MORKUNAS v. LITHUANIA
Inadmissible
The applicant, Mr Artūras Morkūnas, is a Lithuanian national who was born in 1962 and lives in Šiauliai. He was represented before the Court by Mr R. Andrikis, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant, who had a criminal record of two convictions, was arrested on 1 March 1999 and questioned on suspicion of blackmail and extortion committed against a businessman. On 2 March 1999 his detention on remand was authorised for 10 days by the Šiauliai City District Court for fear that the applicant might commit fresh offences and obstruct the investigation. The applicant and his lawyer were present at the hearing. On 9 March 1999 the applicant was charged with attempted extortion committed in an organised group. On the same date, the Šiauliai City District Court extended the term of the applicant’s detention until 12 May 1999 on the same grounds, the applicant’s lawyer being present. The applicant’s appeal against that order was rejected by the Šiauliai Regional Court on 22 March 1999, in the presence of his lawyer. On 12 May 1999 the Šiauliai City District Court extended the term of the applicant’s remand in custody until 12 July 1999 on the same grounds, i.e., for fear that the applicant might commit new crimes or obstruct the investigation. Both the applicant and his lawyer were present. His appeal against the extension order was rejected on 25 May 1999, the applicant’s defence counsel being present. On 12 July 1999 the term of the applicant’s remand was extended until 1 September 1999 by the Šiauliai City District Court on the same grounds as before, the applicant and his lawyer being present. The applicant appealed, requesting the variation of his remand. He pleaded not guilty and alleged that there was no fear of him absconding since he had a family and a permanent place of residence. The appeal was dismissed by the Šiauliai Regional Court on 21 July 1999, in the presence of the applicant’s defence counsel. The court considered that the grounds for his detention persisted. On 30 August 1999 the Šiauliai Regional Court authorised the applicant’s detention on remand until 31 December 1999, in the presence of the applicant and his lawyer. The court briefly noted that the applicant “was accused of having committed serious offences, hence there was a reason to believe that he may commit new crimes if released.” On 21 September 1999 the Court of Appeal dismissed the applicant’s appeal against the decision, his representative being present. The appellate court noted, inter alia, that the applicant was suspected of heading a criminal organisation, thereby justifying the fear of his committing fresh crimes and influencing witnesses. On 23 December 1999 the Šiauliai Regional Court extended the applicant’s detention on remand until 1 February 2000. While the court emphasised the necessity to expedite the investigation of the case, it considered that continued detention was justified by the fear that the applicant might abscond and commit fresh crimes. The applicant and his defence counsel were present. The applicant’s appeal against that order was dismissed by the Court of Appeal on 6 January 2000, his lawyer being present. During 1999, in the context of several other sets of criminal proceedings, the applicant was charged with attempted aggravated murder, the destruction of property by organising explosions, forming a criminal organisation, and false reporting of a crime. Those charges were subsequently added to the original proceedings against the applicant. On 27 January 2000 the Šiauliai Regional Court extended the term of the applicant’s detention until 1 April 2000 for fear of his absconding and committing new offences. The court found that the serious charges against the applicant and his two previous convictions justified that fear. The applicant and his defence counsel were present at the hearing. On 14 February 2000 the Court of Appeal dismissed the applicant’s appeal against the extension of the term of his detention on remand, upholding the reasoning of the lower court. On 30 March 2000 the Šiauliai Regional Court extended the term of the detention until 1 May 2000 on the same grounds as before, the applicant and his lawyer being present. The bill of indictment in the applicant’s case was confirmed on 17 April 2000. He was indicted on five counts, including attempted murder, extortion, involvement in a criminal association, the destruction or property and the illegal acquisition of explosives. Four other co-accused were indicted with the applicant; 29 witnesses were identified, and the case materials comprised five volumes. On the same date, the Court of Appeal dismissed the applicant’s appeal against the prolongation of his detention on remand. On 1 May 2000 the Šiauliai Regional Court held a hearing in the presence of the applicant and his defence counsel and decided further to extend the applicant’s remand in custody until 10 July 2000, for fear of his absconding, committing new crimes and obstructing the investigation. The court mentioned the gravity of the charges against the applicant and the strength of the evidence in the case file to justify that fear. The applicant appealed, claiming that the evidence against him was not sufficient to warrant his prolonged detention. On 18 May 2000 the Court of Appeal rejected the applicant’s appeal in the presence of his lawyer. On 12 May 2000 the Regional Court held a directions hearing in the presence of the applicant’s defence counsel, whereby it decided to return the case to the investigators. On the same occasion, the court dismissed the applicant’s