EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 34578/97

Juozas Jėčius

against

Lithuania

REPORT OF THE COMMISSION

(adopted on 11 September 1999)

- i -

34578/97

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) .............................................. 1

A. The application

(paras. 2-4) .......................................... 1

B. The proceedings

(paras. 5-10) .......................................... 1

C. The present Report

(paras. 11-15) ......................................... 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-48) .............................................. 4

A. The particular circumstances of the case

(paras. 16-42) ......................................... 4

B. Relevant domestic law

(paras. 43-47) ......................................... 7

C. Reservation of the Republic of Lithuania

(para. 48) ........................................... 16

III. OPINION OF THE COMMISSION

(paras. 49-118) ............................................ 17

A. Complaints declared admissible

(para. 49) ........................................... 17

B. Points at issue

(para. 50) ........................................... 17

C. Death of the applicant

(para. 51) ........................................... 17

D. As regards Article 5 para. 1 of the Convention

(paras. 52-79) ........................................ 18

As regards the applicant’s preventive detention from 8 February 1996

until 14 March 1996

(paras. 58-66) ........................................ 19

CONCLUSION

(para. 67) ........................................... 20

34578/97 - ii -

Page

As regards the applicant’s detention on remand from 4 June 1996

until 31 July 1996

(paras. 68-73) ........................................ 20

CONCLUSION

(para. 74) ........................................... 21

As regards the applicant’s detention on remand from 31 July 1996

until 16 October 1996

(paras. 75-78) ........................................ 22

CONCLUSION

(para. 79) ........................................... 22

E. As regards Article 5 para. 3 of the Convention - “brought promptly before a judge”

(paras. 80-93) ........................................ 22

CONCLUSION

(para. 94) ........................................... 25

F. As regards Article 5 para. 3 of the Convention - “trial within a reasonable time”

(paras. 95-103) ....................................... 25

CONCLUSION

(para. 104) .......................................... 26

G. As regards Article 5 para. 4 of the Convention

(paras. 105-111) ...................................... 26

CONCLUSION

(para. 112) .......................................... 27

H. Recapitulation

(paras. 113-118) ...................................... 27

PARTLY DISSENTING OPINION OF MR S. TRECHSEL .................. 29

PARTLY DISSENTING OPINION OF MM. G. RESS AND E. BIELIŪNAS ...... 30

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION ................ 31

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant was a Lithuanian citizen, born in 1948. He died on 9 April 1999. By a letter of 14 April 1999 the applicant’s widow expressed the wish to maintain the case before the Commission. The application is presented before the Commission on the applicant’s behalf by Mr K. Stungys , a lawyer practising in Vilnius.

3. The application is directed against Lithuania. The respondent Government were represented by Mr Gintaras Å vedas , Vice-Minister of Justice.

4. The case concerns the lawfulness of the applicant’s detention, his inability to be “brought promptly before a judge or other officer”, the length of the applicant’s detention, and the proceedings to review his remand in custody. The applicant invokes Article 5 paras. 1, 3 and 4 of the Convention.

B. The proceedings

5. The application was introduced on 30 December 1996 and registered on 24 January 1997.

6. On 11 April 1997 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant’s complaints regarding his detention on remand.

7. The Government's observations were submitted on 9 June 1997. The applicant replied on 29 July 1997.

8. On 1 December 1997 the Commission declared admissible the applicant’s complaints under Article 5 para. 1 of the Convention as to the lawfulness of his detention; under Article 5 para. 3 of the Convention about the inability to be “brought promptly before a judge or other officer” and the length of his detention; and under Article 5 para. 4 of the Convention about the proceedings in review of the lawfulness of his remand in custody. It declared inadmissible the remainder of the application.

9. The text of the Commission’s decision on admissibility was sent to the parties on 19 December 1997 and they were invited to submit further observations, including questions concerning the applicant’s preventive detention. The Government submitted their further observations on 26 January 1998. The applicant replied on 26 January 1998, and submitted additional comments on 10 February 1998.

10. After declaring the case admissible, the Commission, acting in accordance with the former [1] Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties’ reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM. S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

Sir Nicolas BRATZA

MM. I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIĆ

P. LORENZEN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM. R. NICOLINI

A. ARABADJIEV

12. The text of this Report was adopted on 11 September 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to former Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14. The Commission’s decision on the admissibility of the application is annexed hereto.

15. The full text of the parties’ submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. The applicant, a hotel director, was suspected of a murder committed in 1994. In 1995, the case was struck off because of the absence of evidence.

17. The applicant was arrested on 8 February 1996. On the same date the Chief Commissioner of the Criminal Police ordered the applicant’s preventive detention ( prevencinis sulaikymas ) for 60 days  on the authorisation ( sankcija ) of the Deputy Prosecutor General. On 9 February 1996 a judge of the Vilnius Regional Court ( apygardos teismas ) confirmed the preventive detention. The preventive detention order referred to a general provision of Article 50-1 of the Code of Criminal Procedure as then in force which permitted preventive detention in connection with banditism , criminal association and terrorising a person. The applicant appealed against his arrest, claiming inter alia that he had not been informed of the reason for his detention or of any charge against him. On 19 February 1996 a judge of the Vilnius Regional Court dismissed the appeal. No specific charge was made against the applicant in the above decision. No investigation was carried out in connection with his preventive detention.

18. On 8 March 1996 the criminal case was reopened. The applicant was charged, as a principal offender, with murder in aggravating circumstances. He was accused of organising the unlawful punishment of the alleged thief of his car, which resulted in the latter’s death. Among five accused persons in the case, there were three police officers who had allegedly handed over the arrested victim to the applicant.

19. On 14 March 1996 the Deputy Prosecutor General, by reference to Article 104 of the Code of Criminal Procedure, authorised the applicant’s detention on remand ( suėmimas ) on suspicion of murder. His detention was authorised until 4 June 1996.

20. On 27 March 1996 the applicant was questioned. On 22 April 1996 the applicant submitted an application to the Chief Prosecutor of Panevėžys Region, claiming that there was no evidence to suspect him of having committed or prepared an offence, and that his preventive detention and subsequent remand in custody were incompatible with domestic criminal procedure and Article 5 para. 1 (c) of the Convention. On 24 April 1996 the Chief Prosecutor dismissed the application on the ground that the applicant’s detention could be justified merely by reference to the gravity of the alleged offence.

21. On 17 May 1996 the applicant submitted an application to the Prosecutor General further arguing that there was no reasonable suspicion against him, and that his detention infringed his rights under Article 5 para. 1 (c) of the Convention. On 21 May 1996 a prosecutor of the Panevėžys Regional Prosecutor’s Office dismissed the application. On 4 June 1996 a renewed application by the applicant’s representative was rejected by the Chief Prosecutor of Panevėžys Region.

22. The pre-trial investigation was concluded on 29 May 1996. From 30 May to 10 June 1996 the applicant and his counsel were given access to the case-file. Other accused in the case had access to the case-file until 14 June 1996.

23. The applicant, after having had access to the case-file, submitted an application to the prosecution arguing that the accusation and detention were ill-founded. On 11 June 1996 a prosecutor of the Panevėžys Regional Prosecutor’s Office dismissed the application. The prosecutor held that the case-file as a whole contained sufficient evidence of the applicant’s guilt.

24. On 13 June 1996 the prosecutor informed the administration of the prison in which the applicant was being remanded that his detention was “automatically extended until 14 June 1996” pursuant to the then Article 226 para. 6 of the Code of Criminal Procedure, and that the case had been transmitted to the Chief Prosecutor of Panevėžys Region to confirm the bill of indictment. No formal decision on remand was taken.

