CASE OF USPASKICH v. LITHUANIA
No violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election)
Angelika Nußberger;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
6. The applicant was born in 1959 in Urdoma, the Russian Federation. He lives in Kėdainiai, a town in Lithuania. 7. The applicant is a businessman. He used to be a politician. In 2003 he established and was chairman of the Labour Party (Darbo partija) in Lithuania. In the parliamentary elections of 2004, the Labour Party obtained more votes than any other political party. Between December 2004 and June 2005 the applicant was Minister of the Economy, but resigned from that post after the Chief Official Ethics Commission (Vyriausioji tarnybinės etikos komisija) found that he had breached the principle of not mixing private and public interests. 8. In May 2006 a criminal investigation was opened on suspicion of fraudulent accounting by the Labour Party. The authorities suspected that the applicant, acting in complicity with three other members of that party the party treasurer and two high-level administrators – as well as one other person, had doctored the Labour Party’s accounts. The Labour Party, as a legal entity, was also a suspect in the case. Later that month the authorities searched the applicant’s home in Kėdainiai town, as well as the Labour Party’s headquarters. 9. In June 2006 the prosecutor attempted to call the applicant for questioning. However, the applicant could not be reached on his telephone, nor summoned. The applicant’s wife explained to the prosecutor that the last time she had seen her husband was in May 2006, when he had left for the Russian Federation. The applicant’s wife refused to give any other testimony related to her husband. 10. On 23 June 2006 the applicant sent the Lithuanian Attorney General a letter to the effect that he was aware of the ongoing pre-trial investigation regarding him and the Labour Party, and that some of his party colleagues had already been questioned. He claimed that he was staying in the Russian Federation, without disclosing his exact address. He asserted that the criminal case was “a dirty political game” (teisinės institucijos dalyvauja nešvariame politiniame žaidime) and had no basis, and expressed his intention to involve international organisations in his case. He also stated that he would return to Lithuania when his family circumstances permitted. In particular, his brother had recently died in Russia and his mother needed support. 11. On 28 June 2006 the applicant resigned from the post of Labour Party chairman. 12. On 17 July 2006 the Labour Party website made public the applicant’s “Letter to the People of Lithuania” (Laiškas Lietuvos žmonėms), in which he stated that he would not hurry to return to Lithuania because he was expecting the [Lithuanian] authorities to start a search for him. He did not wish to be questioned in the Republic of Lithuania, and wanted international organisations to be involved in his proceedings. 13. On 23 August 2006 the prosecutor decided to declare the applicant a suspect in the criminal case. The prosecutor found that, as chairman of the Labour Party and also acting in an organised group with other members of that party, the applicant had sought to finance the party unlawfully and to avoid the financial supervision of the party and its political campaigns, by organising the party’s fraudulent accounting from 2004 to 2006. As a result, it had been impossible to establish the structure of the party’s assets and expenditure for those years. In particular, the Labour Party had omitted from its accounts some 8,000,000 Lithuanian litai (LTL – approximately 2,300,000 euros (EUR)) worth of income, and some LTL 7,300,000 (approximately EUR 2,100,000) worth of expenditure. The applicant had also provided inaccurate data to the Central Electoral Commission and the tax authorities. This was in breach of a number of Criminal Code provisions (see paragraph 71 below), as well as the Law on the Funding of Political Parties and Political Campaigns (see paragraph 70 below). 14. On 25 August 2006 the Vilnius City Second District Court sanctioned, in absentia, the applicant’s arrest and remand in custody on the grounds that he had known about the criminal proceedings but was hiding in the Russian Federation and had failed to present himself to the prosecutors to take part in the criminal proceedings. It was reasonable to assume that the applicant would continue to hide from the Lithuanian authorities, thus obstructing the investigation. On the same day the prosecutor ordered a search for the applicant. In September 2006 both decisions were made available to the applicant’s lawyer. 15. On 26 August 2006 at the Labour Party congress, another person was elected as chairman of the Labour Party in the applicant’s place. 16. On 15 September 2006 the authorities of the Russian Federation arrested the applicant in Moscow. On the same day he asked for political asylum in Russia and was immediately released. On the basis of information that reached them by Interpol, the Lithuanian prosecutors then asked their colleagues in the Russian Federation to arrest the applicant and to extradite him to Lithuania. By a letter of 22 January 2007, the Deputy Attorney General of the Russian Federation refused the request, relying on Article 3 of the European Convention on Extradition, which states that extradition will not be granted if the offence in respect of which it is requested is regarded by the requested State as a political offence or as an offence connected with a political offence. 