CASE OF VENSKUTĖ v. LITHUANIA
Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);No violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen
5. The applicant was born in 1978 and lives in Vilnius. 6. On 23 May 2005 the State Border Guard Service (hereinafter “the SBGS” or “the Service”) informed a prosecutor that on 16 December 2004 an officer at the SBGS, G.B., acting together with the applicant, who had been driving the car, and Š.S., had committed a crime of fraud by simulating a car accident and later claiming payment from an insurance company. 7. The same day the prosecutor asked the SBGS to open a pre-trial investigation on suspicion of fraud, in accordance with Article 167 of the Code of Criminal Procedure (hereinafter “the CCP”) (see Relevant Domestic Law below). Later that day the SBGS opened the pre-trial investigation on the basis of Article 171 of the CCP. 8. On 25 May 2005, at about 10.30 a.m., two men, who introduced themselves as officers of the Service, went to the applicant’s workplace, the “Fortas” restaurant, in Vilnius city centre. From then on, the applicant’s and the Government’s versions of events differ. 9. The applicant stated that the two officers had asked her to accompany them and threatened to use restraining measures should she not comply. She had not been allowed to contact anyone by telephone, except for her supervisor. She had then been taken to the officers’ car and driven to the Vilnius headquarters of the Service. On arrival her handbag had been searched, her mobile telephone had been taken away and the officers had read her text messages. The officers had not returned the telephone to the applicant until 8 July 2005. Immediately after the search, the officers had started interrogating the applicant about the circumstances of the car accident of 16 December 2004. She had been threatened with loss of reputation, placement in a detention facility, conviction and loss of career opportunities, unless she gave them information necessary for the insurance fraud investigation. The officers had refused the applicant’s request for a lawyer. They had also dismissed her request that a record be made of her questioning, saying that it was for them to decide “what to write down and what not to”. Likewise, the officers refused to explain to the applicant what her procedural status was at that moment. 10. The Government did not dispute that the SBGS officers had gone to the applicant’s workplace at about 10.30 a.m. on 25 May 2005. However, the Government submitted that no force or threats had been used against the applicant; she had merely been invited to accompany the officers for questioning. 11. According to the report of the applicant’s provisional arrest, she was arrested at 3 p.m. the same day. Even though the arrest took place while the applicant was at the Vilnius headquarters of the Service, the arrest report specifies that she had been arrested “at Vilnius international airport” on suspicion of fraud. The report stated that it had been necessary to arrest the applicant because she might flee from the investigators or prosecutor, or commit further offences. The officers also made a record of the personal search of the applicant, which stated that the search had been conducted between 3.10 and 3.40 p.m. on 25 May 2005. Later that day the applicant was taken to a police detention facility; her sister had been informed of her arrest. 12. The same day at 3 p.m. the SBGS arrested Š.S. and questioned him, as a suspect, about the circumstances surrounding the car accident and the suspected insurance fraud. 13. On 26 May 2005 from 3.20 to 3.40 p.m. the SBGS tried to question G.B., as a suspect, about the car accident and insurance fraud, but G.B. refused to give any evidence. After further questioning as a suspect on 2 June, G.B. testified that the car had been driven by the applicant, but denied any involvement in the insurance fraud. 14. As it transpires from the report of the applicant’s interrogation, on 26 May 2005 from 4.15 to 5 p.m., the SBGS investigator questioned the applicant about the insurance fraud. At that time her procedural status was that of a suspect; her lawyer was present at the questioning. The applicant refused to testify. 15. The same day at 6. p.m. the SBGS investigator decided to release the applicant, because “there were no reasons to keep her under arrest”. He noted that the applicant “had been arrested on 25 May on the basis of Article 140 of the Code of Criminal Procedure”. 16. On 26 May 2005 the applicant’s lawyer complained to the Vilnius Regional Prosecutor’s Office that the previous day his client had been arrested by the SBGS officers in breach of Article 140 of the CCP. He also maintained that she “had been questioned before being granted the status of a suspect (nepareiškus jai įtarimo) and forced to testify”. The lawyer contended that the pre-trial investigation had not been within the SBGS’s competence and jurisdiction, as it was related to insurance fraud. 17. On 13 June 2005 the Vilnius Regional Prosecutor’s Office replied that the pre-trial investigation had been opened in accordance with the domestic law. The reply did not say that the decision could be appealed against. 