25. On 21 June 1996 an amendment to the Code of Criminal Procedure entered into force, providing that a decision to arrest a person could be ordered only by a court or judge. On the same date the Lithuanian reservation to Article 5 para. 3 of the Convention expired.

26. On 24 June 1996 the Chief Prosecutor of Panevėžys Region wrote a letter to the administration of the prison informing them that the proceedings concerning the allegations of murder had been transmitted to the Panevėžys Regional Court, and that a remand measure - detention - had been ordered against the applicant. No formal decision as to the applicant’s detention was taken.

27. On 1 July 1996 the Panevėžys Regional Court informed the administration of the prison that on 31 July 1996 a court hearing would be held and directions for trial of the applicant and other accused would be given. Again, no formal order as to the applicant’s detention was issued.

28. On 31 July 1996, in the directions hearing, a judge of the Panevėžys Regional Court decided that the applicant’s “remand shall remain unchanged”. The judge mentioned no other aspects concerning the applicant’s complaints about the lawfulness of his detention. The applicant’s counsel was present at the hearing.

29. The trial started before the Panevėžys Regional Court on 3 September 1996. On 9 September 1996 the court examination was adjourned in order to collect further documentary evidence. On 16 October 1996, following deliberations from 14 to 16 October, in the applicant’s presence, the Regional Court decided that he was to remain in custody. No other aspects of the lawfulness of the applicant’s remand were mentioned in the decision. The term of the applicant’s detention was extended to 15 February 1997. The Court ordered additional investigation measures.   

30. On 28 October 1996 the applicant appealed against this decision to the Court of Appeal ( Apeliacinis teismas ). He also lodged applications with the Prosecutor General, the administration of the prison, and the Ombudsman. The applicant claimed that the courts, in the directions hearing of 31 July 1996, and in the decision of 16 October 1996, had not properly decided to detain him because they had simply prolonged a non-existing decision on detention that had expired on 4 June 1996. The applicant stated inter alia that Article 20 of the Lithuanian Constitution and Article 5 of the Convention had been infringed to his detriment.

31. On 21 November 1996 the Ombudsman drew the attention of the Minister of Interior, the Prosecutor General, the Director of the Prisons Department, and the Director of the prison to the fact that, in his view, the applicant “had been remanded in custody illegally from 14 June 1996 until 31 July 1996, in breach of Article 20 of the Constitution of the Republic of Lithuania ... and Article 5 para. 1 (c) of the Convention”.

32. On 25 November 1996 the applicant again lodged an appeal with the Court of Appeal emphasising the main grounds of his appeal of 28 October 1996.

33. On 27 November 1996 the Court of Appeal disallowed the appeal against the decision of 16 October 1996 on the basis of Article 372 para. 4 of the Code of Criminal Procedure. In considering the previous orders as to the applicant's detention, the Court of Appeal noted that the courts had “possibly” decided the question of the applicant’s detention improperly, but no appeal lay against their decisions to the Court of Appeal.

34. On the same date, on the prosecution’s appeal against the decision of the Panevėžys Regional Court of 16 October 1996, the Court of Appeal quashed the decision to order additional investigation measures in the case. The applicant appealed.

35. On 30 November 1996 the applicant lodged a further appeal with the President of the Supreme Court ( Aukščiausiasis Teismas ). On 30 December 1996 the President of the Criminal Division of the Supreme Court informed the applicant’s representative that the appeal could not be examined. He admitted that the applicant “was remanded in custody from 4 June 1996 to 31 July 1996 without the remand measure being extended”. He emphasised however that the “ground of appeal cannot overturn the provision of law according to which a decision ordering, varying or extending a remand measure (Article 372 of the Code of Criminal Procedure) ... cannot be the subject of appeal”.       

36. On 14 January 1997, on the applicant’s appeal, the Supreme Court amended the decision of the Court of Appeal of 27 November 1996 by which the decision of the Panevėžys Regional Court of 16 October 1996 to order additional investigation measures had been quashed. The Supreme Court decided that a chamber of three judges rather than a single judge should consider the merits of the proceedings for murder.

37. The applicant instituted civil proceedings against the prison administration for keeping him in detention without any formal order. On 26 February 1997 a judge of the Šiauliai District Court ( apylinkės teismas ) dismissed the claim. The judge held that the administration's actions had been based on “the authorisation of the prosecutor, letters containing information about the extension of the detention, decisions of the judge and court”. On 28 April 1997 the Šiauliai Regional Court upheld the decision of the District Court.

38. The applicant lodged a request to have the remand measure varied on health grounds. On 17 March 1997 the Panevėžys Regional Court dismissed the request. The Court found that its decision could not be appealed against. The trial was again adjourned and additional investigation ordered until 28 April 1997, when the case was transmitted back to court. The trial recommenced on 26 May 1997.

39. On 9 June 1997 the Panevėžys Regional Court acquitted the applicant of all charges due to the absence of proof. He was released from custody.        

40. The prosecution and other defendants in the case appealed against the first instance judgment. On 27 August 1997 the Court of Appeal annulled the judgment of the Regional Court. The case was referred back to the prosecution for further investigation.

41. On 22 October 1997 a prosecutor of the Panevėžys Regional Prosecutor’s Office informed the applicant that the criminal proceedings against him had been discontinued by a decision of 21 October 1997.

42. On 9 April 1999 the applicant died.

B. Relevant domestic law

43. Relevant provisions of the Constitution of the Republic of Lithuania ( Lietuvos Respublikos Konstitucija )

Article 20 para. 3 :

“A person arrested when committing an offence must, within 48 hours, be brought to court for the purpose of determining, in the presence of the detainee, whether detention is appropriate. If the court does not order the detention of the arrested person, he shall be released immediately.”

“ Nusikaltimo vietoje sulaikytas asmuo per 48 valandas turi būti pristatytas į teismą, kur sulaikytajam dalyvaujant sprendžiamas sulaikymo pagrįstumas . Jeigu teismas nepriima nutarimo asmenį suimti , sulaikytasis tuojau pat paleidžiamas .”

Article 30 para. 1 :

“Any person whose constitutional rights or freedoms are violated shall have the right to apply to court.”

“ Asmuo , kurio konstitucinės teisės ir laisvės pažeidžiamos , turi teisę kreiptis į teismą.”

44. Relevant provisions of the previous Code of Criminal Procedure ( Baudžiamojo proceso kodeksas ):

Article 10 (in force until 21 June 1996):

“No one shall be arrested save by virtue of a decision of a court, or an order of a judge or the authorisation of a prosecutor … .”

“ Niekas negali būti suimamas kitaip , kaip tik remiantis teismo sprendimu , teisėjo nutarimu ar prokuroro sankcija … .”

Article 50-1 (in force until 30 June 1997):

“… having sufficient reasons to suspect that a person may commit a dangerous act, the elements of which are provided for in Articles 75 [ banditism ], 227-1 [criminal association] and 227-2 [terrorising a person] of the Criminal Code of the Republic of Lithuania, and with a view to preventing the commission of such an act, a chief of the department of the police ... may, by a reasoned decision, with the authorisation [of a prosecutor] … order the arrest of the person … .

Within 48 hours, in the presence of the police officer who took a decision to arrest, and the prosecutor who authorised it … a president of a district court, a judge of a regional court or a president of a division of a regional court shall decide on the lawfulness of the arrest.

The judge, in deciding the question of the lawfulness of the arrest, may of his own motion bring before him the arrested person; however, the judge may also decide in the absence of the arrested person … . 

The arrested person … may appeal against the decision of the judge to a higher judge.

…

The decision of the higher judge is final and cannot be the subject of appeal … .

… a person detained on the authorisation of a prosecutor, and whose detention is confirmed by a judge, may be so detained for no longer than two months … .”