request to vary the remand measure. On 12 June 2000 the Šiauliai Regional Court extended the term of the applicant’s remand in custody until 12 September 2000 on the same grounds as before. The applicant and his defence counsel were present at the hearing. On 30 June 2000 the Court of Appeal dismissed his appeal against the order in the presence of counsel. On 6 September 2000 the Court of Appeal quashed the decision of 12 May 2000, returning the case to the Regional Court for trial. On the same occasion, the court extended the term of the applicant’s detention on remand until 12 November 2000, noting that the grounds for the continued detention on remand persisted. The applicant and his lawyer were present at the hearing. The applicant lodged a cassation appeal against the decision of 12 May 2000, but it was dismissed by the Supreme Court on 7 November. On 9 November 2000 the Šiauliai Regional Court extended the term of the applicant’s remand in custody until 9 February 2001 for fear of his obstructing the investigation and committing fresh crimes. The court noted the applicant’s criminal record, the gravity of the charges against him and the strength of the evidence in the case file to justify that fear. The applicant and his representative were present at the hearing. On 23 November 2000 the Šiauliai Regional Court committed the applicant for trial. On the same date the Šiauliai Regional Court extended the term of the applicant’s detention on remand until 9 May 2001 on the same grounds. The applicant and his defence counsel were present at the hearing. The applicant’s appeal against that order was dismissed by the Court of Appeal on 27 December 2000. The Court of Appeal observed that the trial of the case had been prolonged, but noted that the delay was not imputable to the trial court. On 2 May 2001 the Šiauliai Regional Court extended the term of the applicant’s remand in custody until 9 August 2001 on the same grounds, the applicant’s lawyer being present. The applicant’s appeal against the order was dismissed by the Court of Appeal on 22 May 2001. On 5 June 2001 a prosecutor confirmed a bill of indictment in another criminal case whereby the applicant was charged on eight counts, including causing grievous bodily harm, theft and extortion. Two other persons were indicted with the applicant. Seven victims and nine witnesses were identified. On 25 June 2001 the Šiauliai Regional Court committed the applicant for trial in that case. On 4 July 2001 the Šiauliai Regional Court extended the applicant’s detention on remand until 9 November 2001 on the same grounds, in the presence of his lawyer. The applicant appealed, requesting his release on bail. He claimed that his detention was unjustified since he could live with his family. On 20 July 2001 the Court of Appeal dismissed the applicant’s appeal against the extension order. The applicant’s lawyer was present at the hearing. On 4 October 2001 the Šiauliai Regional Court extended the term of the applicant’s detention on remand until 9 February 2002, the applicant’s defence counsel being present. The court referred to the strength of the evidence in the case file and the fear that the applicant might commit new crimes and obstruct the investigation by influencing the witnesses. The applicant’s appeal against the above order was dismissed - in the presence of the applicant’s lawyer - by the Court of Appeal on 17 October 2001. The court took into account the fact that the applicant had been detained on remand for a considerable period of time, but noted that this was justified by the complexity and volume of the case (numerous charges against five co-accused and a case file in nine volumes). The Court of Appeal did not find any indication of procrastination in the proceedings. It noted that the examination of the case had been delayed due to objective circumstances. In particular, several hearings had been adjourned due to the failure of the witnesses or defence lawyers to appear before the court. The co-defendants had requested the adjournment of the trial on several occasions. The court finally observed that the applicant had submitted no serious reason that would prompt it to vary the remand measure. On 7 December 2001 the two cases against the applicant were joined, and the prosecution presented a new set of charges. These included creating a criminal organisation, the illegal acquisition of explosives, extortion, the destruction of property in dangerous ways, causing serious bodily harm and the attempted murder of several people. These charges covered more than 11 episodes which took place at different times. On 6 February 2002 the Šiauliai Regional Court extended the term of the applicant’s remand in custody until 9 May 2002 on the same grounds as before. The Regional Court also noted the fact of the applicant having denied his guilt amongst the reasons justifying the fear of his absconding, obstructing the investigation and committing fresh crimes. The applicant’s lawyer was present at the hearing. On 27 February 2002 the Court of Appeal dismissed the applicant’s appeal against the decision, his lawyer being present. While the Court of Appeal acknowledged that the length of the applicant’s detention on remand had been somewhat prolonged, it considered the length to be justified in view of the complexity of the case, the gravity and number of charges against the applicant, and the strength of the evidence in the case file. The Court of Appeal noted that the investigation and trial had been adjourned a number of times for the purpose of satisfying various procedural requests of the defendants and