Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 34578/97

by Juozas JECIUS

against Lithuania

The European Commission of Human Rights sitting in private on

1st December 1997, the following members being present:

Mr S. TRECHSEL, President

Mrs G.H. THUNE

MM E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 30 December 1996

by Juozas JECIUS against Lithuania and registered on 24 January 1997

under file No. 34578/97;

Having regard to:

- the report provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

9 June 1997 and the observations in reply submitted by the applicant

on 29 July 1997;

Having deliberated;

Decides as follows:

THE FACTS

A. Particular circumstances of the case

The applicant is a Lithuanian citizen born in 1948. He resides

in Panevezys, Lithuania. The applicant is represented before the

Commission by Dr. K. Stungys, solicitor, of Vilnius.

The facts of the case as submitted by the parties may be

summarised as follows:

The applicant was suspected of a murder committed on 14 May 1994.

In May 1995 the case was struck off because of the absence of evidence.

The applicant was arrested on 8 February 1996. On the same date,

with the authorisation (sankcija) of the Deputy Prosecutor General, the

Chief Commissioner of the Criminal Police ordered the applicant's

preventive detention (prevencinis sulaikymas). On 9 February 1996 a

judge of the Vilnius Regional Court (apygardos teismas) confirmed the

preventive detention. The applicant appealed against the arrest,

stating 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 investigation was made during the preventive detention. On

20 February 1996 the applicant again requested information as to the

reasons for his arrest under the "preventive detention" rule. It

appears from an undated letter of the President of the Criminal

Division of the Vilnius Regional Court, and from a letter of

29 March 1996 of a prosecutor of the Office of the Prosecutor General,

that no exact reason was given for the applicant's arrest under the

"preventive detention" rule.

On 8 March 1996 the murder case was reopened. The applicant was

kept in preventive detention until 14 March 1996 when the Deputy

Prosecutor General authorised the applicant's detention on remand

(suemimas) on suspicion of having committed murder.

On 22 April 1996 the applicant submitted an application to the

Chief Prosecutor of Panevezys Region, claiming that there was no

evidence to suspect him of having committed or prepared an offence, and

that his preventive detention and subsequent detention on remand were

incompatible with Articles 50, 95 - 104 of the Code of 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 arrest could be justified merely by reference to the

gravity of the alleged offence.

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 arrest and detention infringed his

rights under Article 5 para. 1 (c) of the Convention. On 21 May 1996

a prosecutor of the Panevezys Regional Prosecutor's Office (apygardos

prokuratura) dismissed the application, referring to the gravity of the

offence and arguing that the arrest had been ordered on the basis of

the case-files as a whole. On 4 June 1996 a renewed application by the

applicant's representative was dismissed on the same grounds by the

Chief Prosecutor of Panevezys Region.

The pre-trial investigation was concluded on 29 May 1996. The

authorised term of the applicant's arrest expired on 4 June 1996. From

30 May to 10 June 1996 the applicant and his counsel were given access

to the case-files. Other suspects in the case had access to the case-

files until 14 June 1996. According to Article 226 para. 6 of the Code

of Criminal Procedure, the period of access by the accused and his

counsel to case-files is not counted towards the overall term of pre-

trial investigation and detention. Thus the time-limits thereof do not

run during this period.

The applicant, after having had access to the case-files,

submitted his observations and pleadings to the prosecution arguing

that the accusation and arrest were ill-founded. On 11 June 1996 a

prosecutor of the Panevezys Regional Prosecutor's Office dismissed the

application. The prosecutor held that the case-files contained

sufficient evidence of the applicant's guilt. The prosecutor also

stated that during the preventive detention the applicant could not be

interrogated as an accused person, and that no material had been

collected during that period.

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" and that the case had been

transmitted to the Chief Prosecutor of Panevezys Region to confirm the

bill of indictment. No formal decision on remand was taken.

On 21 June 1996 an amendment to the Code of Criminal Procedure

entered into force, and the reservation of Lithuania in respect of

Article 5 para. 3 of the Convention expired. The amended Article 10 of

the Code of Criminal Procedure provides that a decision to arrest a

person can be ordered only by a court or judge.