“… turėdamas pakankamą pagrindą manyti , kad asmuo gali padaryti pavojingą veiką, kurios požymiai numatyti Lietuvos Respublikos baudžiamojo kodekso 75, 227¹ ir 227² straipsniuose , ir siekdamas užkardyti tokio nusikaltimo padarymą, … policijos departamento vadovas … motyvuotu nutarimu , sankcionuotu [ prokuroro ] … turi teisę tokį asmenį sulaikyti … .

Per 48 valandas , dalyvaujant policijos pareigūnui , priėmusiam nutarimą dėl sulaikymo , ir prokuratūros pareigūnui , jį sankcionavusiam , … sulaikymo pagrįstumo klausimą sprendžia apylinkės teismo pirmininkas , apygardos teismo teisėjas ar apygardos teismo skyriaus pirmininkas .

Teisėjo nuožiūra sprendžiant sulaikymo pagrįstumo klausimą gali dalyvauti sulaikytasis asmuo , tačiau teisėjas gali priimti sprendimą ir sulaikytajam nedalyvaujant … .

Sulaikytasis asmuo … turi teisę apskųsti teisėjo sprendimą aukštesniajam teisėjui .

…

Aukštesniojo teisėjo sprendimas yra galutinis ir negali būti apskųstas … .

Su prokuroro sankcija , patvirtinta teisėjo , asmuo gali būti sulaikomas ne ilgiau kaip du mėnesius … .”

Article 104 (under the Act no. I-551 of 19 July 1994, in force until 21 June 1996):                             

“Arrest as a remand measure shall be used only where based on the decision of a court, order of a judge, or the authorisation of a prosecutor in cases where a statutory penalty of at least one year of imprisonment is envisaged … .

In cases pertaining to offences provided in Articles … 105 [murder in aggravating circumstances] … of the Criminal Code arrest as a remand measure may be used on the ground of the gravity of the offence only.

…

In deciding whether to authorise the arrest, a prosecutor … shall personally hear the suspect or defendant when necessary ... .”

“ Suėmimas kaip kardomoji priemonė taikomas tik teismo nutartimi , teisėjo nutarimu arba prokuroro sankcija bylose dėl nusikaltimų , už kuriuos įstatymas numato laisvės atėmimo bausmę daugiau nei vieneriems metams ... .

Bylose dėl nusikaltimų , numatytų … baudžiamojo kodekso … 105 … straipsnyje suėmimas kaip kardomoji priemonė gali būti skiriamas tik dėl nusikaltimų pavojingumo .

…

SprÄ™sdamas suÄ—mimo sankcionavimo klausimÄ…, prokuroras privalo … reikiamais atvejais pats apklausti įtariamÄ…jį ar kaltinamÄ…jį … .”

Article 104-1 (in force from 21 June 1996 until 24 June 1998):

“… 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 his detention. The prosecutor and the counsel of the arrested person may take part in the questioning of the arrested person. After having questioned the arrested person, the judge may maintain the decision to order detention on remand / arrest by designating a specific term of detention, or vary or revoke the remand measure.

…

After the case has been transmitted to the court … [the court] can order, vary or revoke the detention on remand / arrest.”

“… suimtą asmenį ne vėliau kaip per 48 valandas po suėmimo prokuroras pristato teisėjui … . Teisėjas privalo pristatytą asmenį apklausti dėl suėmimo pagrįstumo . Suimtojo asmens apklausoje gali dalyvauti gynėjas ir prokuroras . Apklausęs suimtąjį asmenį , teisėjas gali palikti nutartį paskirti kardomąjį kalinimą (suėmimą) galioti toliau , nustatydamas konkretų suėmimo terminą, pakeisti ar panaikinti kardomąją priemonę .

…

Perdavus bylą į teismą, paskirti , pakeisti ar panaikinti kardomąjį kalinimą (suėmimą) gali teismas … .”

Article 106 para. 3 (in force from 21 June 1996 until 24 June 1998):

“For the purpose of extending the term of detention on remand / arrest a judge … must convene a hearing to which a counsel and prosecutor and, if necessary, the arrested person shall be called.”

“ Kardomojo kalinimo ( suėmimo ) termino pratęsimo klausimui spręsti … teisėjas privalo surengti posėdį , į kurį turi būti šaukiami gynėjas bei prokuroras , o esant būtinumui , - ir suimtasis ... .”

Article 109-1 (in force from 21 June 1996 until 24 June 1998):

“An arrested person or his counsel shall have the right during pre-trial investigation to lodge with an appellate court an appeal against the detention on remand / arrest … . With a view to examining the appeal, there may be convened a hearing, to which the arrested person 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.

A further appeal shall be determined when examining the extension of the term of the detention on remand / arrest.”

“ Suimtasis arba jo gynėjas parengtinio tyrimo metu turi teisę paduoti skundą dėl kardomojo kalinimo ( suėmimo ) paskyrimo apeliacinės instancijos teismui … . Skundui nagrinėti gali būti surengtas posėdis , į kurį šaukiami suimtasis su gynėju ar vien tik gynėjas . Prokuroro dalyvavimas tokiame posėdyje yra būtinas .

Apeliacinės instancijos teismo teisėjo priimtas sprendimas yra galutinis ir kasacine tvarka neskundžiamas .

Pakartotinis skundas išsprendžiamas nagrinėjant kardomojo kalinimo ( suėmimo ) terminų pratęsimą.”

Article 226 para. 6 (in force until 24 June 1998):

“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 arrest. 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 arrest.”

“ Kaltinamojo ir jo gynėjo susipažinimo su baudžiamosios bylos medžiaga laikas neįeina į parengtinio tardymo ir suėmimo trukmės terminus. Jeigu byloje yra keli kaltinamieji , į parengtinio tardymo ir suėmimo trukmės terminus neįeina laikas , per kurį susipažino su bylos medžiaga visi kaltinamieji ir jų gynėjai .”

Article 372 para. 4 (in force until 1 January 1999):

“No appeal lies against decisions of courts … ordering, varying or revoking a remand measure … . Submissions as to such decisions can be set out in an appeal against the judgment.”

“ Negali būti skundžiamos teismų priimtos nutartys dėl … kardomosios priemonės paskyrimo , pakeitimo ar panaikinimo … . Prieštaravimai šioms nutartims gali būti nurodyti apeliaciniame skunde dėl nuosprendžio .”

45. Relevant provisions of the present Code of Criminal Procedure :

Article 10 (in force since 21 June 1996):

“No one shall be arrested save by virtue of a decision of a court or judge.”

“ Niekas negali būti suimamas kitaip , kaip tik remiantis teismo ar teisėjo sprendimu .”

Article 52 paras. 2 (3) and (8) and Article 58 paras. 2 (8) and (10) provide, respectively, that the accused and their counsel have the right to

“submit requests; ... ” and

“appeal against acts and decisions of an interrogator, investigator, prosecutor and court.”

Article 104-1 (in force since 24 June 1998):

“… 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 the counsel of the arrested person shall take part in the inquiry. The judge, of his own motion, or by 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 maintain the decision to order detention on remand by designating the term of detention, or vary or revoke the remand measure.

…

After the case has been transmitted to the court … [it] shall order, extend or revoke the detention on remand / arrest or vary it with another remand measure before expiry of the term thereof, designated during the preliminary investigation or trial … .”

”… sulaikytą asmenį ne vėliau kaip per 48 valandas po sulaikymo prokuroras pristato … teisėjui . Teisėjas privalo pristatytą asmenį apklausti dėl suėmimo pagrįstumo . Sulaikyto asmens apklausoje dalyvauja gynėjas ir prokuroras . Motyvuotu prokuroro , sulaikytojo arba jo gynėjo prašymu , arba teisėjas savo iniciatyva turi teisę išklausyti prokurorą nedalyvaujant sulaikytajam ir jo gynėjui arba apklausti sulaikytąjį dalyvaujant tik jo gynėjui . Apklausęs sulaikytą asmenį , teisėjas gali palikti nutartį paskirti kardomąjį kalinimą (suėmimą) galioti toliau , nustatydamas suėmimo terminą pakeisti ar panaikinti kardomąją priemonę .