their lawyers to investigate or re-evaluate evidence. In addition, witnesses, complainants and the defendants’ lawyers had failed to attend certain court hearings. At the same time, the appellate court eliminated from the reasoning of the Regional Court’s decision of 6 February 2002 the reference to the applicant denying his guilt as an element justifying his remand in custody. In this connection the Court of Appeal emphasised that taking account of such an element could unlawfully prejudge the assessment by a trial judge of the merits of the charges against the applicant. The Court of Appeal underlined that the reasons for detention must pertain solely to the need to ensure the attendance of a person at trial, and that remand in custody could not be authorised on the ground of any premature assessment of the evidence against the defendant or his plea in regard to the charges. The Court of Appeal further observed that the applicant had submitted no valid reasons to prompt varying his remand, all his requests for release being motivated exclusively by the alleged lack of evidence, and there being no element in the applicant’s appeals to allay the fear that he might abscond, obstruct the investigation or commit fresh crimes. The Court of Appeal reiterated in this respect that it was not its function to rule on the merits of the charges against the applicant when deciding the question of his remand. The appellate court concluded that the likelihood of the applicant absconding, obstructing the investigation or committing fresh crimes persisted regardless of the relatively lengthy period of his remand in custody. On 9 May 2002 the Šiauliai Regional Court extended the term of the applicant’s remand in custody until 9 August 2002, again for fear of his absconding, obstructing the investigation and committing new crimes. The applicant’s lawyer was present at the hearing. On 19 July 2002 the Šiauliai Regional Court convicted the applicant on eight counts, including attempted murder, causing grievous bodily harm, involvement in a criminal association, the destruction of property and theft. He was acquitted on three other counts. The applicant was sentenced to 18 years’ imprisonment, including the time already spent in detention on remand. He was also fined in the amount of LTL 2200 (approximately EUR 629), and confiscation of his property was ordered. The judgment was 36 pages long, and five other persons were convicted with the applicant. The court heard 19 victims and 10 witnesses. In response to the applicant’s complaint about the length of the proceedings, the court noted that, while they were somewhat protracted, the essence of the applicant’s right to be tried within a reasonable time was not breached. The Regional Court observed that the length of the proceedings had been largely determined by the conduct of the co-accused and their lawyers. In particular, 10 hearings had to be adjourned due to the failure of defence lawyers (including the applicant’s representative) to appear before the court, or their inability to take part in the proceedings due to illness. Three more hearings had been adjourned because of the defendants’ illness, the change of lawyers, or the refusal of the defendants to participate in the trial. The applicant appealed, complaining that the case against him had been fabricated, that the charges had been imprecise and had been changed a number of times, that he had not been given access to the case file, that his defence rights had been breached, that the trial court had refused to call certain witnesses, that the judges had been biased, and that certain other irregularities had rendered the trial unfair. The applicant also complained about the length of the proceedings. On 4 September 2003 the Court of Appeal amended the judgment, acquitting the applicant on a number of counts, including attempted murder, involvement in a criminal association and theft, on the grounds that the evidence supporting his guilt was contradictory. The prosecution for false reporting of a crime was discontinued as time-barred. The applicant’s conviction for causing grievous bodily harm, extortion and destruction of property was upheld. The sentence was accordingly reduced to five years’ imprisonment, including the period that the applicant had already spent in custody (as of 1 March 1999). The court also ordered confiscation of the applicant’s property in the amount of LTL 2000 (approximately EUR 571). While the Court of Appeal acknowledged that some delays in the proceedings had been imputable to the authorities - namely, the delays which had occurred because of the changes in the composition of the trial court - it considered that the applicant’s right to “trial within a reasonable time” was not breached. Nor did it find any other irregularities which could have rendered the proceedings “unfair” as alleged by the applicant. On 2 December 2003 the applicant was released on licence. The applicant’s cassation appeal was dismissed by the Supreme Court on 2 March 2004. The Supreme Court found no indication of unfairness in the proceedings or a breach of the applicant’s procedural rights. On 18 June 2002 the applicant brought before the Šiauliai Regional Administrative Court an action against the Ministry of Justice, claiming pecuniary and non-pecuniary damages for his being infected with Hepatitis C during his stay in the remand prison. On 19 June 2002 the court disallowed his action for want of jurisdiction. The court observed that the applicant should have brought the claim before the Vilnius Regional Administrative Court, pursuant to the relevant procedural