CASE OF ALBRECHTAS v. LITHUANIA
Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)
András Sajó;Egidijus Kūris;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1962. According to the latest information, the applicant was released from prison in January 2015. 6. On 26 May 1995 a businessman, R.G., was killed in the heart of Vilnius, near the building that houses the Lithuanian Government, when a bomb detonated under his car. The crime received much media coverage. 7. On 15 October 1998, after being accused of having been involved in R.G.’s killing, a certain G.B. stated in his testimony that he had received the order to murder R.G. from a certain O.L., but he did not know whether it was O.L. who had wished to murder R.G., or whether the contract had been put out by someone else. On 29 October 1998 G.B. changed his testimony, stating that the contract to murder R.G. had been put out by ‘Alius from Kaunas’. On 9 November 1998 G.B. showed the investigators the place where he claimed to have met ‘Alius’ in May 1995. This was near the applicant’s home address in Kaunas. 8. From this point in time, the prosecutor began to suspect that the applicant, who had a previous conviction dating from 1985, had been involved in R.G.’s murder. The prosecutor gathered information about the applicant’s property and obtained the applicant’s telephone number, which in turn linked him to one of the suspects in R.G.’s murder. 9. By a judgment of 21 October 2001, the Vilnius Regional Court convicted twenty-one individuals who had acted together in an armed gang in Vilnius and its surroundings from 1990 to 1998. The members of this criminal organisation were convicted of 13 murders and 12 attempted murders that involved the use of firearms and explosives, as well as a number of robberies and kidnappings of businesspeople. By the same judgment, three individuals belonging to that criminal association, G.B., I.M. and V.J., were convicted of R.G.s murder. The court established that it had been a contract killing, ordered because an unidentified person was unwilling to repay a considerable sum of money to R.G. The court also established that the unidentified person was known under the alias “Alius”. The fifth person involved in the murder, O.L., was in hiding. G.B. was sentenced to a total of 19 years’ imprisonment for all the crimes concerned. 10. On 1 March 2002, on the basis of G.B.’s testimony, the prosecutor concluded that it was likely that “Alius” was in fact the applicant. G.B. also testified on unknown date that he would recognise “Alius” if he saw him. The same day the prosecutor ordered the Vilnius organised crime police to establish the applicant’s place of residence, to obtain his telephone records and to examine his links with R.G. 11. On 19 March 2002 photographs of four individuals were shown to G.B., who at that time was already serving a prison sentence. G.B. identified the applicant as ‘Alius from Kaunas’ – the person who had put out the murder contract. 12. On 2 September 2002 the Vilnius organised crime police informed the prosecutor in writing that the applicant was not living in the apartment where he was registered in Kaunas. The police admitted that they could not locate the applicant but undertook to notify the prosecutor of the applicant’s whereabouts as soon as they found him. 13. On 2 September 2002 the prosecutor concluded that there was sufficient evidence to charge the applicant with having organised R.G.’s murder and issued a decision charging the applicant with that crime (nutarimas patraukti kaltinamuoju). The decision gave an account of the facts as construed by the prosecutor and contained a detailed description of the crime, including the time-frame, the links between the applicant, those convicted (G.B., I.M. and V.J.) and O.L., and the sums of money paid for its execution. The decision did not contain any references to evidence against the applicant. 14. On the same day, the prosecutor instituted a search for the applicant and ordered Vilnius organised crime police to conduct it. The prosecutor also addressed a request to the Vilnius City First District Court that the applicant be detained once arrested. Taking into account the fact that the crime could attract a life sentence, and given that at that specific time the applicant could not be located, the prosecutor took the view that it was likely that the applicant had fled from justice. The evidence against the applicant was “his accomplices’ testimony and his being recognised as the organiser of the crime [by the accomplices]”. The same day, the Vilnius City First District Court authorised the applicant’s pre-trial detention in absentia. 15. On 29 October 2002 the prosecutor asked Vilnius organised crime police whether the applicant had been found. From the documents before the Court it appears that the Kaunas organised crime police informed their colleagues in Vilnius on 10 December 2002 that the applicant’s place of residence was not known. 