On 24 June 1996 the Chief Prosecutor of Panevezys Region wrote

a letter to the administration of the prison informing them that the

case had been transmitted to the Panevezys Regional Court, and that in

respect of the applicant a remand measure - detention - had been

ordered. No formal decision as to the applicant's detention was taken.

On 1 July 1996 the Panevezys 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 to detain the applicant was

issued.

On 31 July 1996, in the directions hearing, a judge of the

Panevezys Regional Court decided "to maintain the remand measure" in

respect of the applicant. The applicant's counsel was present at the

hearing.

On 16 October 1996, after deliberations from 14 to 16 October,

the applicant being present, the Chamber of the Criminal Division of

the Panevezys Regional Court decided that the applicant was to remain

in custody. The term of the applicant's detention was extended to 15

February 1997. The Court ordered additional investigation measures.

On 28 October 1996 the applicant appealed against this decision

to the Court of Appeal. He also lodged applications with the Prosecutor

General, the administration of the prison, and the Parliamentary

Commissioner (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,

without any explanations of the grounds of detention, they had simply

prolonged a non-existing decision to arrest that had expired on

4 June 1996. The applicant stated that, as a consequence, Article 20

of the Constitution of the Republic of Lithuania and Article 5 of the

European Convention of Human Rights were infringed.

On 21 November 1996 the Ombudsman drew the attention of the

Minister of Internal Affairs, the Prosecutor General, the Director of

the Department for Correctional Institutions, and the Director of the

prison to the fact that, in his view, the applicant "had been remanded

in detention illegally from 14 June 1996 until 31 July 1996, which

infringed Article 20 of the Constitution of the Republic of Lithuania

... and Article 5 para. 1 (c) of the Convention".

On 25 November 1996 the applicant again lodged an appeal with the

Court of Appeal emphasising the main grounds of his application of

28 October 1996.

On 27 November 1996 the Criminal Chamber (baudziam*j* byl*

kolegija) of the Court of Appeal dismissed the appeal against the

decision of 16 October 1996 because, under Article 372 para. 4 of the

Code of Criminal Procedure, decisions of a court or judge at first

instance ordering, varying or revoking remand measures could not be the

subject of appeal. In considering the decision of the Regional Court

of 31 July 1996 as to the applicant's remand, the Court of Appeal held

that:

"It is conceivable that this question was not decided

absolutely correctly. However, this category of decisions

cannot be appealed against to the Court of Appeal."

On 30 November 1996 the applicant lodged a cassation appeal with

the President of the Supreme Court (Auksciausiasis 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 kept in

detention 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 that a decision ordering, varying

or extending a remand measure (Article 372 of the Code of Criminal

Procedure) ... cannot be the subject of appeal".

On 14 January 1997 the Chamber of the Criminal Division

(baudziam*j* byl* skyriaus teisej* kolegija) of the Supreme Court

decided that a chamber of three judges rather than a single judge

should consider the merits of the murder case.

The applicant instituted civil proceedings against the

administration of the prison for keeping him in detention without any

formal order. On 26 February 1997 a judge of the Siauliai District

Court (apylinkes teismas) dismissed the claim. The judge held that the

administration's actions had been based on "the authorisation of the

prosecutor, letters informing of the extension of the detention,

decisions of the judge and court". On 28 April 1997 the Civil Chamber

of the Siauliai Regional Court upheld the decision of the District

Court.

The applicant lodged a request to have the remand measure

changed, the ground being that he had developed a heart illness during

the proceedings. On 17 March 1997 the Chamber of the Criminal Division

of the Panevezys Regional Court dismissed the request. The Court held

that its decision could not be appealed against.

On 9 June 1997 the Chamber of the Criminal Division of the

Pavevezys Regional Court acquitted the applicant of all charges due to

the absence of proof. The applicant's detention was lifted and he was

released.

