LEŠČIUKAITIS v. LITHUANIA
Inadmissible
Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
1. The applicant, Mr Tomas Leščiukaitis, is a Lithuanian national who was born in 1976 and lives in Garliava. He was represented before the Court by Mr V. Sirvydis, a lawyer practising in Kaunas. 2. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 1997 the applicant was appointed a junior inspector in the police. He was responsible for the investigation of economic crimes. 5. On 26 March 2003 a criminal investigation was started against the applicant. He was suspected of forging documents and appropriating value added tax. The applicant was arrested on the same day and placed under arrest for a month by the decision of the Vilnius City 1st District Court of 27 March 2003. 6. On 2 April 2003 the applicant was suspended from performing his official duties. 7. On 22 March 2006 the Kaunas Regional Court found the applicant guilty of fraud and abuse of office. The court stated that the applicant and several other people had established a fictitious company, forged documents and acquired property of high value. The court also noted that the applicant had been employed at the police division which investigated economic crimes, however, he had abused his position and had wilfully appropriated value added tax. The applicant was sentenced to four years and six months’ imprisonment. 8. The applicant appealed, complaining that the court of first instance had made mistakes in applying the provisions of the domestic law, and that there had been no information that he had in fact received half of the value added tax appropriated by the perpetrators as alleged. 9. On 28 March 2008 the Court of Appeal dismissed the applicant’s appeal, finding contradictions in his statements. The applicant had denied his guilt but at the same time he had acknowledged that he had known that other people had been engaged in illegal activities and had still acted as an intermediary. 10. On 1 April 2008 the applicant was dismissed from the police after the judgment of the Court of Appeal became enforceable (see paragraphs 29 and 30 below). 11. The applicant lodged an appeal on points of law against the Court of Appeal’s judgment of 28 March 2008 (see paragraph 9 above), and on 21 October 2008 the Supreme Court returned the case to the Court of Appeal for fresh examination. The Supreme Court held that the reasoning of the Court of Appeal had been insufficient in relation to the application of the provisions of the Criminal Code and the assessment of evidence. 12. On 23 September 2010 the Court of Appeal found that only one witness could confirm that the applicant had received half of the value added tax appropriated by the perpetrators, but that that witness had only presented his evidence as his own view and not as a fact (ne kaip faktą). The witness had also testified that there had been no discussion with the applicant about seizing the value added tax. The Court of Appeal therefore held that it had not been proved that the applicant had gained any personal benefit. On the other hand, the court stated that the applicant, as a police officer, had undoubtedly understood the illegality of his actions, despite arguing otherwise. He had also acted as an intermediary for two other people in an illegal exchange of money and documents. However, the Court of Appeal held that the applicant’s alleged crime fell under a different provision of the Criminal Code than the one he had originally been accused under, and that the court could not assess the applicant’s crime under that specific provision without overstepping the limits of the appeal. As for abuse of office, the court held that the applicant’s participation in the crime had not been proved and that he had communicated with the other people in a personal capacity rather than an official one. The applicant was therefore acquitted of that crime. 13. In October 2010 the applicant asked the police to annul their dismissal decision of 1 April 2008 (see paragraph 10 above) and to reinstate him to his former position. The police refused and stated that the Court of Appeal had not expressed itself in any way regarding his reinstatement to his former position or about his dismissal being illegal. 14. The applicant started court proceedings before the Kaunas Regional Administrative Court to be reinstated to his former position and have his salary paid from 2 April 2003, when he had been suspended (see paragraph 6 above), until the execution of the court’s judgment, i. e. until his reinstatement to his former position. The applicant also asked for a renewal of the time-limit for submitting his complaint because the timelimit to complain about being dismissed from work was one month under domestic law (see paragraph 24 below). The applicant had been dismissed on 1 April 2008 (see paragraph 10 above), however, the grounds to annul that decision had only arisen after the court proceedings had ended on 23 September 2010 and he had been acquitted (see paragraph 12 above). 