16. Over two years later, on 17 January 2005, the prosecutor issued a European Arrest Warrant in respect of the applicant. 17. On 24 May 2005 Vilnius organised crime police informed the prosecutor where the applicant could be found and the prosecutor ordered the applicant’s arrest. 18. The applicant was arrested on 25 May 2005 in Kaunas. The applicant’s temporary arrest record (įtariamojo laikino sulaikymo protokolas) stated that the applicant had been arrested in the context of a criminal investigation on suspicion of having organised R.G.’s murder. The record referred to the court decision of 2 September 2002 ordering the applicant’s detention, to the European Arrest Warrant, and to the applicant’s prior conviction of 1985 for a property-related crime. The record also stated that the applicant had been hiding from the prosecutor for a long time. The applicant signed the record of his arrest and the prosecutor’s decision of 2 September 2002 charging him with having organised R.G.’s murder (see paragraph 13 above). 19. The same day, that is to say on 25 May 2005, the prosecutor issued a notice of suspicion (pranešimas apie įtarimą) which repeated the prosecutor’s account of the facts surrounding R.G.’s murder, as described in the decision of 2 September 2002 charging him with the crime (see paragraph 13 above). No evidence was referred to in the notice of suspicion, which the applicant and his lawyer signed. Later that same day the applicant was shown the prosecutor’s decision charging him with R.G.’s murder of 2 September 2002 (see paragraph 13 above). The applicant was questioned. Of the four people convicted of R.G.’s murder, he admitted to knowing only O.L. The applicant denied any involvement in the car bombing and stated that he would not testify without his lawyer. The applicant then signed a record of questioning of a suspect (įtariamojo apklausos protokolas). 20. According to the record of case file material shown to the lawyer (gynėjo supažindinimo su bylos medžiaga protokolas) dated 26 May 2005, the prosecutor provided the applicant’s lawyer, at his request, with the following documents from the case file: 1) the applicant’s temporary arrest record of 25 May 2005 (see paragraph 18 above); 2) the decision to charge the applicant of 2 September 2002 (see paragraph 13 above); 3) the notice of suspicion of 25 May 2005 (see paragraph 19 above); and 4) the record of questioning of a suspect of 25 May 2005 (see paragraph 19 above). 21. On 26 May 2005, the prosecutor submitted to the Vilnius City Second District Court a written request for the applicant’s detention pending trial (pareiškimas skirti suėmimą). The request contained the prosecutor’s account of the crime, as described in the decision charging the applicant and the notice of suspicion (see paragraphs 13 and 19 above). It mentioned that the evidence linking the applicant to R.G.’s murder was witnesses’ and other individuals’ testimony, the records of the applicant’s identification (parodymų atpažinti protokolai), records of searches and other factual data. The document did not explain any particular piece of evidence against the applicant. As grounds for detention the prosecutor cited the fact that the applicant had been hiding from the prosecutor for two years, the European Arrest Warrant, the applicant’s prior conviction, the severity of the penalty that the crime of murder could attract ‒ which could in itself prompt the applicant to flee ‒ and the need to carry out more investigative steps. The request did not mention the risk that the applicant might try to influence witnesses as one of the grounds for his detention. 22. On 26 May 2005, the Vilnius City Second District Court held a hearing in the presence of the prosecutor, the applicant and the applicant’s lawyer. As the record of the hearing shows, at the start thereof the applicant’s lawyer asked the court to view the evidential material from the pre-trial investigation, on the basis of which his client was being detained. The lawyer admitted that he had been able to acquaint himself with the prosecutor’s request to the court for the applicant’s detention (see paragraph 21 above), the record of the applicant’s questioning and the notice of suspicion, but no other material had been made available to him, even though the Supreme Court’s guidelines require otherwise (see paragraph 52 below). The lawyer contended that the information shown to him was not sufficient to understand what basis there was, firstly, for suspecting the applicant of R.G.’s murder and, secondly, for detaining him. The lawyer insisted that he had a right to consult the material in the case file, which the prosecutor had provided to the court for the purposes of ascertaining whether it was reasonable to detain his client. 