CASE OF ŽEKONIENĖ v. LITHUANIA
No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1940 and lives in Gelgaudiškis, Šakiai Region. 6. On 17 February 2010 the Šakiai police arrested the applicant’s son, V.Ž., on suspicion of unlawful possession of narcotic substances with the purpose of distributing them under Article 260 § 1 of the Criminal Code. 7. On that same day the police searched the applicant’s apartment where she lived together with V.Ž., and found some small plastic bags. The following day a search was conducted in the applicant’s daughter V.B.’s apartment. As V.B. was living abroad, the applicant provided the police officers with the keys to V.B.’s apartment and was present during the search. The officers found some plastic bags, a digital weighing scales, and remnants of “herbal substances” (augalinės kilmės medžiagos). 8. On 19 February 2010 the Šakiai District Court authorised V.Ž.’s detention for fourteen days. 9. On 2 March 2010 an officer informed the head of the Šakiai Police that V.Ž. had unlawfully carried a mobile phone into detention. Most of the information on that phone, including any text messages sent by V.Ž., had been deleted but police officers found several text messages which V.Ž. had received from his fiancée on 19 and 20 February 2010, including the following: “Will not risk transfer now, [it’s been] said.” “Don’t use that phone at all, don’t you understand.” “She is telling me something else.” “Throw that phone away, don’t you understand, mother already knows what to do.” “Give me their number, I’ll arrange for us to give it later. We can’t give it now. Your mother was questioned today and almost got arrested, don’t you understand? It’s all hidden now.” “Mother doesn’t give anything, I’m telling you the customs office is watching everything.” 10. In the afternoon of 3 March 2010 the applicant arrived at Šakiai Police station, where V.Ž. was detained, to bring him food and clean clothes. 11. At 4 p.m. that day the applicant was informed by a senior investigator that she was being placed under provisional arrest (laikinas sulaikymas), on the basis of Article 140 of the Code of Criminal Procedure (see “Relevant domestic law” below). The decision to arrest the applicant indicated that she was suspected of unlawful possession of narcotic substances with the purpose of distribution (see paragraph 27 below). Provisional arrest had been deemed necessary in order to prevent her from fleeing, interfering with the investigation or committing further crimes because it was suspected that she had previously hidden drugs from the investigators (see paragraph 9 above). The record of the provisional arrest, drawn up at the time of the arrest, stated that the applicant had been explained her rights, including the right to a lawyer, and that she had refused to sign the record. The applicant was placed in the Šakiai police station in a nearby cell to her son. Her husband was informed of her arrest. At that time the applicant was sixty-nine years old. 12. On 4 March 2010 the applicant was served with the official notice that she was a suspect (pranešimas apie įtarimą). The notice stated that in February 2010 she had allegedly acquired drugs from unidentified persons, kept them in her daughter V.B.’s apartment with the purpose of distribution, and subsequently distributed them, thereby committing the act proscribed in Article 260 § 1 of the Criminal Code. The applicant signed the notice that she was an official suspect, to indicate that she had received it and that her rights had been explained to her. 13. From 11.30 a.m until midday that day the applicant was questioned as a suspect in the case, in the presence of a lawyer. She denied having committed any crimes and refused to answer any further questions. 14. At some point during the day the applicant started feeling weak, and felt a headache and a pain in her chest. An ambulance was called to the police station and the applicant was given first aid. 15. On the same day the applicant’s lawyer submitted a request to the Šakiai district prosecutor to release the applicant from provisional arrest. The lawyer argued that the applicant had not committed any crime and that she had only been arrested to pressurise her to testify against her son. 16. At 3.50 p.m. that day the Šakiai police released the applicant. The decision to release her stated that all the necessary investigative actions concerning the applicant had been conducted, and that there were no grounds to believe that she would interfere with the investigation upon her release. 17. On 5 March 2010 the Šakiai district prosecutor rejected the applicant’s lawyer’s request to release the applicant (see paragraph 15 above) as based on “subjective and declaratory statements” and thus unfounded. According to the applicant, she did not appeal against that decision because she had already been released. 18. On 30 September 2010 the Šakiai district prosecutor discontinued the pre-trial investigation against the applicant on the grounds of insufficient evidence that she had committed the crime outlined in Article 260 § 1 of the Criminal Code. 19. The Šakiai police continued the pre-trial investigation concerning the applicant’s son V.