The prosecution and other defendants in the case appealed against

the judgment at first instance. On 27 August 1997 the Chamber of the

Criminal Division of the Court of Appeal annulled the judgment of the

Regional Court. The case was referred back to the prosecution for

further investigation.

On 22 October 1997 a prosecutor of the Panevezys Regional

Prosecutor's Office informed the applicant that the criminal case in

his respect was discontinued by a decision of 21 October 1997.

B. Relevant domestic law

Relevant provisions of the Constitution of the Republic of

Lithuania (Lietuvos Respublikos Konstitucija) are as follows:

(Translation)

Article 20 para. 3:

"A person arrested in flagrante delicto, must, within 48

hours, be brought to court for the purpose of determining,

in the presence of the detainee, the validity of the

detention. If the court does not order the arrested

person's detention, the person shall be released

immediately."

Article 30 para. 1:

"Any person whose constitutional rights or freedoms are

violated shall have the right to apply to court."

Relevant provisions of the Code of Criminal Procedure

(Baudziamojo proceso kodeksas), previous version:

(Translation)

Article 10 (in force until 21 June 1996):

"No one shall be arrested save by virtue of a decision of

a court, order of a judge or on the authorisation of a

prosecutor ... ."

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

"... in accordance with the procedure established by law

... and having sufficient reasons to suspect that a person

might commit a serious offence provided for in Articles 75,

227-1 and 227-2 of the Criminal Code ... [banditism;

criminal association; terrorising a person] ... and with a

view to preventing such an act, the Chief of the Department

of Police ... may, by reasoned decision, and with the

authorisation of the Prosecutor General or his deputy ...

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 on his own discretion bring before him the

person so arrested; however, the judge may decide in the

absence of the arrested person ... .

The person so arrested ... can 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 ... .

... pursuant to the authorisation of a prosecutor, and

confirmed by a judge, a person may be thus be detained for

no longer than two months ... ."

Article 104 (in force until 21 June 1996):

"Detention as a remand measure shall be used only where

based on the order of a court or judge, or the

authorisation of a prosecutor ... ."

Relevant provisions of the Code of Criminal Procedure which are

in force, including the amendments of 21 June 1996 and 17 July 1996:

(Translation)

Article 10 (in force since 21 June 1996):

"No one shall be arrested save by virtue of a decision of

a court or judge."

Article 52 para. 2:

"The accused person has the right ... 8) to appeal against

acts and decisions of an interrogator, investigator,

prosecutor and court."

Article 104-1 (in force since 21 June 1996):

"... the arrested person shall be brought before a judge in

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

inquiry. 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 court ... [the

court] can order, vary or revoke the detention on remand /

arrest."

Article 104-4 (in force since 21 June 1996):

"A decision to order detention on remand / arrest shall be

brought to the attention of the person arrested at the

moment of his arrest. If it is impossible to do so

immediately, the person shall be informed about the

decision as soon as possible ... ."

Article 106 (in force since 21 June 1996):

"... 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.

... throughout the proceedings the detention on remand

cannot be extended beyond two thirds of the maximum term of

the sentence of deprivation of liberty provided by law for

the most serious alleged offence."

Article 109-1 (in force since 21 June 1996):

"An arrested person or his counsel shall have the right

during pre-trial investigation to lodge an appeal with the

appellate court against the detention on remand / arrest.

... the decision taken by a judge of the appellate court

is final and cannot be the subject of appeal.

Repeated appeals shall be determined when examining the

extension of the term of the detention on remand / arrest."

Article 226 para. 6:

"The period when the accused and his counsel have access to

case-files 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-files is not

counted towards the overall term of pre-trial investigation

and arrest."

Article 249:

"A judge individually or a court in a directions hearing,

in deciding whether to bring the accused before the court,

shall decide ... 11) whether the remand measure has been

selected appropriately."

Article 267:

"The defendant has the right ... 3) to submit requests."

Article 372 para. 4 (in force since 17 July 1996):

"Decisions of courts ... ordering, varying or revoking a

remand measure ... cannot be the subject of appeal."