18. On 16 June 2005 the applicant wrote to the Ombudsman, the Chief Inspector of the Ministry of the Interior, the Attorney General and the Director of the SBGS. She stated that on 25 May at about 10.30 a.m., two officers of the SBGS had gone to her workplace at the “Fortas” restaurant in Vilnius. She had been forced to leave with them, and had been taken to the SBGS’s Vilnius headquarters and questioned about the car accident. The applicant reiterated that the SBGS officers had refused to record her questioning, had not explained her rights to her, and had not allowed her to make telephone calls. No one had answered her question whether she could leave; nor had they explained what her procedural status was at that time. She had been threatened with conviction, placement in a detention facility, and the end of her career unless she agreed to confirm the SBGS’s account of the car accident. Relying on Article 5 of the Convention, the applicant argued that her right to liberty had been breached. She maintained that the SBGS officers had acted in an arbitrary fashion. 19. By a decision of 21 July 2005, the Vilnius Regional Prosecutor’s Office found no flaws or abuse of powers in the actions of the SBGS officers and refused to open a pre-trial investigation into their actions. The prosecutor noted that the applicant had been arrested on 25 May 2005 at “3 p.m.”, as stated in the provisional arrest report. The following day she had been served with notice of suspicion of the crime of fraud and had been questioned as a suspect from 4.15 to 5 p.m. Therefore the applicant’s allegation that she had been questioned without a record being drawn up was false. Lastly, the prosecutor held that it was only because of “a technical mistake” that the report of the applicant’s arrest had specified her place of arrest as Vilnius Airport. The decision stipulated that it could be appealed against to an investigating judge. The applicant did not appeal against the decision. 20. On 25 May and 16 June 2005, the applicant lodged complaints with the Parliamentary Ombudsman. 21. On 5 August 2005 the Ombudsman found the applicant’s complaint valid. He noted that under Article 182 § 2 of the CCP investigating officers had the possibility to call a person for questioning orally, without notifying him about it in writing. This could be done, for example, by a telephone call or via family members of the person invited. He stressed that the provision simply referred to the “transfer of a message (informacijos perdavimas)” that a person ought to come for questioning. However, in the applicant’s case, on 25 May 2005 at about 10 or 11 a.m., the SBGS officers had not merely conveyed a message to her, but had in fact taken her in [by force, atvesdino] or even arrested her. On this point the Ombudsman also referred to the written reply by the Head of the SBGS Vilnius Office to the effect that the officers who went to the applicant’s workplace had demanded (buvo pareikalauta) that she go with them so that she could not contact the other suspects and thereby obstruct the investigation. 22. In the same written reply to the Ombudsman, the Head of the SBGS Vilnius Office also said that once the applicant had been taken to their headquarters, she had told the officers that she knew nothing about the car accident; accordingly, she had not been questioned as a witness. For the Ombudsman, however, the SBGS officers’ actions when trying to find out whether the applicant knew anything about the crime they were investigating had been nothing less than questioning. Such questioning had to be recorded in writing, in accordance with Article 183 of the CCP. Given that no record of questioning had been drawn up until 3 p.m., the Ombudsman considered that, until that time, the applicant had been held at the SBGS headquarters without a reason, and thus unlawfully. 23. The Ombudsman further noted that as of 3 p.m. the applicant had been arrested on suspicion of having committed fraud and on the ground that she might attempt to abscond from the investigation. No sufficiently strong evidence had been submitted to him to justify the applicant’s arrest. Furthermore, the prosecutor in charge of the investigation had not subsequently asked a court to sanction the applicant’s detention. Lastly, for the Ombudsman, there was no reasonable explanation as to why the fraud relating to the car accident should have been investigated by the SBGS officers. 24. Whilst conceding that it was not within his competence to assess the validity of the actions taken during the pre-trial investigation, on the basis of above considerations the Ombudsman concluded that the conduct of the SBGS investigators had had the sole aim of exerting psychological pressure on the applicant. 25. The Ombudsman also considered that the actions of the SBGS officers had given rise to a suspicion that they had committed a crime. As a result, he notified the Office of the Prosecutor General about the matter. The Minister of the Interior was also to be informed about the episode so that such incidents could be avoided in future. 26. In their reply of 23 September 2005 to a complaint lodged by the applicant on 16 June 2005, the SBGS noted that the applicant’s allegations about abuse of power by its officers when arresting her had already been dismissed by the prosecution. The officers who had taken part in the applicant’s arrest and their superiors had nevertheless been urged to take into consideration the Ombudsman’s conclusions and to ensure that similar incidents were not repeated in future. 