SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 19251/02
by Irina ŠČIUKINA
against Lithuania
The European Court of Human Rights (Second Section), sitting
on 5 December 2006 as a Chamber composed of:
MrJ.-P. Costa, President,
MrA.B. Baka,
MrI. Cabral Barreto,
MrsA. Mularoni,
MrsE. Fura-Sandström,
MsD. Jočienė,
MrD. Popović, judges,
and Mr S. Naismith, Deputy Section Registrar,
Having regard to the above application lodged on 6 May 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, Ms Irina Ščiukina, is a Lithuanian national who was born in 1958 and lives in Klaipėda. She was represented before the Court by
Mr L. Zubanovas, a lawyer practising in Klaipėda. The Lithuanian Government (“the Government”) were represented by their Agent,
Ms E. Baltutytė.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 19 April 1999 the applicant’s dog, a pit-bull terrier, attacked an 11 year old child, severely biting and injuring him. The prosecution instituted criminal proceedings under Article 115 of the Criminal Code (causing medium bodily harm by negligence), which were subsequently discontinued, as no evidence of a crime was disclosed.
Nevertheless, in its decision of 15 July 1999, the police found the applicant guilty of an administrative offence. The decision stated that the applicant’s dog had bitten the child, and thus the applicant was liable under Article 110 § 2 of the Code of Administrative Offences (a breach of the pet-keeping rules, causing an injury). She was fined LTL 300 (about EUR 90). The applicant did not dispute that decision, and paid the fine.
On 15 November 2000 the prosecution re-opened the criminal proceedings against the applicant.
On 22 November 2000 a fresh medical expert examination confirmed the seriousness of the injuries caused to the boy, finding that he would need plastic surgery.
On 14 December 2000 the applicant was charged with causing medium bodily harm by negligence (Article 115 of the Criminal Code) and remanded on bail, with a written obligation not to leave her place of residence. The applicant did not appeal against this restriction.
On 19 March 2001 the Klaipėda City District Court acquitted the applicant. It was established that the applicant was not guilty of a criminal offence but rather of an administrative violation for which she had already been punished.
On 29 May 2001 the Klaipėda Regional Court reversed this judgment, finding the applicant guilty. The appellate court noted the gravity of the injuries sustained by the boy (bite wounds on his nose, forehead, cheeks, arm and leg). The court also found that the applicant’s behaviour had been negligent, in that she had walked her dog without a muzzle, although the animal was of a dangerous breed. In view of these factors, the court concluded that the applicant’s acts must attract criminal rather than administrative responsibility. The applicant was sentenced to nine months’ imprisonment, but the sentence was rescinded by virtue of an amnesty act. The applicant lodged a cassation appeal.
On 13 November 2001 the Supreme Court upheld the applicant’s conviction. It established that the applicant had been criminally liable for having caused medium bodily harm by negligence.
The Supreme Court noted that in cases where the same acts attracted both criminal and administrative liability, the nature of the offence was a criterion determining which procedure ought to be applied. In particular, if the nature of the act made it punishable under the criminal law, the person should be held liable under criminal law. If the nature of the offence was not such as to attract criminal liability, a person would be held liable under the administrative law. The Supreme Court went on to say:
“It was established that the applicant had caused medium bodily harm by negligence, therefore, she has been rightly convicted under Article 115 of the Criminal Code.
The fact that [the applicant] has been punished for the same acts by way of an administrative procedure is not a valid ground to discontinue the criminal proceedings, since such a ground is not foreseen by the Code of Criminal Procedure. However, a person cannot be punished twice for the same offence, because it is contrary to Article 31 § 5 of the Constitution and Article 3 § 4 of the Code of Criminal Procedure. Since [the applicant] has been reasonably convicted under Article 115 of the Criminal Code, the issue of the lawfulness of the administrative decision to fine [the applicant] can be reconsidered in accordance with the [Code of Administrative Offences].”
B. Relevant domestic law
Article 31 of the Constitution of the Republic of Lithuania states as follows:
“...Punishment may be imposed or applied on the grounds established by law. No one may be punished for the same criminal offence twice. ...”
Article 3 of the Criminal Code (as then in force) stipulated:
“A person shall be held liable only when the act committed is forbidden by a criminal statute which came into force before the commission of the offence ...
No one shall be punished for the same criminal act twice ...”
The then Article 115 of the Criminal Code provided for criminal liability for causing serious or medium bodily harm by negligence.
Article 110 of the Code of Administrative Offences (as then in force) provided:
“Any person who breaches pet-keeping rules - approved by the Municipal Council - shall be punished by a warning or fine of up to 100 litai. The same act, committed repeatedly or when causing damage to the health or property of others - shall be punished by a fine between 100 to 3,000 litai.”
The then Article 291 of the Code of Administrative Offences provided for a right of appeal against a decision to impose an administrative penalty.
The then Article 301 of that Code stipulated:
“Where a decision finding a person liable for an administrative offence has been quashed, the [fine] paid shall be reimbursed ... and other restrictions relating to the [administrative penalty] shall be repealed.”
