MORKUNAS v. LITHUANIA

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29798/02
by Artūras MORKŪNAS
against Lithuania

The European Court of Human Rights (Second Section), sitting
on 12 April 2007 as a Chamber composed of:

MrA.B. Baka, President,
MrI. Cabral Barreto,
MrR. Türmen,
MrM. Ugrekhelidze,
MrV. Zagrebelsky,
MrsA. Mularoni,
MsD. Jočienė, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 12 July 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

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 Artūras Morkūnas, is a Lithuanian national who was born in 1962 and lives in Šiauliai. He was represented before the Court by Mr R. Andrikis, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė.

I. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

A. Criminal proceedings against the applicant

The applicant, who had a criminal record of two convictions, was arrested on 1 March 1999 and questioned on suspicion of blackmail and extortion committed against a businessman.

On 2 March 1999 his detention on remand was authorised for 10 days by the Šiauliai City District Court for fear that the applicant might commit fresh offences and obstruct the investigation. The applicant and his lawyer were present at the hearing.

On 9 March 1999 the applicant was charged with attempted extortion committed in an organised group. On the same date, the Šiauliai City District Court extended the term of the applicant’s detention until 12 May 1999 on the same grounds, the applicant’s lawyer being present. The applicant’s appeal against that order was rejected by the Šiauliai Regional Court on 22 March 1999, in the presence of his lawyer.

On 12 May 1999 the Šiauliai City District Court extended the term of the applicant’s remand in custody until 12 July 1999 on the same grounds, i.e., for fear that the applicant might commit new crimes or obstruct the investigation. Both the applicant and his lawyer were present.

His appeal against the extension order was rejected on 25 May 1999, the applicant’s defence counsel being present.

On 12 July 1999 the term of the applicant’s remand was extended until
1 September 1999 by the Šiauliai City District Court on the same grounds as before, the applicant and his lawyer being present. The applicant appealed, requesting the variation of his remand. He pleaded not guilty and alleged that there was no fear of him absconding since he had a family and a permanent place of residence. The appeal was dismissed by the Šiauliai Regional Court on 21 July 1999, in the presence of the applicant’s defence counsel. The court considered that the grounds for his detention persisted.

On 30 August 1999 the Šiauliai Regional Court authorised the applicant’s detention on remand until 31 December 1999, in the presence of the applicant and his lawyer. The court briefly noted that the applicant “was accused of having committed serious offences, hence there was a reason to believe that he may commit new crimes if released.” On 21 September 1999 the Court of Appeal dismissed the applicant’s appeal against the decision, his representative being present. The appellate court noted, inter alia, that the applicant was suspected of heading a criminal organisation, thereby justifying the fear of his committing fresh crimes and influencing witnesses.

On 23 December 1999 the Šiauliai Regional Court extended the applicant’s detention on remand until 1 February 2000. While the court emphasised the necessity to expedite the investigation of the case, it considered that continued detention was justified by the fear that the applicant might abscond and commit fresh crimes. The applicant and his defence counsel were present. The applicant’s appeal against that order was dismissed by the Court of Appeal on 6 January 2000, his lawyer being present.

During 1999, in the context of several other sets of criminal proceedings, the applicant was charged with attempted aggravated murder, the destruction of property by organising explosions, forming a criminal organisation, and false reporting of a crime. Those charges were subsequently added to the original proceedings against the applicant.

On 27 January 2000 the Šiauliai Regional Court extended the term of the applicant’s detention until 1 April 2000 for fear of his absconding and committing new offences. The court found that the serious charges against the applicant and his two previous convictions justified that fear. The applicant and his defence counsel were present at the hearing.

On 14 February 2000 the Court of Appeal dismissed the applicant’s appeal against the extension of the term of his detention on remand, upholding the reasoning of the lower court.

On 30 March 2000 the Šiauliai Regional Court extended the term of the detention until 1 May 2000 on the same grounds as before, the applicant and his lawyer being present.

The bill of indictment in the applicant’s case was confirmed on 17 April 2000. He was indicted on five counts, including attempted murder, extortion, involvement in a criminal association, the destruction or property and the illegal acquisition of explosives. Four other co-accused were indicted with the applicant; 29 witnesses were identified, and the case materials comprised five volumes.