23. In reply, the prosecutor submitted that “in this case the applicant’s lawyer had been shown what was necessary (šiuo atveju gynėjas supažindintas tiek, kiek reikia)”. Moreover, in accordance with Article 177 of the Code of Criminal Procedure, pre-trial investigation material was not to be made public. In the instant case, the applicant was not permitted to see the entire case file because doing so could have prejudiced the success of the pre-trial investigation. The grounds for detaining the applicant were that a search for him had been conducted [since 2002], and a European Arrest Warrant had been issued in respect of him. The record of the hearing also indicates that the prosecutor then submitted “to the court the pre-trial investigation file concerning the applicant and the reasonableness of his detention. The court examined the material provided by the prosecutor and, having evaluated it, decided that the lawyer’s request to see the said material was to be denied, since to disclose it could be detrimental to effective investigation”. 24. When questioned at the court hearing, the applicant acknowledged that he knew O.L. However, he denied knowing G.B., I.M. and V.J., the people already convicted of R.G.’s murder. The applicant also maintained that he had never had the nickname “Alius”. He admitted that his wife lived in Ireland and that he was wealthy. The applicant and his lawyer contended that the applicant had never been summoned for questioning, nor had he been hiding from the investigators: after 1995 he had renewed his identity documents, had crossed the State border, had taken part in car rally competitions, winning the President’s cup in 2003, and had even been elected president of the Lithuanian rally committee. 25. The Vilnius City Second District Court decided to grant the prosecutor’s request for the applicant’s detention. In the operative part of its ruling, having summarised the arguments put forward by the prosecutor and the defence, the court noted that the case file material showed that the applicant was suspected of a very serious crime for which life imprisonment could be imposed. The applicant’s wife was living abroad and this could prompt the applicant to flee from justice. It was also pertinent that there were discrepancies in the [witnesses’] testimony given to the investigators. There was thus reason to believe that “the applicant might attempt to influence participants in the criminal proceedings (those convicted, witnesses, others) and to destroy evidence” if left at liberty. A number of investigative steps still had to be carried out. Lastly, there was reason to believe that the applicant might commit new crimes. 26. On 7 June 2005 G.B. attended an identity parade that included the suspect and, in a three-man line-up, identified the applicant as ‘Alius’, naming him as the person who had ordered R.G.’s murder. In accordance with the requirements of the Code of Criminal Procedure, the applicant’s lawyer was present when G.B. identified his client. 27. G.B. was questioned by the prosecutor on 15 June 2005, and testified in writing that after he had identified the applicant, on 7 June 2005 he had been approached by another prisoner. Due to the relations prevailing in the prison, G.B. preferred not to name that other prisoner. G.B. stated that the other prisoner had told him that he had received a request from “the outside world (iš laisvės)” and from “the underworld of Kaunas (Kauno nusiklastamo pasaulio)” to ask G.B., in return for 200,000 Lithuanian litai (LTL), not to identify the applicant as the person who had put out the contract on R.G. To that G.B. replied that it was too late, because he had already identified the applicant. The other prisoner stated that in that case he would have to further consult those who had made the proposition. A couple of days later, on 8 or 9 June 2015, the same prisoner had made a new proposition: G.B. should write a statement to the effect that he had been mistaken when identifying the applicant on 7 June. G.B. also was told that the applicant’s lawyers were considering challenging the lawfulness of the identity parade procedure. The sum allegedly offered to the applicant for changing his prior testimony stayed the same. At that time G.B. also stated that he had not been the target of any threats for testifying against the applicant. 28. On 13 June 2005 the applicant’s lawyer submitted an appeal to the Vilnius Regional Court against the court order of 26 May 2005 for the detention of his client. The lawyer complained that the judge had not allowed him to see the case file and maintained that the procedure had therefore not been adversarial. The lawyer acknowledged that the applicant had a prior conviction, but that had been years ago. The applicant’s lawyer also asked the court to view G.B.’s testimony in a critical light, given that the latter, as a convicted person, could have his own reasons for incriminating the applicant. Furthermore, the prosecutor had not provided any factual data endorsing his suspicion that the applicant might attempt to influence witnesses. As far as the lawyer understood it, all the witnesses with knowledge of R.G.’s murder had been isolated from society and there was no real possibility of influencing them. Furthermore, if anyone had wished to pervert the course of justice, he or she would have done it at some time during the ten years that had elapsed since the crime. Now there would be no sense in doing that. In support of his claims that it was safe to leave the applicant at liberty, his lawyer provided the court with documents about his client’s family and work situation. 