CASE OF DAKTARAS v. LITHUANIA
Violation of Art. 6-1;No violation of Art. 6-2;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
Nicolas Bratza
9. On 18 February 1996 a prosecutor at the Organised Crime Division of the Office of the Prosecutor General instituted criminal proceedings against the applicant. He was suspected of being an accomplice to the offence of demanding and obtaining a ransom of 7,000 United States dollars for returning the stolen car of a certain J.M. 10. On 1 April 1996 the applicant was charged on four counts, including blackmail (turto prievartavimas) and inciting the victim (poveikis nukentėjusiajam) to make false statements. 11. The pre-trial investigation in the case was conducted by prosecutors at the Organised Crime Division of the Office of the Prosecutor General. It was concluded on 26 September 1996. From that date until 1 October 1996 the applicant and his counsel were given access to the case file. 12. After having access to the case file, the applicant and his counsel requested the prosecution to discontinue the case, arguing that the charges against the applicant were ill-founded and that the case file “contained no evidence [of his] guilt”. 13. On 1 October 1996 a prosecutor of the Organised Crime Division dismissed the applicant's requests. In his decision the prosecutor stated, inter alia: “After having access to the case file, [the applicant] ... submitted [requests] to discontinue the criminal case on the ground that he had not committed the offences alleged ... and that his guilt ... had not been proved [kaltė ... neįrodyta]. [These] allegations must be dismissed as ill-founded because it has been established [kaltė ... įrodyta] from the evidence collected in the course of the pre-trial investigation that the applicant is guilty of [these] crimes. Although Henrikas Daktaras has not admitted having committed the alleged offences, his guilt has been proved by the witnesses' evidence, ... video and audio records ... and other material collected in the course of the pre-trial investigation. The fact that H. Daktaras concealed an offence ... is proved by the evidence [given by witnesses S.Č., V.V. and A.L.] ... The fact that H. Daktaras threatened [the victim J.M.] by force to obtain property ... is proved by the evidence [given by S.Č. and the material evidence] ... The fact that H. Daktaras conspired with persons who had committed the theft [of the car] ... is proved by [his own statements] ... The fact that H. Daktaras ... intimidated the victim is fully proved by the evidence [given by J.M., S.Č. and material evidence] ... [The above evidence] is assessed by the prosecution as an incitement to make [J.M.] give false statements ... Against the above background, in accordance with Article 229 of the Code of Criminal Procedure, it is decided 1. to dismiss [the applicant's] requests entirely, and 2. to inform the persons concerned about the decision.” 14. On 2 October 1996 the Chief Prosecutor at the Organised Crime Division confirmed the bill of indictment and sent the case to the Supreme Court. 15. On the same date the President of the Criminal Division of the Supreme Court transmitted the case to the Vilnius Regional Court. 16. On 18 November 1996 a judge of the Vilnius Regional Court committed the applicant for trial. 17. On 13 February 1997 the judge found the applicant guilty of blackmail and inciting the victim to make false statements. He was convicted as the principal offender on the blackmail charge. He was acquitted on two other counts. The applicant was sentenced to seven years and six months' imprisonment. He was also fined 15,000 litai and his property was confiscated. 18. The applicant appealed, relying on various errors of domestic substantive and procedural law. He pleaded, inter alia, that he had been presumed guilty and that he had been deprived of a fair trial by an independent and impartial court. 19. On 27 May 1997 the Court of Appeal held a full appeal hearing. It amended the judgment of 13 February 1997 in so far as it concerned the applicant's conviction for blackmail, ruling that the applicant was a secondary party, not the principal offender. The sentence remained unchanged. 20. The applicant lodged an appeal with the Supreme Court, pleading that both lower courts had erred in fact and law and that he had not committed the alleged offences. 21. On 3 July 1997 the judge of the Vilnius Regional Court who had delivered the first-instance judgment wrote a letter to the President of the Criminal Division of the Supreme Court in which he contested the conclusions reached by the Court of Appeal as to the level of the applicant's participation in the blackmail offence. In that letter the judge maintained that the applicant ought to have been convicted as the principal offender. The judge requested the President to lodge a petition (kasacinis teikimas) to quash the Court of Appeal's judgment. 22. On 27 August 1997 the President of the Criminal Division of the Supreme Court lodged a petition with the Criminal Division of the Supreme Court to quash the Court of Appeal's judgment. In the petition the President stated, inter alia: “The judgment of the Court of Appeal should be quashed ... [The appellate court] ... wrongly interpreted and applied the law ... On the basis of the material ... it established that H. Daktaras ... executed the will of the group of persons ... and was the principal offender on the blackmail charge ... In accordance with Article 417 of the Code of Criminal Procedure, I petition to quash the judgment of the Court of Appeal of 27 May 1997 ... and to uphold the judgment of the Vilnius Regional Court of 13 February 1997.” 23. On 8 September 1997 the same President of the Criminal Division of the Supreme Court appointed a judge rapporteur in the case. On 23 September 1997 the President also appointed a Chamber of three judges of the Criminal Division of the Supreme Court to examine the case. 24. A hearing was held on 2 December 1997 during which the Chief Prosecutor of the Organised Crime Division requested the Chamber to uphold the petition on behalf of the prosecution, which had not lodged an appeal itself in the case. The applicant requested the Supreme Court to uphold his appeal and reject the petition. 25. On the above date the Supreme Court quashed the judgment of the Court of Appeal and upheld the judgment of the Vilnius Regional Court, rejecting the applicant's appeal and upholding the petition. The Supreme Court found that the applicant had been the principal offender on the blackmail charge. 