Ž. The police obtained his call records and questioned several witnesses who admitted to having bought cannabis from V.Ž. 20. On 4 November 2011 the Šakiai District Court convicted V.Ž. of unlawful possession of narcotic substances with the purpose of distribution under Article 260 § 1 of the Criminal Code. On 2 March 2012 the Kaunas Regional Court dismissed V.Ž.’s appeal, and on 23 October 2012 the Supreme Court dismissed his appeal on points of law. 21. On 25 February 2013 the applicant lodged a civil claim for damages against the State under Article 6.272 of the Civil Code. She claimed that her provisional arrest had been unfounded because she had not committed any crimes, as proven by the subsequent discontinuation of the pre-trial investigation. The applicant also argued that her arrest had been unnecessary because at the time she had been almost seventy years old, ailing and had had difficulties walking; she had had no prior convictions, had been retired and had had a place of residence with her husband. Thus, she claimed that it had been unlikely that she would have attempted to flee or hide from the investigation. The applicant noted that the investigation against her son had been instituted on 17 February 2010, and there had been no indication from that day until her arrest that the police suspected that she had committed any crimes or attempted to interfere with the investigation on the contrary, she had voluntarily come to the police station to see her son. The applicant argued that the real purpose of arresting her had been to force her to testify against her son. 22. The applicant further submitted that she had suffered pecuniary and non-pecuniary damage because of the provisional arrest: her blood pressure had risen and as a result she had had to seek medical help and take medication; she had become irritable, had started having nightmares and was scared of police officers; she felt humiliated in front of her son who had been detained in a nearby cell, as well as other inhabitants of her village, who subsequently thought of her as a criminal. The applicant claimed 2,300 Lithuanian litai (LTL, approximately 666 euros (EUR)) in respect of pecuniary damage resulting from her legal expenses, as well as LTL 10,000 (EUR 2,896) in respect of non-pecuniary damage. 23. At the hearing before the Šakiai District Court the applicant also submitted that, after arresting her, the police officers had searched her purse and tried to strip search her, but she had resisted. She stated that the cell in which she had been detained had been damp and dilapidated and that there had been smells emanating from the toilet which had made her nauseous. 24. On 27 May 2013 the Šakiai District Court dismissed the applicant’s claim. The court noted that the termination of the pre-trial investigation against the applicant did not make the investigation unlawful ab initio, and found that there had been sufficient grounds for suspicions against her: plastic bags had been found in the apartment where she lived together with her son V.Ž., and remnants of drugs had been found in the applicant’s daughter V.B.’s apartment. Furthermore, while detained, V.Ž. had unlawfully been in possession of a mobile phone, and the police officers had had grounds to believe that he had warned the applicant to hide the drugs which had been stored in V.B.’s apartment. Accordingly, the court found that the applicant’s provisional arrest had been well-founded. The court also noted that the applicant had not appealed against the district prosecutor’s decision of 5 March 2010 to refuse her release (see paragraph 17 above), which meant that the decision to arrest her had not been declared unlawful. Lastly, the court held that the medical documents submitted by the applicant did not prove that the deterioration of her health had been caused by the provisional arrest. The court did not address the applicant’s complaints concerning the conditions of her detention. 25. On 29 October 2013 the Kaunas Regional Court rejected the applicant’s appeal. It upheld the findings of the first-instance court that at the time of the arrest there had been sufficient evidence to suspect the applicant of having committed a crime, and that the subsequent discontinuation of the pre-trial investigation did not make the arrest unlawful. The Kaunas Regional Court also noted that Article 140 of the Code of Criminal Procedure permitted the provisional arrest not only of a suspect but also any other person in respect of whom it was necessary to conduct certain investigative actions. Having found that the applicant’s arrest had been lawful, the court held that there were no grounds to award the applicant any damages. It did not address the applicant’s complaints concerning the conditions of her detention. 26. On 18 December 2013, following an appeal on points of law by the applicant, the Supreme Court refused to examine the case as raising no important legal questions.