CASE OF DUNGVECKIS v. LITHUANIA
No violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Right not to be tried or punished twice)
András Sajó;Egidijus Kūris;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
5. The applicant was born in 1978 and lives in Kaunas. 6. On 6 February 2004 the applicant was notified by the Financial Crime Investigation Service that a criminal investigation had been opened against him on suspicion of fraud committed in an organised group (Articles 25 § 3 and 182 § 2 of the Criminal Code of 2000). It was suspected that from October 2001 until May 2002 the applicant and his accomplices, using companies founded or acquired for the purpose, had bought large amounts of fish from unspecified persons without paying value added tax (VAT), forged payment documents to show that the applicable VAT had been paid, and then sold the fish to another company for a price that included the applicable VAT – thus appropriating an amount equal to the said applicable VAT. It was suspected that in this manner the applicant and his accomplices had appropriated 261,854.65 Lithuanian litai (LTL, approximately 75,838 euros (EUR)), which should have been paid into the State budget as VAT. 7. On the same day the applicant was prohibited from going abroad or leaving his home without the approval of the investigating authorities (kardomoji priemonė – rašytinis pasižadėjimas neišvykti). 8. On 6 May 2004 the prosecutor issued an indictment against the applicant and his accomplices. The applicant was charged with several counts of fraud and forgery of documents committed in an organised group (under Articles 25 § 3, 182 § 2 and 300 § 2 of the Criminal Code of 2000). The indictment noted that the applicant had admitted his guilt and cooperated with the investigative authorities. 9. On 3 February 2005 the Kaunas Regional Court found the applicant guilty of all charges and ordered him to pay a fine of LTL 18,750 (EUR 5,430). 10. On 3 February 2006 the Court of Appeal partly amended the judgment of the regional court. It acquitted the applicant of fraud but upheld his conviction for forgery of documents and sentenced him to two years of imprisonment. The sentence was suspended for two years, during which time an injunction (įpareigojimas) was imposed on the applicant: he was prohibited from leaving his home for more than seven days in a row without the approval of the supervising institution (hereinafter, “the sentence for forgery”). 11. The applicant began complying with the injunction imposed on him by the Court of Appeal (see paragraph 17 below). 12. On 5 December 2006 the Supreme Court partly amended the judgment of the Court of Appeal. It quashed the applicant’s acquittal of fraud and returned that part of the case for re-examination by the Court of Appeal. The remaining of the appellate court’s judgment was upheld. 13. On 4 July 2007 the Court of Appeal, after re-examining the above-mentioned part of the case, convicted the applicant of fraud. When determining the sentence, the court took into account various aggravating circumstances (the crime had been well organised, the applicant had played a leading role in its commission, and the value of the appropriated property had been high), as well as mitigating circumstances (the applicant had admitted his guilt, he had a family and a job, and he had been complying with the injunction previously imposed on him). As a result, the Court of Appeal sentenced the applicant to imprisonment for two years and three months – a sentence which was close to the minimum sentence stipulated in the Criminal Code (see paragraphs 28-29 below). The court combined this sentence with the one previously imposed on the applicant for forgery of documents (see paragraph 10 above) and ordered a consolidated sentence (subendrinta bausmė) for the two crimes – imprisonment of two years and three months. The Court of Appeal stated that because the crime of fraud was serious (sunkus nusikaltimas), the consolidated sentence could not be suspended (see paragraph 32 below). 14. The applicant submitted a cassation appeal to the Supreme Court. He asked the court to quash the sentence of imprisonment for the crime of fraud ordered by the Court of Appeal and instead restore the fine imposed by the Kaunas Regional Court in its judgment of 3 February 2005 (see paragraph 9 above). 15. On 31 July 2007 the Supreme Court delayed the execution of the Court of Appeal’s judgment of 4 July 2007 until the applicant’s cassation appeal was examined. The Supreme Court’s decision did not explicitly indicate whether the applicant had to continue complying with the injunction imposed on him during the term of suspension of the sentence for forgery (see paragraph 17 below). Nonetheless, during the period of the delay the applicant continued complying with the injunction. 