CASE OF BALČIŪNAS v. LITHUANIA
Violation of Art. 5-3;No violation of Art. 6-1;No violation of Art. 6-3-d
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;John Hedigan;Josep Casadevall
7. The applicant was born in 1977 and lives in Šiauliai. The facts of the case, as submitted by the parties, may be summarised as follows. 8. On 9 November 1998 the applicant was arrested on suspicion of armed robbery. While remanded in custody the applicant was held in Šiauliai Remand Prison, Šiauliai Police Detention Facility and other remand establishments. 9. On 11 November 1998 the Šiauliai City District Court authorised the applicant's remand in custody until 19 November 1998. In ordering the detention, the court referred to the nature and gravity of the charges against the applicant, and stated that “it was likely that the applicant could attempt to abscond from investigators and the trial as well as obstruct the establishment of the truth in the case”. The applicant and his defence counsel were present at the hearing. 10. On 18 November 1998 the Šiauliai City District Court extended the term of the applicant's detention until 18 January 1999 due to the fear “that he would abscond”. The applicant's lawyer was present at the hearing. 11. On 24 December 1998 the applicant appealed against that ruling. 12. Having received the appeal on 4 January 1999, on 7 January 1999 the Šiauliai Regional Court dismissed it, arguing that the applicant “had been charged with a serious crime and if released would obstruct the investigation and the establishment of the truth”. The applicant's counsel was present at the hearing. 13. On 15 January 1999 the Šiauliai City District Court extended the term of the applicant's detention until 18 March 1999. Having briefly summed up the charges against the applicant the court stated that “the applicant had been charged with a serious crime, therefore there was a reason to believe that if at liberty he could attempt to hide from investigators and the court, obstruct the establishment of the truth and commit fresh crimes”. The applicant and his lawyer were present at the hearing. 14. On 18 February 1999 the applicant appealed against the order to extend his detention. On 26 February the appeal was received by the Šiauliai Regional Court, which on 2 March 1999 dismissed the applicant's appeal, his defence counsel being present. The court again stated that “the applicant had been charged with a serious crime, therefore there was a reason to believe that if at liberty he could attempt to hide from investigators and the court and would obstruct the investigation”. 15. On 17 March 1999 the Šiauliai City District Court extended the term of the applicant's detention until 9 May 1999. Listing the charges against the applicant the court stated that “the applicant had been charged with a serious crime, therefore there was a reason to believe that if at liberty he would try to abscond from the investigators, commit fresh crimes and influence witnesses”. The applicant and his lawyer were present. 16. On 7 May 1999 the Šiauliai Regional Court extended the term of the applicant's detention until 9 July 1999 on the ground that “he had been charged with a serious crime, therefore there was a reason to believe that if at liberty he would commit fresh crimes and obstruct the establishment of the truth”. The applicant and his defence counsel were present at the hearing. The applicant appealed, stating, inter alia, that he had to undergo surgery. 17. The applicant's appeal was dismissed by the Court of Appeal on 25 May 1999, with his defence counsel present. The court stated that “the applicant had been charged with serious crimes, he had not confessed and his guilt was based on statements by numerous witnesses, therefore there was a reason to believe that if at liberty he would try to influence witnesses and would obstruct the establishment of the truth in this case”. 18. On 8 July 1999 the Šiauliai Regional Court extended the term of the applicant's remand in custody until 30 September 1999. The court again listed the charges against the applicant and stated that “the applicant had been charged with a serious crime. There is a reason to believe that if at liberty he would obstruct the establishment of the truth in the case and would commit fresh crimes”. The applicant and his lawyer were present at the hearing. 19. The applicant appealed, arguing that the investigation had been delayed and that the authorities had not exercised due diligence in investigating the case. The applicant also submitted that he had no criminal record and had a permanent place of residence. There was no evidence that he would try to abscond from the investigation or commit fresh crimes. 20. On 29 July 1999 the applicant's appeal against the order of 8 July 1999 was dismissed by the Court of Appeal, with the applicant's defence counsel being present. For the court, the reasons for extending the applicant's detention were that “the evidence in the case allowed the conclusion that the applicant had committed the crimes he had been charged with. Given that the applicant denied his guilt, the lower court had correctly concluded that if released the applicant would obstruct the establishment of the truth in the case that is to say he could influence witnesses, either himself or through others. He might also abscond from the investigation or commit fresh crimes”. 