Communicated on 2 February 2015
SECOND SECTION
Application no. 14737/08
Viktor USPASKICH
against Lithuania
lodged on 14 March 2008
STATEMENT OF FACTS
The applicant, Mr Viktor Uspaskich, is a Lithuanian national, who was born in 1959 and lives in Kėdainiai town. He is represented before the Court by Mr V. Sviderskis, a lawyer practising in Vilnius.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a businessman and a politician. In 2003 he established the Labour Party (Darbo partija), a political party in Lithuania. He was the chairman of that party. In the Seimas (Lithuanian parliament) elections of 2004 the Labour Party obtained more votes than any other political party.
In May 2006 the prosecutors started a criminal investigation on suspicion of fraudulent accounting and money laundering by the Labour Party.
On 17 May 2006 the applicant left Lithuania for the Russian Federation. Later that month the authorities searched the applicant’s home in Kėdainiai town and the Labour Party’s headquarters. Afterwards the press announced that more than 2,000,000 Lithuanian litai (approximately 580,000 euros) in cash had been found in the applicant’s home.
On 23 August 2006 the applicant was charged with fraudulent accounting (Article 222 § 1 of the Criminal Code), providing inaccurate data on income, profit or assets (Article 220 § 1) and having created an organised group (Article 24 § 4).
On 25 August 2006 the Vilnius City Second District Court ordered the applicant’s arrest and detention on remand, on the ground that the applicant had failed to come to the prosecutors for questioning and had thus obstructed the criminal proceedings. It was reasonable to assume that the applicant would hide from the Lithuanian authorities. The same day the prosecutors ordered a search for the applicant. The following day, at the Labour Party’s congress, the applicant announced, by telephone, that he was not hiding but only living in Moscow. He had no faith in the Lithuanian law enforcement institutions. That day, another person was elected as the chairman of the Labour Party.
On 15 September 2006 the applicant was arrested in Moscow. The same day, he asked for political asylum in Russia and was released. The Lithuanian prosecutors asked the prosecutors of the Russian Federation to arrest the applicant and to extradite him to Lithuania. By a letter of 22 January 2007, the Russian prosecutors refused the request.
In July 2007, the Labour Party decided to take part in the Seimas elections in Dzūkija single member constituency, which were to take place on 7 and, if necessary, 21 of October (the second round). The Labour Party confirmed the applicant as its candidate in that constituency.
On 4 September 2007, the Central Electoral Commission confirmed the applicant as a candidate in the Seimas elections.
On 5 September 2007, the Central Electoral Commission announced the list of ten candidates who were to stand in that single member constituency. The applicant’s name was among those listed. On that day, the electoral campaign started.
The same day, the spokesperson of the State President stated that it was odd for the President that a person who had asked for political asylum in Russia, decried the Lithuanian institutions and was being searched for by the Lithuanian law enforcement authorities, could be registered as a candidate in parliamentary elections.
On the basis of a request by the prosecutors, the Central Electoral Commission decided that the applicant could be arrested or his liberty could be otherwise restricted during the electoral campaign, until the moment he was elected and took the parliamentarian’s oath. The applicant appealed through his lawyer. He relied, inter alia, on Article 3 of Protocol No. 1 to the Convention. By a final decision of 13 September 2007, the Supreme Administrative Court dismissed the applicant’s appeal.
The applicant, accompanied by a group of Lithuanian Members of Parliament belonging to the Labour Party, returned to Vilnius from Moscow on 26 September 2007. The same day, he was arrested and placed in detention on remand.
By the Vilnius City Second District Court’s decision of 27 September 2007, the applicant being present at the court hearing, the remand measure was changed to house arrest. The court ordered the applicant to stay at his home in Kėdainiai town from 8 p.m. to 8 a.m., not to leave Kėdainiai town area, not to communicate with three other suspects in the applicant’s criminal case, and not to attend public places (nesilankyti viešosiose vietose). The applicant’s requests to the prosecutors and the courts that the house arrest measure be rescinded were dismissed. The courts noted that because of the complexity of the criminal case, the applicant’s lack of cooperation and the necessity of limiting his communications with the other suspects, it had been reasonable to place the applicant under house arrest.
During the first round of voting in the Dzūkija single member constituency, which took place on 7 October 2007, the applicant and another candidate received, respectively, 20 and 30 per cent of the votes. They were to compete in the second round of elections, which was scheduled for 21 October.
The applicant appealed, relying on Article 3 of Protocol No. 1 and arguing that house arrest and also the prohibition on leaving Kėdainiai town were too strict remand measures. For the applicant, house arrest was not proportionate and interfered with his right to stand in the Seimas’ elections unhindered. He also mentioned that he wished to leave Kėdainiai town so that he could visit a medical establishment in another town.
On 8 October, the Vilnius Regional Court upheld the 27 September 2007 decision to place the applicant under house arrest, with the exception that the applicant was now allowed to visit public places from 8 a.m. to 8 p.m. The prohibition on the applicant leaving Kėdainiai town remained effective. For the Vilnius Regional Court, it was reasonable to keep the applicant under house arrest because he had earlier fled to Russia, the sums not accounted for in the applicant’s political party’s accounts were in the millions of Lithuanian litas, and there was reason to believe that the applicant could obstruct the investigation. The court considered that house arrest would not interfere with the applicant’s electoral rights or with his business or family interests.
On 9 October, the Labour Party asked the Central Electoral Commission to intervene as an intermediary with a view to the prosecutors mitigating the remand measure, house arrest, so that the applicant had equal possibilities to compete in the electoral campaign. On 11 October the Central Electoral Commission answered in the negative: should it express any opinion about the reasonableness of the applicant’s remand measure, that could be interpreted as undue interference with the court’s competence and a breach of the principle of separation of powers.
