CASE OF KOSTECKAS v. LITHUANIA
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1979 and lives in Šiauliai. 6. On 17 February 2007, at around 12.30 a.m., the applicant and his friends, J.J., A.D. and D.R., arrived at a petrol station near the town of Skuodas. While they were waiting in line at the petrol station’s shop, another group of men, who were not known to them, arrived at the shop and attempted to skip the queue, leading to an argument between the two groups. After they had all left the shop, some of the men started beating J.J. in the petrol station’s parking lot. When the applicant tried to help his friend, the men punched the applicant in the face and head several times, causing him to fall to the ground, where they kicked him in the head. According to the applicant, the assault lasted a couple of minutes and he was hit about ten times. 7. On the day of the incident the Skuodas police (hereinafter “the police”) opened a pre-trial investigation, interviewed the applicant and granted him victim status. On unspecified dates J.J., A.D. and D.R. were also granted victim status. 8. On 19 February 2007 the applicant was examined by a court medical expert. The expert found contusions on the applicant’s face and head, and determined that they could have been caused by at least four blows with a hard, blunt object. The expert concluded that the injuries corresponded to negligible health impairment (nežymus sveikatos sutrikdymas) and that they could have occurred at the time and in the circumstances described by the applicant (see paragraph 6 above). 9. On 13 March 2007 the police identified two suspects, E.G. and R.B., and notified them that they were suspected of disturbing the public order, contrary to Article 284 § 1 of the Criminal Code (see paragraph 25 below). On 13 June 2007 a third suspect, S.G., was identified and notified of the same suspicion. 10. On 20 March 2007 the applicant joined the proceedings as a civil party. He claimed 10,000 Lithuanian litai (LTL – approximately 2,896 euros (EUR)) in pecuniary and non-pecuniary damages jointly from all the suspects. 11. On 7 June 2007 a court medical expert again examined the applicant and his medical file. The expert found that a few days after the incident the applicant’s doctor had detected a fracture in the applicant’s nose, without any displacement of the bone (nosies kaulo lūžiai be dislokacijos), and that the applicant had been granted sick leave from work for four days. The expert concluded that the injury corresponded to negligible health impairment. 12. On 28 December 2007 E.G., R.B. and S.G. were notified that they were also suspected of causing negligible health impairment or physical pain to other persons by violent acts, contrary to Article 140 § 1 of the Criminal Code (see paragraph 25 below). 13. In the course of the pre-trial investigation, the police interviewed twelve witnesses, examined the victims’ clothes and other items, obtained a video recording of the incident from the petrol station, and carried out various other investigative measures. On 16 July 2007 the suspects and the victims were informed that the pre-trial investigation had been completed. 14. On 10 January 2008 the Skuodas District Prosecutor (hereinafter “the prosecutor”) issued an indictment against E.G., R.B. and S.G., charging them with the crimes set out in Articles 140 § 1 and 284 § 1 of the Criminal Code. 15. On 12 August 2008 at the applicant’s request the Skuodas District Court ordered an additional medical examination of his injuries in order to determine whether there had been any further deterioration of his health. On 18 December 2008 the applicant was examined by a court medical expert. The expert found that although a few months previously the applicant had been diagnosed with inflammation of the auditory nerves, that condition was not related to the injuries sustained during the incident of 17 February 2007. 16. On 17 December 2009 the Skuodas District Court convicted E.G., R.B. and S.G. of the crimes set out in Articles 140 § 1 and 284 § 1 of the Criminal Code. The court considered that the charges had been proven by victim and witness testimony, the confessions of the accused, and the video recording from the petrol station’s camera. E.G., R.B. and S.G. were given suspended prison sentences ranging from twelve to eighteen months. The applicant’s civil claim was granted in part and he was awarded LTL 6,000 (approximately EUR 1,738) in non-pecuniary damages. 