On the same date, the Court of Appeal dismissed the applicant’s appeal against the prolongation of his detention on remand.

On 1 May 2000 the Šiauliai Regional Court held a hearing in the presence of the applicant and his defence counsel and decided further to extend the applicant’s remand in custody until 10 July 2000, for fear of his absconding, committing new crimes and obstructing the investigation. The court mentioned the gravity of the charges against the applicant and the strength of the evidence in the case file to justify that fear. The applicant appealed, claiming that the evidence against him was not sufficient to warrant his prolonged detention. On 18 May 2000 the Court of Appeal rejected the applicant’s appeal in the presence of his lawyer.

On 12 May 2000 the Regional Court held a directions hearing in the presence of the applicant’s defence counsel, whereby it decided to return the case to the investigators. On the same occasion, the court dismissed the applicant’s request to vary the remand measure.

On 12 June 2000 the Šiauliai Regional Court extended the term of the applicant’s remand in custody until 12 September 2000 on the same grounds as before. The applicant and his defence counsel were present at the hearing. On 30 June 2000 the Court of Appeal dismissed his appeal against the order in the presence of counsel.

On 6 September 2000 the Court of Appeal quashed the decision
of 12 May 2000, returning the case to the Regional Court for trial. On the same occasion, the court extended the term of the applicant’s detention on remand until 12 November 2000, noting that the grounds for the continued detention on remand persisted. The applicant and his lawyer were present at the hearing. The applicant lodged a cassation appeal against the decision of 12 May 2000, but it was dismissed by the Supreme Court on 7 November.

On 9 November 2000 the Šiauliai Regional Court extended the term of the applicant’s remand in custody until 9 February 2001 for fear of his obstructing the investigation and committing fresh crimes. The court noted the applicant’s criminal record, the gravity of the charges against him and the strength of the evidence in the case file to justify that fear. The applicant and his representative were present at the hearing.

On 23 November 2000 the Šiauliai Regional Court committed the applicant for trial.

On the same date the Šiauliai Regional Court extended the term of the applicant’s detention on remand until 9 May 2001 on the same grounds. The applicant and his defence counsel were present at the hearing. The applicant’s appeal against that order was dismissed by the Court of Appeal on 27 December 2000. The Court of Appeal observed that the trial of the case had been prolonged, but noted that the delay was not imputable to the trial court.

On 2 May 2001 the Šiauliai Regional Court extended the term of the applicant’s remand in custody until 9 August 2001 on the same grounds, the applicant’s lawyer being present. The applicant’s appeal against the order was dismissed by the Court of Appeal on 22 May 2001.

On 5 June 2001 a prosecutor confirmed a bill of indictment in another criminal case whereby the applicant was charged on eight counts, including causing grievous bodily harm, theft and extortion. Two other persons were indicted with the applicant. Seven victims and nine witnesses were identified. On 25 June 2001 the Šiauliai Regional Court committed the applicant for trial in that case.

On 4 July 2001 the Šiauliai Regional Court extended the applicant’s detention on remand until 9 November 2001 on the same grounds, in the presence of his lawyer. The applicant appealed, requesting his release on bail. He claimed that his detention was unjustified since he could live with his family. On 20 July 2001 the Court of Appeal dismissed the applicant’s appeal against the extension order. The applicant’s lawyer was present at the hearing.

On 4 October 2001 the Šiauliai Regional Court extended the term of the applicant’s detention on remand until 9 February 2002, the applicant’s defence counsel being present. The court referred to the strength of the evidence in the case file and the fear that the applicant might commit new crimes and obstruct the investigation by influencing the witnesses.

The applicant’s appeal against the above order was dismissed - in the presence of the applicant’s lawyer - by the Court of Appeal on 17 October 2001. The court took into account the fact that the applicant had been detained on remand for a considerable period of time, but noted that this was justified by the complexity and volume of the case (numerous charges against five co-accused and a case file in nine volumes). The Court of Appeal did not find any indication of procrastination in the proceedings. It noted that the examination of the case had been delayed due to objective circumstances. In particular, several hearings had been adjourned due to the failure of the witnesses or defence lawyers to appear before the court. The co-defendants had requested the adjournment of the trial on several occasions. The court finally observed that the applicant had submitted no serious reason that would prompt it to vary the remand measure.