15. On 3 February 2011 the Kaunas Regional Administrative Court decided that the applicant had become aware of the grounds to contest the dismissal order on 23 September 2010 at the latest. He had submitted the complaint to the Kaunas Regional Administrative Court on 22 October 2010 and had therefore not missed the prescribed time-limit. The court also annulled his dismissal from the police (see paragraph 10 above), and ordered that he be reinstated to his former position and paid his average salary for the period from 2 April 2003 to the date of the judgment on 3 February 2011. The total of the average salary for the period was 122,164 Lithuanian litai (LTL, approximately 35,381 euros (EUR)). 16. The police and the applicant both appealed, the latter asking to be awarded approximately LTL 407,600 (about EUR 118,050) for the period of his suspension and dismissal, up to the Kaunas Regional Administrative Court’s decision of 3 February 2011. He also asked to be awarded the payment of an average salary from 3 February 2011 until his reinstatement to his former position, as well as late-payment fees and payment for unused holidays. 17. On 7 June 2011 the Supreme Administrative Court dismissed the applicant’s appeal. The court noted that the applicant had complained about the dismissal order of 1 April 2008 but found that although he had submitted his first complaint on 22 October 2010, he had also submitted two clarifying complaints on 13 December 2010 and 18 January 2011. The Supreme Administrative Court thus held that the date of submission was 18 January 2011, as that was when the applicant had finally formulated his complaints. The Supreme Administrative Court held that the dismissal order had been an extremely important social issue for the applicant (pareiškėjui ypatingą socialinę reikšmę turintis klausimas), that he should have started court proceedings within a month of that order, and that therefore he had missed the time-limit to lodge a complaint. The court also observed that the Kaunas Regional Administrative Court had put too much weight (neteisingai sureikšmino) on the applicant’s acquittal. The court also considered that despite the fact that the applicant had missed the time-limit for submitting his complaint, it had to express itself on the merits of the applicant’s complaint about his dismissal and found that it had never been contested by the parties that at the time of the order to dismiss him there had been factual and legal grounds for such a decision because of the Kaunas Regional Court’s judgment of 22 March 2006 (see paragraph 7 above). Lastly, the court held that monetary claims under Article 6.272 § 1 of the Civil Code (see paragraph 27 below) had to be submitted to civil courts rather than administrative courts and it therefore rejected that claim too. 18. Shortly before the applicant applied to the Court on 25 October 2011 he started civil proceedings for damages for his unlawful conviction before the Kaunas Regional Court. The applicant asked to be awarded LTL 244,436 (approximately EUR 70,794) in respect of pecuniary damage and LTL 100,000 (approximately EUR 28,962) in respect of non-pecuniary damage. The applicant stated that he had never been reinstated to his former position after his acquittal, had lost his main source of income, and had experienced emotional problems, not only because of his unlawful conviction but also because of the lengthy criminal proceedings against him. 19. On 11 April 2012 the Kaunas Regional Court satisfied the applicant’s claim in part. The court held that in order for the State’s civil liability to arise, three conditions had to be met: an unlawful act, damage and a causal link between the two. The court held that the acquittal decision had not automatically meant that all acts related to the criminal prosecution had been unlawful. The court referred to the material of the criminal case and stated that the criminal proceedings had been started against the applicant because there had been enough evidence to suspect that he had committed a criminal offence. That circumstance was confirmed by the acquittal decision, which had stated that the applicant had undoubtedly understood the illegality of his acts (see paragraph 12 above). However, the court held that while the dismissal order had been lawful at the time it had been issued, the grounds for it had disappeared after the applicant’s acquittal. The court dismissed his claim in respect of pecuniary damage, observing that although his unlawful conviction had directly influenced his dismissal, the conviction itself had been influenced by the applicant’s illegal acts. The court further held that the applicant’s unlawful conviction had caused him mental suffering and emotional distress and decided to award him LTL 10,000 (approximately EUR 2,896) for non-pecuniary damage. The court also noted that the applicant had been arrested on 26 March 2003 (see paragraph 5 above) and acquitted on 23 September 2010 (see paragraph 12 above) and that therefore the criminal proceedings against him had lasted for seven years and six months. They had been unjustifiably long and so the court awarded him a further LTL 10,000 (approximately EUR 2,896) for nonpecuniary damage. 