…

Perdavus bylą į teismą, teismas … paskiria , pratęsia ar panaikina kardomąjį kalinimą (suėmimą) arba pakeičia jį kita kardomąja priemone iki pasibaigiant prieš tai parengtiniame tyrime ar teisme paskirtam kardomojo kalinimo ( suėmimo ) terminui ... .”

Article 106 para. 3 (in force since 24 June 1998):

“For the purpose of extending, at the stage of pre-trial investigation, the term of detention on remand / arrest a judge … must convene a hearing to which a counsel, prosecutor and the arrested person, whose presence is obligatory, shall be called … .”

” Kardomojo kalinimo ( suėmimo ) termino pratęsimo parengtinio tyrimo stadijoje klausimui spręsti apylinkės arba apygardos teismo teisėjas privalo surengti posėdį , į kurį turi būti šaukiamas gynėjas , prokuroras ir suimtasis , kurių dalyvavimas tokiame posėdyje yra būtinas … .”

Article 109-1 (in force since 24 June 1998):

“An arrested person or his counsel shall have the right during the preliminary investigation or trial to lodge with an appellate court an appeal against the arrest order or the extension of the term of the detention on remand / arrest … . With a view to examining the appeal, there shall be convened a hearing, to which the arrested person 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 … .

A repeated appeal against the same arrest order or the extension of the term for the detention on remand / arrest shall be determined when examining the extension of the term of the detention on remand / arrest.”

” Suimtasis arba jo gynėjas parengtinio tyrimo arba bylos nagrinėjimo teisme metu turi teisę paduoti skundą dėl kardomojo kalinimo ( suėmimo ) paskyrimo ar kardomojo kalinimo ( suėmimo ) termino pratęsimo apeliacinės instancijos teismui … Apeliacinės instancijos teismo teisėjas privalo išnagrinėti skundą ne vėliau kaip per septynias dienas nuo jo gavimo . Skundui nagrinėti turi būti surengtas posėdis , į kurį šaukiami suimtasis su gynėju ar vien tik gynėjas . Prokuroro dalyvavimas tokiame posėdyje yra būtinas .

Apeliacinės instancijos teismo teisėjo priimtas sprendimas yra galutinis ir kasacine tvarka neskundžiamas ... .

Pakartotinis skundas dėl to paties kardomojo kalinimo ( suėmimo ) paskyrimo arba kardomojo kalinimo ( suėmimo ) termino pratęsimo išsprendžiamas nagrinėjant kardomojo kalinimo ( suėmimo ) termino pratęsimą.”

Article 119 para. 1 :

“Terms laid down in this Code are counted in hours, days and months … .”

“ Šio kodekso nustatyti terminai skaičiuojami valandomis , dienomis ir mėnesiais … .”

Article 226 para. 6 (in force since 24 June 1998):

“… during the period when the accused has access to the case-file, the term of the detention on remand / arrest shall be extended in accordance with the normal procedure … .”

“… kaltinamojo susipažinimo su baudžiamosios bylos medžiaga metu kardomojo kalinimo ( suėmimo ) terminas pratęsiamas bendra tvarka … .”

Article 249 para. 1 :

“In deciding whether to commit an accused for trial, the judge or the court in a directions hearing shall ascertain …

11) whether the remand measure has been selected appropriately; … .”

“ Teisėjui vienasmeniškai arba teismui tvarkomajame posėdyje sprendžiant kiekvieno kaltinamojo atidavimo teismui klausimą, turi būti išaiškinamos šios aplinkybės : …

11) ar tinkamai parinkta kaltinamajam kardomoji priemonė ; … .”

Article 250 para. 1 :

“After having decided that there is a sufficient basis to commit the accused to trial, a judge individually or a court in a directions hearing shall determine …

2) the [appropriate] remand measure in respect of the accused; … .”

“ Pripažinęs , kad yra pakankamas pagrindas kaltinamajam atiduoti teismui , teisėjas vienasmeniškai ar teismas tvarkomajame posėdyje turi išspręsti šiuos klausimus : …

2) dėl kardomosios priemonės kaltinamajam ; … .”

Article 267 para. 1 :

“The defendant has the right to: …

3) submit requests; …

11) appeal against the judgment and decisions of a court.”

“ Teisiamasis turi teisę : …

3) pareikšti prašymus ; …

11) apskųsti teismo nuosprendį ir nutartis .”

Article 277 :

“In the course of a trial, a court can decide to order, vary or revoke a remand measure in respect of the defendant.”

“ Teismas turi teisę teisminio nagrinėjimo metu savo nutartimi parinkti , pakeisti ar panaikinti teisiamajam kardomąją priemonę .”

46. The law amending and supplementing the Code of Criminal Procedure ( Baudžiamojo proceso kodekso pakeitimų ir papildymų įstatymas ) of 21 June 1996 stated that detention authorised by a prosecutor prior to 21 June 1996 could be thereafter extended by a court in accordance with the new procedure governing the remand in custody.

47. The Law on Detention on Remand ( Kardomojo kalinimo įstatymas ) (Articles 6, 9 and 35) provides that a person may be held in detention on remand / arrest only where an appropriate order has been issued by a court or judge, or (before 21 June 1996) by a prosecutor.

C. Reservation of the Republic of Lithuania

48. The Lithuanian reservation to Article 5 para. 3 of the Convention was in force until 21 June 1996 and provided as follows:

“The provisions of Article 5, paragraph 3, of the Convention shall not affect the operation of Article 104 of the Code of Criminal Procedure of the Republic of Lithuania (amended version No. I-551, July 19, 1994) which provides that a decision to detain in custody any persons suspected of having committed a crime may also, by decision of a prosecutor, be so detained. This reservation shall be effective for one year after the Convention comes into force in respect of the Republic of Lithuania.”

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

49. The Commission has declared admissible the following complaints of the applicant:

- that his preventive detention from 8 February 1996 until 14 March 1996 was unlawful;

- that his detention on remand from 4 June 1996 until 31 July 1996 was unlawful;

- that his detention on remand from 31 July 1996 until 16 October 1996 was unlawful;

- that he was not “brought promptly before a judge or other officer”;

- that the length of his detention was excessive; and

- that he was not able to obtain a court review of the lawfulness of his detention on remand.

B. Points at issue

50. Accordingly, the points at issue in the present case are:

- whether there has been a violation of Article 5 para. 1 of the Convention in connection with the applicant’s preventive detention from 8 February 1996 until 14 March 1996;

- whether there has been a violation of Article 5 para. 1 of the Convention in connection with the applicant’s detention on remand from 4 June 1996 until 31 July 1996 was unlawful;

- whether there has been a violation of Article 5 para. 1 of the Convention in connection with the applicant’s detention on remand from 31 July 1996 until 16 October 1996;

- whether there has been a violation of Article 5 para. 3 of the Convention in connection with the applicant’s complaint that he was not “brought promptly before a judge or other officer”;

- whether there has been a violation of Article 5 para. 3 of the Convention in connection with the applicant’s complaint that the length of his detention was excessive;

- whether there has been a violation of Article 5 para. 4 of the Convention.