27. By a decision of 25 November 2005, criminal proceedings against G.B. for insurance fraud were discontinued because of his death. For the same reason, proceedings against G.B. in respect of other charges pending against him (for forgery of an official document and smuggling people over the State border) were also terminated. 28. By a ruling of 5 January 2006, the pre-trial investigation into the charges of fraud by the applicant was discontinued. The prosecutor noted that the applicant had been notified that she was suspected of the crime on 26 May 2005. However, she had refused to testify on those charges. Neither Š.S. nor G.B. had confirmed the applicant’s involvement in the crime. As the applicant and G.B. had been friends, it could be only assumed that she had known about the fraud. Yet, this mere assumption was not sufficient evidence to prove her guilt. 29. On 11 July 2006 the Vilnius City First District Court found that Š.S. had committed fraud by simulating a car accident on 16 December 2004. However, the court relieved Š.S. of criminal liability as he had fully acknowledged his guilt and settled with the insurance company. 30. The applicant instituted civil proceedings for the damage sustained as a result of her allegedly unlawful arrest and questioning. She argued that the SBGS officers had exceeded their powers, because it was not within their competence to investigate crimes concerning road accidents. The applicant maintained that by being arrested at her workplace she had been humiliated in front of her colleagues and her reputation had been tarnished. Her arrest had been made public in the newspapers and on television. Her family and friends had learned about it, which had affected her relationship with them. The applicant maintained that on 25 May 2005 she had been interrogated at the SBGS Vilnius headquarters and forced to incriminate herself. No lawyer had been present, her rights had not been explained to her and she had not been allowed to make a telephone call. She complained that her rights under Article 5 of the Convention had been violated and claimed 4,350 Lithuanian litai (LTL) for pecuniary damage, LTL 100,000 for non-pecuniary damage and LTL 2,000 for litigation costs. 31. At the Vilnius Regional Court hearing on 16 November 2006, the applicant’s employer, the manager of the Fortas restaurant, testified that on 25 May he had received a telephone call from her. The applicant had explained that she had been arrested because of a car accident. He said that there were “such stereotypes in society that after someone has been arrested, others regard them with considerable suspicion”. Two waitresses who had been working with the applicant the day “when the applicant was arrested” testified that “the applicant was taken away quickly”, the officers “showed identification of some kind” and “demanded that the applicant went with them”, one waitress had seen “how the officers took the applicant with them”. The applicant’s colleagues also testified that the events had surprised them, and, although for that day they had remained without a supervisor, “there was no panic among the colleagues, but they asked each other what had happened. Everyone was interested to know what had happened”. The applicant’s lawyer maintained that his client had been taken from her workplace by force. He also argued that such actions in front of the applicant’s colleagues had stained her reputation. The applicant had left her job four months later. 32. On 30 November 2006 the Vilnius Regional Court dismissed the applicant’s claims. It found that the applicant had been suspected of having committed fraud and arrested for fear that she would flee from justice or commit new crimes. The SBGS officers had jurisdiction in the applicant’s case on the basis of the prosecutor’s decision of 23 May 2005. The court also referred to the Court’s judgment in Labita v. Italy ([GC], no. 26772/95, ECHR 2000-IV) to the effect that the fact that the applicant’s case had not gone to trial at a later stage did not mean that her arrest during the criminal investigation had been unlawful as such. The prosecutor’s decision to discontinue the pre-trial investigation in respect of the applicant did not mean that the investigative measures had been unlawful, since the pre-trial investigation had been discontinued because of lack of evidence. 33. The first-instance court noted that reports of the applicant’s arrest and questioning as a suspect had been made “after the applicant’s arrest”, although the court did not specify the exact time when the arrest had taken place. Moreover, as the applicant had conceded at the hearing, “on the day of her arrest” she had been allowed to have a lawyer. Lastly, the court noted that the applicant’s claims about her arbitrary arrest and questioning had been dismissed by the prosecutor and the SBGS on 13 June and 21 July 2005 respectively. 34. The applicant appealed, reiterating her complaint about abuse of powers by the SBGS. In the applicant’s view, it was not logical to have her arrested half a year after the car accident. The reason given to justify her arrest and detention – that she might hide from the investigators – had been even more preposterous given that there had been no evidence that she intended to flee. She invoked Article 5 of the Convention. 