29. On 27 June 2005 the Vilnius Regional Court dismissed the applicant’s appeal. The prosecutor and the applicant’s lawyer were present at that hearing. The court accepted that factual material incriminating the applicant existed in the form of G.B.’s testimony, the record showing that G.B. had recognised the applicant, both from photographs and in person. The court also noted that, according to the information which had been provided to it, the search for the applicant had gone on for a long time, that he had connections abroad, and that the European Arrest Warrant had been issued in his regard. The seriousness of the crime of which he was suspected was also a factor in the establishment of grounds for detaining him. However, the appellate court noted “the absence of any well-founded evidence (pagrįstų įrodymų) in the case file indicating that the applicant might attempt, either himself or through third parties, to influence witnesses, victims, people already convicted or other individuals, or that he would attempt to destroy evidence”. Keeping him detained merely because the pre-trial investigators had not yet collected all the material necessary to build the case did not constitute valid grounds for such detention either. The existence of discrepancies in the testimonies (byloje užfiksuotų parodymų nenuoseklumas) could not be blamed on the applicant. 30. During a face-to-face confrontation (akistata) held on 24 August 2005, G.B. reaffirmed his testimony that it was the applicant who had put out the contract for R.G.’s murder. 31. The applicant’s pre-trial detention was extended on 22 August 2005 and again on 20 September 2005. His lawyers and the prosecutor were present at those hearings. The courts noted that the grounds for detention were the search for the applicant, the European Arrest Warrant, his previous conviction and the fact that he had been charged with a serious crime for which a severe sentence could be imposed. In one of these two rulings the court also noted that G.B., who was one of those already convicted for the 1995 car bombing, had identified the applicant as the person who had put out the contract on R.G. 32. On 20 October 2005 the prosecutor questioned G.B.’s wife. She testified that she had known that her husband was a witness in the criminal case concerning R.G.’s murder. She stated that her husband had told her that he had received threats directed at him and his family for having given evidence, and had warned his wife to be careful. She also stated that from the second half of June she and her daughter had received telephone calls from unknown men asking if they could meet and talk, which she had refused to do. She also testified that on 8 October she had found a funeral wreath in front of the entrance door to the café she owned. She understood this gesture to be a veiled threat to G.B.’s family should he not change his testimony. 33. On 24 November 2005 the Vilnius Regional Court further extended the applicant’s detention pending trial. Having reaffirmed the aforementioned grounds for keeping the applicant detained, including the argument that he had been evading justice ever since 2002, the Vilnius Regional Court also noted evidence that the applicant had tried, through third parties, to influence the witness G.B. and his family so that G.B. would not testify against the applicant. 34. By a judgment of 25 April 2006 the Vilnius Regional Court found the applicant guilty of having put out the contract for R.G.’s murder. In finding against the applicant, the trial court relied on the testimony of G.B. Even though the applicant denied his involvement in the crime and insisted that G.B. was slandering him, the trial court observed that G.B.’s testimony to the effect that the crime had been organised by a certain “Alius” had been consistent ever since G.B. was first questioned during the pre-trial investigation in 1998. Moreover, G.B. had recognised the applicant from photographs on 19 March 2002 and during a police identity line-up on 7 June 2005. Other evidence against the applicant also included the testimony of nine further witnesses – namely the applicant’s and R.G.’s former business partners, a police officer, and the brother of R.G.’s widow. Telephone records also showed that in April and May 1995 numerous conversations had taken place between the applicant, R.G., O.L. and G.B. In addition, extracts from the bank accounts of the applicant’s company, customs declarations, and documents from Kaunas municipality illustrated the financial dealings between the applicant and R.G. 35. The Vilnius Regional Court noted that eleven years had