17. Having taken into account the criminal charges in respect of the Labour Party, including evidence by independent auditors, on 14 November 2006 the Central Electoral Commission decided not to allocate it appropriations from the State budget. 18. In January 2007 the Central Electoral Commission confirmed the applicant as a Labour Party candidate in elections to the municipal council of the Kėdainiai district. Given that electoral candidates in municipal elections had immunity from prosecution, the prosecutor asked the Central Electoral Commission to permit the restriction of the applicant’s freedom and his prosecution (see Article 49 § 1 of the Law on the Elections to the Seimas, cited in paragraph 67 below). At a hearing attended by the applicant’s lawyer, the prosecutor and representatives of the media and the Labour Party, the Central Electoral Commission granted that request. 19. On 12 February 2007 the Supreme Administrative Court dismissed an appeal lodged by the applicant’s lawyer, who asserted that the restriction of his client’s liberty was in breach of Article 3 of Protocol No. 1 to the Convention because he would then be unable to meet potential voters and proclaim his electoral programme. The Lithuanian court had regard to the Court’s case-law on the subject and emphasised that the right to stand for elections was not absolute (the Supreme Administrative Court referred to Sukhovetskyy v. Ukraine, no. 13716/02, §§ 50 and 51, ECHR 2006VI). Moreover, according to the Venice Commission guidelines, fundamental rights and freedoms, including the freedom to move within a State, could be limited in order to protect the public interest (see paragraph 74 below). In the applicant’s case, he had not been denied the very essence of his right to be elected. The State, for its part, had an obligation to prosecute criminal acts and to take measures to ensure that criminal proceedings were not unduly protracted. The applicant had been hiding from prosecution in Russia, which showed that he had deliberately breached Lithuanian law by avoiding arrest which had earlier been sanctioned by a court (see paragraph 14 above). The Supreme Administrative Court did not find erroneous the argument put forward by the Central Electoral Commission that “the applicant sought immunity status as a candidate in his own interests, which essentially had no connection with his electoral rights”. One could not dismiss the likelihood that if immunity from prosecution was granted, the applicant could return to Lithuania, and would leave the country before his immunity expired [elected members of municipal councils do not have immunity from prosecution, see paragraph 69 below]. This would undermine society’s trust in the State and in the authorities’ duty to investigate crimes and prosecute perpetrators to protect society from attempts to commit crime. 20. The Supreme Administrative Court also emphasised that the prosecutor’s request to lift the applicant’s immunity had no connection with his participation in the municipal elections; nor was it intended to prevent the applicant from being elected. In fact, the criminal proceedings had started long before the municipal elections, the date of which was not announced by the Seimas until July 2006. The applicant therefore had plenty of time to return to Lithuania from hiding in Russia and to testify in the criminal case, thus also being able to fully take part in the municipal elections. 21. Whilst de facto residing in the Russian Federation, the applicant took part in the municipal elections in Lithuania on 25 February 2007, and was successfully elected. 22. On 23 April 2007 the Central Electoral Commission granted a request submitted by the applicant to annul his powers as a member of the municipal council. 23. In the spring of 2007, A.V., a member of the Homeland Union (Tėvynės Sąjunga) political party, who was elected to the Seimas for the term from 2004 to 2008 representing the Dzūkija constituency, became mayor of the Alytus district municipality and therefore resigned from the Seimas. In April 2007 the Central Electoral Commission consequently announced new elections to the Seimas in that constituency. 24. In July 2007, the Labour Party decided to take part in the parliamentary elections in the Dzūkija constituency, which were to take place on 7 and, if necessary, on 21 October (second round of voting). The Labour Party confirmed the applicant as its candidate in that constituency. 25. On 4 September 2007, the Central Electoral Commission confirmed the applicant as a candidate in the Seimas elections. 26. 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, and the electoral campaign started on that day. 27. On the same day, a spokesperson for the State President stated that the President found it ‘odd 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 the parliamentary elections’. 28. On the basis of a request by the prosecutor, on 6 September 2007 the Central Electoral Commission decided that the applicant could be arrested or his liberty could be otherwise restricted during the electoral campaign, until he was elected and took the oath as a parliamentarian. The applicant appealed through his lawyer. He relied, inter alia, on Article 3 of Protocol No. 1 to the Convention. 