C. Death of the applicant

51. The Commission notes the fact of the applicant’s death, and the wish of his widow to pursue the application he initiated (see paras. 2 and 42). The Commission recalls that where an applicant dies during the proceedings, the heirs or next of a kin of the applicant may in principle pursue the application on the applicant’s behalf provided that they are shown to have a legitimate interest to justify the continuation of the examination of the case (see e.g., Eur. Court. HR, Ahmet Sadık v. Greece judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, pp. 1651-1652, §§ 24-26). In the present case the applicant complained inter alia of the unlawfulness of his  detention. The Commission considers that his widow has a legitimate interest in pursuing the proceedings on his behalf.

D. As regards Article 5 para. 1 of the Convention

52. Article 5 para. 1 of the Convention, insofar as relevant, reads as follows:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: …

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; … .”

53. The applicant alleged that from 8 February 1996 until 14 March 1996 he had been deprived of his liberty under the preventive detention rule contrary to Article 5 para. 1 of the Convention as there had been no specific offences which he could be prevented from committing, and that there had been no reasons or charges to justify his being held in custody.

54. He further stated that there had been no valid domestic decision for his detention on remand from 4 June 1996 until 31 July 1996, that his remand in custody had therefore been unlawful, and that his detention could not be justified by virtue of the fact that his co-accused had access to the case-file.

55. The applicant also asserted that on 31 July 1996 the Panevėžys Regional Court had erred under Article 104-1 of the Code of Criminal Procedure as it had only decided that the applicant’s “remand shall remain unchanged”. In the applicant’s opinion, the term of his initial detention on remand had expired, and the Regional Court ought to specify which type of remand it was. However, the court failed to do so. In the applicant’s opinion, he was remanded by a lawful court order only on 16 October 1996, when the Panevėžys Regional Court specified that the applicant was to remain in custody. Thus from 31 July 1996 until 16 October 1996 he was deprived of his liberty contrary to the procedure prescribed by national law.

56. In their observations of 26 January 1998 the Government contend that the applicant’s preventive detention ended on 14 March 1996, and that this complaint cannot be examined by the Commission in view of the six months’ requirement laid down by the former Article 26 of the Convention. They state that the applicant’s preventive detention was in any event compatible with Article 5 para. 1 (c) of the Convention, as the former provision of Article 50-1 of the Code of Criminal Procedure permitted the applicant’s detention with a view to preventing the commission of three specific offences listed in that provision.

57. The Government further argue that the applicant’s detention on remand from 14 March 1996 until 9 June 1997 was based on the reasonable suspicion of his having committed murder. They state that the term of the applicant’s detention on remand authorised by a prosecutor “could expire” 5 days after the accused in the case had completed their access to the case-file pursuant to the then Article 226 para. 6 of the Code of Criminal Procedure. However, they refer to the decision of the Panevėžys Regional Court of 31 July 1996 in which a judge found that there had been no violations of domestic criminal procedure in respect of the applicant’s remand in custody.

As regards the applicant’s preventive detention from 8 February 1996 until 14 March 1996

58. The Commission first notes the Government’s argument that the applicant did not comply with the six months’ requirement of the former Article 26 of the Convention in respect of his complaint about the lawfulness of the period of preventive detention. Under the former Article 29 of the Convention the Commission can reject a complaint after having declared it admissible where, by a majority of two thirds of its members, it finds that the existence of one of the grounds for non-acceptance provided for in the former Article 27 has been established. The Commission will therefore deal with the Government’s contention in this respect under the former Article 29.

59. The Commission recalls that, where a complaint is made about an absence of an effective remedy against a continuing situation, such as a period of detention, the six months’ time-limit mentioned in the former Article 26 of the Convention runs from the end of that situation (see, Decision of 1.12.1997 as to the admissibility of the present application). At the same time, the former Article 26 should be applied with a certain degree of flexibility and without excessive regard for matters of form (see, among many other authorities, Eur. Court HR, Guzzardi v. Italy judgment of 6 November 1980, Series A. no. 39, p. 26, para. 72).

60. The Commission notes that the applicant was arrested on 8 February 1996. He remained in detention until 9 June 1997, when he was released upon his acquittal. The Commission notes that in domestic terms the applicant’s detention from 8 February 1996 until 14 March 1996 was effected pursuant to the former Article 50-1 of the Code of Criminal Procedure, and that from 14 March 1996 until 9 June 1997 the applicant was detained on remand. The Commission notes however that there were no visible signs of a change of the applicant’s status on 14 March 1996, such as a change of cell, or the applicant’s appearance before an appropriate authority which could have alerted him of a change of status. The Commission considers that to distinguish between the two periods of detention for the purpose of applying the six months’ time-limit laid down in the former Article 26 of the Convention would be unduly formalistic.

61. The application was submitted on 30 December 1996, while the applicant remained in the  detention he complained about. Accordingly, the Commission declines to reject this part of the application under the former Article 29 of the Convention.

62. The Commission must next consider whether the applicant’s deprivation of liberty from 8 February 1996 to 14 March 1996 was compatible with Article 5 para. 1 of the Convention.

63. The Government rely on sub-paragraph (c) of Article 5 para. 1 to justify the period of the applicant’s preventive detention. They state that the former provision of Article 50-1 of the Code of Criminal Procedure permitted the applicant’s detention in order to prevent his committing an offence for the purpose of Article 5 para. 1 (c).  

64. The Commission notes that the applicant was detained on the basis of Article 50-1 of the Code of Criminal Procedure which, as it was worded at that time, permitted the detention of a person when there were sufficient reasons to suspect that he might commit a serious crime of a kind mentioned in the Article, the purpose of the detention being to prevent the commission of such a crime.

65. However, as the Court stated in the Lawless case, Article 5 para. 1 (c) of the Convention means that a person whom “it is reasonably considered necessary to prevent … committing an offence” may be arrested or detained only “for the purpose of bringing him before the competent legal authority” (see, Eur. Court HR, Lawless v. Ireland judgment of 1 July 1961, Series A no. 3, pp. 51-52, para.14). Later on, in the Ciulla case, the Court found that Article 5 para. 1 (c) only applied to pre-trial detention ordered in the context of criminal proceedings, but not to the purely expedient detention at issue in that case (see, Eur. Court HR, Ciulla v. Italy judgment of 22 February 1989, Series A no. 148, pp. 16-18, paras. 38-41).

66. In the present case, since the detention provided for in Article 50-1 of the Code of Criminal Procedure only had the purpose of preventing crime, with no reference to bringing the detained person “before the competent legal authority”, it did not satisfy the requirements of Article 5 para. 1 (c) of the Convention. Nor was it in conformity with any of the other sub-paragraphs of Article 5 para. 1. It follows that the applicant’s preventive detention fell outside the list of permissible exceptions to the right to liberty of person under paragraph 1 of Article 5.

CONCLUSION

67. The Commission concludes, by 27 votes to 2, that in the present case there has been a violation of Article 5 para. 1 of the Convention as regards the applicant’s preventive detention from 8 February 1996 until 14 March 1996.

As regards the applicant’s detention on remand from 4 June 1996 until 31 July 1996

68. As to the applicant’s complaint that his remand in custody from 4 June 1996 to 31 July 1996 was unlawful, the Commission recalls that, in requiring that any detention should be “lawful” and should comply with “a procedure prescribed by law”, Article 5 para. 1 of the Convention essentially refers back to national law and requires any arrest or detention to conform to the substantive and procedural rules thereof. It further requires that any arrest or detention should be in conformity with the purpose of Article 5 which is to prevent persons from being deprived of their liberty in an arbitrary fashion (see, inter alia , Eur. Court HR, Erkalo v. the Netherlands judgment of 2 September 1998, to be published in Reports of Judgments and Decisions , para. 52). In addition, given the importance of personal liberty and security, it is essential that the applicable national law meet the standard of “lawfulness” set by the Convention (see, Eur. Court HR, Steel and Others v. the United Kingdom judgment of 23 September 1998, to be published in Reports , para. 54). The domestic “law” on which the detention is based must therefore be compatible with the rule of law, “accessible” and “foreseeable” in its application (see, No. 28358/95, Baranowski v. Poland, Report of the Commission of 28 May 1998, paras. 54-56). The standard of “lawfulness” also requires that all law be sufficiently “precise” to allow the citizen - if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, mutatis mutandis , the Steel judgment cited above, loc . cit .).

