CASE OF STASAITIS v. LITHUANIA
Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
Georg Ress
8. The applicant was the owner and director of several holding companies which defaulted on their financial obligations. On 8 January 1993 criminal proceedings were instituted against him on suspicion that he had concealed his income. On 30 July 1993 the applicant was charged with cheating. On 2 August 1993 the case was transferred to the Vilnius First City District Court. On the same date the applicant was granted bail. On 25 July 1994 the applicant failed to attend a court hearing, and the court ordered his detention on remand. 9. On 25 October 1994 another criminal case was instituted against the applicant concerning irregular operations with currency and securities. On the same date, a prosecutor authorised the applicant’s detention on remand in the context of that case. 10. Meanwhile, the applicant was suspected of hiding in Russia. On 25 October 1994 the Prosecutor General requested the Russian authorities to extradite him on suspicion of having engaged in irregular operations with currency and securities. On 29 October 1994 the applicant was arrested in Moscow. On 1 November 1994 he was extradited to Lithuania and remanded in custody. 11. On 9 November 1994 he was charged with irregular operations with currency and securities. On 10 November 1994 the prosecutor’s decision of 25 October 1994 to authorise the applicant’s detention on remand was revoked on the ground that there had already been the court order regarding the applicant’s detention of 25 July 1994. 12. On 27 December 1994 the judge of the Vilnius City First District Court decided that the applicant should remain in custody. No term was specified. 13. On 20 March 1995 the Prosecutor General authorised the applicant’s detention in the criminal case concerning the operations with currency and securities. The Prosecutor General noted that the applicant had previously breached his bail, and that the reasons for his detention were the dangers of absconding and obstructing the establishment of the truth in the case. No term of detention was specified. 14. On 21 March 1995 the Vilnius Regional Court revoked the detention order of 25 July 1994. 15. On an unspecified date the criminal cases against the applicant were joined. From 18 May 1995 until 21 August 1996 the term of the applicant’s detention was extended every two months by the Prosecutor General, for fear of the applicant’s absconding. 16. On 14 August 1996 the applicant was indicted on nine counts, including cheating, misappropriating the property of another, and irregular operations with currency and securities. There were four other co-accused persons in the case. On the same date the Prosecutor General extended the term of the pre-trial investigation until 21 September 1996. 17. On 20 August 1996 a judge of the Vilnius Regional Court examined the prosecution’s application to extend the term of the applicant’s detention until 21 September 1996 given the risks of absconding and obstructing the establishment of the truth in the case. The prosecutors’ application was granted. The applicant’s defence counsel was present at the hearing. 18. On 10 September 1996 the pre-trial investigation was concluded. From 10 September 1996 until 14 November 1996 all the accused had access to the case-file. 19. On 18 November 1996 the Deputy Prosecutor General confirmed the bill of indictment whereby the applicant was charged on nine counts, including cheating (Article 274 of the Criminal Code), embezzlement (Article 275), and irregular operations with currency and securities (Article 329). 20. On 20 November 1996 the case was transmitted to the Kaunas City District Court. On 29 November 1996 the applicant submitted an application to the Kaunas City District Court, complaining that the term of his detention on remand had expired. He requested his release. The court did not examine this application. 21. On 3 January 1997 a judge of the Kaunas City District Court, without hearing the parties, took a decision to commit the applicant and his co-accused for trial. The judge noted no fundamental procedural irregularities in the case. The judge also decided that the applicant’s detention on remand “shall remain unchanged”. No term or grounds for that detention were specified. 22. The applicant submitted a request to vary the remand, alleging that he had been seriously ill. On 3 March 1997 the judge of the Kaunas City District Court dismissed the request. The reasons for the dismissal were that the applicant had been accused of having committed serious offences, that he had already tried to avoid trial, and that he could therefore abscond and obstruct the establishment of the truth in the case. The applicant’s defence counsel was present at the hearing. 23. On 23 May 1997 the judge ordered further investigations in the case and returned the case-file to the investigators. In the same decision the judge extended the term of the applicant’s detention for four months. No grounds for the detention were specified. The applicant’s defence counsel was present at the hearing. 