CASE OF BAŠKIENĖ v. LITHUANIA
Violation of Art. 6-1
6. The applicant was born in 1952 and lives in Šiauliai. 7. In accordance with an agreement on the division of their mutual property with her former husband, approved by a court decision on 27 September 1995, the applicant was entitled to a number of shares in two companies owned by the husband. 8. On 17 May 1996 the applicant brought a civil action, requesting that the value of the shares in one of the companies be awarded to her. 9. On 6 September 1996, during the hearing of the applicant’s case, the Šiauliai City District Court discovered some evidence of crime, allegedly committed by the director and the chief accountant of those companies. In particular, they were suspected of embezzlement and fraud (Articles 274 § 2 and 275 § 1 of the Criminal Code as then in force). The court considered that, in these circumstances: “it was not possible to assess the value of [the applicant’s] claims; therefore, her civil action should be referred for an examination in the framework of the criminal proceedings.” 10. On 10 October 1996 the applicant was afforded the status of a victim in those proceedings. 11. On 18 November 1996 she was granted the status of a civil claimant in the criminal proceedings. She was further granted the status of a civil claimant on 18 November 1996. 12. On 20 January 1997 several other criminal procedures against the director were joined in one set of proceedings. 13. On 25 June 1997 an expert examination was ordered. It was completed on 17 October 1997. 14. On an unspecified date the applicant requested the institution of further criminal proceedings against the director and other employees of the companies, alleging that they had falsified certificates as to the number and value of the shares which had belonged to her former husband. On 5 December 1997 the prosecutors dismissed her request. 15. On 13 January 1998 the bill of indictment against the director of the companies and three other co-accused was approved. The original charges of embezzlement and fraud were supplemented with accusations of forgery and negligent accountancy (respectively, Articles 207 § 1 and 322 of the Criminal Code as then in force). 16. On 17 February 1998 the accused were committed for trial. 17. Hearings scheduled for 7 April and 18 May 1998 were adjourned at the request of the defendants. 18. On 18 June 1998 the court ordered a further expert examination. It was completed on 29 December 1999. 19. On 27 March and 12 June 2000 the trial was adjourned due to the illness of the defendants. 20. Hearings scheduled for 6 and 7 September, 25 October, 27 November and 14 December 2000 and 23 January 2001 were partially adjourned because certain witnesses failed to appear before the court. The court questioned those witnesses present and ordered the police to bring the remaining witnesses to the next hearing. 21. On 21 February 2001 the hearing was adjourned due to the illness of the judge. 22. On 27 May 2001 the hearing was again adjourned due to the failure of certain witnesses to appear. 23. On 30 May 2001 the hearing was further adjourned since one of the defendants had failed to appear due to illness. 24. On 27 June 2001 another expert examination was ordered at the request of the prosecution. 25. In a letter to the prosecution of 4 October 2001, the Šiauliai City District Court noted that the proceedings had lasted an unduly long time due to deficiencies in the pre-trial investigation. 26. On 29 January 2002 the Šiauliai City District Court decided to exclude the applicant from the list of civil claimants. The applicant unsuccessfully challenged the decision, the courts ruling that domestic law did not provide her with a right of appeal. 27. On 18 February 2002 the Šiauliai City District Court convicted the defendants. 28. In a letter of 28 May 2002, the Supreme Court informed the applicant that she could appeal against the judgment of 18 February 2002. 29. On 1 July 2002 the applicant requested renewal of the time-limit to lodge an appeal against her exclusion from the list of civil claimants. 30. On 11 June 2002 the Šiauliai City District Court granted her request. It was noted that the courts had erred in deciding that the domestic law had precluded the applicant from appealing. 31. On 19 June 2002 the applicant lodged an appeal whereby she challenged the decision of 29 January 2002 and the judgment of 18 February 2002. 32. On 5 July 2002 the Šiauliai City District Court refused to admit the applicant’s appeal. The court noted that the applicant was not a participant in the trial, and therefore was not entitled to appeal against the judgment 18 February 2002. Moreover, the court found that the applicant had failed to comply with the time-limit for appeal without good reason. 33. On the same date the applicant challenged that decision. 34. On 25 July 2002 the Šiauliai Regional Court granted her appeal. The court renewed the time-limit for appeal against the judgment of 18 February 2002. It was noted, inter alia, that the courts had unduly restricted the applicant’s rights by refusing to accept her appeal. 35. On 2 August 2002 the Šiauliai Regional Court quashed the decision of 29 January 2002 whereby the applicant had been deprived of the status of civil claimant. It was noted that the impugned decision had breached the applicant’s rights. The judgment of 18 February 2002 was also quashed, and the case was remitted for a fresh examination. 36. A hearing scheduled for 8 October 2002 was adjourned as one of the defendants, certain witnesses and defence counsel had failed to appear. 37. On 11 November 2002 the trial hearing was further adjourned due to the failure to summon one of the defendants. 