69. The Commission notes that t he term of the applicant’s detention on remand designated by a prosecutor ended on 4 June 1996 (see para. 19), whereas u ntil 21 June 1996 a person could be detained only on the basis of a decision of a court, or an order of a judge or the authorisation of a prosecutor pursuant to the then Article 10 of the Code of Criminal Procedure. Article 10 was amended on 21 June 1996; thereafter an order of a judge or court was required for a person to be lawfully remanded in custody. A court order on the applicant’s remand was issued only on 31 July 1996. It therefore appears that in the period from 4 June until 31 July 1996 the applicant’s detention was authorised neither by a prosecutor nor by a court.

70. From 30 May 1996 until 10 June 1996 the applicant had access to the case-file, while the other accused in the case had access to the case-file until 14 June 1996. Pursuant to the then applicable provision of Article 226 para. 6 of the Code of Criminal Procedure (see para. 44), the time-limits in connection with the applicant’s detention on remand did not run while he and other accused were consulting the case-file. In these circumstances, the Commission observes that there could be two interpretations of Article 226 para. 6 as worded at that time in order to determine the date when the term of the applicant’s detention on remand expired:

- First, it is possible that the term of the applicant’s detention on remand did not end on 4 June but on 14 June 1996, i.e. the date on which the access to the case-file was completed. This interpretation is supported by the Ombudsman’s analysis, which concluded that the administration of the prison kept the applicant in custody unlawfully from 14 June 1996 until 31 July 1996 (see para. 31). This reading of the domestic criminal procedure also appears to have been that of the prosecution in their letter of 13 June 1996 (see para. 24).

- Secondly, since the five days from 30 May to 4 June 1996 - whilst the applicant had access to the case-file and the term of his detention was still extant - were not counted towards the overall term of his detention, it is also possible that the term of the applicant’s detention on remand ended on 19 June 1996, i.e. five days following the date on which all the accused completed their access to the case-file. This interpretation of the domestic law in question was advanced by the Government in their observations, in which they contended that the term of the applicant’s detention on remand “could expire” five days following the date when the access to the case-file was completed.

71. The date when the term of the applicant’s detention designated by a prosecutor actually ended - a question of domestic law applicable at the material time - is thus far from clear. The Government’s observations do not provide a conclusive answer to the question whether domestic law permitted the applicant’s detention until 4, 14 or 19 June 1996.

72. The position is thus that from 19 June until 31 July 1996 the applicant was detained without any authorisation in domestic law, and that in the period from 4 June to 19 June 1996 his detention was authorised, if at all, by reference to matters wholly extraneous to the considerations set out in Article 5 of the Convention (see para. 68). It follows that the applicant’s detention by reference to the former Article 226 para. 6 of the Code of the Criminal Procedure constituted a deprivation of liberty not based on a “law” within the meaning of Article 5 para. 1 of the Convention.

73. As there was no valid domestic decision or legal basis for the applicant’s detention from 4 June 1996 until 31 July 1996 (see para. 69), he suffered a breach of Article 5 para. 1 of the Convention in this respect.

CONCLUSION

74. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 1 of the Convention as regards the applicant’s detention on remand from 4 June 1996 until 31 July 1996.

As regards the applicant’s detention on remand from 31 July 1996 until 16 October 1996

75. The question remains whether the applicant’s detention from 31 July 1996 until 16 October 1996 complied with “a procedure prescribed by law”, and whether it was “lawful” for the purpose of Article 5 para.1 of the Convention. The Commission recalls that in principle a period of detention is “lawful” if it is pursuant to a court order, and even a subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of that detention (see, Eur. Court HR, Benham v. the United Kingdom judgment of 10 June 1996, Reports 1996-III, p. 753, para. 42).

76. The Commission first notes that the Law amending the Code of Criminal Procedure of 21 June 1996 did not require that a fresh decision be taken by a court to detain a person once the detention had been authorised by a prosecutor; a court order extending the term of such a detention was sufficient (see para. 46). Secondly, the court decision of 31 July 1996 constituted a valid basis for the applicant’s detention under Article 10 of the Code of Criminal Procedure as amended on 21 June 1996, even though, by that time, the initial term of the applicant’s detention authorised by a prosecutor had expired.

77. On 31 July 1996 the Panevėžys Regional Court decided that the applicant’s “remand shall remain unchanged” (see para. 28). It is true that the Regional Court did not expressly order the applicant’s detention on remand. Nor did it specify a term of that remand. However, given the context in which the decision of 31 July 1996 was taken, namely a court hearing to obtain directions on further procedure for a criminal trial, the meaning of the above decision to keep the applicant in custody must have been clear to all present on 31 July 1996, including the applicant’s lawyer.

78. Thus the Commission does not find it established that the decision of 31 July 1996 as to the applicant’s detention was invalid, or that the detention which resulted from it was unlawful under national law (see, mutatis mutandis , the Benham judgment cited above, p. 754, paras. 46-47). Accordingly, there was no breach of Article 5 para. 1 of the Convention in this respect.

CONCLUSION

79. The Commission concludes, unanimously, that in the present case there has been no violation of Article 5 para. 1 of the Convention as regards the applicant’s detention on remand from 31 July 1996 until 16 October 1996.

E. As regards Article 5 para. 3 of the Convention - “brought promptly before a judge”

80. Article 5 para. 3 of the Convention provides:

“Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

81. The applicant claimed that he had not been brought promptly before a proper officer. He asserted that in the initial period of his detention from 8 February 1996 to 21 June 1996 he had not been brought before a judge or a prosecutor, and that from 21 June 1996 until 14 October 1996 - after the amendment to the Code of Criminal Procedure had come into force and the reservation of Lithuania with respect to Article 5 para. 3 had expired - he had not been brought promptly before a judge.

82. The Government state that the applicant’s complaint that he was not brought before any officer during the period of his preventive detention cannot be examined in view of the six months’ requirement of the former Article 26 of the Convention. As regards the subsequent period of the applicant’s detention on remand, the Government acknowledge that since 21 June 1996 domestic law has required that an arrested person must be brought before a judge within not more than 48 hours. However, in the Government’s view, the guarantee contained in Article 5 para. 3 of the Convention applies to the initial moment of detention, which in this case occurred on 14 March 1996, i.e. before the expiry of the Lithuanian reservation in respect of Article 5 para. 3 of the Convention on 21 June 1996. The Government thus argue that, since the applicant’s detention on remand was ordered on 14 March 1996, he was not then or thereafter entitled to be brought promptly before a judge or any other officer. The Government also state that there was no provision in the Law amending the Code of Criminal Procedure, under which a person, who was detained on the basis of the authorisation of a prosecutor before 21 June 1996, could be brought before a judge thereafter. They contend that to bring the applicant before a prosecutor would have only been a “partial realisation” of the right to be brought before a proper officer. 

83. The Commission notes first the Government’s argument that the period of the applicant’s preventive detention from 8 February 1996 until 14 March 1996 cannot be examined in view of the six months’ requirement of the former Article 26 of the Convention. However, the Commission has already concluded that it is competent to examine the whole of the applicant’s detention in this respect (see paras. 58-61).

84. However, the Commission has also found that the applicant’s preventive detention from 8 February 1996 until 14 March 1996 was not a deprivation of liberty to which Article 5 para. 1 (c) of the Convention applied (see paras. 62-67). Consequently, Article 5 para. 3 was not applicable to the period of the applicant’s preventive detention.   