17. The convicted persons and the victims, including the applicant, appealed against the district court’s judgment. On 25 February 2010 the Klaipėda Regional Court quashed the judgment because of grave breaches (esminiai pažeidimai) of the Code of Criminal Procedure (see paragraphs 2829 below). The Klaipėda Regional Court held that the district court had not based its judgment on circumstances examined at the hearing but solely on the description of the charges in the indictment. It also held that the district court had not assessed all the testimony and other evidence in detail and had not explained why some evidence had been considered reliable and some not. The Klaipėda Regional Court concluded that such breaches had affected the district court’s impartiality. As a result, the case was remitted to the Skuodas District Court for re-examination. 18. On an unspecified date the prosecutor amended the indictment and charged E.G., R.B. and S.G. only with disturbing public order, contrary to Article 284 § 1 of the Criminal Code. 19. On 5 May 2011 a different panel of the Skuodas District Court, after re-examining the case, convicted E.G., R.B. and S.G. of the charges against them and gave them suspended prison sentences ranging from twelve to eighteen months. The applicant’s civil claim was granted in part – he was awarded LTL 124.45 (approximately EUR 36) in pecuniary damages consisting of travel expenses to attend court hearings, LTL 5,000 (approximately EUR 1,448) in non-pecuniary damages and LTL 5,000 in legal costs. The court also held that the applicant had the right to claim further pecuniary damages from the convicted persons in separate civil proceedings. 20. The convicted persons and one of the victims, J.J., appealed against the district court’s judgment. On 5 August 2011 the Klaipėda Regional Court quashed the judgment because of grave breaches of the Code of Criminal Procedure (see paragraphs 27 and 29 below). It found that the district court had not made any findings in respect of one of the victims, D.R., and had thereby breached D.R.’s rights and those of the accused. The Klaipėda Regional Court also held that the district court had not examined whether two of the accused, R.B. and S.G., had disturbed public order, as submitted in the amended indictment. Rather, the district court had examined whether R.B. and S.G. had assaulted the victims, thereby de facto changing the charges against them and violating their right to defend themselves. The Klaipėda Regional Court concluded that such breaches had affected the district court’s objective impartiality, and the case was again remitted to the Skuodas District Court for re-examination. 21. On 26 March 2012 a different panel of the Skuodas District Court held that the five-year statute of limitations (see paragraph 26 below) had expired and discontinued the case as time-barred, leaving the victims’ civil claims unexamined. The victims, including the applicant, appealed against that decision, arguing that the court had erred by applying the statute of limitations because the legal classification of the charges had been incorrect. However, on 28 June 2012 the Klaipėda Regional Court dismissed their appeal, finding that the legal classification of charges was the prerogative of the prosecutor and that the Code of Criminal Procedure did not provide for any possibility to continue criminal proceedings after the expiry of the statute of limitations. 22. After the discontinuation of the criminal proceedings, the applicant submitted a civil claim against E.G., R.B. and S.G. He claimed LTL 12,170 (approximately EUR 3,525) in pecuniary damages, consisting of the salary which he had allegedly lost while attending court hearings in the criminal proceedings, travel expenses to attend those hearings, and legal costs sustained in the criminal proceedings. He also claimed LTL 300,000 (approximately EUR 86,886) in non-pecuniary damages. 23. On 20 February 2013 the Skuodas District Court granted the applicant’s civil claim in part. It examined the evidence which had been collected in the criminal proceedings and on that basis concluded that E.G., R.B. and S.G. had caused damage to the applicant by their deliberate actions. However, the court considered that the applicant had not proven the pecuniary damage claimed and awarded him LTL 124.45 (approximately EUR 36) under that head on the basis of petrol receipts he had submitted. The court further observed that the applicant’s nose had been broken and that he must have suffered a certain amount of inconvenience owing to the need to attend numerous court hearings; however, the injury had not caused him any long-term physical or psychological damage. On those grounds, the court awarded the applicant LTL 7,000 (approximately EUR 2,027) in nonpecuniary damages. 24. The applicant appealed against that judgment, and on 4 July 2013 the Klaipėda Regional Court partly upheld his appeal. It found that the district court had erred in refusing to award the applicant pecuniary damages related to the legal costs which he had incurred in the criminal proceedings, and granted him LTL 5,000 (approximately EUR 1,448) under that head, thereby increasing the total amount of pecuniary damages to LTL 5,124.45 (approximately EUR 1,484). The amount of non-pecuniary damages was left unchanged.