21. On 29 September 1999 the Šiauliai Regional Court extended the term of the applicant's detention until 1 December 1999. Stating the charges against the applicant in three sentences, the court noted that “the applicant was accused of two crimes, one of which was serious. The data in the case file allowed the presumption that the applicant had committed those crimes. Given that the applicant denied his guilt, it was reasonable to believe that, if at liberty, he could obstruct the establishment of the truth in the case and influence witnesses and co-accused, either himself or though third parties. He might also hide from investigators or commit other crimes”. The applicant and his defence counsel were present at the hearing. 22. The applicant appealed, reiterating that he had a permanent place of residence and that there were no grounds to believe that he might abscond or obstruct the course of justice. The charges had already been presented to him. Moreover, notwithstanding the requirements of Article 104 of the Code of Criminal Procedure to demonstrate the need to keep a person in detention, the prosecutor had presented no such evidence to the court. As regards the applicant, the fact that he had not confessed to the crimes he had been charged with was not a reason to assume that he would commit fresh crimes or attempt to obstruct the establishment of the truth in his case. Lastly, he mentioned that he had no prior convictions and had a permanent place of residence, his parents' flat. 23. On 18 October 1999 the Court of Appeal dismissed the applicant's appeal, endorsing the reasons given by the lower court. The applicant's lawyer was present at the hearing. 24. The Šiauliai Regional Court further extended the term of the applicant's detention by the following orders: - order of 29 November 1999: until 30 January 2000; - order of 28 January 2000: until 30 March 2000; - order of 30 March 2000: until 9 May 2000. For that court, the reasons to keep the applicant in detention were that the applicant, if released, would “attempt to obstruct the establishment of the truth in his case”, “influence witnesses”, “hide from investigators” and “commit fresh crimes”. 25. The applicant and his defence counsel were present at all the hearings at which his detention was extended. 26. On 28 August 2002 the prosecution approved the bill of indictment concerning the charges of armed robbery against the applicant and four other co-accused. The case was sent to court. 27. On an unknown date the Panevėžys District Court requested the Šiauliai Regional Prosecutor's Office to ensure that D.R. and M.S., two of the applicant's accomplices who had testified against him and had been released from criminal liability by the prosecutors, were brought before the court for questioning. On 11 April and 16 June 2003 the State Border Guard Service and the Šiauliai Police Commissariat informed the prosecutors that, according to the information they had gathered, D.R. and M.S. had left Lithuania and their place of residence was unknown. 28. On 3 November 2003 the Panevėžys District Court convicted the applicant of complicity in armed robbery (Articles 24 § 6 and 180 § 3 of the Criminal Code). The court based its conclusion, inter alia, on the evidence given by D.R. and M.S., whose statements as recorded during the pre-trial investigation were read out. The applicant was sentenced to two years' imprisonment, towards which the court counted the period from 9 November 1998 to 9 May 2000, when the applicant had been in pre-trial detention. 29. The applicant appealed, complaining that the proceedings were unreasonably long. He also alleged that the trial court should not have admitted the submissions of D.R. and M.S. in evidence, as he had not been afforded an opportunity to challenge these witnesses in open court. The applicant alleged a violation of Article 6 of the Convention. 30. Invoking Article 5 § 3 of the Convention the applicant also submitted that he had already been in pre-trial detention four years and ten months (from 9 November 1998) and argued that the detention had been extended on numerous occasions without lawful grounds. The prosecutors had joined his case to other cases and disjoined it later. During all that time he was detained, the courts would dismiss his appeals to impose another, milder remand measure. Given that on 4 September 2003 the Court of Appeal had acquitted him [in the second set of criminal proceedings] and he had been released from pre-trial detention only on that day, in its judgment of 3 November 2003 the Panevėžys District Court had wrongly assessed the time which needed to be counted towards the punishment. 31. By a ruling of 26 February 2004 the Court of Appeal ordered the Šiauliai Police Commissariat to bring D.R. and M.S. to court for questioning. However, the police informed the court that it was not possible to summon D.R. and M.S. as they had left Lithuania. Moreover, the relatives of D.R. and M.S. had moved house, therefore it was not possible to question them in order to establish where the former were living. 32. On 9 March 2004 the Court of Appeal inquired of the State Border Guard Service as to whether M.S. and D.R. had crossed the State border and whether they had returned to Lithuania. On 16 March 2004 the State Border Guard Service informed the Court of Appeal that M.S. and D.R. had left the country. 33. On 31 March 2004 the Court of Appeal upheld the conviction. It noted that the trial court had based its conclusion on various pieces of evidence, namely the submissions of the applicant's co-defendant and a witness, both of whom had been questioned at the trial. In the opinion of the appellate court, D.R. and M.S. had only provided information which was also known from other sources. Having analysed those other sources at length and in depth, alone and against each other, the Court of Appeal concluded that even without the testimony of D.R. and M.S. there was sufficient proof of the applicant's guilt. Lastly, the Court of Appeal concluded that the trial court was impartial towards the applicant, given that it had substituted the charges against the applicant with a lesser charge, by convicting him as a person who had merely assisted in the commission of a crime and not as the organiser. 