On 7 December 2001 the two cases against the applicant were joined, and the prosecution presented a new set of charges. These included creating a criminal organisation, the illegal acquisition of explosives, extortion, the destruction of property in dangerous ways, causing serious bodily harm and the attempted murder of several people. These charges covered more than 11 episodes which took place at different times.

On 6 February 2002 the Šiauliai Regional Court extended the term of the applicant’s remand in custody until 9 May 2002 on the same grounds as before. The Regional Court also noted the fact of the applicant having denied his guilt amongst the reasons justifying the fear of his absconding, obstructing the investigation and committing fresh crimes. The applicant’s lawyer was present at the hearing.

On 27 February 2002 the Court of Appeal dismissed the applicant’s appeal against the decision, his lawyer being present. While the Court of Appeal acknowledged that the length of the applicant’s detention on remand had been somewhat prolonged, it considered the length to be justified in view of the complexity of the case, the gravity and number of charges against the applicant, and the strength of the evidence in the case file. The Court of Appeal noted that the investigation and trial had been adjourned a number of times for the purpose of satisfying various procedural requests of the defendants and their lawyers to investigate or re-evaluate evidence. In addition, witnesses, complainants and the defendants’ lawyers had failed to attend certain court hearings. At the same time, the appellate court eliminated from the reasoning of the Regional Court’s decision
of 6 February 2002 the reference to the applicant denying his guilt as an element justifying his remand in custody. In this connection the Court of Appeal emphasised that taking account of such an element could unlawfully prejudge the assessment by a trial judge of the merits of the charges against the applicant. The Court of Appeal underlined that the reasons for detention must pertain solely to the need to ensure the attendance of a person at trial, and that remand in custody could not be authorised on the ground of any premature assessment of the evidence against the defendant or his plea in regard to the charges.

The Court of Appeal further observed that the applicant had submitted no valid reasons to prompt varying his remand, all his requests for release being motivated exclusively by the alleged lack of evidence, and there being no element in the applicant’s appeals to allay the fear that he might abscond, obstruct the investigation or commit fresh crimes. The Court of Appeal reiterated in this respect that it was not its function to rule on the merits of the charges against the applicant when deciding the question of his remand. The appellate court concluded that the likelihood of the applicant absconding, obstructing the investigation or committing fresh crimes persisted regardless of the relatively lengthy period of his remand in custody.

On 9 May 2002 the Šiauliai Regional Court extended the term of the applicant’s remand in custody until 9 August 2002, again for fear of his absconding, obstructing the investigation and committing new crimes. The applicant’s lawyer was present at the hearing.

On 19 July 2002 the Šiauliai Regional Court convicted the applicant on eight counts, including attempted murder, causing grievous bodily harm, involvement in a criminal association, the destruction of property and theft. He was acquitted on three other counts. The applicant was sentenced to 18 years’ imprisonment, including the time already spent in detention on remand. He was also fined in the amount of LTL 2200 (approximately
EUR 629), and confiscation of his property was ordered. The judgment was 36 pages long, and five other persons were convicted with the applicant. The court heard 19 victims and 10 witnesses.

In response to the applicant’s complaint about the length of the proceedings, the court noted that, while they were somewhat protracted, the essence of the applicant’s right to be tried within a reasonable time was not breached. The Regional Court observed that the length of the proceedings had been largely determined by the conduct of the co-accused and their lawyers. In particular, 10 hearings had to be adjourned due to the failure of defence lawyers (including the applicant’s representative) to appear before the court, or their inability to take part in the proceedings due to illness. Three more hearings had been adjourned because of the defendants’ illness, the change of lawyers, or the refusal of the defendants to participate in the trial.

The applicant appealed, complaining that the case against him had been fabricated, that the charges had been imprecise and had been changed a number of times, that he had not been given access to the case file, that his defence rights had been breached, that the trial court had refused to call certain witnesses, that the judges had been biased, and that certain other irregularities had rendered the trial unfair. The applicant also complained about the length of the proceedings.

On 4 September 2003 the Court of Appeal amended the judgment, acquitting the applicant on a number of counts, including attempted murder, involvement in a criminal association and theft, on the grounds that the evidence supporting his guilt was contradictory. The prosecution for false reporting of a crime was discontinued as time-barred. The applicant’s conviction for causing grievous bodily harm, extortion and destruction of property was upheld. The sentence was accordingly reduced to five years’ imprisonment, including the period that the applicant had already spent in custody (as of 1 March 1999). The court also ordered confiscation of the applicant’s property in the amount of LTL 2000 (approximately EUR 571).