20. The applicant appealed, complaining that he had not been awarded anything in respect of pecuniary damage and asking the court to increase the amount in respect of non-pecuniary damage. 21. On 4 November 2013 the Court of Appeal upheld the applicant’s appeal in part. It held that the acquittal had not necessarily meant that the acts of the law enforcement institutions (teisėsaugos institucijų veiksmai) had been unlawful. The court further observed that the applicant had carried out certain acts that were unlawful under “civil law”, which meant that he could not have expected the same protection when deciding on damages as a person who had not carried out such illegal acts. The court considered that the amount of compensation could be reduced in such cases and awarded him LTL 15,000 (approximately EUR 4,344) in respect of pecuniary damage, counting it as unpaid salary from the date of the decision by which he had been convicted until the date of the decision he had been acquitted. The court also held that the criminal proceedings had been lengthy, but that around twenty hearings had been postponed for reasons related to the applicant and some of the other accused. It therefore decided to award the applicant LTL 4,000 (approximately EUR 1,158) in respect of nonpecuniary damage in that part. Lastly, the court found that the applicant’s conviction had lasted for six months but that he had not started serving a sentence and so it decided to reduce the amount awarded for nonpecuniary damage to LTL 3,000 (approximately EUR 869). 22. The applicant was paid his compensation award – totalling LTL 22,000 (approximately EUR 6,371) – on 24 March 2014. 23. At the material time, Article 53 § 1 (8) of the Statute on Interior Ministry Service (Vidaus tarnybos statutas) provided that an officer could be dismissed if he had been convicted of an intentional crime or criminal act by a final court judgment. 24. Article 33 § 1 of the Law on Administrative Proceedings (Administracinių bylų teisenos įstatymas) provided at the time that a complaint had to be brought before an administrative court within a month of the disputed act being carried out or served on an interested party. 25. Article 34 § 1 of the Law on Administrative Proceedings provided that if there was a good reason for not complying with the time-limit to lodge a complaint then an applicant could seek an order from an administrative court to renew the time-limit. 26. Article 6.253 § 5 of the Civil Code provided at the time of the events that the acts of a victim could be grounds to reduce or remove civil liability. Such acts were those that were the fault of the victim and which led to that person suffering greater damage. They could be a victim’s consent to damage or risk. Such consent could only be grounds for exemption from civil liability if it was not contrary to mandatory legal rules, public order, good morals, and the criteria of good faith, reasonableness and justice. 27. At the material time, Article 6.272 § 1 of the Civil Code allowed a civil claim to be brought in respect of pecuniary and non-pecuniary damage caused by the unlawful acts of the investigating authorities or the courts. The Article in question made provision for compensation for unlawful conviction, unlawful arrest or detention or for the application of unlawful procedural measures in enforcement proceedings. The relevant part of the provision read as follows: “1. Damage resulting either from unlawful conviction, unlawful arrest on remand, unlawful detention, the application of unlawful procedural measures in enforcement proceedings, or the unlawful imposition of an administrative penalty (arrest) shall give rise to full compensation by the State, irrespective of any fault by preliminary investigation officials, prosecution officials or courts...” 28. Article 6.282 § 1 of the Civil Code provided at the time that if a victim’s gross negligence had contributed to causing or increasing any damage, depending on the degree of the person’s fault, the amount of compensation could be reduced or the compensation dismissed unless the law provided otherwise. 29. Article 336 § 3 of the Code of Criminal Procedure provided that an appellate court judgment became enforceable from the date of issue. 30. Article 366 § 1 of the Code of Criminal Procedure provided that the Supreme Court had the power to examine appeals on points of law against judgments delivered by courts of first instance and appellate courts that had become final. 31. The Supreme Administrative Court has held that interpreting Article 53 § 1 (8) of the Statute on Interior Ministry Service (see paragraph 23 above) as precluding the reinstatement of an officer to his or her former position or an equivalent position after his or her acquittal would contradict the principles of justice, reasonableness and ex iniuria ius non oritur (decision of 5 November 2012, no. A662-2459/2012).