passed since the crime was committed. The applicant had not been hiding during that time, even though a search for him “without reason (nepagrįsta)” had been called for. In all the years since 1995 the applicant had not once broken the law and there was no information in the case file indicating his involvement in organised crime. Moreover, the applicant had worked, supported his family, including two children who were minors, and had participated in public life. However, given the seriousness of the crime, the court held that the applicant still posed a danger to society. The court lastly found that because of the pre-trial investigation officers’ fault the applicant was being punished only after many years had passed since the crime. To impose a very severe sentence on him would therefore be unjust. Eight years’ deprivation of liberty in a correctional home would be appropriate. The time which the applicant had spent in pre-trial detention – from 25 May 2005 until 25 April 2006 was to be counted towards that period. 36. An appeal having been lodged against this verdict, on 18 May 2007 the applicant was acquitted by the Court of Appeal. The court found the testimony of G.B. − who was the main witness for the prosecution − against the applicant, including testimony given on site in 1998, G.B.’s recognising the applicant in the police identity line-up and the testimony given the face-to-face confrontation to be inconsistent, not credible and contradictory of other evidence in the case (nelogiški, prieštaraujantys kitiems įrodymams ir nenuoseklūs). There was a real possibility that by giving such testimony G.B. had sought to improve his position. In this connection the Court of Appeal also noted that G.B. had attempted to diminish his own role in R.G.’s murder. It was for that reason that, on 19 June 2003, the Supreme Court had dismissed the prosecutor’s and G.B.’s plea for mitigation of G.B.’s sentence on the basis of Article 411 of the old Criminal Code (see paragraph 54 below). The Court of Appeal also emphasised that there was not sufficient additional evidence to link the applicant to crime. The Court of Appeal ordered the applicant’s release from detention. He had to stay at his place of residence, and his travel documents were taken from him. 37. The decision to acquit the applicant was later quashed by the Supreme Court, which remitted the case for fresh examination. 38. Before the Court of Appeal the applicant reiterated his complaint that on 26 May 2005 the pre-trial investigation judge had not allowed him to see the material submitted by the prosecutor. He also noted that G.B. had not informed the prosecutor about alleged undue influence on him until a week after the alleged incident supposedly took place. In the view of the applicant, G.B. wished to incriminate him using any means possible. 39. On 13 March 2009 the Court of Appeal again acquitted the applicant, upholding its earlier finding that G.B.’s testimony against the applicant was not consistent (nėra nuoseklūs). It also noted that the trial court had categorised the search for the applicant as unfounded (nepagrista), without elaborating much on that issue. The Court of Appeal emphasised that the applicant had never been in hiding from the authorities, even though the prosecutor had asked the appellate court to suppress that assessment, given by the trial court (also see paragraphs 40 and 41 below). The applicant was released from the obligation not to leave his place of residence, and his travel documents were returned to him. 40. The very same day, on the basis of Article 257 of the Code of Criminal Procedure (see paragraph 53 below), the Court of Appeal adopted a separate ruling, noting that a search for a suspect could be ordered if the suspect’s place of residence was unknown to the investigators, who, if that were the case, were obliged to take steps to find him or her. In the instant case, however, the applicant had never been in hiding from the investigators. On the contrary, he had lived in his apartment in Kaunas, had taken part in car rally competitions abroad, had won the President’s cup after participating in the car rally “Around Lithuania” in 2003, and in the same year had even been elected president of the car rally committee. The applicant had also crossed the Lithuanian State border both by car and as an airline passenger at least ten times, had worked at his private company and had paid social security contributions. All those events had taken place during the time when the search for the applicant, ordered on 2 September 2002, was being conducted. The applicant had at no time been called into the prosecutor’s office and none of the applicant’s family members had received any inquiries about the applicant’s whereabouts from the police or had ever been visited by police officers. As confirmed by the police in January 2006, no search file (paieškos byla) had ever been opened in respect of the applicant. Furthermore, in October 2003 he had been arrested (sulaikytas) in Šiauliai town for having insulted police officers but was later released. 