While the Court of Appeal acknowledged that some delays in the proceedings had been imputable to the authorities - namely, the delays which had occurred because of the changes in the composition of the trial court - it considered that the applicant’s right to “trial within a reasonable time” was not breached. Nor did it find any other irregularities which could have rendered the proceedings “unfair” as alleged by the applicant.

On 2 December 2003 the applicant was released on licence.

The applicant’s cassation appeal was dismissed by the Supreme Court on 2 March 2004. The Supreme Court found no indication of unfairness in the proceedings or a breach of the applicant’s procedural rights.

B. Other proceedings

On 18 June 2002 the applicant brought before the Šiauliai Regional Administrative Court an action against the Ministry of Justice, claiming pecuniary and non-pecuniary damages for his being infected with Hepatitis C during his stay in the remand prison. On 19 June 2002 the court disallowed his action for want of jurisdiction. The court observed that the applicant should have brought the claim before the Vilnius Regional Administrative Court, pursuant to the relevant procedural provisions.

On 18 July 2002 the Supreme Administrative Court rejected the applicant’s appeal.

On 1 August 2002 the applicant brought an action before the Šiauliai Regional Administrative Court, claiming pecuniary and non-pecuniary damages from the Šiauliai Remand Prison in relation to his Hepatitis C infection. On 8 August 2002 the court disallowed the action by reason of the applicant’s failure to comply with the relevant procedural requirements, namely, to state his factual and legal claims in a clear manner. The court gave the applicant time until 19 August 2002 to amend the action.
On 13 August 2002 the applicant submitted a fresh action. However, it was disallowed by the Šiauliai Regional Administrative Court on 19 August 2002 on the same grounds. On 19 September 2002 the Supreme Administrative Court dismissed the applicant’s appeal against the decision of 19 August 2002.

The prison doctors confirmed that the applicant was infected with Hepatitis C and prescribed appropriate treatment. The applicant’s condition was further monitored throughout 2002.

II. Relevant domestic law

A. Provisions relating to detention on remand

The provisions of the Code of Criminal Procedure (Baudžiamojo proceso kodeksas), in force until 1 May 2003, provided as follows:

Article 104

“Detention on remand shall be used only ... in cases where a statutory penalty of at least one year’s imprisonment is envisaged. ...

The grounds for the detention on remand shall be specified. The grounds ... shall be the reasonable suspicion that the accused will:

(1) abscond from the investigation and trial;

(2) obstruct the determination of the truth in the case [influence other parties or destroy evidence];

(3) commit new offences ... whilst suspected of having committed crimes provided in Articles ... 105 [aggravated murder], 111 [serious bodily harm].... 227 [founding a criminal organisation], ... 271 [theft], 273 [extortion], 278 § 2 [aggravated destruction of property] ... of the Criminal Code ... .

Where there is a reasonable fear that the accused will abscond from the investigation and trial, detention on remand may be ordered taking into account his family status, permanent place of residence, employment relations, health, criminal record, relations abroad and other circumstances. ...”.

Article 104-1

“... [T]he arrested person shall be brought before a judge within not more than 48 hours ... The judge must hear the person as to the grounds of the arrest. The prosecutor and counsel for the arrested person shall take part in the inquiry [unless the judge decides otherwise]. ... After having questioned the arrested person, the judge may maintain the arrest order by fixing the term of detention, or may vary or revoke the remand measure. ...

After the case has been transmitted to the court ... [it] can order, vary or revoke the detention on remand. ...”

Article 106

“Detention on remand cannot last longer than six months. A specific term of remand shall be fixed by a judge adopting the remand order; this term can be extended by the same judge or another judge of the same district court, but only for a period not exceeding six months.

In view of the particular complexity or size of a case, a judge of a regional court may extend the maximum term specified in the first paragraph of this Article for a period not exceeding three months. The extension may be repeated, but the total length of the term at the stage of the pre-trial investigation may not exceed 18 months ...