38. Following the applicant’s hierarchical complaint about the actions of the Šiauliai City District Court, an inquiry was conducted by the Šiauliai Regional Court. In a letter of 27 November 2002, the latter informed the applicant that the Šiauliai City District Court had not undertaken all the necessary measures to ensure a speedy trial. 39. On 3 January 2003 the Šiauliai City District Court convicted the defendants of forgery and negligent bookkeeping, and acquitted them of the original charges of embezzlement and fraud. 40. By the same judgment, the trial court decided to leave the applicant’s civil claims “without examination”. The court noted that the defendants had neither been accused of nor tried for offences which could have caused damage to the applicant’s interests as a shareholder. It further reasoned that, as a shareholder, the applicant had no entitlement to any part of the property of a joint-stock company. Only if the company had been liquidated could she claim a part of its property, together with other shareholders. It noted that the applicant had a possibility to pursue her claims by way of a separate civil action. The court concluded that “the applicant should not be deemed a victim or civil claimant in this case”. 41. The applicant appealed, complaining that she had incurred significant pecuniary and non-pecuniary damage, particularly as the examination of the case had taken almost seven years. She reiterated that the criminal case had been instituted on the basis of her civil action, and that she had been granted the status of victim and civil claimant. 42. On 12 March 2003 the Šiauliai Regional Court dismissed the applicant’s appeal. It noted: “The victim, Baškienė, took part in the examination of the case throughout the proceedings; she was entitled [inter alia] to submit a civil claim and the evidence in order to substantiate it. However ... the submission of a civil claim does not presuppose the obligation on the part of the court to satisfy it. ... The first-instance court has reasonably established that the victim’s right to part of the company’s property would only arise in accordance with company law, and has correctly noted that [the applicant] could defend her property rights in accordance with the civil procedure. ... When adopting the ... judgment, the court must also decide on the civil claim. Civil claims can only be granted if [the defendants are convicted], and it is established that the civil claimant had suffered pecuniary damage due to the criminal acts in question; finally, there must be a causal link between the criminal actions and the damage incurred. ... The defendants were not tried for any offence which could have caused damage to [the applicant]. ... As to [the applicant’s] property rights, they are not the object of this criminal case. It is the object of civil law and has only to be decided in accordance with the civil proceedings.” 43. The court further noted that the examination of the case had been unjustifiably long, in breach of Article 18 of the Criminal Code, the Constitution and the European Convention of Human Rights. The court concluded however that, despite the acknowledgement of the breach, “it was not possible to remedy this flaw at the current stage of the proceedings”. On the same date, the judgment of 3 January 2003 entered into force. 44. The applicant lodged a cassation appeal, complaining, inter alia, that the courts had failed to bring additional charges of forgery against the defendants, which would have allowed their conviction and the satisfaction of her civil claims. She also alleged that the length of the proceedings had been excessive. 45. On 7 October 2003 the Supreme Court dismissed the applicant’s cassation appeal. The Supreme Court established that the prosecution had rightly refused to bring additional charges against the defendants, as they had found no evidence of the crimes alleged by the applicant. 46. With respect to the applicant’s civil claims, the Supreme Court noted that her entitlement to a certain number of shares had not been questioned. It also found that, in the share certificates issued by the defendants, the number and value of shares belonging to the applicant had been wrongly calculated and did not correspond to the data appearing in the company’s statute. The Supreme Court concluded, however, that this error did not restrict the applicant’s rights as a shareholder; nor did it cause her any pecuniary or non-pecuniary damage. The Supreme Court further concluded that, in such circumstances, there had been no basis to grant the applicant the status of a civil claimant. 47. Finally, the Supreme Court endorsed the findings of the appellate court as to the length of the proceedings. It emphasised, however, that it was not reasonable to consider that the excessive length was an “essential violation” of the Code of Criminal Procedure since, in such a case, the decisions of the lower courts would have to be quashed, and this would have only further prolonged the examination of the case. 48. The applicant did not bring a new civil action. “The person whose constitutional rights or freedoms are violated shall have the right to apply to court.” 53. The ruling of the Constitutional Court of 19 August 2006 stipulates: “...by virtue of the Constitution, a person has the right to claim compensation for damage caused by the unlawful actions of State institutions and agents, even if such compensation is not foreseen by law; the courts adjudicating such cases ... have the power to award appropriate compensation by directly applying the principles of the Constitution ... as well as the general principles of law, while being guided inter alia by the principle of reasonableness, etc”.