GANUSAUSKAS v. LITHUANIA
Inadmissible
Nicolas Bratza
The applicant is a Lithuanian national, born in 1967. At present he is detained at the Ulonų Prison in the Alytus Region. He is represented before the Court by Mr R. Girdziušas, a lawyer practising in Kaunas. A. On 16 July 1995 the applicant was detained on remand in the context of proceedings for cheating. On 13 September 1996 the Kaunas City District Court convicted the applicant of obtaining property by deception. He was sentenced to six years’ imprisonment and ordered to pay compensation. On 4 March 1997 the Kaunas Regional Court dismissed the applicant’s appeal against the first instance judgment. On 11 September 1997 the Court of Appeal rejected the applicant’s cassation appeal. By 16 July 1998 the applicant had completed half of his sentence in the Ulonų Prison. As he had been afforded better treatment due to his model behaviour in prison, he requested his conditional release. This was refused, whereupon the applicant brought a successful civil action against the prison administration before the Alytus District Court for a breach of his rights under Article 54-2 of the Criminal Code. On 25 September 1998 the court “required” the prison administration to request a criminal court to order the applicant’s conditional release. This was done on 28 September 1998 and on 23 October 1998 the Alytus District Court ordered the applicant’s conditional release because of his model behaviour in prison. A prosecutor and a prison representative took part at the hearing of 23 October 1998. The District Court stated that the order for conditional release could be appealed within five days. On 26 October 1998 the applicant was released from the prison. From 30 October 1998, several major newspapers printed articles criticising the law enforcement authorities for releasing the applicant on licence. The media alleged inter alia that the applicant had not paid the compensation ordered by the trial courts. On 2 November 1998 the Chief Prosecutor of the Kaunas Region applied to the Alytus District Court for leave to appeal out of time against the applicant’s conditional release. The prosecutor asserted that the five-day time-limit had not been observed for important reasons. He stated that the prosecutor who had been present before the court on 23 October 1998 had not informed the Regional Prosecutor’s Office about the applicant’s conditional release, and that on 28 October 1998 the Chief Prosecutor of the Alytus District had been in Vilnius on mission; therefore no appeal could be lodged in time. On 2 November 1998 the Alytus District Court reinstated the time-limit by reference to Article 120 of the Code of Criminal Procedure, finding that the prosecution had missed the time-limit for “important reasons”. The court also stressed that the reinstatement of the time-limit “was not contrary to the law”. On the same date the Chief Prosecutor of the Kaunas Region lodged with the Kaunas Regional Court an appeal against the applicant’s conditional release, asserting inter alia that he had not paid the 1,944,000 Lithuanian litai (LTL) in compensation following his conviction, and that he belonged to a Kaunas criminal organisation. On 3 November 1998 the prosecutor requested the court to suspend the execution of the order for conditional release. On the same date the Kaunas Regional Court, pursuant to Article 415-1 § 4 of the Code of Criminal Procedure, accepted the prosecutor’s request without hearing the parties. The applicant was arrested in the evening of 3 November 1998. On 4 November 1998 the Kaunas Regional Court held a hearing on the prosecution’s appeal against the applicant’s conditional release in the presence of the applicant and his counsel. The applicant requested the court to adjourn the hearing and release him. He also challenged the participation of two of the appeal judges. The court dismissed his applications. On the same date the Kaunas Regional Court upheld the prosecution’s appeal and quashed the conditional release order on the basis of Article 415-1 of the Code of Criminal Procedure. The Regional Court found inter alia that the applicant had not paid the 1,944,000 LTL in damages ordered at his trial. The court noted that the prosecutor, who had been present before the District Court on 23 October 1998, had not submitted this information, thereby misleading the first instance court. The appellate court held that domestic law did not oblige the prison administration to recommend the conditional release of a detainee. The decision of 4 November 1998 was final. On 12 November 1998 a civil chamber of the Kaunas Regional Court, upon a cassation petition of the Acting President of the Supreme Court, quashed the decision of 25 September 1998, finding that the District Court could not “require” the prison administration to request the applicant’s release on licence. The Regional Court held in this connection that Article 54-2 of the Criminal Code gave a discretionary power to the prison administration as to whether or not to request the conditional release of a detainee. B. Relevant domestic law Article 54-2 of the Criminal Code and Article 67 of the Prison Code allows the release on licence of a convicted person before the expiry of the term of imprisonment. The right to order conditional release rests with a court, upon the request of the prison administration. Release on licence of a person sentenced to up to ten years’ imprisonment can be ordered after completion of half of the sentence. Article 415-1 § 3 of the Code of Criminal Procedure lays down a period of five days to appeal against a court order granting or refusing conditional release. Paragraph 4 of this provision provides for the suspension of that order should such an appeal be lodged. Paragraph 9 of the provision permits no further appeal against the decision of the appellate court. Pursuant to Article 120 § 1 of the Code of Criminal Procedure, a time-limit that was missed for an important reason can be reinstated by a court. Paragraph 2 of this provision provides that, in cases where a decision was appealed out of time, a court on the request of the person lodging the appeal can suspend its execution.