On 10 October, the applicant himself asked the prosecutors to modify the remand measure for the period of 10-21 October, and to allow him to leave Kėdainiai town territory, so that he could go to the Dzūkija constituency, which is situated about 115 kilometres from Kėdainiai town, to meet the voters and compete with the other candidate on equal terms. The applicant noted that his meetings with the voters during the second round of elections would start on 12 October. He also added a two page document describing the schedule of his party members’ meetings with voters. Those meetings had taken place from 28 September to 7 October (before the first voting round) in Dzūkija constituency. The schedule indicated that the applicant would have taken part in those meetings had the prosecutors allowed him to meet the voters.
By the prosecutor’s decision of 15 October, the applicant’s request was refused. The prosecutor noted the applicant’s earlier statement that he could lead the electoral campaign even without physically being in Lithuania. For the prosecutor, the applicant could also take part in the electoral campaign by other means, that is, not only by meeting voters in person.
On 16 October the Labour Party asked the Prosecutor General to permit the applicant to leave Kėdainiai town for the Dzūkija constituency during the electoral campaign. In support of that request, it added a petition signed by 2,927 voters from that electoral constituency.
The following day the applicant lodged an appeal with the higher prosecutor, asking him to modify the remand measure, house arrest, and to permit the applicant to meet his voters. The applicant also insisted that he wanted to be permitted to leave Kėdainiai town territory in order to visit doctors in other towns and for his business interests. Quoting certain information in the press, the applicant further asserted that it was a political decision to prevent him from becoming elected.
The applicant’s appeal was rejected by the higher prosecutor on 19 October. That decision was sent to the applicant on 22 October and received by him on 26 October. Given that the second round of electoral voting took place on 21 October and that electoral campaigning is prohibited 30 hours before the beginning of an election and on the election day, the applicant states that there was no reason to appeal against the prosecutor’s decision of 19 October.
During the second round of voting in the Dzūkija constituency on 21 October, the applicant received 5,094 votes (or 43.58 per cent of votes). The other candidate received 6,596 votes (or 56.42 per cent of votes), and thus became a member of the Seimas.
After the Seimas elections, the prosecutor permitted the applicant to leave Kėdainiai town so that he could visit a cemetery for All Saints Day on 1 November 2007, visit a school outside Kėdainiai town on 17 November 2007, stay at the hospital in Kaunas town from 8-11 January 2008, and stay at rehabilitation clinics in Druskininkai town (situated about 180 kilometres from Kėdainiai town) from 11-22 February 2008.
According to a survey of the press done at the applicant’s request, from April 2006 until February 2008, the words “Labour Party ... suspect”, “Uspaskich ... suspect” had been mentioned in 210 press articles.
In April 2008 the pre-trial investigation in the criminal case was terminated and the file was transferred to the Vilnius Regional Court for examination.
On 29 April 2008 the Vilnius Regional Court released the applicant from house arrest. The court modified that remand measure to an obligation not to leave his place of residence in Kėdainiai town for longer than 7 days without informing the authorities, and to lodge bail of 1,500,000 Lithuanian litai.
During the Seimas elections of October 2008, the applicant and another member of his political party, who was the applicant’s co-accused in the criminal case, were elected to the Seimas on the Labour Party’s list. At the request of the prosecutor, the Seimas allowed the applicant’s prosecution and the restriction of his freedom.
By a ruling of 26 June 2009 of the Court of Appeal, the remand measure – the obligation not to leave the applicant’s place of residence – was rescinded. The other remand measure, bail, remained in force.
On 7 June 2009 the applicant was elected to the European Parliament. Under Lithuanian law, a member of the European Parliament enjoys the same immunities from prosecution as the members of the Seimas. For that reason, a prosecutor asked the Vilnius Regional Court to adopt a procedural decision and to instruct the Prosecutor General to ask the European Parliament to lift the applicant’s immunity and to allow his prosecution.
On 29 June 2009, the Vilnius Regional Court in written proceedings adopted a procedural decision and granted the prosecutor’s request. The applicant was not informed about the prosecutor’s request and the court hearing. In July 2009 the Lithuanian Prosecutor General asked the European Parliament to allow the applicant’s prosecution and the restriction of his freedom by imposing bail.
In June 2010 the applicant unofficially received, from the European Parliament, a copy of the Vilnius Regional Court’s decision of 29 June 2009. He then attempted to challenge that decision before the Court of Appeal, arguing that there had been a violation of his defence rights and his right to a public hearing. By a letter of 23 June 2010 the judge of the Vilnius Regional Court explained to the applicant in writing that under Lithuanian law the decision was procedural and not appealable.
In September 2010 the European Parliament lifted the applicant’s immunity, thus allowing the criminal proceedings in Lithuania to continue.
By a judgment of 12 July 2013 the Vilnius Regional Court found the applicant guilty of fraudulent accounting and sentenced him to four years’ imprisonment. The applicant appealed against the conviction. The case is currently pending before the Court of Appeal.
COMPLAINT
The applicant complains under Article 3 of Protocol No. 1 to the Convention that he could not effectively take part in the electoral campaign in the Dzūkija single member constituency during the Seimas elections of 2007.
QUESTION TO THE PARTIES
Has there been a breach of the applicant’s right to stand for election, under Article 3 of Protocol No. 1, as concerns the Seimas elections in the Dzūkija single member constituency in October 2007 (see Namat Aliyev v. Azerbaijan, no. 18705/06, § 75, 8 April 2010; Karimov v. Azerbaijan, no. 12535/06, §§ 36 and 43, 25 September 2014)? On this point the Court in particular refers to the applicant’s complaint that because of the remand measure, house arrest, he could not effectively take part in the electoral campaign.
Full & Egal Universal Law Academy