24. The prosecution appealed, complaining that there was no need for further investigation and that the trial could proceed. The applicant’s detention on remand was not mentioned in the prosecution’s appeal. 25. On 26 August 1997 the Kaunas Regional Court rejected the prosecution’s appeal, holding that further investigation measures were required. The applicant’s defence counsel was present at the hearing. The Regional Court amended the decision of 23 May 1997 insofar as the District Court had decided to return the case-file to the investigators. It ordered the return of the case-file to the Prosecutor General. The applicant’s detention on remand was not mentioned in the decision of 26 August 1997. 26. On 26 September 1997 the Prosecutor General lodged a cassation appeal against the decisions of 23 May 1997 and 26 August 1997, stating that there was no need for further investigation and that the trial should resume. 27. On 29 December 1997 the applicant submitted an application to the Court of Appeal, complaining that the term of his detention had ended on 23 September 1997 and that it had not been extended thereafter. He renewed the complaint on 8 and 21 January 1998. These applications were not examined. 28. On 29 January 1998 the Court of Appeal examined the prosecuting authorities’ cassation appeal. The court quashed the decisions of 23 May 1997 and 26 August 1997, deciding that the trial could be resumed. It transmitted the case to the Kaunas City District Court for a new examination. The court concluded that, “although the decision to order further investigations is quashed, the decision to commit the accused persons for trial [of 3 January 1997], whereby the question of the remand measures in respect of the accused has been properly decided, remains effective”. The applicant’s defence counsel was present at the hearing. 29. The applicant applied to the Ombudsman, complaining that his detention had been unlawful. The prison administration stated in reply that, pursuant to Article 106 § 5 of the Code of Criminal Procedure at that time, the applicant could be lawfully detained on remand for more than six years. 30. Having examined the applicant’s complaint and the observations of the prison administration, on 18 February 1998 the Ombudsman held that Article 20 of the Lithuanian Constitution, Articles 96 and 106 of the Code of Criminal Procedure and Article 9 of the Detention on Remand Act provided that a person could only be remanded in custody pursuant to an appropriate order, specifying the term of detention. He observed that a detainee ought to be released from prison if the term of detention was not extended by a court. On the basis of the above observations, the Ombudsman concluded that certain periods of the applicant’s detention had been unlawful under the domestic criminal procedure. The Ombudsman rejected the prison administration’s arguments that there had been valid court decisions during the overall period of the applicant’s detention and that Article 106 § 5 of the Code of Criminal Procedure authorised the applicant’s continued remand in custody for more than six years, given that the maximum sentence for the most serious offence with which the applicant was charged was 10 years’ imprisonment. The Ombudsman emphasised that this legal provision was incompatible with the right to be brought to trial within a reasonable time guaranteed by Article 5 § 3 of the Convention. The Ombudsman also drew the attention of the Prosecutor General and the Court of Appeal to the fact that the length of the applicant’s remand in custody had been excessive. Finally he addressed the Parliamentary Committee on Legal Affairs, stating that the provisions of the Code of Criminal Procedure “regulating the terms of detention on remand are not clear or logical [because] calculating the terms depends on various circumstances, including access to the case-file and dates when a particular decision becomes effective”. As such circumstances were not foreseeable and could be interpreted in different ways, the Ombudsman suggested amendments to the Code of Criminal Procedure. 31. At a trial hearing before the judge of the Kaunas City District Court on 4 May 1998, the applicant stated that he had been unlawfully detained. He requested the judge to order his release. The applicant also claimed access to additional material held in the case-file. In a decision of 4 May 1998, the judge stated that a court would establish whether or not the applicant’s detention on remand had been unlawful when delivering the judgment on the merits of the case. The applicant’s request to vary the remand was rejected on the ground that he might abscond. The judge allowed the applicant to have access to additional material held in the case-file at a time when there are no trial hearings. At a trial hearing on 14 May 1998, the applicant repeated his request for bail, complaining about the lawfulness and conditions of his detention. The judge of the Kaunas City District Court noted that the medical experts had not yet submitted their conclusions as to the applicant’s state of health. The judge refused to vary the remand, as there was no guarantee that the applicant would not abscond. 