34. In contrast, the Court of Appeal agreed with the applicant's argument that all the time he had spent in pre-trial detention should be counted towards his sentence: “The chamber notes the not entirely correct nature of the information given in the bill of indictment, to the effect that L. Balčiūnas was arrested on 9 November 1998, remanded in custody on 11 November 1998 and the detention continued only until 9 May 2000; and that afterwards detention was imposed in another criminal case, adjudicated by the Šiauliai Regional Court. From supplementary information the Court of Appeal has received (the 1 May 2000 ruling of the Šiauliai Regional Court) it transpires that in another criminal case, in which L. Balčiūnas was convicted and acquitted (...) [paragraphs 48-50 hereinafter], new pre-trial detention has not been imposed on the applicant; it was the detention of 11 November 1998 which was being continued.” The Court of Appeal upheld the applicant's sentence of two years' imprisonment. However, the applicant was deemed to have completed the sentence in view of the time spent remanded in custody – from 9 November 1998 to 4 September 2003. 35. The applicant lodged a cassation appeal, complaining that his conviction had been based on the submissions of witnesses who had not been questioned by him or the courts. He also alleged that the Court of Appeal had not examined the issue concerning the allegedly excessive length of the proceedings and the lawfulness of his remand in custody. 36. On 12 October 2004 the Supreme Court dismissed the applicant's cassation appeal. The cassation court noted that the evidence leading to the applicant's conviction had been properly handled and assessed by the lower courts. His guilt had been based to a substantial degree on the evidence given by a witness and two of his co-defendants, who had all been examined in open court. The trial court was entitled to refer to the submissions by D.R. and M.S., which had been recorded during the pre-trial investigation. The authorities had taken all the necessary measures to summon D.R. and M.S. to the hearing, but had failed to obtain their attendance in view of the fact that their place of residence was unknown. The Supreme Court acknowledged that the appellate court had not answered the applicant's allegation that the investigation and his pre-trial detention had lasted an unreasonably long time. It noted however that these circumstances did not constitute sufficient grounds to find that the Court of Appeal had failed to respect the relevant procedural requirements. Lastly, the Supreme Court noted that the Court of Appeal had rectified the trial court's mistake and correctly counted the period of pre-trial detention towards the time of the punishment. 37. On an unspecified date, another set of criminal proceedings was instituted against the applicant. In particular, it was suspected that he had been a member of a criminal organisation, and that in January 1998 he had been involved in organising two explosions in public places, causing a number of injuries to others. Five other persons were charged alongside the applicant; the charges related to events which took place in 1996-98. 38. On 19 April 2000, upon approval of the bill of indictment, the case was transmitted to the Šiauliai Regional Court. 39. On 1 May 2000 the Šiauliai Regional Court ordered the applicant's detention to be “continued” until 10 July 2000, referring to the risk that he would abscond, commit new offences and obstruct the investigation. The applicant and his defence counsel were present at the hearing. 40. The applicant appealed. However, on 18 May 2000 the Court of Appeal dismissed his appeal, referring to the gravity of the charges against the applicant. The applicant's counsel was present at the hearing. 41. Subsequently the applicant's detention was extended by court orders of 12 June, 6 September, 9 November and 7 December 2000 and of 2 May, 4 July and 4 October 2001. The applicant's lawyer was present at the hearings. The courts referred to the risk of the applicant reoffending, influencing witnesses and obstructing the investigation. All his appeals were unsuccessful. 42. On 6 February 2002 the Šiauliai Regional Court ordered the Šiauliai Regional Prosecutor's office to summon D.R. and M.S. to the hearing for questioning. 43. By the same ruling the Šiauliai Regional Court extended the term of the applicant's detention until 9 May 2002 on the ground that he might influence witnesses and commit fresh crimes. The applicant's lawyer was present at the hearing. The applicant appealed, requesting a variation of the remand. He submitted, inter alia, that the lengthy stay in custody had negatively affected his health. He also alleged that the pre-trial investigation had been concluded, and that there were no grounds to believe that he might abscond from the trial or influence witnesses. 44. On 27 February 2002 the Court of Appeal dismissed his appeal, endorsing the grounds indicated in the order of 6 February 2002. The court acknowledged that the applicant had been in detention “for a long time already” and observed that after the case was transferred to court, some delays had been caused by “organisational matters of the court”. Nonetheless, in the view of the Court of Appeal, the length of the applicant's detention was justified by the complexity of the case (multiple charges against several co-defendants, numerous victims and witnesses) and a voluminous case file. The case had been adjourned several times at the request of the defence to examine certain additional evidence, or due to the failure by certain witnesses or defence lawyers to appear at the hearing. The circumstances justifying the applicant's detention persisted. The applicant and his defence counsel were present at the hearing. 