35. At the Court of Appeal hearing of 8 May 2007 the applicant’s lawyer argued that his client had been arrested at her workplace and detained for two days, partly in the SBGS’s Vilnius headquarters. She had been pressured to give evidence against G.B. The SBGS officers had acted outside their jurisdiction. The representatives of the State, which was the defendant in the civil proceedings for damages, maintained that the SBGS did have jurisdiction to investigate the crime of insurance fraud. The applicant had been arrested “on 25 May” and charged with fraud “on 26 May”. Above all, they stressed that the applicant had been merely “invited” to accompany the SBGS officers when they had arrived at her workplace. No incidents took place at the “Fortas” restaurant and the applicant had accompanied the officers calmly. 36. By a ruling of 22 May 2007 the Court of Appeal concurred with the lower court’s conclusion that the prosecutor’s decision to discontinue criminal proceedings in respect of the applicant did not mean that her arrest had been unlawful as such. Moreover, the proceedings against the applicant had been discontinued because of lack of evidence and not for reasons of rehabilitation. The appellate court noted that the applicant’s complaints that the SBGS officers had abused their powers had been dismissed by the prosecutor. That being so, the court nevertheless emphasised that it had competence to hear the applicant’s civil claim for damages, even though she had not appealed against the prosecutor’s decision to drop the criminal charges against the officers. On this point it referred to the Supreme Court’s ruling in civil case no. 3K-7-183/2006 (see paragraph 50 below). 37. The Court of Appeal also held that “on 25 May 2005 the applicant had been arrested at 3 p.m.” According to the court, the applicant had not been arrested at her workplace; the officers had merely “invited” her to go with them for questioning, in accordance with Article 182 § 2 of the Code of Criminal Procedure. There was no evidence in the case file that by inviting the applicant for questioning in the manner regulated by the above provision, the SBGS officers had breached the law. For the court, “the fact that before arresting her, notifying her of the charges and questioning her as a suspect [all at 3 p.m.], the officers had discussed with her the circumstances relating to a pre-trial investigation, without making a record of that conversation, did not disclose any unlawfulness, because a conversation [between the applicant and the officers] and questioning were two separate notions”. Accordingly, the appellate court dismissed the applicant’s civil claim, which she had based on Article 6.272 of the Civil Code and Article 5 of the Convention. 38. The applicant lodged three appeals on points of law, which, on 18 July and 13 and 24 August 2007, the Supreme Court refused to examine as raising only questions of fact and thus giving no grounds for cassation. 39. Article 20 of the Constitution of the Republic of Lithuania provides that the freedom of a human being is inviolable. No one may be arbitrarily detained or arrested. No one may be deprived of his freedom, except on grounds and according to procedures established by law. A person detained in flagrante delicto must be brought before a court within 48 hours for the purpose of obtaining a decision, in the presence of the detainee, on the validity of the detention. If the court does not decide that the detainee should be arrested, he or she will be released immediately. 40. In an opinion of 24 January 1995, the Constitutional Court held that Article 5 of the Convention was in compliance with Article 20 of the Lithuanian Constitution. 41. Article 31 of the Constitution provides that a person suspected of committing a crime will be guaranteed, from the moment of his or her detention or first questioning, the right to defend himself and the right to a lawyer. 42. Article 182 of the Criminal Code provides for criminal liability for fraud. The offence is punishable by community service, a fine, restriction of liberty, arrest, or imprisonment for a term of up to three years. A pre-trial investigation of the crime of fraud may be started only on the basis of a complaint by a victim or by a prosecutor’s order (Article 167 of the Code of Criminal Procedure). 43. The Code of Criminal Procedure provides that a witness is any person who has knowledge about circumstances relevant to a criminal case (Article 78). A witness has the right to have an audio or video recording made of his testimony. He has the right to read the record of his testimony, make corrections and write his own testimony (Article 81 §§ 2 and 4). Anyone called as a witness must testify before the pre-trial investigation officer, failing which he may be fined or arrested (Articles 83 and 167). 44. A prosecutor or an investigator may provisionally arrest a person caught in flagrante delicto. Provisional arrest is also possible if there is a reasonable assumption that the person may obstruct the course of justice by influencing other suspects or commit further offences. Provisional arrest may last up to forty-eight hours without the authorisation of a judge (Articles 122 and 140). 