provisions. On 18 July 2002 the Supreme Administrative Court rejected the applicant’s appeal. On 1 August 2002 the applicant brought an action before the Šiauliai Regional Administrative Court, claiming pecuniary and non-pecuniary damages from the Šiauliai Remand Prison in relation to his Hepatitis C infection. On 8 August 2002 the court disallowed the action by reason of the applicant’s failure to comply with the relevant procedural requirements, namely, to state his factual and legal claims in a clear manner. The court gave the applicant time until 19 August 2002 to amend the action. On 13 August 2002 the applicant submitted a fresh action. However, it was disallowed by the Šiauliai Regional Administrative Court on 19 August 2002 on the same grounds. On 19 September 2002 the Supreme Administrative Court dismissed the applicant’s appeal against the decision of 19 August 2002. The prison doctors confirmed that the applicant was infected with Hepatitis C and prescribed appropriate treatment. The applicant’s condition was further monitored throughout 2002. The provisions of the Code of Criminal Procedure (Baudžiamojo proceso kodeksas), in force until 1 May 2003, provided as follows: “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 the detention on remand shall be specified. The grounds ... shall be the reasonable 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 ... 105 [aggravated murder], 111 [serious bodily harm].... 227 [founding a criminal organisation], ... 271 [theft], 273 [extortion], 278 § 2 [aggravated destruction of property] ... of the Criminal Code ... . Where there is a reasonable fear that the accused will abscond from the investigation and trial, detention on remand may be ordered taking into account his family status, permanent place of residence, employment relations, health, criminal record, relations abroad and other circumstances. ...”. “... [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 shall take part in the inquiry [unless the judge decides otherwise]. ... After having questioned the arrested person, the judge may maintain the arrest order by fixing 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. ...” “Detention on remand cannot last longer than six months. A specific term of remand shall be fixed by a judge adopting the remand order; this term can be extended by the same judge or another judge of the same district court, but only for a period not exceeding six months. In view of the particular complexity or size of a case, a judge of a regional court may extend the maximum term specified in the first paragraph of this Article for a period not exceeding three months. The extension may be repeated, but the total length of the term at the stage of the pre-trial investigation may not exceed 18 months ... For the purpose of extending the term of detention on remand at the stage of the pre-trial investigation, ... a judge must convene a hearing to which defence counsel and the prosecutor and, if necessary, the detained person shall be called ... .” [Once the case is transferred to a court], a court of first or appellate instance shall order detention on remand or extend its term upon the request of a prosecutor or on its own motion for a period not exceeding three months. The extension may be repeated – giving reasons – in view of the particular complexity, size of a case or other objective circumstances. The question of remand shall be resolved at a directions hearing or trial, or at a hearing specially convened for these purposes. The detainee, his defence lawyer, and a prosecutor must be summoned, and their presence before the court is obligatory. ... If the court decides to remit the case for additional investigation, the maximum length of detention on remand may be extended for a period not exceeding four months. In such cases, the question of remand shall be resolved by the court, and the case shall be remitted for further investigation. ...” “A person remanded in custody or his defence council shall have the right during the pre-trial investigation or trial to lodge [with an appellate court] an appeal against the detention on remand or the extension of its term ... . A judge or the appellate court must examine the appeal within seven days from its receipt. With a view to examining the appeal, a hearing may be convened, to which the arrested person and his counsel or counsel alone shall be summoned. 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.” 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.” “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.” “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 ...” “[During the trial, the defendant] has the right to ... 3) submit requests; ... (11) appeal against the judgment and decisions of a court.” “In the course of the trial, a court may decide to order, vary or revoke a remand measure in respect of the defendant.” “1. Damage caused by the unlawful acts of public institutions shall be compensated by the State from the budget, irrespective of the fault of an actual civil servant ... 3. For the purposes of this Article, the term “action” shall be taken to mean any action (active action or failure to act) of a public institution or its employees, which directly affects the rights, liberties or interests of persons ... . 4. The civil liability of the State ... shall arise if employees of public institutions fail to act in accordance with the law.” Article 6.273 of the Civil Code provides that, in cases where the State is liable to cover the damage, it shall be represented by the Government or an institution authorised by the Government.