45. On 9 May 2002 the Šiauliai Regional Court further extended the applicant's detention until 9 August 2002 on the same grounds. The applicant's lawyer was present at the hearing. 46. The applicant appealed, requesting a variation of the remand. He argued, inter alia, that the pre-trial investigation had been terminated, most of the victims and witnesses had been questioned in court, and it remained only for the court to evaluate the evidence and pass a judgment. Thus it was not likely that the applicant would influence witnesses or obstruct the establishment of the truth in the case, given that he had not done so for three and a half years. 47. On 24 May 2002 the Court of Appeal dismissed the applicant's appeal against the order of 9 May 2002. The court acknowledged that the applicant had been detained for a prolonged period. However, in view of the circumstances, such as the complexity and volume of the case and the number of charges against various co-defendants, the court concluded that the applicant's continuing detention was justified. The grounds for the applicant's detention thus continued to persist - it was necessary in order to guarantee that he would appear before the court, as well as to prevent the commission of new offences. 48. On 19 July 2002 the Šiauliai Regional Court convicted the applicant of being a member of a criminal organisation which possessed explosives (Article 227 § 2 of the Criminal Code), illegal possession of explosives (Article 234 § 1), attempts at aggravated murder (Articles 16 § 2, 105 §§ 2, 4, 8, 13), and destruction of property (Article 278 § 2). He was sentenced to fifteen years' imprisonment and fined, and his property was confiscated. 49. On 4 September 2003 the Court of Appeal acquitted the applicant. The court noted that the conviction was based to a decisive extent on the submissions of two witnesses, D.R. and M.S., who had not been examined in open court. The applicant was released in the courtroom. 50. On 2 March 2004 the Supreme Court dismissed an appeal by the prosecution. 51. On an unknown date the applicant lodged a complaint with the Ombudsman, arguing that the conditions of his detention at the Šiauliai Remand Prison were inadequate. In particular, the applicant contended that the facility was overcrowded and that the cell he had been placed in was constantly damp, the mats were wet and a sanitary unit did not work properly. 52. In the report of 1 July 2003 the Ombudsman partly agreed with the applicant's complaints, noting that the Šiauliai Remand Prison suffered from overcrowding (760 persons were held there, the limit being 454) and from a shortage of properly set up sanitary units. In the report the Ombudsman also observed that: “the fact that the applicant was detained for more than four and a half years could demonstrate a significant risk that a violation of his right to a trial within a reasonable time or to release pending trial, that is to say a violation of Article 5 § 3 of the Convention, would be found. It could be said that a lengthy period of detention during judicial proceedings could have a disproportionate impact on his other rights: for example, the restriction on longer visits for those in pre-trial detention, no opportunity to take exercise, and other restrictions”. 53. In the operative part of the report the Ombudsman urged the responsible authorities to resolve the problem of overcrowding and to evaluate the hygiene conditions at the Šiauliai Remand Prison. “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 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 crimes provided in Articles ... 105 [aggravated murder], ... 227 [founding a criminal organisation], ... 278 § 2 [aggravated destruction of property] ... of the Criminal Code ... . Where there is a reasonable risk that the accused will abscond from the investigation and trial, detention on remand may be ordered, taking into account the accused's family status, permanent place of residence, employment relations, health, criminal record, relations abroad and other circumstances. ...”. “... After the case has been transmitted to the court ... [a judge] can order, vary or revoke the detention. ...” “Detention on remand cannot last longer than six months. A specific term of detention shall be fixed by the judge issuing 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 eighteen months ... For the purpose of extending the term of detention at the pre-trial stage ... a judge must convene a hearing to which defence counsel and the prosecutor and to which, if necessary, the detained person shall be summoned ... .” “A person remanded in custody or his defence counsel shall have the right during the pre-trial investigation or trial to lodge [with an appellate court] an appeal against detention or the extension of its term ... . A judge or appellate court must examine the appeal within seven days of 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.” “A judge, individually or a court in a directions hearing, in deciding whether to commit the accused for trial, shall determine ... (11) whether the selection of a remand measure is appropriate.” “After deciding 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 ...” “In the course of the trial, a court may decide to order, vary or revoke a remand measure in respect of the defendant.” 60. According to Article 16 of the Law on Pre-Trial Detention (Kardomojo kalinimo įstatymas), the administration of the relevant remand institution can allow detainees visits of up to two hours with family members.