The Law on Detention on Remand (Kardomojo kalinimo *statymas)

(Articles 6, 9, 35) provides that a person may be held in detention on

remand / arrest only where there is an order issued by a court or

judge, or (before 21 June 1996) by a prosecutor.

C. Reservation of the Republic of Lithuania

The Lithuanian reservation to Article 5 para. 3 of the Convention

provides as follows:

"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 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."

COMPLAINTS

1. Under Article 5 para. 1 of the Convention the applicant complains

that he was arrested on 8 February 1996 under the "preventive

detention" rule without any reason or charge. He was then kept in

detention on remand without any domestic decision from 4 June 1996 to

31 July 1996. The applicant further complains that, since the term of

his detention on remand, designated on 14 March 1996, expired on 4 June

1996, the decision of the Panevezys Regional Court of 31 July 1996 to

"maintain the remand measure" did not order detention "in accordance

with a procedure prescribed by law". In his opinion, it was done so

only on 16 October 1996. The applicant asserts that thus his detention

was in breach of Article 5 para. 1 of the Convention.

2. Under Article 5 para. 2 of the Convention the applicant

complains that he was arrested under the "preventive detention" rule

without being informed of the reasons for his arrest or any charge

against him. He states that neither he nor his lawyer were informed as

to what dangerous act he might engage in.

3. Under Article 5 para. 3 of the Convention the applicant complains

that he was not "brought promptly before a judge or other officer

authorised by law" from the moment of his arrest under the "preventive

detention" rule on 8 February 1996 up to the time of the court

deliberations which commenced on 14 October 1996.

4. The applicant alleges a violation of the right under Article 5

para. 3 of the Convention "to trial within a reasonable time" because

he was kept in custody from 8 February 1996 until 9 June 1997.

5. Under Article 5 para. 4 of the Convention the applicant complains

of the refusal of the Court of Appeal and of the President of the

Criminal Division of the Supreme Court to examine appeals against the

detention.

6. The applicant also invokes Article 6 para. 1 of the Convention.

He complains that, pursuant to Article 106 of the Code of Criminal

Procedure, and given the offence that was alleged, he could have been

kept in detention on remand for 10 years. This might have infringed his

right to a "hearing within a reasonable time".

7. He also invokes the right under Article 6 para. 3 (b) of the

Convention "to have adequate time and facilities for the preparation

of his defence". He asserts that the above provision of the Convention

has been violated because the five days from 30 May to 4 June 1996,

during which the applicant was given access to the case-files, were not

counted towards the period of his detention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 30 December 1996 and registered

on 24 January 1997.

On 11 April 1997 the Commission decided to communicate the

application to the respondent Government and to invite them to submit

written observations on the admissibility and merits.

The Government's written observations were submitted on

9 June 1997. The applicant replied on 29 July 1997.

THE LAW

1. Under Article 5 para. 1 (Art. 5-1) of the Convention the

applicant complains that he was arrested on 8 February 1996 under the

"preventive detention" rule without any reason or charge. He was then

kept in detention on remand without any domestic decision from 4 June

1996 to 31 July 1996. The applicant further complains that, since the

term of his detention on remand, designated on 14 March 1996, expired

on 4 June 1996, the decision of the Panevezys Regional Court of 31 July

1996 to "maintain the remand measure" did not order detention "in

accordance with a procedure prescribed by law". In his opinion, it was

done so only on 16 October 1996. The applicant asserts that thus his

detention was in breach of Article 5 para. 1 (Art. 5-1) of the

Convention.

Article 5 para. 1 (Art. 5-1) of the Convention reads so far as

relevant as follows:

"... 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 ... ."

The Government in their observations refer to the decision of the

Panevezys Regional Court of 31 July 1996 in which the judge found no

violation of domestic law in respect of the applicant's detention.

The applicant maintains that his detention was in breach of

Article 5 para. 1 (Art. 5-1) of the Convention. He states that his

arrest under the "preventive detention" rule was unlawful, and that

from 4 June 1996 until 31 July 1996 there was no domestic decision for

his detention on remand.