For the purpose of extending the term of detention on remand at the stage of the pre-trial investigation, ... a judge must convene a hearing to which defence counsel and the prosecutor and, if necessary, the detained person shall be called ... .”

Article 106 § 4 (in force since 30 December 1999)

[Once the case is transferred to a court], a court of first or appellate instance shall order detention on remand or extend its term upon the request of a prosecutor or on its own motion for a period not exceeding three months. The extension may be repeated – giving reasons – in view of the particular complexity, size of a case or other objective circumstances. The question of remand shall be resolved at a directions hearing or trial, or at a hearing specially convened for these purposes. The detainee, his defence lawyer, and a prosecutor must be summoned, and their presence before the court is obligatory. ...

If the court decides to remit the case for additional investigation, the maximum length of detention on remand may be extended for a period not exceeding four months. In such cases, the question of remand shall be resolved by the court, and the case shall be remitted for further investigation. ...”

Article 109-1

“A person remanded in custody or his defence council shall have the right during the pre-trial investigation or trial to lodge [with an appellate court] an appeal against the detention on remand or the extension of its term ... . A judge or the appellate court must examine the appeal within seven days from its receipt. With a view to examining the appeal, a hearing may be convened, to which the arrested person and his counsel or counsel alone shall be summoned. The presence of a prosecutor is obligatory at such a hearing.

The decision taken by [the appellate judge] is final and cannot be the subject of a cassation appeal ... .

A further appeal shall be determined when examining the extension of the term of the detention on remand.”

Other relevant provisions of the Code of Criminal Procedure: Article 52 § 2 (3) and (8) and Article 58 § 2 (8) and (10) provide, respectively, that the accused and their counsel have the right to “submit requests” and to “appeal against acts and decisions of an interrogator, investigator, prosecutor and court.”

Article 249 § 1

“A judge individually or a court in a directions hearing, in deciding whether to commit the accused for trial, shall determine ... (11) whether the remand measure has been selected appropriately.”

Article 250 § 1

“After having decided, that there is a sufficient basis to commit the accused for trial, a judge individually or a court in a directions hearing shall determine the questions ... (2) of the remand measure in respect of the accused ...”

Article 267 § 1

“[During the trial, the defendant] has the right to ... 3) submit requests; ... (11) appeal against the judgment and decisions of a court.”

Article 277

“In the course of the trial, a court may decide to order, vary or revoke a remand measure in respect of the defendant.”

B. Provisions relating to State liability

Article 6.271 of the Civil Code (in force from 1 July 2001)

“1. Damage caused by the unlawful acts of public institutions shall be compensated by the State from the budget, irrespective of the fault of an actual civil servant ...

3. For the purposes of this Article, the term “action” shall be taken to mean any action (active action or failure to act) of a public institution or its employees, which directly affects the rights, liberties or interests of persons ... .

4. The civil liability of the State ... shall arise if employees of public institutions fail to act in accordance with the law.”

Article 6.273 of the Civil Code provides that, in cases where the State is liable to cover the damage, it shall be represented by the Government or an institution authorised by the Government.

COMPLAINTS

1. The applicant complained about the conditions of his detention on remand. In particular, he complained about the allegedly improper space, sanitary, medical and catering conditions at the remand prison. He also alleged that while in custody he had been infected with and improperly treated for Hepatitis C. He invoked Article 3 of the Convention.

2. Under Article 5 §§ 1 and 3 of the Convention, the applicant complained that his detention on remand had been unlawful and unreasonably long. Under Article 5 § 4, the applicant also complained that he had not been able to contest the decision of 6 September 2000 concerning the lawfulness of his detention on remand.

3. Under Article 6 of the Convention, the applicant complained that the trial had been unfair. In particular, he alleged that the principle of the presumption of innocence had not been respected, that his defence rights had been breached, that the courts had refused to call additional witnesses, that they had unlawfully admitted certain evidence in his case, and that their factual and legal conclusions as to the evidence had been incorrect.

4. The applicant next complained that his correspondence with the European Court of Human Rights, the State authorities and private persons had been censored by the remand prison administration. He also complained that the administration had arbitrarily restricted his meetings with his wife. He alleged breaches of Article 8 of the Convention in this respect.

5. Under Article 9 of the Convention, the applicant complained that his freedom of religion had been violated in that he had not been allowed to see a priest and make a confession while in the remand prison.