29. By a final decision of 13 September 2007, the Supreme Administrative Court dismissed the appeal. It noted that the immunities of candidates in municipal elections were analogous to those applied in the context of elections to the Seimas. The grounds for lifting the applicant’s immunity had already been decided by the res judicata Supreme Administrative Court decision of 12 February 2007 (see paragraphs 19 and 20 above). No new factual circumstances had been brought to the court’s attention to justify a different ruling. 30. The applicant, accompanied by a group of Labour Party Members of Parliament, returned to Vilnius from Moscow on 26 September 2007. On the same day he was arrested, signed the notice of the offences of which he was suspected, was questioned and remanded in custody. 31. At a hearing before the Vilnius City Second District Court of 27 September 2007, at which the applicant was present, the court decided to vary the remand measure to house arrest. The court noted that the earlier court order to arrest and detain the applicant had been adopted whilst he was being searched for (see paragraph 14 above). Now, that he had returned to Lithuania from Russia, and was not refusing to testify, a milder remand measure could be imposed. The court thus ordered the applicant to stay at his home in Kėdainiai town from 8 p.m. to 8 a.m., not to leave the Kėdainiai town area, not to communicate with the three other suspects in his criminal case, and not to attend public places (nesilankyti viešosiose vietose). 32. On 1 October 2007 the applicant requested the Vilnius Regional Court to release him from house arrest, claiming that such a remand measure interfered with his electoral rights, in particular, to meet with voters in the Dzūkija electoral district. The applicant relied on Article 3 of Protocol No. 1. He also mentioned that he wished to leave Kėdainiai town so that he could visit a medical establishment in another town. For his part, the prosecutor lodged an appeal with the Vilnius Regional Court, urging it to impose pre-trial detention on the applicant. 33. 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 would thus compete in a second round of elections, which was scheduled for 21 October. 34. By a final ruling of 8 October, the Vilnius Regional Court upheld the lower court’s decision to place the applicant under house arrest, with the exception that he was now allowed to visit public places from 8 a.m. to 8 p.m. The prohibition on his leaving Kėdainiai town remained effective. The court held that the applicant should be kept under house arrest in order to protect interests important to society: he had earlier been hiding from the prosecutor, the sums not accounted for by the Labour Party amounted to millions of Lithuanian litai, and there was reason to believe that he could obstruct the investigation. The court also considered that house arrest would not interfere with the applicant’s electoral rights or with his business or family interests. 35. On 9 October 2007, 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 could compete in the parliamentary electoral campaign on equal grounds. On 11 October 2007 the Central Electoral Commission answered in the negative: should it express any opinion about the reasonableness of the applicant’s remand measure, this could be interpreted as undue interference with the courts’ competence and a breach of the principle of separation of powers. 36. On 10 October 2007, 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 so that he could go to the Dzūkija constituency, situated about 115 kilometres away, to meet the voters and compete with the other candidate on equal terms. The applicant stated 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 meetings between members of his party, including some renowned party members, and voters. From the documents in the Court’s possession it transpires that those meetings had already taken place from 28 September to 7 October, that is, before the first voting round, in the Dzūkija constituency. The schedule indicated that the applicant would have taken part in those meetings had the prosecutors allowed him to meet the voters. 37. By a decision of 15 October 2007, the prosecutor rejected the applicant’s request. He noted that the applicant had earlier made public statements 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 provided for by law, and without violating the conditions of his house arrest. The prosecutor stressed that house arrest had been imposed on the applicant by a court ruling of 27 September 2007 and had been upheld by a higher court on 8 October 2007. Accordingly, the applicant must have known in advance, and before making plans for meeting voters, about the limitations his house arrest entailed. 38. On 16 October 2007 the Labour Party asked the prosecutor to permit the applicant to leave Kėdainiai town for the Dzūkija constituency during the electoral campaign. The following day the prosecutor rejected that request, relying on the grounds set out by the earlier court rulings of 27 September and 8 October, and the prosecutor’s decision of 15 October. 39. On 17 October 2007 the applicant also lodged an appeal with the higher prosecutor, asking him to modify the remand measure, house arrest, and to permit him to meet voters “eye-to-eye” in order to compete in the elections on equal grounds with the other candidate. The applicant also insisted that he wanted permission to leave Kėdainiai town in order to visit doctors in other towns and for his business interests. Quoting certain information in the press, the applicant insisted that there had been a political decision to prevent him from becoming elected. 