85. The applicant’s detention on remand for the purpose of Article 5 para. 1 (c) of the Convention was authorised on 14 March 1996. Accordingly, the Commission will examine this complaint as from that date.

86. The Commission further notes the Lithuanian reservation which was in force until 21 June 1996 and provided that the provisions of Article 5 para. 3 of the Convention “shall not affect the operation of Article 104 of the Code of Criminal Procedure … [of 19 July 1994] which provides that a decision to detain in custody any persons suspected of having committed a crime may also, by decision of a prosecutor, be so detained” (also see para. 48).

87. The applicant contested the validity of the reservation. The Government, on the contrary, maintain that the reservation removed any right for the applicant, arrested on the basis of the authorisation of a prosecutor, to be brought before a judge or prosecutor as there was no such right in domestic law until the amendment to the Code of Criminal Procedure of 21 June 1996. They state that the bringing of the applicant before a prosecutor would have only been a “partial realisation” of the right under Article 5 para. 3.

88. The Commission recalls the former Article 64 of the Convention which reads as follows:

“1. Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this Article.

2. Any reservation made under this Article shall contain a brief statement of the law concerned.”

89. The aim of the prohibition on reservations “of a general character” is to ensure that reservations are not couched in terms that are too vague or broad for it to be possible to determine their exact meaning and scope (see, Eur. Court HR, Belilos v. Switzerland judgment of 29 April 1988, Series A no. 132, p. 26, para. 55).

90. The Commission observes that the Lithuanian reservation was not expressed in very precise terms. However, the reservation referred to Article 5 para. 3 of the Convention and also to Article 104 of the Code of Criminal Procedure which, at the time when the reservation was made, provided for detention on remand authorised by a prosecutor. The reservation also explicitly referred to detention by decision of a prosecutor. A normal reading of the reservation, in the context of Article 104 of the Code of Criminal Procedure, therefore makes it clear that Lithuania intended, for a transitional period of one year, to maintain the possibility of having detention ordered by prosecutors and not by courts, and thus to depart during that period from the rule in Article 5 para. 3 according to which an arrested person must be brought promptly before a judge or another judicial officer. The Commission considers that in its context the reservation was sufficiently clear and precise to fulfil the requirements of the former Article 64 of the Convention. Consequently, the fact that the applicant was not brought before a proper officer could not constitute a violation of Article 5 para. 3 as long as the reservation was in force.

91. The Commission further notes, however, that the applicant’s detention on remand continued beyond 21 June 1996, which was the date when the reservation expired. The question arises, therefore, whether Article 5 para. 3 required that the applicant should be “brought promptly before a judge or other officer” after 21 June 1996.

92. The Commission considers that the right to be brought promptly before a proper officer according to Article 5 para. 3 of the Convention relates to the time when a person is first deprived of his liberty under Article 5 para. 1 (c). The obligation on Contracting States is therefore limited to bringing detained persons before a proper officer in that initial period. If, as a result of a valid reservation, the State is not under an obligation to bring promptly the detained person before a proper officer, there is no basis in Article 5 para. 3 for finding such an obligation after the reservation has expired. Where, as here, the reservation continued in force for over three months after the applicant’s detention under Article 5 para. 1 (c) commenced, there is no scope for finding a violation of Article 5 para. 3 in this connection after 21 June 1996.

93. It follows that there was no requirement under Article 5 para. 3 to bring the applicant promptly before a proper officer after the reservation had expired, and, accordingly, there was no breach of Article 5 para. 3. in this respect.

CONCLUSION

94. The Commission concludes, by 27 votes to 2, that in the present case there has been no violation of Article 5 para. 3 of the Convention as regards the applicant’s complaint that he was not “brought promptly before a judge or other officer”.

F. As regards Article 5 para. 3 of the Convention - “trial within a reasonable time”

95. The applicant also complained under Article 5 para. 3 that his detention from 8 February 1996 until 9 June 1997 - 16 months and 1 day - had exceeded “a reasonable time” within the meaning of the above provision of the Convention. The applicant claimed that no appropriate procedural steps had been taken by the State authorities during the period of his preventive detention. He stated that there had been no developments in the case from the moment when the case-file had been transmitted to the Regional Court on 24 June 1996 until the directions hearing of 31 July 1996, and again, from the moment when the case was returned to the Regional Court on 28 April 1997 until 26 May 1997, when the trial recommenced. The applicant stated that too much time had been wasted in the carrying out of additional investigations and the collection of further evidence. There had also been alleged stoppages in the investigation while unnecessary procedural disputes had been settled (see paras. 34 and 36). The applicant concluded that the length of his detention could not therefore be justified for the purpose of Article 5 para. 3.

96. The Government observe that the period to be taken into account began on 14 March 1996 and ended on 9 June 1997. They state that the applicant was thus detained for the purpose of Article 5 para. 3 of the Convention for 14 months and 26 days. The Government stress that the proceedings in question related to murder in aggravating circumstances, and that three policemen were accused in the case together with the applicant. The fact that the case was factually and legally complex is confirmed by the need to adjourn the trial on two occasions for further evidence to be gathered. The Government consider that the overall term of the applicant’s detention on remand did not exceed the “reasonable time” referred to in Article 5 para. 3 of the Convention.

97. The Commission notes first the Government’s argument that the period of the applicant’s preventive detention from 8 February 1996 until 14 March 1996 cannot be examined in view of the six months’ requirement of the former Article 26 of the Convention. However, the Commission has already concluded that it is competent to examine the whole of the applicant’s detention in this respect (see paras. 58-61 and para. 83).

98. The Commission has also found that the applicant’s preventive detention from 8 February 1996 until 14 March 1996 did not amount to a deprivation of liberty for the purposes of Article 5 para. 1 (c) of the Convention (see paras. 62-67) and that Article 5 para. 3 was not applicable to the period of the applicant’s preventive detention (see para. 84).    

99. Notwithstanding the above, the Commission recalls that, in order to assess whether the duration of a period of detention is reasonable, it may even take into account a part thereof which falls, as such, outside its competence (see, among many other authorities, Nos. 15530-15531, Dec. 10.10.91, D.R. 72, p. 169).  

100. The applicant was remanded in custody for the purposes of Article 5 para. 1 (c) of the Convention from 14 March 1996 until 9 June 1997, i.e. 14 months and 26 days. The Commission will assess the reasonableness of the length of the applicant’s detention under Article 5 para. 3 on the basis of the above period. In addition, it will take into account that, by the time the applicant’s detention on remand was authorised on 14 March 1996, he had been deprived of his liberty (albeit not in detention on remand) for over a month since 8 February 1996.

101. The Commission recalls that the question whether a period of pre-trial detention can be considered “reasonable” within the meaning of Article 5 para. 3 must be assessed in each case according to its special features. Continued detention can be justified only if there are specific indications of a genuine requirement of public interest which outweighs the rule of respect for individual liberty. It falls in the first place to the national judicial authorities to examine all the circumstances arguing for and against the existence of a genuine requirement of public interest and set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by an applicant in his applications, that the Convention organs decide whether or not there has been a violation of Article 5 para. 3 of the Convention. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the continued detention, but, after a certain lapse of time, it no longer suffices; the Convention organs must then establish whether the other grounds cited by the judicial authorities continue to justify the deprivation of liberty (see, mutatis mutandis , Eur. Court HR, Van der Tang v. Spain judgment of 13 July 1995, Series A no. 321, pp. 17-18, para. 55).