32. The applicant repeatedly applied to the Ombudsman, alleging in particular that the court decision of 20 August 1996 had not been included in the case-file, and that the prison administration could not know that his detention on remand had been prolonged from 20 August 1996 to 21 September 1996. 33. On 12 June 1998 the Ombudsman amended his conclusions of 18 February 1998 insofar as they concerned one period of the unlawful detention of the applicant. 34. On 13 July 1998 the applicant complained to the Kaunas Regional Court that he had requested the Kaunas City District Court to discontinue the unlawful detention, not that the court vary the remand. The applicant referred to the amended provision of Article 109-1 of the Code of Criminal Procedure, which had come into force on 24 June 1998. The applicant requested the Regional Court to quash the decisions of the Kaunas City District Court of 3 January 1997 and 14 May 1998. He stated that he could not remain in custody because of his health, and that the length of the detention had been excessive, in breach of Article 5 § 3 of the Convention. He also requested the Regional Court to hear him in person when examining the appeal. On 21 July 1998 the applicant announced a hunger strike in connection with his detention. 35. On 28 July 1998 a judge of the Kaunas Regional Court informed the applicant that his challenge to the decisions of 3 January 1997 and 14 May 1998 was not subject to appeal, pursuant to the then Article 372 § 4 of the Code of Criminal Procedure. 36. On 9 September 1998 the applicant submitted a request to the judge of the Kaunas City District Court to be released. On 10 September 1998 the judge dismissed the request on the ground that the applicant might abscond. 37. On 15 October 1998 the judge of the Kaunas City District Court found the applicant guilty of the nine charges against him, the applicant and his defence counsel being present. The judge established that the applicant had unlawfully appropriated various assets of a total worth of several million litai. He was sentenced to seven years’ imprisonment and his property was confiscated. No allegations of the unlawfulness of the remand were mentioned by the court. 38. On 2 November 1998 the applicant appealed against his conviction, alleging various procedural irregularities, including breaches of his rights to legal representation, to examine witnesses, and to have unconditional access to the case-file. He stated inter alia that the latest extension of the term of his detention on remand was that made by the Vilnius Regional Court on 20 August 1996, and that his remand in custody from 21 September 1996 had been unlawful. He claimed that his detention had been excessively long. On 30 November 1998 the applicant supplemented the appeal, submitting inter alia that Articles 3, 5, 6 and 7 of the Convention had been breached, and that he had been unable to challenge judges and prosecutors who had allegedly fabricated the case against him. 39. On 22 March 1999 the Kaunas Regional Court amended the applicant’s conviction as regards the count concerning irregular operations with currency and securities. In this respect the court reclassified the charge under Article 329 of the Criminal Code with that under former Article 87 of the Criminal Code which had been applicable at the time when the crime was committed. The applicant and his defence counsel were present at the appellate hearing. The Regional Court considered that no procedural irregularities had occurred during the pre-trial investigation and trial, noting inter alia that the applicant had had several defence counsel throughout the proceedings, he had had full access to the case-file, experts had been consulted and witnesses had been questioned. The Regional Court did not change the applicant’s sentence. On 14 June 1999 the applicant lodged a cassation appeal, pleading inter alia that his detention had been unlawful. 40. On 30 September 1999 the Supreme Court quashed the conviction and the appellate decision because of numerous breaches of domestic criminal procedure, including violations of the applicant’s defence rights. The court ruled inter alia that the applicant could only have been prosecuted on one count of irregular operations with currency and securities under former Article 87 of the Criminal Code, by reference to which he had been extradited from Russia. It held that the other eight counts could not stand unless the appropriate permission from Russia had been obtained. The court also stated that it had no competence to examine the applicant’s allegations of unlawful detention during the pre-trial investigation. It did not decide on the applicant’s remand, but it ordered the release on bail of his co-accused. The case was returned to the Kaunas City District Court for a new examination to be carried out. The applicant remained in prison. 41. On 30 September 1999 the applicant wrote letters to the Prosecutor General, the Minister of the Interior, the Minister of Justice and the President of the Kaunas City District Court, stating that his detention from 30 September 1999 had been unlawful in that, inter alia, the Supreme Court had not decided the question of his remand. 