CASE OF NOVIKAS v. LITHUANIA
Violation of Art. 6-1
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
4. The applicant was born in 1977 and lives in Klaipėda. 5. Following a report to the police by two witnesses, D.K. and S.N., on 22 April 1998 a pre-trial investigation was started regarding several crimes. The investigation of other crimes was joined to the case on various dates. Ultimately 11 different crimes were investigated. On 28 April 1998 the applicant's place of residence was searched. On 30 July 1998 the seizure of the applicant's assets was ordered. However, according to the Government, no assets were discovered. On 17 August 1998 the applicant was questioned as a suspect. On 8 September 1999 the applicant was officially informed of the accusations, questioned as an accused and ordered not to leave his place of residence. On 13 August 2001 the public prosecutor again informed the applicant of the accusations against him and questioned him. On 20 August 2001 the investigation was officially concluded and, as of that date until 21 December 2001, the applicant and his co-accused had the possibility to acquaint themselves with the case file. On 29 December 2001 the public prosecutor concluded the pre-trial investigation in the case by issuing the final bill of indictment and transferred the case to the courts. 6. The Government specified that the case file consisted of 10 volumes and concerned 9 victims and 10 defendants facing 11 charges. The Government also submitted that, in the course of the pre-trial investigation, D.K. and S.N. had disappeared in June 1998. They were found abroad and returned to Lithuania in November 1998, but absconded again after June 1999. The authorities later received information that D.K. had been killed in March 2000. S.N. was never found again. 7. On 14 January 2002 the Klaipėda Regional Court set the dates for trial. The court held 39 hearings, 17 of which were adjourned because one of the parties, other than the applicant, failed to be present. Several hearings were postponed because one of the co-accused went missing. On 29 January 2003 the court separated the part of the case which concerned the missing co-accused, and continued the examination of remainder of the case. The hearing of 1 September 2003 was delayed until 15 September 2003 as the applicant's lawyer had died and a replacement had to be organised. On 9 December 2003 the applicant failed to appear at the hearing and it was postponed until 17 December 2003, when it was decided to continue the examination of the case in his absence. The court took into account the fact that the applicant had already submitted his final statement at the hearing of 28 November 2003. 8. On 19 January 2004 the Klaipėda Regional Court sentenced the applicant to five years' imprisonment for an organised burglary with 3 other co-accused. He was acquitted of several charges: two due to a lack of evidence and another for being time-barred. The court examined the testimonies of 7 witnesses and 4 victims, as well as the submissions of the police and other evidence. It found that the applicant had not provided any credible evidence to negate the testimonies of the various witnesses. D.K. and S.N.'s testimonies given during the pre-trial investigation were read out at the hearings. One of the co-accused, M.M., also gave a deposition incriminating the applicant. M.M. was sentenced by the same judgment but he was dispensed from carrying out the sentence on mitigating grounds. 9. On 19 January 2005, after four hearings, the Court of Appeal upheld the conviction of the applicant. The court noted that the applicant's request to question D.K. and S.N. had been dismissed because the former had died and the latter was missing. Their testimonies during the pre-trial investigation were read out during the court hearings in accordance with procedural law and were evaluated in the context of all other evidence and the testimonies of other witnesses. No substantial discrepancies in their submissions existed. The court was able to take into consideration the submissions of these two witnesses, as not only testimony given during hearings, but also that given during pre-trial investigations may be legitimate and relevant for the case under examination. These testimonies were not treated as superior to the other evidence in the case. As regards the submissions of the co-accused M.M., the court also noted that his submissions had been assessed in the context of all other evidence and the relevant procedural rules had been observed. Moreover, there was nothing to put in doubt his mental state and his ability to recollect the facts. The Court of Appeal concluded that the court of first instance had properly assessed all the evidence in the case and clarified the discrepancies. Therefore the case had been thoroughly examined. No bias or unfairness was disclosed in the latter's decision. 10. On 28 June 2005 the Supreme Court, in oral proceedings, dismissed the cassation appeal lodged by the applicant. The court observed that the reading of the testimonies of the two missing witnesses had been justified ihad been in accordance with the domestic law. The court . 11. Article 6.272 § 1 of the Civil Code allows a civil claim to be made for pecuniary and non-pecuniary damage arising from the unlawful actions of investigating authorities or courts in the context of a criminal case. The provision envisages compensation for an unlawful conviction, an unlawful arrest or detention, the application of unlawful procedural measures of enforcement, or an unlawful administrative penalty. According to recent domestic case-law, this provision may also allow claims for damages arising from the excessive length of criminal proceedings. In particular, by a judgment of 6 February 2007, the Supreme Court awarded an individual damages under this provision on account of the excessive length of criminal proceedings which had been instituted in 1998 and discontinued in 2004 (see Norkūnas v. Lithuania, no. 302/05, §§ 26 and 30, 20 January 2009). Other relevant domestic law concerning domestic remedies for the excessive length of civil proceedings is reproduced in the judgment of Četvertakas and Others v. Lithuania (no. 16013/02, § 20-22, 20 January 2009).