6. The applicant also invoked Articles 13, 14 and 17 of the Convention in connection with the above allegations under Articles 8 and 9.

7. Under Article 1 of Protocol No. 1 to the Convention, the applicant complained about a temporary seizure of his wife’s property in the context of the criminal proceedings against him.

THE LAW

8. The applicant complained about the allegedly inadequate general conditions of detention at the remand prison. He further alleged that, while detained, he had been infected with Hepatitis C and had not been afforded proper treatment. The applicant invokes Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government submitted that the applicant had not exhausted domestic remedies in this respect. In particular, the applicant had failed to comply with the procedural requirements in submitting a claim about his infection with Hepatitis C and the allegedly inadequate medical care; moreover, he had not raised any issue as to the other conditions of detention. The applicant contested this argument.

The Court notes that the applicant has never complained about the general conditions of detention before the domestic courts. Although he attempted to bring an action regarding the medical care in the remand prison, he failed to comply with the basic procedural requirements. There is no indication of any practical obstacles that would have prevented the applicant from following the courts’ instructions and re-submitting his complaints. The Court finds, therefore, that the applicant has failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention (see Jankauskas v. Lithuania (dec.), no. 59304/00, 5 December 2003).

It follows that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4.

9. The applicant further complained about his detention on remand. He invoked Article 5 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: ...;

(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;

2. 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.

3. 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.

4. 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. ...”

A. Article 5 § 1 of the Convention

The applicant complained that his detention on remand had been unlawful.

The Government submitted that the whole period of the applicant’s remand was covered by the orders issued by the courts in accordance with domestic criminal procedure standards. The applicant did not dispute that affirmation.

The Court recalls that Article 5 § 1 requires that any period of detention be compatible with domestic law and devoid of arbitrariness. A period of detention is, in principle, “lawful” if it is based on a court order. Even flaws in the detention order do not necessarily render the underlying period of detention “unlawful” within the meaning of Article 5 § 1 (see Jėčius v. Lithuania, no. 34578/97, 31 July 2000, § 56, ECHR 2000-IX).

On the basis of the materials in the case file and the Government’s observations, the Court finds it established that the applicant’s detention on remand, throughout, was authorised and extended by the domestic courts as required by Articles 104 and 104-1 of the Code of Criminal Procedure then in force (see, mutatis mutandis, Jėčius, cited above, §§ 65-70). Nor can it be said that the applicant’s remand in custody on the basis of those orders was arbitrary. He was detained on suspicion of having committed numerous serious crimes, and there was the risk that he might abscond, obstruct the investigation and commit new offences. Consequently – since the whole period of the applicant’s detention on remand was covered by valid and well-reasoned court orders - it was compatible with Article 5 § 1 (c) of the Convention.

It follows that this part of the application is manifestly ill-founded, and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

B. Article 5 § 3 of the Convention

The applicant further complained that his detention on remand exceeded the “reasonable length” requirement of Article 5 § 3.

The Government submitted that the applicant had failed to exhaust domestic remedies in that he had not sought compensation for his prolonged detention on remand.

They further stressed that the length of the applicant’s detention on remand had been determined by objective reasons, namely, the complexity and large volume of the case. Furthermore, serious delays occurred due to the failure of the participants to appear before the court. In this respect, the Government submitted that during the pre-trial investigation stage the applicant’s lawyer had on several occasions failed to appear before the court and the prosecution. Later, at the stage of the judicial examination, the applicant’s lawyer had on five occasions failed to appear before the court, at times giving no reasons justifying his absence. By contrast, no substantial delays in the proceedings were imputable to the authorities.

Finally, the Government noted that the extension of the applicant’s detention on remand had been justified by his dangerous character, attested by his previous convictions and the seriousness of the charges against him.

The applicant argued, in turn, that the reasons given by the domestic courts for his prolonged remand could not be considered “significant” and “sufficient”. He also alleged that some substantial delays in the proceedings had occurred due to the changes in the composition of the trial court.

The Court does not need to examine whether additional remedies were available to the applicant to challenge his remand in custody since, in any event, his complaint should be declared inadmissible for the following reasons.

The Court notes that the applicant’s detention on remand lasted from 1 March 1999 to 19 July 2002, i.e., 3 years, 4 months, and 19 days.