42. By letter of 1 October 1999 a Supreme Court judge informed the Kaunas City District Court and the Prisons Department that the detention order of 3 January 1997 had constituted a valid basis for the applicant’s continued detention on remand because the order of 23 May 1997 had been quashed by the Court of Appeal on 29 January 1998. 43. On 11 and 13 October 1999 the applicant requested the Kaunas City District Court to release him on the ground that his detention had been unlawful. The applicant pleaded inter alia that the question of the lawfulness of his detention remained unclear, as was shown by the necessity of the aforementioned letter of 1 October 1999. 44. On 25 October 1999 a judge of the Kaunas City District Court returned the case to the prosecution for further investigations to be carried out. The court also extended the term of the applicant’s detention on remand for two months, given the gravity of the nine offences for which he could be convicted if the appropriate permission from Russia were obtained. 45. On 30 October 1999 the applicant appealed, which appeal was dismissed by the Kaunas Regional Court on 14 December 1999. The court referred to the danger of the applicant absconding as warranting his remand in custody on suspicion of his having committed the nine possible offences. The Regional Court noted that although Russia’s permission to press these charges had not yet been granted, the prosecuting authorities had enough time to apply to the Russian Federation for that authorisation. 46. On 24 December 1999 the applicant applied to the Kaunas City District Court for release. He stated, inter alia, that he could only be prosecuted for the one offence of irregular operations with currency and securities. He noted that no permission had been obtained from Russia to prosecute him on other charges, and that the courts’ reference to those charges as warranting his remand in custody had been unlawful. 47. On 24 December 1999 a judge of the Kaunas City District Court rejected the prosecution’s application to extend the term of the applicant’s remand in custody. By reference to Article 399 of the Code of Criminal Procedure, the judge held that the order of 25 October 1999 had become effective on the date when the appeal had been decided, and that the two months’ time-limit for the applicant’s remand in custody had therefore started on 14 December 1999. The applicant remained in prison. 48. Both the applicant and the prosecution appealed against the decision of 24 December 1999, rejected respectively by the Kaunas Regional Court on 10 and 20 January 2000. The Kaunas Regional Court referred the question of the applicant’s detention to the Vilnius Regional Court. 49. On 8 February 2000 the Vilnius Regional Court refused the prosecution’s application to extend the applicant’s remand in custody. The court held that the term of the applicant’s detention designated on 25 October 1999 had expired on 25 December 1999, and that his remand in custody after that date had been unlawful. The Vilnius Regional Court also held that the applicant could only be prosecuted on one charge of irregular operations with currency and securities, for which he risked a maximum sentence of five years’ imprisonment. However, the applicant had completed those five years on 29 October 1999. The Regional Court further noted that on 17 January 2000 Russia had given permission to prosecute the applicant on the other charges, but that at the material time the applicant was not charged with any other offence, and could not be deprived of his liberty on that basis. The court concluded that the applicant’s release was warranted. The applicant was released in the courtroom. 50. The applicant has not been remanded in custody since. It appears that the proceedings are still pending at first instance. 51. The Constitution of the Republic of Lithuania (Lietuvos Respublikos Konstitucija): Article 20 § 3: “A person arrested when committing an offence must, within 48 hours, be brought to court for the purpose of determining, in the presence of the detainee, whether detention is appropriate. If the court does not order the detention of the arrested person, he shall be released immediately.” Article 30 § 1: “A person whose constitutional rights or freedoms are violated shall have the right to apply to court.” 52. The previous and amended Code of Criminal Procedure (Baudžiamojo proceso kodeksas): Article 10 (in force until 21 June 1996): “No one shall be arrested save by virtue of a decision of a court, or an order of a judge or the authorisation of a prosecutor ... .” Since 21 June 1996 arrest may only be ordered by a court or judge. Article 104 (under the law No. I-551 of 19 July 1994, in force until 21 June 1996): “Detention as a remand measure shall be used only where based on the decision of a court, order of a judge, or the authorisation of a prosecutor in cases where a statutory penalty of at least one year of imprisonment is envisaged ... . In deciding whether to authorise the detention, a prosecutor ... shall personally hear the suspect or defendant when necessary ... .” Article 104 (in force from 21 June 1996): “Detention on remand shall be used only ... in cases where a statutory penalty of at least one year’s imprisonment is envisaged. ... . The grounds for detention on remand