CASE OF ŠIMKUS v. LITHUANIA
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)
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani
5. The applicant was born in 1975 and lives in Tauragė. 6. On 23 July 2006 officers of the State Border Guard Service were patrolling the border between Lithuania and Russia in the Jurbarkas Region, by the river Nemunas. At around 2 a.m. the officers noticed several cars approaching the river and heard the sound of a boat in the water. The officers approached one of the cars and found cartons of cigarettes inside, which they suspected had been smuggled from Russia. The three individuals who had been in the car, K.B., E.L. and M.G., were arrested. During the arrests K.B. received a gunshot wound and the officers took him to a hospital in Jurbarkas (hereinafter “the hospital”). 7. At around 3.30 a.m. E.L.’s mobile telephone began to ring and a border officer answered it. The caller stated that he would “find and shoot” the officer who had injured K.B. A subsequent forensic examination identified the caller’s voice as probably (tikėtinai) that of the applicant. 8. At around 4 a.m. the applicant arrived at the hospital and approached the border officers guarding K.B. The applicant used various swearwords towards the officers, demanded that they release K.B. and said that he would beat them up or kill them. It appears that no physical altercation occurred between the applicant and the officers and that the applicant subsequently left the hospital. 9. On the same day the State Border Guard Service opened a pre-trial investigation against the applicant and several other individuals. The applicant was suspected, among other things, of threatening to murder or seriously injure law enforcement officers and obstructing and verbally abusing them in the exercise of their official duties, under Articles 145 § 1 and 231 § 2 of the Criminal Code (see paragraphs 21-22 below). 10. On 5 December 2006 the Jurbarkas district prosecutor (hereinafter “the prosecutor”) discontinued the pre-trial investigation against the applicant for lack of evidence. As to the words and statements used by the applicant in his interaction with the border officers (see paragraphs 7 and 8 above), the prosecutor noted that the applicant could have committed the administrative offence of minor hooliganism under Article 174 of the Code of Administrative Offences (see paragraph 26 below). The prosecutor’s decision was forwarded to the State Border Guard Service, instructing them to decide whether administrative proceedings against the applicant should be instituted. However, three days later a senior prosecutor annulled that decision and reopened the pre-trial investigation. 11. On an unspecified date administrative proceedings were instituted against the applicant; the information available to the Court does not indicate which authority was in charge of them. On 18 December 2006 the Jurbarkas District Court held that the applicant had committed the administrative offence of minor hooliganism when he had used swearwords in the presence of border officers in the hospital (see paragraph 8 above). He was given a warning. The decision was not appealed against and became final after the expiry of the ten-day time-limit for appeal. 12. On 6 August 2008 the prosecutor charged the applicant with threatening to murder or seriously injure law enforcement officers, and insulting them in the exercise of their official duties, under Articles 145 § 1 and 290 of the Criminal Code (see paragraphs 21 and 24 below). The indictment alleged that the applicant had committed the offences in the hospital on 23 July 2006 (see paragraph 8 above). The case was transferred to the Jurbarkas District Court for examination on the merits but in June 2009, at the prosecutor’s request, the case was returned for additional investigation. 13. On 23 October 2009 the prosecutor discontinued the pre-trial investigation, stating that the applicant’s actions had not amounted to the criminal offence of threatening to murder or seriously injure the officers because there had not been any objective circumstances indicating that he could have carried out those threats. The prosecutor also held that the applicant could not be prosecuted for insulting the officers because he had already been given an administrative penalty for the same conduct (see paragraph 11 above) – continuing the criminal proceedings against him would be in breach of the ne bis in idem principle. 14. On 11 June 2010 the Prosecutor General’s Office annulled the prosecutor’s decision and reopened the investigation, noting that the administrative penalty given to the applicant “did not automatically preclude” the criminal proceedings against him. 15. The applicant appealed against that decision to a senior prosecutor at the Prosecutor General’s Office but on 30 June 2010 his appeal was dismissed. The senior prosecutor held that, in line with the case-law of the domestic courts, an administrative penalty did not preclude the institution of subsequent criminal proceedings concerning the same conduct; however, in order to comply with the ne bis in idem principle, if a person was found guilty in the criminal proceedings, the previous administrative penalty had to be annulled or, if that was impossible, it had to be taken into account during sentencing. Accordingly, the prosecutor considered that the administrative penalty given to the applicant did not preclude the continuation of the criminal proceedings against him. 16. On 2 November 2010 the Jurbarkas District Court upheld the applicant’s appeal and overruled the prosecutor’s decision of 30 June 2010. It held that criminal proceedings against the applicant could be continued only after the administrative penalty had been annulled, but since that had not been done, any further proceedings concerning the same conduct would be in breach of the ne bis in idem principle. However, on 8 December 2010 the Kaunas Regional Court quashed the lower court’s decision, reiterating the reasoning of the prosecutor’s decision of 30 June 2010 (see paragraph 15 above). That decision was not subject to any further appeal. 17. In June 2011 the case was transferred to the Jurbarkas District Court for examination on the merits. The amended indictment alleged that the applicant had committed the offences set out in Articles 145 § 1 and 290 of the Criminal Code because of the words and statements which he had used when speaking to the border officers on the telephone (see paragraph 7 above) and in the hospital on 23 July 2006 (see paragraph 8 above). 18. On 6 September 2011 the Jurbarkas District Court terminated the criminal proceedings against the applicant as time-barred. That decision was not appealed against and became final.