The Court reiterates that the reasonableness of the length of detention must be assessed in each case according to its specific features. Continued detention may be justified in a given case only if there are clear indications of a genuine public interest which, notwithstanding the presumption of innocence, outweighs the right to liberty. It falls in the first place to the national judicial authorities to examine the circumstances for or against the existence of such an imperative interest, and to set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions, and of the facts established by the applicant on appeal, that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3. The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. The Court must then establish whether the other grounds given by the judicial authorities were “relevant” and “sufficient” to continue to justify the deprivation of liberty (see Vaivada v. Lithuania (dec.), nos. 66004/01 and 36996/02, 24 November 2005; also see, Stašaitis v. Lithuania, no. 47679/99, 21 March 2002, § 82).

In this connection, the Convention case-law has distinguished several basic acceptable reasons for refusing bail: the risk that the accused will abscond and fail to appear for trial, or that he/she will take action to prejudice the administration of justice, for instance by suppressing evidence (see Stögmüller v. Austria, judgment of 10 November 1969, Series A no. 9, § 15; see also Wemhoff v. Germany, judgment of 27 June 1968, Series A no. 7, § 14), commit further offences (see Matznetter v. Austria, judgment
of 10 November 1969, Series A no. 10, §§ 8-13), or create public disorder (see Letellier v. France, judgment of 26 June 1991, Series A no. 207, § 51).

These reasons cannot be gauged solely on the basis of the severity of the possible sentence; it must be assessed with reference to a number of other relevant factors which may either confirm the existence of these dangers or make them appear so slight that they cannot justify pre-trial detention. In this context regard must be had in particular to the character of the person involved and his moral stature (see W. v. Switzerland, judgment of 26 January 1993, Series A no. 254-A, § 33), as well as other special features such as the possible lengthy persistence of criminal behaviour, the magnitude of the damage incurred by the victims of the alleged crime, and the level of dangerousness of the accused (see, mutatis mutandis, Matznetter, cited above, ibid.)

Arguments for and against release must not be “general and abstract” (see Clooth v. Belgium, judgment of 12 December 1991, Series A no. 225,
§ 44). Where a suspect is detained on remand, the case should be given priority and conducted with special diligence (see Matznetter, cited above,
§ 12).

Turning to the facts of the case at hand, the Court notes, first and foremost, the complexity of the criminal proceedings against the applicant. Several separate cases were instituted against the applicant, which were later joined as the investigation progressed. Eventually, the proceedings involved a joint examination of more than 11 episodes alleged to constitute criminal acts committed by the applicant and his four accomplices against various victims at different times, the nature of the alleged offences ranging from attempted murder, to extortion and property crimes. The authorities were thus faced with a very difficult task in conducting the trial and summoning numerous victims and witnesses.

The Court further notes that the proceedings were adjourned numerous times in view of the failure of some of the participants to appear at trial or due to their illness. Indeed, on several occasions, the applicant’s lawyer himself failed to appear before the court (see the “Facts” part above).

It is observed that the courts ordering the applicant’s detention based their decisions on three main fears, namely that the applicant may escape, obstruct the investigation by influencing victims and witnesses, and commit new crimes. The Court is satisfied that these criteria were not general or abstract, and that they were “relevant” to the applicant’s continuing remand in custody from the point of view of Article 5 § 3.

Furthermore, no violation of the domestic law was found by the national courts in relation to the length of the applicants’ detention. Nor is there any evidence of a significant delay in the conduct of the proceedings which could be attributed to the authorities. The issue of the length of the applicant’s detention on remand and his allegations as to the procrastination of the proceedings were several times carefully examined by the courts, who gave detailed reasons for their finding that the “reasonable time” requirement had not been breached, given the circumstances of the present case. In particular, in its decisions of 17 October 2001, the Court of Appeal noted that the proceedings were delayed a number of times at the request of the participants in the proceedings or due to their failure to appear at the hearings. On 27 February 2002 the Court of Appeal observed that the length of the applicant’s detention on remand was justified by the exceptional volume and complexity of the case. In the judgment of 19 July 2002 and the appellate court decision of 4 September 2003, the courts further noted that the length of the proceedings had been to a decisive extent determined by the conduct of the co-accused and their lawyers (see the “Facts” part above).