shall be the reasoned suspicion that the accused will: (1) abscond from the investigation and trial; (2) obstruct the determination of the truth in the case [influence other parties or destroy evidence]; (3) commit new offences ... whilst suspected of having committed crimes provided in Articles ... [274] [cheating,] 275 [embezzlement] of the Criminal Code ... .” Article 104-1 (in force from 21 June 1996 to 24 June 1998): “... [T]he arrested person shall be brought before a judge within not more than 48 hours ... The judge must hear the person as to the grounds of the arrest. The prosecutor and counsel for the arrested person may take part in the inquiry. After having questioned the arrested person, the judge may maintain the arrest order by designating the term of detention, or may vary or revoke the remand measure. ... After the case has been transmitted to the court ... [it] can order, vary or revoke the detention on remand.” The amended Article 104-1 (in force since 24 June 1998) provides that the prosecutor and defence counsel must take part in the first judicial inquiry of the arrested person, unless the judge decides otherwise. The amended provision also permits the court to extend the detention on remand before its expiry. Article 106 § 3 (in force from 21 June 1996 to 24 June 1998): “For the purpose of extending the term of detention on remand [at the stage of pre-trail investigation a judge] must convene a hearing to which defence counsel and the prosecutor and, if necessary, the detained person shall be called.” The Code in force since 24 June 1998 makes obligatory the attendance of the detainee at the remand hearings. Article 109-1 (in force from 21 June 1996 to 24 June 1998): “An arrested person or his counsel shall have the right during the pre-trial investigation to lodge [with an appellate court] an appeal against the detention on remand ... . With a view to examining the appeal, there may be convened a hearing, to which the arrested person and his counsel or only counsel shall be called. The presence of a prosecutor is obligatory at such a hearing. The decision taken by [the appellate judge] is final and cannot be the subject of a cassation appeal. A further appeal shall be determined when examining the extension of the term of the detention on remand.” The present Article 109-1 (in force since 24 June 1998) now provides for an appeal to a higher court and a hearing against a decision ordering or extending the term of detention both at the stage of pre-trial investigation and trial, in the presence of the detainee and his counsel, or only his counsel. Article 226 § 6 (in force until 24 June 1998): “The period when the accused and his counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention. Where there are several accused persons, the period during which all the accused and their counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention.” Since 24 June 1998 this period is no longer relevant for remand decisions. Article 372 § 4 (in force until 1 January 1999): “Decisions of courts ... ordering, varying or revoking a remand measure ... cannot be the subject of appeal ... .” Pursuant to the general provision of Article 399, a first instance decision was not effective pending the time-limit for an appeal against that decision or during the appeal proceedings. Only those decisions against which no appeal was possible, including remand decisions under the former Article 372 § 4, became effective and were executed on the date when they were taken. The present Article 104-3 § 3 (version in force from 21 December 1999) specifies that all decisions of detention on remand become effective and are executed on the date when they are taken, regardless of the fact that an appeal is possible against any such decision under the amended Article 109-1 (since 24 June 1998, see above). 53. Other relevant provisions of the Code of Criminal Procedure: Article 52 § 2 (3) and (8) and Article 58 § 2 (8) and (10) provide, respectively, that the accused and their counsel have the right to “ submit requests” and to “appeal against acts and decisions of an interrogator, investigator, prosecutor and court.” Article 249 § 1: “A judge individually or a court in a directions hearing, in deciding whether to commit the accused for trial, shall determine ... (11) whether the remand measure has been selected appropriately.” Article 250 § 1: “After having decided, that there is a sufficient basis to commit the accused for trial, a judge individually or a court in a directions hearing shall determine the questions ... (2) of the remand measure in respect of the accused ... .” Article 267 § 1: “The defendant has the right to ... 3) submit requests; ... (11) appeal against the judgment and decisions of a court.” Article 277: “In the course of the trial, a court may decide to order, vary or revoke a remand measure in respect of the defendant.” 54. The law amending and supplementing the Code of Criminal Procedure (Baudžiamojo proceso kodekso pakeitimų ir papildymų įstatymas) of 21 June 1996 stated that detention authorised by a prosecutor prior to 21 June 1996 could thereafter be extended by a court in accordance with the new procedure governing remand in custody.