45. The Code of Criminal Procedure also provides that any investigative measure, such as the questioning of a witness or suspect, must be recorded. The measure may be documented by audio or video recording or by other means. The record must be drawn up while the investigative measure is being taken (tyrimo veiksmo metu) or immediately thereafter. The record must state the place and time of the measure and the persons present. The investigating officer and all those present must sign the record. If the person in respect of whom the measure was taken refuses to sign the record, this must also be noted in the record (Article 179 of the Code). 46. Concerning the way in which a person may be called for questioning, the Code of Criminal Procedure reads as follows: “1. A person shall be called for questioning by summons. The summons shall indicate: the person to be summoned and for what purpose, the place and to whom he is being summoned, the date and time when he has to appear, and the consequences of failure to appear, as provided for in Article 163 of the Code. 2. A person may also be summoned for questioning by telephone or in any other way. In such cases, coercive procedural measures provided for in Article 163 of this Code may not be taken for failure to appear.” 47. The Code then defines the rules for questioning witnesses and suspects. Article 183 of the Code provides that before questioning a witness, an investigator must explain his rights to him under Articles 81 and 83 of the Code, as well as liability for false testimony. The witness confirms that he has understood by signing the record. The investigator then asks the witness to tell everything he knows about the case. Lastly, the witness’s testimony is recorded in accordance with Article 179 of the Code (see above). Before questioning a suspect, an investigator must tell him what crime he is suspected of and explain his rights to him (Article 187). The suspect is then asked whether he confesses and is offered the opportunity to testify about the circumstances of the crime. As in the case of witnesses, his questioning is recorded in accordance with the requirements of Article 179 of the Code. 48. The Law on the State Border Guard Service provides that when exercising the pre-trial investigation functions assigned to it, the Service operates in the entire territory of the State (Article 2 § 6). Upon receiving information that a crime may have taken place, a prosecutor decides which pre-trial investigation institution is competent to carry out a particular investigation, and assigns the case to it. Afterwards, the designated institution may take all the investigative measures provided for by the Code of Criminal Procedure (Articles 171 and 172 of that Code). 49. As regards civil liability for damages, Article 6.272 § 1 of the Civil Code provides that damage caused as a result of unlawful arrest as a measure of oppression, from unlawful detention, or the application of unlawful procedural measures of enforcement, will be compensated fully by the State, irrespective of whether the officials involved in the preliminary investigation or prosecution were at fault. Article 6.272 § 3 stipulates that in addition to compensation for pecuniary damage, the aggrieved person is entitled to compensation for non-pecuniary damage. 50. On 7 June 2006 the Supreme Court ruled that Article 6.272 § 1 was a directly applicable legal norm. A court of civil jurisdiction could rely on it irrespective of whether the procedural measures which had allegedly caused damage to the plaintiff had been challenged in other [criminal] proceedings. Furthermore, even if in criminal proceedings it had been established that the measures taken by the pre-trial investigators had been lawful, a civil court was free to find that those measures had caused damage to the claimant if all the circumstances examined in the civil proceedings so proved (ruling in civil case no. 3K-7-183/2006). 51. Concerning civil liability and redress, the Supreme Court, in a decision of 21 December 2007 in civil case no. 3K-3-506, held as follows: “When deciding the question of redress within the meaning of Article 6.272 of the Civil Code, ... the parties must prove all the circumstances by which they justify their claims, except where the claims are based on circumstances that [do not have to be proven]. These circumstances are listed in Article 182 of the Code of Civil Procedure. The Supreme Court has held that facts established by the decisions of the pre-trial investigation institutions (prosecutors), contrary to those established by a court judgment or decision, are not binding (prejudiciniai) within the meaning of Article 182 §§ 2 and 3 of the Code of Civil Procedure ... Therefore, according to the statutory regulations and the case-law of the courts, the court deciding questions concerning the redress provided for by Article 6.272 of the Civil Code, where the claim for redress has been lodged regarding a remand measure unlawfully imposed by a pre-trial investigation officer, may justify its findings with any factual data, on the basis of which it shall establish the circumstances substantiating the claims of the parties and other circumstances relevant for the resolution of the case...”