While the Court takes into account that the decision of 12 May 2000 to remit the case for further investigation was subsequently quashed, it does not consider that this procedural flaw or later changes in the composition of the trial court had a major impact on the length of the proceedings. The Court cannot conclude, therefore, that the authorities failed to show due diligence in investigating the case (see the Vaivada decision cited above; see also, by contrast, Stašaitis, cited above, § 84).

In view of the applicant’s lengthy detention, it may be argued that some of the reasons relied on by the domestic courts to justify the continuing remand in custody – namely the fear of the applicant’s absconding and influencing the investigation – may have lost their “sufficiency” from the point of view of Article 5 § 3 of the Convention by the time the applicant was convicted and his remand in custody ceased. However, as noted by the domestic courts, in view of the applicant’s dangerous character and the persistence of offensive behaviour attested by his criminal record, the fear of his re-offending continued to remain a “sufficient” reason to warrant his detention on remand during the whole of the impugned period (see Vaivada cited above; see also, mutatis mutandis, Matznetter, cited above, § 11).

Finally, the Court observes that the domestic courts took into account the reasons which the applicant invoked in his appeals against the extension of his remand in custody, but did not find any compelling reason that would have warranted his release (see the “Facts” part above).

In view of the above circumstances, and given in particular the number and seriousness of the charges against the applicant, his propensity to crime, as well as the thoroughness with which the domestic courts have dealt with the issue, the Court considers that the total length of the applicant’s detention on remand was not excessive within the meaning of Article 5 § 3.

It follows that this part of the application is manifestly ill-founded, and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

C. Article 5 § 4 of the Convention

The applicant further complained that he had not been able to contest the appellate decision of 6 September 2000 concerning the lawfulness of his detention on remand.

The Court reiterates that Article 5 § 4 does not guarantees a right, as such, to appeal against decisions ordering or extending detention, as the above provision speaks of “proceedings” and not of “appeals”. The intervention of one organ satisfies Article 5 § 4, on condition that the procedure followed has a judicial character and gives to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question (see the Jėčius judgment cited above, § 100; see also, more recently, Becciev v. Moldova, no. 9190/03, § 68, 4 October 2005). The scope of such judicial assessment should be wide enough to bear on those conditions which are essential for the “lawful” detention of a person according to Article 5 § 1(c). This may require an oral hearing in the context of an adversarial procedure involving legal representation (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, §§ 126-133; also see Hussain v. the United Kingdom, judgment of 21 February 1996, Reports 1996-I, §§ 57-60).

The Court notes that the impugned decision of 6 September 2000 to extend the term of the applicant’s detention on remand for two months was taken by the Court of Appeal during a hearing at which the applicant and his lawyer, as well as the prosecutor, were present. The applicant was thus enabled to contest - by way of adversarial proceedings - the grounds for his continuing stay in custody. Therefore, the Court finds that the requirements of Article 5 § 4 were satisfied.

It follows that this part of the application is also manifestly ill-founded, and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

10. Under Article 6 of the Convention the applicant alleged various irregularities in the conduct of the proceedings. The Court notes that the applicant submitted essentially the same complaints in his appeal and cassation appeal before the domestic courts, which dealt with these issues at significant length and dismissed them as unsubstantiated. On the basis of the material in its possession, the Court finds no indication that the proceedings as a whole could be considered unfair. It follows that the applicant’s complaints in this part of the application are manifestly
ill-founded within the meaning of Article 35 § 3, and they must be rejected under Article 35 § 4.

11. The applicant next complained about the censorship of his correspondence and restrictions on meeting his wife in the remand prison. He further alleged that his freedom of religion had been violated. He invoked Articles 8, 9, 13, 14 and 17 of the Convention.

However, the Court notes that the applicant did not raise any of these issues before the domestic courts. It follows that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies (see the Jankauskas decision cited above).

12. Finally, under Article 1 of Protocol No. 1 to the Convention, the applicant complained about the temporary seizure of some of his wife’s possessions.

The Court notes, however, that the applicant cannot claim to be a victim of an alleged violation of the Convention with respect to his wife, as required by Article 34 of the Convention. Accordingly, this part of the application is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3.

Having regard to the above conclusions, the application of Article 29 § 3 of the Convention to the case should be discontinued.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. DolléA.B. Baka
RegistrarPresident

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