KAMANTAUSKAS v. LITHUANIA
Inadmissible
Nicolas Bratza
The applicant is a Lithuanian national, born in 1963 and living in Joniškis area. He is represented before the Court by Mr V. Falkauskas, a lawyer practising in Joniškis. A. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was suspected of a number of thefts committed whilst on probational release for previous convictions. Several criminal proceedings were brought against him in 1998, the latest being instituted on 29 September 1998. The applicant was arrested on the morning of that day. On the same date the prosecutor requested the Joniškis District Court to order the applicant’s detention. An official defence counsel was appointed. Again on the same day, at 2.50 p.m. a judge of the Joniškis District Court held a 10 minute remand hearing to which the prosecutor, the applicant and his defence counsel had been called. The prosecutor requested the court to order the applicant’s remand in custody. The judge questioned the applicant, who admitted that he had committed the offences alleged. Then she permitted the applicant’s representative to speak. Counsel requested the court to dismiss the prosecutor’s remand application. He stated that there were no grounds for the detention as the applicant had accepted his guilt and would not hinder the investigation. The judge ordered the applicant’s detention on remand until 29 December 1998. According to the written version of the detention order, the object of the detention was to prevent the applicant from committing new offences while he was suspected of having committed an offence, and to facilitate the determination of the truth in the case. On 30 September 1998 the applicant appealed against the detention order. In the appeal he mentioned that on 29 September 1998: - his representative had been informed that he had to provide legal assistance to the applicant some 10 - 15 minutes before the hearing of the prosecution’s application; - the lawyer had had no time or facilities to examine the contents of the prosecutor’s request or to have access to the case-file, or to discuss defence tactics with the accused, because he had only become aware of the facts of the case during the prosecution’s intervention at the hearing; - the judge had prevented the representative from speaking with the applicant before the hearing had started, allegedly warning the lawyer that the Bar could be informed of his behaviour, and that a disciplinary penalty would be imposed if the lawyer spoke to the applicant without the judge’s permission; - the applicant and his counsel were not permitted to speak to each other or to ask questions throughout the hearing; - the judge held the hearing without wearing her judge’s robe; - the judge delivered the detention order without retiring to reach a decision, although the transcript of the hearing of 29 September 1998 by the Registry of the District Court wrongly stated that the court had so retired; - the judge’s decision was read out in the courtroom without giving reasons for the detention; - the detention order was not presented for the applicant’s signature; - the judge had not been impartial, and should have withdrawn because of her relations with the complainant in one set of theft proceedings. The applicant alleged that the above circumstances involved major breaches of the Courts Act and the Code of Criminal Procedure, and that his detention could not be considered lawful in view of those irregularities.  On 12 October 1998 the Šiauliai Regional Court heard the appeal in the presence of the applicant’s representative and a prosecutor. The court dismissed the appeal, holding that the applicant should be in custody because of his propensity to crime, his lack of employment, the fact that he was charged with five offences while still on probational release, and that he risked a custodial sentence of more than one year’s imprisonment. The Regional Court ruled that the applicant could reasonably be expected to engage in new offences whilst suspected of having committed an offence, and that therefore his detention was justified. By reference to Article 109-1 § 2 of the Code of Criminal Procedure, the Regional Court concluded that the alleged procedural irregularities of 29 September 1998 did not “alter the substance” of the lawfulness of the applicant’s detention. B. Relevant domestic law  Relevant provisions of the Code of Criminal Procedure (Baudžiamajo proceso kodeksas): Articles 10 and 104 provide that no one can be detained save by virtue of a decision of a court or judge. Article 137 provides that a prosecutor, investigator or interrogator can temporarily arrest a person while he is committing an offence or immediately after its commission when there are grounds for detention on remand specified in Article 104 § 3 (see below). This arrest can last for no longer than 48 hours, during which time the arrested person must be brought before a judge who decides whether or not to order detention on remand. Article 104 § 3 states that a suspect can be detained on remand where it is reasonably believed that he may: (1) abscond from the investigation and trial; (2) obstruct the determination of the truth in the case; (3) engage in new offences whilst suspected of having committed particular crimes.  Article 104-1 provides: “… A prosecutor shall bring an arrested person … before a judge within 48 hours after the moment of the arrest, with the application to order his detention on remand … . The judge must hear the person as to the grounds of the arrest. The prosecutor and the counsel shall take part in the inquiry. The judge, of his own motion, or on a reasoned request of the prosecutor, the arrested person or his counsel, is entitled to hear the prosecutor in the absence of the arrested person and his counsel, or to question the arrested person and his counsel only. After having questioned the arrested person, the judge may accept the prosecutor’s application and order detention on remand by designating the term of the detention, or refuse to accept the application and refuse to order detention.  Pursuant to Articles 104-3 and 104-4, a judge shall take a reasoned decision on the detention of a person, specifying the offence alleged against him and the grounds for the detention. The detention order shall be pronounced immediately after it is taken or within “the shortest time possible”, and it shall be presented for the signature of the detainee, unless the latter cannot or does not want to sign it. Article 109-1 provides: “A detainee or his counsel shall have the right during the preliminary investigation or trial to lodge with an appellate court an appeal against the detention order or the extension of the term of the detention on remand … . With a view to examining the appeal, there shall be convened a hearing, to which the detainee and his counsel or counsel alone shall be called. 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. If the appellate judge … finds procedural irregularities that do not affect the essence of the detention order, he must remedy the defects without quashing the order … .” Article 58 § 2 (7) of the Code of Criminal Procedure permits the accused’s representative to have access to the case-file following the conclusion of the pre-trial investigation. Article 58 § 2 (3) provides that a prosecuting authority can take part in the meetings of the accused and his defence counsel and “control” their correspondence when it is reasonably believed that unlimited communication between the accused and his representative can have a “negative impact on the investigation” of the case. Article 39 of the Bar Act (Advokatūros įstatymas) prohibits any interference with communications between the lawyer and his client save in the cases provided for by law.