CESNULEVICIUS v. LITHUANIA
Inadmissible
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Paulo Pinto De Albuquerque
The applicant, Mr Virginijus Česnulevicius, is a Lithuanian national who was born in 1956 and lives in Vilnius. In 1990, after the Republic of Lithuania had re-established independence, the applicant and J.U. started working at the Department of National Defence (Krašto apsaugos departamentas). On the evening of 12 January 1991 the Soviet army launched military operations against Lithuania. Soviet troops entered the television tower of Vilnius and the headquarters of Lithuanian public television, and also tried to take the Lithuanian parliament. Massive crowds of Lithuanian citizens came to the rescue of the institutions of the newly independent Lithuania. Thirteen Lithuanian civilians were killed and hundreds injured during the clash with the Soviet army (see Ždanoka v. Latvia [GC], no. 58278/00, § 20, ECHR 2006IV). At the time of the events, the applicant and J.U. were on the premises of the Lithuanian parliament building, where they worked as guards. In 2004 a publishing house released a book by J.U. According to the applicant, it contained false and defamatory information about him. On 12 July 2004 the applicant addressed the publishing house requesting the opportunity to respond critically to the content of the book. In his letter to the publisher the applicant described J.U. negatively and criticised J.U.’s actions during the events of January 1991. The applicant’s letter contained allegations that J.U. had deserted his post at the barricades of the Parliament building and that he had not passed the psychiatric check for permission to carry a gun. Following these events, on 2 March 2005 J.U. brought a private prosecution against the applicant for defamation. The applicant made a counterclaim, alleging that J.U. had defamed him in his private prosecution statement. The applicant states that during the initial examination of the case by the Vilnius City First District Court he was undergoing medical treatment. He asked for a longer break before the later hearings, for health reasons. The applicant states that the judge suggested that he did not have to be present at the final two hearings of his case, at which J.U. was due to give his final submissions and judgment would be adopted. The applicant admits that no request for a longer break was noted in the official hearing record. Although the applicant then informed the court that he would not be present at the two final hearings, they were not postponed. On 5 December 2005 the Vilnius City First District Court found the applicant guilty of defamation, given that his statements that “J.U. had deserted his post during the tragic events of January 1991” and “J.U. had not passed the psychiatric check for permission to carry a gun” had not been proved. The applicant was fined 1,250 Lithuanian litai (LTL, 362 euros (EUR)) and ordered to pay compensation for non-pecuniary damage in the sum of LTL 1,000 (EUR 290). The court terminated the proceedings in so far as the counterclaim by the applicant was concerned. J.U. and his lawyer, as well as the applicant, were present at the hearing. In finding the applicant guilty, the court noted that the applicant had failed to submit credible evidence in support of his statement that J.U. had deserted his post. In this connection the court noted that in an official document J.U.’s superior had given a positive evaluation of J.U.’s behaviour during the events of January 1991. The submissions of one independent witness, J.G., questioned in the courtroom, were also taken into account. The court further established that the statement that J.U. had not passed the psychiatric check for permission to carry a firearm was false, given that the medical records showed that he had passed the examination in respect of his mental health. The applicant states that he saw the record of the hearing of 5 December 2005 only on 8 December 2005, at approximately 3 p.m. The applicant appealed, mainly arguing that the trial court had distorted the testimony of J.G., had misunderstood the circumstances surrounding the events of January 1991, and assessed the evidence and applied domestic law wrongly. On 11 April 2006 the Vilnius Regional Court upheld the applicant’s conviction. In the appellate proceedings the applicant was represented by a lawyer. As the transcript of the hearing on appeal shows, the court deemed it unnecessary to question witness J.G., who had testified before the trial court, again, but granted the applicant’s request to add written evidence to the file and to question two more witnesses, J.Ž. and G.G. One more witness, A.Z., was questioned at the request of J.U. The Vilnius Regional Court dismissed the applicant’s argument that the official transcript of the hearing was inaccurate, finding that the applicant had had the right to comment on the record of the hearing within three days of its signing by the judge, if he believed there were mistakes or inconsistencies. However, he had not made use of this right. The court reviewed the findings of the lower court and decided that the latter had assessed the evidence correctly and reached reasoned conclusions. The appellate court also emphasised that J.G., who had testified before the trial court at the request of the applicant, could not unambiguously confirm the fact that J.U. had left his post at the barricades in January 1991. Another witness, A.Z., had testified that J.U. had not deserted his post. The appellate court also noted that written evidence - a report by J.U.’s superior - stated that during the events of January 1991 J.U. was “holding firm”. Lastly, the court observed that the lower court had correctly concluded that the assertion that J.U. had not passed the psychiatric check was a pejorative allusion to his mental health, and thus was damaging to his reputation. No procedural violations were found. This decision was final, as there is no right to appeal on points of law under the domestic law in private prosecution cases. Subsequently, the applicant unsuccessfully tried to reopen the proceedings, alleging that the courts were unfair. His requests were dismissed by the public prosecutor and the Vilnius City Second District Court as unsubstantiated; they found no procedural irregularities when handling the applicant’s case at both levels of jurisdiction. Articles 57-29 of the Code of Criminal Procedure provide that a participant in the criminal proceedings may raise an objection on the grounds of partiality of a judge. Article 261 §§ 4-8 of the Code of Criminal Procedure provides that a transcript of a hearing must be prepared and signed by the judge who heard the case and the recording officer of the hearing no later than three days after the hearing took place. The participants in the proceedings have the right to acquaint themselves with the transcript within three days of its signing. Any objections as to the accuracy of the transcript must be put to the judge who heard the case. If the judge agrees with the objections, he or she adds them to the transcript of the hearing. Should the judge deem that the original transcript was accurate, he may dismiss the participant’s objections by adopting a ruling in a new hearing. Article 367 § 3 of the Code of Criminal Procedure provides that an appeal on points of law may not be lodged in cases of private prosecution.