102. The Commission notes that the only reasons given by the authorities for the applicant’s detention on remand were the gravity of the offence (see para. 20) and the strong suspicion against him (see para. 23). No other reasons, such as danger of flight, danger of collusion or the risk of further offences being committed by the applicant, were indicated by the prosecutor or the courts, and Article 104 of the Code of Criminal Procedure, which was the legal basis of his detention, expressly provided that arrest for murder in aggravating circumstances could be ordered on the basis of the gravity of the offence alone.

103. While, under Article 5 para. 3, the suspicion against the applicant of a serious offence could justify his detention for a limited period, it could not constitute sufficient justification for the applicant’s whole period of detention which lasted almost fifteen months. It follows that the length of the applicant’s detention did not satisfy the requirements of Article 5 para. 3 of the Convention.

CONCLUSION

104. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 3 of the Convention as the length of the applicant’s detention exceeded “a reasonable time”.

G. As regards Article 5 para. 4 of the Convention

105. Article 5 para. 4 of the Convention reads as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

106. The applicant complained of the refusals of the Court of Appeal and the President of the Criminal Division of the Supreme Court to examine appeals against the decisions of the Panevėžys Regional Court of 31 July 1996 and 16 October 1996 to authorise his detention on remand.

107. The Government state that Articles 52 and 267 of the Code of Criminal Procedure afforded the applicant the right to submit “requests” for release or appeal against any acts or decisions of an interrogator, investigator, prosecutor and court.

108. The Commission recalls that, by virtue of Article 5 para. 4 of the Convention, arrested or detained persons are entitled to a judicial review bearing upon the procedural and substantive conditions which are essential for the “lawfulness” of their deprivation of liberty in the sense of the Convention (see, Eur. Court HR, Brogan v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B, p. 34, para. 65). Article 5 para. 4 guarantees no right, as such, to appeal against decisions ordering or extending detention as the above provision speaks of “proceedings” and not of “appeal”. The intervention of one organ satisfies Article 5 para. 4, but on condition that the procedure followed has a judicial character and gives to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question (see, Eur. Court HR, De Wilde , Ooms and Versyp v. Belgium judgment of 18 July 1971, Series A no. 12, p. 40-41, para. 76). What should be taken into account, first and foremost, is the purpose of Article 5 para. 4 - to assure to persons who are arrested and detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected ( ibid. ,  p. 40, para. 76).

109. This means that, in the instant case, the applicant should have had available to him a remedy allowing the competent court to examine the compliance of his continued detention with the relevant substantive and procedural requirements of domestic law (see, mutatis mutandis , the aforementioned Brogan judgment, loc . cit .). 

110. On the facts of the case, however, the Panevėžys Regional Court made no reference in its decisions of 31 July 1996 and 16 October 1996 to the applicant’s contention that he had been remanded in custody without a valid domestic decision from 4 June 1996 until 31 July 1996 (see paras. 28-29). Both the Court of Appeal and the President of the Criminal Division of the Supreme Court acknowledged that the lawfulness of the applicant’s continued detention was open to question (see paras. 33 and 35). However, his applications were dismissed on the ground that no appeal lay from decisions authorising detention. 

111. It follows that the applicant was not afforded the right to take proceedings to contest the lawfulness of his detention in accordance with Article 5 para. 4 of the Convention.

CONCLUSION

112. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 of the Convention.

H. Recapitulation

113. The Commission concludes, by 27 votes to 2, that in the present case there has been a violation of Article 5 para. 1 of the Convention as regards the applicant’s preventive detention from 8 February 1996 until 14 March 1996 (see para. 67).

114. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 1 of the Convention as regards the applicant’s detention on remand from 4 June 1996 until 31 July 1996 (see para. 74).

115. The Commission concludes, unanimously, that in the present case there has been no violation of Article 5 para. 1 of the Convention as regards the applicant’s detention on remand from 31 July 1996 until 16 October 1996 (see para. 79).

116. The Commission concludes, by 27 votes to 2, that in the present case there has been no violation of Article 5 para. 3 of the Convention as regards the applicant’s complaint that he was not “brought promptly before a judge or other officer” (see para. 94).

117. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 3 of the Convention as the length of the applicant’s detention exceeded “a reasonable time” (see para. 104).

118. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 of the Convention (see para. 112).

M.-T. SCHOEPFER S. TRECHSEL

Secretary President

to the Commission of the Commission

PARTLY DISSENTING OPINION OF MR S. TRECHSEL

I have voted against the finding of a violation with regard to the first period of detention running from 8 February until 14 March 1996 because I am not in agreement with the decision on admissibility with regard to the six months’ rule under former Article 26 of the Convention. In my view, it is not possible to forge a single period of detention out of two distinct periods of detention, which are based on different grounds. Let us suppose that the detention after 14 March was perfectly lawful, e.g. that the applicant had started serving a prison sentence. I have no doubts that any previous deprivation of liberty based on a different ground, e.g. detention on remand, could not be declared admissible more than six months after that period of detention had ended. In the present case the period under examination ended on 14 March, while the application was introduced on 30 December. It ought therefore to have been declared inadmissible.

PARTLY DISSENTING OPINION OF MM. G. RESS AND E. BIELIŪNAS

While we agree with most of the conclusions of the Commission in the present case, we find ourselves unable to agree with the finding that there was no violation of Article 5 para. 3 of the Convention with regard to the applicant’s complaint that he was not brought promptly before a judge or other officer. The view of the majority was that the Lithuanian reservation to Article 5 para. 3 removed the applicant’s right to be brought promptly before a proper officer, and that he did not become entitled to the guarantee of  Article 5 para. 3 after the reservation had expired. In our view, however, the reservation in question was invalid, and it did not affect the applicant’s situation.

We would recall in this connection the provision of Article 64 para. 1 of the Convention which prohibits reservations “of a general character”. The aim of this prohibition is to ensure that reservations are not couched in terms that are too vague or broad for it to be possible to determine their exact meaning and scope (see, Eur. Court HR, Belilos v. Switzerland judgment of 29 April 1988, Series A no. 132, p. 26, para. 55; also see para. 89 of the present Report).

While preserving the right of a prosecutor to authorise detention, the text of the reservation included no reference to the bringing promptly of the arrested person before any officer. The reservation referred to the then provision of Article 104 of the Code of Criminal Procedure which in fact included the possibility, “when necessary”, for the arrested person to be brought before a prosecutor (see para. 44). However, the reservation did not refer to this part of the former Article 104. It remains unclear, in our view, whether the reservation thus deprived an arrested person of a right to be “brought promptly” before any particular “officer”, whether it conferred upon a prosecutor the “judicial power” to execute the guarantee of Article 5 para. 3, or whether it limited other rights under Article 5 para. 3. The reservation could be interpreted in different ways, whereas Article 64 para. 1 requires precision and clarity (see, mutatis mutandis , the Belilos judgment cited above, loc. cit.). While it may well be argued that Lithuania’s concern at the time of ratification was to put the relevant provisions of domestic law in conformity with Article 5 of the Convention, that cannot obscure the objective reality of the inadequate wording of the reservation.

In our view, therefore, the reservation is not really in line with the rule that reservations must not be of “a general character”, with the result that it should have been held to be invalid. The majority’s argument that the reservation removed the applicant’s right to be brought promptly before a proper officer thus should have been rejected. Further, as the applicant’s rights under Article 5 para. 3 were not affected by the reservation once his detention on remand had been authorised, his position should not have been affected once the reservation had expired.

On the facts of the case, the applicant was not brought before an officer within the meaning of Article 5 para. 3 from the moment when his detention on remand was ordered on 14 March 1996 until 14 October 1996, i.e. within seven months. Such a lapse of time without judicial scrutiny can in no way be regarded as “prompt” within the meaning of Article 5 para. 3. In our view, therefore, there was a breach of Article 5 para. 3 in this respect.

[1]   The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.