) introduced a nullity appeal for the
safeguarding of the law with the Civil Chamber of the Supreme Court,
asking for the reinstitution of earlier cassation proceedings on the
ground that in the previous proceedings the courts had not sufficiently
examined the issues of whether statements made by the tax inspector
revealed bias on his part, and of the nature of certain contracts
which, the applicant had claimed, should have been accepted as
constituting expenditure.
On 15 November 1995 the Civil Chamber of the Supreme Court
granted this request and reopened the cassation proceedings.
On 5 December 1995 the Civil Chamber of the Supreme Court
dismissed the cassation appeal. It confirmed the findings of the
previous courts, to the effect, inter alia, that the contracts had been
antedated and were therefore not genuine.
COMPLAINTS
The applicant alleges a violation of her right to a fair trial
under Article 6 para. 1 of the Convention. She considers that the
courts relied only on the statements of the Vilnius Tax Inspectorate,
did not examine the main issues of the applicable law, did not take
into consideration the evidence given by one of her witnesses, and did
not summon another witness on her behalf, thus depriving her of the
opportunity of defending herself.
The applicant also complains:
- that the Vilnius Tax Inspectorate, when making a tax assessment
and imposing fines, did not allow her to be present during the
examination of her case, and thus infringed her right to defend
herself;
- that the courts failed to summon the witness whom the Tax
Inspectorate had also failed to summon, and thereby infringed her right
to obtain the attendance and examination of a witness on her behalf;
- that threats were used by the Chief Tax Inspector on 27 August
1992 with the aim of obtaining evidence from another witness against
the applicant;
- that one tax inspector was a member of the taxation commission
which revised the results of a tax inspection he had himself made;
- that the judges dealt only superficially with the merits of her
case.
As to the hearing of her case before the Civil Chamber of the
Supreme Court in December 1995, the applicant complains that the Court
did not look properly at the main issues of her case, relying only on
statements made by the lower instances.
THE LAW
The applicant complains about violations of her rights guaranteed
by Article 6 (Art. 6) of the Convention. She alleges that her right to
a fair hearing and, in particular, the principle of equality of arms,
was violated by the fact that the courts constantly relied only on the
submissions made by the Tax Inspectorate, rejected evidence given
before them by one witness on her behalf and did not summon another
witness.
Article 6 (Art. 6) of the Convention, so far as relevant,
provides:
"1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair ... hearing ... by a tribunal
established by law.
3. Everyone charged with a criminal offence has the
following minimum rights:
d. ... to obtain the attendance and examination of
witnesses on his behalf under the same conditions as
witnesses against him."
1. The Commission recalls that it may only deal with applications
dealing with facts which take place subsequent to the entry into force
of the Convention for a particular Contracting State. Lithuania
deposited its instrument of ratification of the Convention and made a
declaration under Article 25 (Art. 25) of the Convention on
20 June 1995.
To the extent, therefore, that the application relates to facts
which occurred before that date, the application is incompatible
ratione temporis with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant also complains of the proceedings subsequent to
20 June 1995.
The Commission first notes that the only judicial decision taken
after 20 June 1995 is the decision of the Civil Chamber of the Supreme
Court to dismiss the cassation appeal of the President of that Court.
The applicant makes no specific complaints about the proceedings
before the Supreme Court beyond a general complaint that the Civil
Chamber did not re-determine the case. However, even assuming
Article 6 (Art. 6) to be applicable, once the cassation proceedings had
been re-instituted, it could not be expected that the court considering
the case would do more than give a new cassation decision. The Civil
Chamber, in its decision of 5 December 1995, gave a new cassation
decision in that it reviewed the previous decisions, and agreed with
the decisions which found against the applicant.
Given that the Commission is not able to examine events prior to
20 June 1995, the Commission is unable to find any unfairness in the
proceedings before the Supreme Court.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy