CASE OF BUTKEVICIUS v. LITHUANIA
Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 6-2;Pecuniary damage - request rejected;Non-pecuniary damage - financial award;Costs and expenses partial award
Nicolas Bratza
7. The applicant was the Minister of Defence and a Member of the Seimas (Parliament) from 1996 to 2000. 8. On 12 August 1997 the applicant was apprehended in a hotel lobby by the security intelligence and the prosecuting authorities while accepting an envelope containing 15,000 United States dollars (USD) from KK. The latter, a senior executive of a troubled oil company (hereinafter referred to as “the company”), had previously informed the intelligence authorities that the applicant had requested 300,000 USD for his assistance in obtaining the discontinuance of criminal proceedings concerning the company’s vast debts. For slightly more than an hour the applicant was questioned in the hotel lobby. His explanations were recorded and he was allowed to leave the hotel. 9. On 14 August 1997 the Prosecutor General requested the Seimas to permit the institution of criminal proceedings against the applicant. On 19 August 1997 the Seimas agreed. On 20 August 1997 criminal proceedings were instituted. On 14 October 1997 the applicant was charged with attempting to cheat (obtaining property by deception). 10. On 20 October 1997 the Prosecutor General applied to the Seimas for permission to detain the applicant on remand. On 28 October 1997 permission was given. On the same day a prosecutor requested the Vilnius City Second District Court to order the applicant’s detention on remand. Also that day the applicant was brought before a judge of the Vilnius City Second District Court who issued a warrant for the applicant’s arrest on the grounds that he might obstruct the establishment of the truth in the case, inter alia, by exploiting the media and influencing witnesses. The applicant was duly detained. 11. On 30 October 1997 the judge extended the term of the applicant’s detention on remand until 30 November 1997 in the presence of the parties for the same reasons as before. On 3, 5 and 7 November 1997 the applicant appealed against his detention on remand. He requested a hearing. On 11 November 1997 a judge of the Vilnius Regional Court dismissed the applicant’s appeal without hearing the parties. 12. From 27 November 1997 to 5 December 1997 the applicant and his counsel had access to the case-file. On 5 December 1997 the applicant requested the prosecutor to discontinue the proceedings. On a number of occasions he also requested the prosecutor to vary the remand. These requests were rejected. 13. On 8 December 1997 a judge of the Vilnius City Second District Court extended the term of the applicant’s detention on remand until 31 December 1997. On 9 December 1997 the applicant appealed. On 11 December 1997 the Regional Court informed him that no appeal lay against that decision. 14. On 29 December 1997 the Prosecutor General confirmed the bill of indictment, which was transmitted to the Vilnius Regional Court. 15. From 1 to 5 January 1998 the applicant submitted numerous applications to courts, the prison administration, the Ombudsman and the Seimas, alleging that his detention had been unlawful. On 7 January 1998 the Ombudsman concluded that from 31 December 1997 the applicant had been held in detention unlawfully. 16. On 8 January 1998 the Vilnius Regional Court committed the applicant for trial. The court also decided that the applicant’s detention on remand “shall remain unchanged”. No term for that detention was specified. 17. On 23 March 1998 the Vilnius Regional Court adjourned the case and ordered the prosecuting authorities to submit new evidence. In the same decision the court also decided that the applicant’s detention on remand “shall remain unchanged”. No term or grounds for this were specified. The applicant’s counsel was present at the hearing. On 24 March 1998 the applicant appealed against the decision. On 12 May 1998 the applicant submitted a further appeal against the decision of 23 March 1998. 18. On 21 May 1998 the Court of Appeal dismissed this appeal in so far as it concerned the decision to require the prosecution to submit new evidence. The Court of Appeal held that no appeal lay against the decision of 23 March 1998 in so far as it concerned the applicant’s detention. The applicant and his counsel were present at the appellate hearing. 19. On 1 July 1998 the trial before the Vilnius Regional Court was resumed. On 13 July 1998 the Vilnius Regional Court extended the term of the applicant’s detention until 17 August 1998. On 23 July 1998 the detention was extended until 30 November 1998. The court referred to the strength of the evidence in the case-file and the likelihood of the applicant influencing witnesses, warranting his further remand in custody. Defence counsel was present at the hearings. The applicant’s appeals against the decisions of 13 and 23 July 1998 were dismissed by the Court of Appeal on 21 July and 12 August 1998 respectively. The applicant’s counsel had been present at the appellate hearings. 20. On 5 and 19 February, 1 July, 21 October and 3 November 1998, the Vilnius Regional Court rejected the applicant’s requests to lift the remand in custody. His defence counsel was present at the hearings. 21. On 18 November 1998 the Vilnius Regional Court found the applicant guilty of attempting to obtain property by deception. The court rejected the applicant’s defence that he had been incited to commit an offence as a result of the conspiracy between KK and the security intelligence authorities. The court found that the applicant had himself requested KK to contact him, and that the applicant had demanded money in return for him using his authority over certain prosecutors with a view to discontinuing the criminal case involving KK’s indebted company. The Regional Court found that the applicant had thereby intended to cheat. The applicant was sentenced to five years and six months’ imprisonment and fined 50,000 Lithuanian litai (LTL). Half of his property was confiscated. The applicant and his counsel were present before the first instance court. 22. The applicant appealed. On 17 February 1999 the Court of Appeal rejected the appeal, finding no procedural irregularities regarding the investigation and trial. The applicant and his counsel were present at the appellate hearing. 23. The applicant lodged a cassation appeal. On 11 May 1999 the Supreme Court rejected it, finding that the lower courts had properly decided the case. The court mentioned inter alia that it had no competence to examine the applicant’s allegations about the unlawfulness of his detention on remand. The applicant and his counsel were present before the Supreme Court. 24. On an unspecified date, an impeachment procedure was initiated against the applicant in the Seimas. On 15 June 1999 the Seimas refused to impeach the applicant or annul his mandate as a Member of Parliament (“MP”). 25. On 17 March 2000 the Vilnius City Third District Court ordered the applicant’s release on licence. He was released on 20 March 2000. <Translations are given> 26. On 14 August 1997 an article entitled “MP’s whitewash looks hogwash, says prosecutor” was published in the biggest national daily “Lietuvos Rytas”: “The Prosecutor General confirmed that [he had] enough sound evidence of the guilt of A. Butkevičius.” 27. On 15 August 1997 an article entitled “The Chairman of the Seimas does not doubt A. Butkevičius’s guilt” was published in “Lietuvos Rytas”: “When asked whether or not he doubts that A. Butkevičius accepted a bribe, the Chairman of the Seimas said: ‘on the basis of the material in my possession I entertain no doubt.’” 28. The Prosecutor General was quoted in an article entitled “A. Butkevičius prepares for battle and prison” of 16 August 1997 in the daily “Respublika”: “I qualify the offence as an attempt to cheat ... .” 29. The Chairman of the Seimas, quoted in an article entitled “A. Butkevičius will be prosecuted” of 20 August 1997 in “Lietuvos Rytas”: “One or two facts were and are convincing. [The applicant] took the money while promising criminal services.” 30. The Chairman of the Seimas, in an article entitled “A. Butkevičius’s lawyers tag the bribery case as political” of 6 October 1998 in “Lietuvos Rytas”, was quoted as saying that “the Centre and the New Union [parties] co-ordinate the defence of the bribetaker” and that these parties try to protract the proceedings and artificially “victimise” the applicant. 31. The Code of Criminal Procedure (Baudžiamojo proceso kodeksas): “No one shall be arrested or detained save by virtue of a decision of a court or judge.” Article 52 § 2 and 58 § 2 of the Code provide that the accused and their counsel have the right to submit requests and appeal against acts and decisions of an interrogator, investigator, prosecutor or court. “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 detention on remand shall be the reasoned 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 having committed crimes provided in Articles ... [274, cheating] of the Criminal Code ... .” “... the arrested person shall be brought before a judge within not more than 48 hours ... . The judge must hear the person as to the grounds of the arrest. The prosecutor and counsel for the arrested person may take part in the inquiry. After having questioned the arrested person, the judge may maintain the arrest order by designating the specific term of detention, or vary or revoke the remand ... . After the case has been transmitted to the court ... [it] can order, vary or revoke the detention on remand.” The amended Article 104-1 (in force since 24 June 1998) provides that the prosecutor and defence counsel must take part in the first judicial inquiry of the arrested person, unless the judge decides otherwise. The amended provision also provides that the court should extend the detention on remand before its expiry. “For the purpose of extending the term of detention on remand, a judge ... must convene a hearing to which defence counsel and a prosecutor and, if necessary, the detainee shall be called. The judge decides whether or not to extend the term of detention on remand. ... .” The Code in force since 24 June 1998 makes obligatory the attendance of the detainee at the remand hearings. “An arrested person or his counsel shall have the right during the pre-trial investigation to lodge [with an appellate court] an appeal against the arrest. ... . With a view to examining the appeal, there may be convened a hearing to which the arrested person and his counsel or only counsel shall be called. The presence of a prosecutor is obligatory at such a hearing. The decision taken by the judge at appellate instance 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 on remand.” The present Article 109-1 (in force since 24 June 1998) now provides for an appeal to a higher court and a hearing against a decision ordering or extending the term of detention both at the stage of pre-trial investigation and trial, in the presence of the detainee and his counsel, or only his counsel. “The period when the accused and his counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention. Where there are several accused persons, the period during which all the accused and their counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention.” Since 24 June 1998 this period is no longer relevant for remand decisions. “A judge individually or a court in a directions hearing, in deciding whether to commit the accused for trial, shall determine: ... 11) whether the remand has been selected appropriately; ... .” “After having decided that there is a sufficient basis to commit the accused for trial, a judge individually or a court in a directions hearing shall determine: ... 2) the remand in respect of the accused; ... .” “The defendant has the right to: ... ; 3) submit requests; ... 11) appeal against the judgment and decisions of a court.” “In the course of the trial, a court may decide to order, vary or revoke a remand in respect of the defendant.” “Decisions of courts ... ordering, varying or revoking a remand ... cannot be the subject of appeal ... .” Pursuant to the general provision of Article 399, a first instance decision was not effective pending the time-limit for an appeal against that decision or during the appeal proceedings. Only those decisions against which no appeal was possible, including remand decisions under the former Article 372 § 4, became effective and were executed on the date when they were taken. The present Article 104-3 § 3 (version in force from 21 December 1999) specifies that all decisions of detention on remand become effective and are executed on the date when they are taken, regardless of the fact that an appeal is possible against any such decision under the amended Article 109-1 (since 24 June 1998, see above). 32. Article 31 § 1 of the Constitution reads: “A person shall be considered innocent until proved guilty in accordance with the law by a final judgment of the court.” Article 11 § 2 of the Code of Criminal Procedure 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 the law.”