In the light of the parties' submissions, the Commission finds

that the applicant's complaints under Article 5 para. 1 (Art. 5-1) of

the Convention as to the legality and lawfulness of his detention raise

complex questions of fact and law, the determination of which should

depend on an examination of the merits. This part of the application

cannot therefore be regarded as manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

ground for declaring it inadmissible has been established.

2. The applicant complains under Article 5 para. 2 (Art. 5-2) of the

Convention that he was not informed of the reason for his detention

under the "preventive detention" rule or of any charge against him.

Article 5 para. 2 (Art. 5-2) reads as follows:

"Everyone who is arrested shall be informed promptly, in a

language which he understands, of the reasons for his

arrest and of any charge against him."

Under Article 26 (Art. 26) of the Convention, the Commission may

only deal with a matter after all domestic remedies have been

exhausted, and within a period of six months from the date on which the

final decision was taken. Only a remedy which is "effective" can be

considered for this purpose (No. 9136/80, Dec. 10.7.81, D.R. 26, p.

242). In the absence of such remedy, the six months period mentioned

in Article 26 (Art. 26) runs from the act, decision or event which is

itself alleged to be in violation of the Convention (No. 7379/76, Dec.

10.12.76, D.R. 8, pp. 211, 213; No. 14807/89, Dec. 12.2.92, D.R. 72,

p. 148; No. 19601/92, Dec. 19.1.95, D.R. 80, p. 46). Where it concerns

a continuing situation, it runs from the end of the given situation

(No. 15299-15300-15318/89, Dec. 4.3.91, D.R. 68, p. 216).

The Commission notes that the applicant's preventive detention

was ordered on 8 February 1996, and lasted until 14 March 1996. It

appears from the undated letter of the President of the Criminal

Division of the Vilnius Regional Court, and from the letter of

29 March 1996 of a prosecutor of the Office of the Prosecutor General,

that no exact reason was given for the applicant's arrest under the

"preventive detention" rule.

In the instant case, the Commission notes that, under the then

Article 50-1 of the Code of Criminal Procedure, there was no formal

requirement for the domestic authorities to inform the applicant of the

specific reason for his preventive detention following the order

thereof.

The applicant thus had no "effective" domestic remedy available

to him to obtain information as to the reasons for his preventive

detention or to contest the refusal thereof. Therefore, the six months

period in this respect began on 14 March 1996, i.e. the date when the

applicant's preventive detention ended.

However, the application was introduced before the Commission

only on 30 December 1996, which is more than six months from

14 March 1996.

It follows that the applicant's complaint under Article 5 para.

2 (Art. 5-2) must be rejected pursuant to Article 27 para. 3

(Art. 27-3) of the Convention.

3. The applicant complains under Article 5 para. 3 (Art. 5-3) that

he was not "brought promptly before a judge or other officer

authorised by law". He asserts that in the initial period of his

detention from 8 February to 21 June 1996 he was not brought before a

prosecutor, and that from 21 June to 14 October 1996 - after the

amendment to the Code of Criminal Procedure came into force and the

reservation of Lithuania with respect to Article 5 para. 3 (Art. 5-3)

expired - he was not brought promptly before a court or judge until the

court deliberations which commenced on 14 October 1996.

Article 5 para. 3 (Art. 5-3) of the Convention reads as follows:

"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."

The Government assert that the Lithuanian law (Article 104-1 of

the Code of Criminal Procedure, in force since 21 June 1996) provides

that "the arrested person shall be brought before a judge in not more

than 48 hours". However, in the Government's view, the guarantee

contained in Article 5 para. 3 (Art. 5-3) of the Convention applies to

the initial moment of detention which, in this case, occurred before

the expiry of the Lithuanian reservation in respect of Article 5 para.

3 (Art. 5-3) of the Convention. The Government thus argue that, since

the applicant's detention on remand was ordered on 14 March 1996, he

was not then and 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, detained by an authorisation of a prosecutor before 21

June 1996, had the right to be brought before a judge.