COMPLAINTS
1. Under Article 6 of the Convention the applicant complained about the length of the criminal proceedings.
2. Relying on Article 7 of the Convention, the applicant complained that she had been convicted without there being a proper basis in the criminal law. In particular, she alleged that the Criminal Code did not foresee criminal liability for a breach of pet-keeping rules.
3. The applicant also alleged that her freedom of movement had been violated as a result of the obligation not to leave the country, which had not been revoked although the criminal judgment had become final. In this respect, she relied on Article 2 of Protocol No. 4.
4. The applicant finally complained that she had been tried and convicted for an offence for which she had already been punished by way of administrative proceedings. The applicant invoked Article 4 § 1 of Protocol No. 7 to the Convention.
THE LAW
1. The applicant complained that the criminal proceedings against her had lasted too long. She invoked Article 6 of the Convention, which provides, insofar as relevant, as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
The Court notes that the period to be taken into consideration commenced with the first opening of the criminal investigation in April 1999, and ended with the final decision of the Supreme Court
on 13 November 2001. The overall length of the proceedings was thus two years and seven months at three levels of jurisdiction. In such circumstances, the Court cannot but conclude that the proceedings did not exceed the “reasonable time” requirement. Accordingly, this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The applicant next complained that she had been punished for an act which had not constituted an offence under domestic criminal legislation at the time of its commission. She relied on Article 7 of the Convention, which states 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.
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”
The Government contended that the offence of “causing serious or medium bodily harm” had clearly existed under Lithuanian law, and that the relevant provision of the Criminal Code was accessible and sufficiently clear.
The applicant reiterated that at the material time the criminal law had not foreseen a dog owner’s liability for the bodily harm caused by the animal.
The Court notes that, by the judgment of the Klaipėda Regional Court of 29 May 2001, the applicant was convicted of causing medium bodily harm under Article 115 of the Criminal Code as then in force. The applicant does not contest the fact that, at the time when the alleged offence was committed, causing medium bodily harm constituted a crime under the national law, as envisaged by the first paragraph of Article 7 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. It must therefore be rejected in accordance with Article 35 § 4 (see, mutatis mutandis, Daktaras v. Lithuania (dec.), no. 42095/98, 11 January 2000).
3. The applicant further complained of the written obligation not to leave imposed on her in the context of the impugned criminal proceedings. She relied on Article 2 of Protocol No. 4 to the Convention, the relevant part of which reads 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. ...”
The Court notes however that, by failing to appeal against the bail restrictions imposed on 14 December 2000, the applicant did not exhaust domestic remedies as required by Article 35 § 1 of the Convention (Liekis v. Lithuania (dec.), 10406/03, 30 May 2006). This complaint must therefore be rejected pursuant to Article 35 §§ 1 and 4.
4. Finally, the applicant complained that she had been punished twice for the same offence, in violation of Article 4 § 1 of Protocol No. 7 to the Convention, which reads as follows:
“No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”
The Government submitted that Article 4 of Protocol No. 7 was not applicable. They argued that the administrative fine could not be considered a criminal punishment. Alternatively, the Government argued that the applicant’s complaint was manifestly ill-founded. They contended that the acts of the applicant constituted more than one offence which differed in nature and aim, and that there were no overlapping essential aspects of the offences. They also argued that the seriousness of the victim’s injuries came to light only after the administrative proceedings had been concluded, when it was discovered - as a result of the second medical examination of
22 November 2000 - that the elimination of the victim’s scars would require surgery. Finally, the Government submitted that the applicant had not challenged the administrative fine by way of an appeal.
The applicant contested these submissions. She argued that the imposition of a fine should have been deemed a criminal punishment for the purposes of Article 4 § 1 of Protocol No. 7. She further referred to the conclusion of the Supreme Court that she had been punished twice, in breach of the national law.
The Court considers that the question whether the principle of non bis in idem, which is protected by Article 4 of Protocol No. 7 (see, inter alia, Franz Fischer v. Austria, no. 37950/97, 29 May 2001), has been respected need not be determined in the circumstances of the present case for the following reasons.
The Court takes note of the Supreme Court’s acknowledgment, in its decision of 13 November 2001, that the applicant had been punished twice for the same offence. It also indicated that the applicant’s administrative reprimand could be revoked by a renewed set of administrative proceedings (see also the Relevant Domestic Law above). The applicant has not alleged that this possibility was, for any reason, inaccessible to her in practice. In these circumstances, the Court finds that, even if the applicant may still claim to be a victim of a violation under Article 34 of the Convention, she has failed to exhaust domestic remedies.
It follows that this part of the application should be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
The Court concludes that the procedure under Article 29 § 3 of the Convention should be terminated, and the application rejected as a whole.
For these reasons, the Court unanimously
Declares the application inadmissible.
S. NaismithJ.-P. Costa
Deputy RegistrarPresident
Full & Egal Universal Law Academy