26. Relevant provisions are as follows: “In administering justice in criminal matters judges are independent and beholden only to the law. Judges decide criminal cases in accordance with the law and their conscience in conditions which make it impossible for them to be affected by outside matters. Any interference with the judges' or courts' actions in administering justice is prohibited and gives rise to liability under the law.” No evidence shall have a prejudicial influence on a court ...” Under the terms of Article 31 a judge in respect of whom there are lawful grounds to fear a lack of impartiality must withdraw. On the same ground the judge can be challenged by the defendant and other parties to the case. Under section 13 of the Courts Act and Article 2 of the Statute of the Supreme Court, the Supreme Court is composed of the President, Presidents of the Civil and Criminal Divisions and other judges. Under sections 24 and 35 of the Courts Act and Articles 16 to 18 of the Statute of the Supreme Court, judges of the Supreme Court are professional and permanent judges appointed by Parliament. According to section 39 of the Courts Act, presidents of divisions are officers having power over the “organisational sphere” of the courts' work. Under the third paragraph of section 39, presidents of divisions may also sit as judges; in such cases they perform the same judicial functions as ordinary judges. Article 12 of the Statute of the Supreme Court provides that the President of the Criminal Division, “(1) in examining cases, has the same rights and obligations as other judges. [He] may submit petitions to quash or amend a lower court's judgment ...; (2) constitutes chambers of judges and appoints their presidents, ... distributes cases among judges ... [and] supervises their examination; (3) submits proposals to the President of the Court on premiums and bonuses for judges and other officials; (4) heads the Registry; (5) organises the case-law research work ...; (6) confirms the statistical survey of activities ...; (7) executes other functions under the law and the organisational directives of the President of the Supreme Court.” Article 14 of the Statute provides that the President of the Criminal Division is responsible for the organisation of appeal hearings. The fourth paragraph of section 39 of the Courts Act effectively prohibits presidents of courts or presidents of divisions from exerting any influence over or otherwise breaching the independence of other judges in their administration of justice. Under Article 417 § 4 of the CCP the President of the Supreme Court, the President of the Court of Appeal, presidents of regional courts, and presidents of the criminal divisions of the above courts may submit a petition to quash or amend a particular lower court's judgment. According to Article 417 § 5 the court hearing the petition shall follow the same procedure as on a normal appeal lodged by the parties to the proceedings. Article 418 § 2 lays down the requirements for lodging an appeal or petition: it should refer to the specific court hearing the appeal, the case and decision at issue, the substance of the decision and the grounds for quashing the lower court's judgment. Article 31 § 1 of the Constitution provides: “A person shall be considered innocent until proved guilty in accordance with law by a final judgment of the court.” Article 11 § 2 of the CCP provides: “No one shall be declared guilty of having committed an offence or punished by a criminal penalty save by a court judgment in accordance with law.” Article 118 of the Constitution provides that prosecutors conduct, inter alia, criminal prosecutions and supervise those responsible for the pre-trial investigation. Under Articles 45 and 46 of the CCP the prosecutor's role is to ensure that the criminal case is instituted lawfully and that the domestic law is complied with during the pre-trial investigation, to press charges at trial, to appeal against any procedural act and to supervise the execution of judgments. In a decision of 5 February 1999 the Constitutional Court gave, inter alia, the following description of the general role of a prosecutor in the Lithuanian criminal process: “The Constitution treats prosecutors as part of the judiciary having specific functions. A prosecutor is an officer who supervises the pre-trial investigation ... The prosecutor can take part in the criminal case right from the outset. ... In accordance with the procedure provided for by law, he commences the criminal prosecution and pursues it by investigating the crime. One of his functions is to supervise the authorities conducting the pre-trial investigation. ... The prosecutor can himself conduct the investigation of any offence. ... The prosecutor is therefore responsible for the pre-trial stage of the criminal proceedings. ... The law does not provide the court ... [but] the prosecutor with the procedural means to supervise the pre-trial investigation.” Under Articles 3, 125 to 128 and 130 of the CCP, an investigator, prosecutor and court are all entitled to institute or discontinue a criminal case and to collect evidence in the case (Articles 18 and 74-76). These functions are exercised according to the stage of the proceedings. The pre-trial investigation can be conducted by prosecutors working under the authority of the Office of the Prosecutor General, or investigators working for the Ministry of the Interior (Article 142). Pursuant to Articles 24 and 133 of the CCP the prosecutors ensure that domestic law is complied with by the investigators at the stage of the pre-trial investigation. They are responsible for rectifying any breaches of the law. In doing so, the prosecutors “function independently from other authorities and are beholden only to the law” (Article 24 §§ 2 and 3). Under Article 24 § 4 the prosecutors' decisions are “binding on all authorities and persons”. Where the pre-trial investigation is conducted by the prosecution, an accused may, while having access to the case file (Articles 225-29 of the CCP), request the prosecutor to “supplement the investigation”. The prosecutor must give a reasoned decision if he dismisses this request (Article 229 § 2). After such a decision, the bill of indictment may be prepared (Article 230). A complaint by the accused about an act of the prosecutor at the stage of the pre-trial investigation shall be submitted to and determined by a higher prosecutor (Articles 242-44 of the CCP). After the bill of indictment is confirmed, the case must be transmitted to a court (Article 241 of the CCP). From that stage on “any requests or complaints about the case shall be submitted directly to the court” (Article 241 § 2).