41. In the light of the above, the Court of Appeal concluded that the prosecutor had deliberately and unnecessarily (nepagrįstai) ordered a search for the applicant without first having called him in for questioning or having taken any real measures to establish his whereabouts. The appellate court also found that the prosecutor had deliberately misled the courts in 2005 by providing them with clearly untrue information at a time when those courts were making their decision as to whether or not to detain the applicant. This showed that the prosecutor had other goals in view, but it was not for the Court of Appeal to determine what those other goals might have been. Nevertheless, as a consequence it was possible for the applicant to have been unlawfully detained for almost two years – from 25 May 2005 until 18 May 2007. The Court of Appeal therefore asked the Attorney General’s Office to determine whether the prosecutor’s actions constituted abuse of office, which is a crime under Lithuanian law. The Court of Appeal also emphasised that ‒ as was apparent from the court decision approving the applicant’s detention, on 26 May 2005, and upholding his detention on remand by court rulings adopted between 27 June 2005 and 24 November 2005 ‒ in addition to the European Arrest Warrant issued in 2005, “the search for the applicant [announced in 2002], had been one of the main grounds for ordering his pre-trial detention and for prolonging it”. 42. On 19 June 2009 the Deputy Attorney General concluded that the prosecutor had not committed any offence. On the contrary, it was the police officers who had not performed their duties properly by failing to locate the applicant (see paragraphs 10, 12 and 15 above), as a result of which it had not been possible for the prosecutor to call the applicant in for questioning. In any case, to call in for questioning a person whose accomplices had been sentenced to long years of imprisonment (see paragraph 9 above) was hardly a measure that would be considered justified in the interests of a successful pre-trial investigation. Once the police had informed the prosecutor of the applicant’s possible whereabouts, the prosecutor immediately ordered the police officers to search those places and to arrest the applicant, who was charged the following day (see paragraphs 17 and 18 above). The prosecutor’s actions had therefore been based on factual circumstances and were lawful. There was no reason to conclude that he had misled the courts when they were deciding whether or not to detain the applicant. 43. In the view of the Deputy Attorney General, the fact that the prosecutor had referred to the search for the applicant and the European Arrest Warrant in his requests to the court for the applicant’s detention (see paragraphs 14 and 21 above) did not constitute significant grounds for keeping him detained. On the contrary, the courts noted the applicant’s connections abroad, the fact that he owned property abroad, his wealth and the gravity of the crime of which he was suspected. The applicant and his lawyer had, moreover, actively exercised their defence rights in challenging the argument that the applicant had been hiding from investigators. It followed that the applicant’s right to liberty had been restricted on a lawful basis. 44. Lastly, the Deputy Attorney General established that the actions of a certain police investigator when executing the search for the applicant had been erratic. However, even though his actions could be deemed to constitute a disciplinary offence, the investigator no longer worked in the police force and could not therefore be punished. The Deputy Attorney General therefore refused to open a pre-trial investigation on the basis of the facts mentioned in the Court of Appeal ruling of 13 March 2009. The decision was sent for inclusion in the applicant’s criminal case file. 45. By a ruling of 3 November 2009 the Supreme Court again remitted the applicant’s criminal case to the appellate instance for a fresh examination of evidence. The cassation court noted that G.B.’s testimony did not automatically become less credible merely because he had cooperated with the authorities when telling them of R.G.’s assassination, and for that reason the prosecutor requested mitigation of G.B.’s sentence. 46. On 25 October 2011 the Court of Appeal found the applicant guilty of having put out the contract for R.G.’s murder so that the applicant and others would not have to repay to R.G. debts amounting to between 200,000 and 280,000 US dollars (USD). The applicant was sentenced to five years’ deprivation of liberty. 47. On 8 May 2012 the Supreme Court re-interpreted the domestic criminal law and upheld the trial court’s verdict, sentencing the applicant to eight years’ deprivation of liberty. According to the latest information from the applicant’s lawyer, in January 2015 the applicant was released from prison before time.