40. The applicant’s appeal was dismissed by the higher prosecutor on 19 October. The prosecutor noted that the applicant had known of the final Vilnius Regional Court ruling of 8 October 2007, which was not amenable to appeal, but had ignored it. Despite the adoption of that ruling, he had drawn up a schedule of meetings with voters. There were no new circumstances warranting a change in the applicant’s remand measure. The prosecutor’s decision was sent to the applicant on 19 October 2007, and could have been appealed against to the court. The applicant claimed that he had received that decision on 26 October 2007. 41. During the second round of voting in the Dzūkija constituency on 21 October 2007, the applicant received 5,094 votes (or 44 per cent of the votes cast). The other candidate, who was a member of the Homeland Union political party, received 6,596 votes (or 56 per cent of the votes cast), and thus became a member of the Seimas. 42. On 17 November 2007 the applicant was re-elected as chairman of the Labour Party. 43. After the parliamentary elections, the prosecutor granted or refused a number of the applicant’s requests to leave his home in Kėdainiai. In particular, in October 2007 the prosecutor permitted the applicant to leave Kėdainiai town so that he could visit, during the daytime – between 8 a.m. and 8 p.m. – a cemetery in a village situated in Kėdainiai district for All Saints Day on 1 November 2007. 44. In November 2007 the applicant asked the prosecutor for permission to visit the Kėdainiai sports school, situated in Vilainiai village in the Kėdainiai district, where the Labour Party congress (rinkiminis suvažiavimas) was to take place. The applicant pointed out that Vilainiai village and Kėdainiai town “touched each other on the map” (Vilainių kaimas ir Kėdainių miestas ribojasi, todėl Kėdainių sporto mokykla yra praktiškai ant kaimo ir miesto ribos). He also asked the prosecutor for permission to attend the same sports school to play tennis four times a week, a sport that the applicant had practised previously. The prosecutor granted those requests. 45. In November 2007 the prosecutor permitted the applicant to leave Kėdainiai town to visit, later that month, doctors in Kaunas, a town situated approximately 50 kilometres from Kėdainiai town. 46. On 26 November 2007 the applicant also asked the prosecutor for permission to take part in a live show, “Dancing with the Stars”, which was to be filmed between 7 p.m. and 10 p.m. on 30 November 2007 in the Vikonda leisure and entertainment centre (pramogų centre) in Kėdainiai. The prosecutor declined the request, holding that the timing was incompatible with the house arrest, which was imposed on the applicant from 8 p.m. to 8 a.m. The prosecutor pointed out that the applicant had known beforehand about the house arrest conditions, which did not match those of the television show. 47. In December 2007 the prosecutor also refused a request made by the applicant two days previously to be permitted to travel to Brussels to attend a meeting of the Alliance of Liberals and Democrats for Europe Party (Europos demokratų partija), scheduled for later that month. The prosecutor referred to the ruling of the Vilnius Regional Court of 8 October 2007 and noted that such a request could not be granted because the applicant had been avoiding justice for a long time. Moreover, “the house arrest prohibited the applicant from even leaving the area of Kėdainiai town’. 48. With the prosecutor’s permission, in December 2007 the applicant visited a cardiology clinic in Kaunas. The doctors there recommended that the applicant return to that clinic for consultations and for more profound tests in January 2008. Having obtained a fresh authorisation by the prosecutor, in January 2008 the applicant stayed in the Kaunas clinic for one night and underwent several more tests later that month. 49. In February 2008, the applicant asked the prosecutor to permit him to stay eleven days in a convalescence sanatorium in Druskininkai (a town situated approximately 180 kilometres from Kėdainiai). The applicant referred to the Kaunas cardiologists’ recommendations and stated that the necessary procedures could be performed only in that particular sanatorium. The prosecutor granted the request, also stressing that the applicant had earlier requested to see the material in the case file, but had never come to the prosecutor’s office to see them. The applicant had until 22 February 2008 to do so (see the following paragraph). 50. The pre-trial investigation in the criminal case was terminated on 28 December 2007, and the applicant was then allowed to see the material in the case file until 22 February 2008 and, if necessary, to make requests to supplement the file. 51. According to a survey of the press carried out 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. 52. On 14 April 2008 the criminal case was transferred to the Vilnius Regional Court for examination. 53. 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 seven days without informing the authorities, and to pay bail of LTL 1,500,000. The applicant also signed an agreement not to communicate with the four other persons suspected in the criminal case. 54. During the parliamentary elections of October 2008, the applicant and another member of his political party, who was a co-accused in the criminal case, were elected to the Seimas from 2008 to 2012 for the Labour Party. They therefore obtained immunity from prosecution. In December 2008 the Seimas allowed the applicant’s prosecution and the restriction of his freedom. The Seimas also permitted the prosecution of the applicant’s co-accused. 55. 