16. On 8 January 2008 the Supreme Court dismissed the applicant’s cassation appeal. It found that when determining the sentence the Court of Appeal had correctly assessed the gravity of the crime, the applicant’s personality, and all relevant mitigating and aggravating circumstances. It also reiterated that the Criminal Code excluded the possibility of suspending the sentence in the event that the individual concerned had been convicted of a serious crime, such as fraud. However, the Supreme Court partly amended the Court of Appeal’s judgment of 4 July 2007 by applying the terms of a 2002 law on amnesty and reducing the applicant’s sentence of imprisonment by one fifth. Thus, the applicant’s final consolidated sentence was one year and nine months of imprisonment (hereinafter, “the consolidated sentence”). 17. After the Court of Appeal’s judgment of 3 February 2006 (see paragraph 10 above), the applicant began complying with the injunction imposed on him during the term of suspension of the sentence for forgery. The applicant was not allowed to leave his home for more than seven days without the approval of the supervising institution. He was also obliged to report to the local prison department every two months, which he did from March 2006 until January 2008. At the applicant’s request, on 1 February 2008 the local prison department issued a certificate stating that he had been complying with the injunction and that the term of suspension of his sentence for forgery would end on 3 February 2008. 18. In January 2008 the applicant submitted a request to the Kaunas Regional Court to be released from serving the consolidated sentence. The applicant stated that he had nearly completed serving the term of suspension of the sentence for forgery by complying with the injunction imposed by the Court of Appeal. According to the applicant, given that the sentence for forgery (two years of imprisonment) was longer than the consolidated sentence (one year and nine months of imprisonment) and given that he had served the former, he should be released from serving the latter; otherwise he would have to serve two sentences for one crime. 19. On 28 January 2008 the Kaunas Regional Court dismissed the applicant’s request. The court reiterated that the applicant had been convicted of two crimes – one of which (fraud) was serious and the other (forgery of documents) less serious (apysunkis) – and the Criminal Code did not permit the suspension of a sentence for a serious crime. 20. On 28 February 2008 the Court of Appeal dismissed the applicant’s appeal against the regional court’s judgment. The court firstly found that the applicant had not yet finished serving the term of suspension of the sentence for forgery: the completion of the term had to be confirmed by a decision of the relevant district court, but no such decision had been adopted as at that date (see paragraph 33 below). The Court of Appeal further held that the imposition of an injunction during the term of suspension of a sentence (įpareigojimai, paskirti nuosprendžio vykdymo atidėjimo metu) did not amount to the serving of that sentence (bausmės atlikimas); therefore, the applicant had not actually served his sentence for forgery, so the question of “double punishment” did not arise. The fact that he had been complying with the injunction was relevant only during the determination of the final consolidated sentence, and that had been done by the Supreme Court. The judgment was final and not subject to appeal. 21. Subsequently the applicant submitted a request to the Kaunas District Court, asking it to confirm that he had completed the term of suspension of the sentence for forgery. On 18 March 2008 the court refused to examine the applicant’s request because, under domestic law, a request for the term of suspension of a sentence to be declared completed could only be submitted by the supervising institution and not by the convicted person (see paragraph 33 below). 22. On 15 April 2008 the Kaunas Regional Court dismissed the applicant’s appeal. The court stated that that the applicant had been prohibited from leaving his home since 6 February 2004 (see paragraph 7 above), so during the entire time he had been complying with that restrictive measure and not with the injunction relating to the suspended sentence. The court further held that the Court of Appeal’s judgment of 4 July 2007 had annulled the suspension of the sentence for forgery, but that the domestic law did not provide for the possibility to release a convicted person from the obligation to serve a sentence due to the fact that he or she had been complying with an injunction which had subsequently been annulled. The judgment was final and not subject to appeal. 23. Around the same time the applicant submitted a request to the Kaunas Regional Administrative Court, asking it to order the local prison department to request a district court to affirm that the applicant had completed the term of suspension of the sentence for forgery (see paragraph 21 above). On 9 April 2008 the Kaunas Regional Administrative Court held that it did not have the competence to examine the applicant’s request because that request only related to matters of criminal sentencing and not acts of public administration. On 13 May 2008 the Supreme Administrative Court upheld the decision of the lower court on the same grounds. 24. On 16 April 2008 the applicant began serving the consolidated sentence in the Pravieniškės Correctional Facility. After serving one-third of the sentence, on 26 January 2009 he was released on probation.