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 revoked. The other remand measure, bail, remained in force. 56. On 7 June 2009, the applicant was elected to the European Parliament as a Labour Party’s Member. He resigned his parliamentary seat in Lithuania, because under Lithuanian law a Member of the European Parliament could not be a member of the Seimas at the same time (see paragraph 68 below). The Lithuanian authorities then asked the European Parliament to lift the applicant’s immunity in order to allow his prosecution. The prosecutor stated, inter alia, that as a result of fraudulent book-keeping of the Labour Party and the submission of such information to the Central Electoral Commission and the tax authorities in 2005-07, the State had suffered serious pecuniary damage in the sum of about LTL 6,000,000 (approximately EUR 1,700,000), because appropriations had been allocated to the Labour Party from the State budget. 57. Having heard the applicant, and having had regard to a report by its Committee on Legal Affairs, in September 2010 the European Parliament lifted the applicant’s immunity, thus allowing the criminal proceedings in Lithuania to continue (decision P7_TA-PROV(2010)0296). The European Parliament noted that the applicant had been charged with offences of false accounting in relation to the financing of a political party during a period prior to his election to the European Parliament. No cogent evidence had been adduced as to the existence of any fumus persecutionis and the offences with which the applicant had been charged had nothing to do with his activities as a Member of the European Parliament. 58. In October 2012 the applicant and two of his co-accused were all elected to the Seimas of 2012-16 for the Labour Party. The applicant then asked the Central Electoral Commission in Lithuania to annul his mandate as a Member of the European Parliament. His request was granted. At the prosecutors’ request, the Seimas lifted the applicant’s immunity and the criminal proceedings resumed. 59. By a judgment of 12 July 2013 the Vilnius Regional Court found the applicant guilty of fraudulent accounting committed in complicity with three other persons, under Articles 24 § 4, 205 § 1, 220 § 1 and 222 § 1 of the Criminal Code. The court sentenced the applicant to four years’ imprisonment. The applicant and the prosecutor appealed against the conviction. 60. Following reorganisation of the Labour Party, the criminal case against it was discontinued by the same judgment of the Vilnius Regional Court, applying by analogy Article 3 § 1 (7) of the Code of Criminal Procedure, which provides that criminal proceedings cannot be conducted in respect of a deceased person. In particular, on 14 May 2013 the legal personality of the Labour Party ceased to exist after its reorganisation, and on the same day it was struck from the Register of Legal Entities. The Labour Party merged with the Leiboristai political party, and on the same day a new legal entity was registered under the name of the Labour Party (Darbo partija (Leiboristai)). Later that year the latter party merged with another political party – the Christians Party (Krikščionių partija). It was registered as a new legal entity but under the previous name, the Labour Party (Darbo partija). According to the Government, that new party continued to use the same logo as it had used before May 2013. 61. On 25 May 2014 the applicant was again elected to the European Parliament as a Labour Party member. In June 2014 the Central Electoral Commission in Lithuania granted the applicant’s request to resign his seat in the Seimas. 62. At the request of the Lithuanian courts, in March 2015 the European Parliament lifted the applicant’s immunity. This time the European Parliament noted, inter alia, that the criminal proceedings at issue were identical, in terms of content, to the proceedings in respect of which it had already lifted the applicant’s immunity in 2010 (see paragraph 57 above). At that time the applicant had been charged with, in essence, heading an organised group with the aim of committing a number of criminal offences, with disregard for his duty, as party chairman, to monitor the party’s finances. For example, fictitious books were allegedly kept in order to conceal revenue and expenditure. In general, he was alleged to have frequently given instructions not to officially declare or record various business and financial transactions. From the documents in the European Parliament’s possession it was clear that the definition of the offences giving rise to the charges against the applicant had always remained the same. Moreover, no convincing evidence was available to demonstrate fumus persecutionis. The offences of which the applicant was accused had nothing to do with his work as a Member of the European Parliament. Lastly, the European Parliament noted that the decision on the waiver of immunity in no way constituted a statement of opinion regarding the applicant’s guilt or innocence, as this was the subject of national proceedings. 63. On 1 February 2016 the Court of Appeal upheld the applicant’s conviction under Article 222 of the Criminal Code for fraudulent management of the Labour Party’s accounts, having acted in an organised group. He was acquitted under Article 182 of the Criminal Code. The criminal case under Article 220 of the Criminal Code was discontinued because of prescription. 64. On the basis of an appeal on points of law lodged by the prosecutor, the criminal case is currently pending before the Supreme Court.