The applicant considers that the Government cannot hide behind

their own failure to bring him before a proper officer when he was

initially arrested in order to justify their failure to bring him

before a judge or any other officer thereafter.

The Commission notes that the applicant was formally brought

before a judge for the first time on 14 October 1996. Until that date,

he was not brought before a judge or before any other officer

throughout the period of his preventive detention from 8 February 1996,

or his detention on remand from 14 March 1996.

Consequently, the Commission finds that this part of the

application raises complex questions of fact and law, including

questions concerning the reservation of Lithuania to Article 5 para.

3 (Art. 5-3) of the Convention, the determination of which should

depend on an examination of the merits. This complaint cannot therefore

be regarded as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention. No other ground for declaring

this complaint inadmissible has been established.

4. The applicant claims that he has been denied the right to trial

within a reasonable time in violation of Article 5 para. 3

(Art. 5-3) of the Convention.

The Commission notes that the applicant was initially arrested

on 8 February 1996. He was then detained until 9 June 1997 when the

court at first instance acquitted him. The applicant's detention thus

lasted for 16 months and 1 day.

The Commission finds that this part of the application raises

complex questions of fact and law the determination of which should

depend on an examination of the merits. This complaint cannot therefore

be regarded as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention. No other ground for declaring

it inadmissible has been established.

5. Under Article 5 para. 4 (Art. 5-4) of the Convention the

applicant complains of the refusal of the Court of Appeal and the

President of the Criminal Division of the Supreme Court to examine

appeals against his detention on remand.

Article 5 para. 4 (Art. 5-4) 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."

The Government submit that the applicant had the right to apply

to a court which would have resolved the question of the lawfulness of

his detention. They submit that until 31 July 1996, when a judge took

a decision to bring him before a court, the applicant, as an "accused"

under Article 52 para. 1 of the Code of Criminal Procedure, was

entitled to appeal against any acts and decisions of an interrogator,

investigator, prosecutor and court. From 31 July 1996 to

16 October 1996 the applicant, as a "defendant" under Article 267 para.

3 of the Code of Criminal Procedure, was entitled to "submit requests".

From 16 October 1996, when the case was referred back to the

prosecution, the applicant again became an "accused".

The applicant notes that the Government acknowledge the fact that

he had the right to apply to court to challenge the lawfulness of his

detention. However, in his view, the Lithuanian courts, in examining

his complaints, did not recognise such right as they referred solely

to Article 372 para. 4 of the Code of Criminal Procedure which

contradicts Article 30 of the Constitution and other relevant

provisions of domestic law to which the Government referred in their

observations.

The Commission recalls that on 21 June 1996 the amendment to the

Code of Criminal Procedure came into force, and the grounds

and procedure ordering detention on remand (arrest) were changed.

Even though the new system provided for detention on

remand after 21 June 1996 to be ordered only by a court or judge, no

new procedure was introduced for review of detention of persons

arrested prior to 21 June 1996 by a prosecutor. This is also confirmed

by the Government in their comments on the facts of the case where they

submit that after 21 June 1996 there was no possibility of

reconsidering the detention that had been authorised by a prosecutor

prior to 21 June 1996.

The Commission finds that this complaint raises complex questions

of fact and law, and that its determination should depend on an

examination of the merits. This complaint cannot therefore be regarded

as manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention, and no other ground for declaring it

inadmissible has been established.

6. The applicant also invokes Article 6 para. 1 (Art. 6-1) of the

Convention. He complains that, pursuant to Article 106 of the Code of

Criminal Procedure, and given the offence with which he was charged,

he could have been kept in detention on remand for 10 years. This might

have infringed his right to a "hearing within a reasonable time".

Article 6 para. 1 (Art. 6-1) of the Convention reads so far as

relevant as follows:

"In the determination of ... any criminal charge against

him, everyone is entitled to a fair and public hearing

within a reasonable time ... ."

The Commission first notes that this complaint is based on a

hypothetical assumption of what might happen in the future. However,

someone who only fears the risk of a future violation of the Convention

in his regard cannot "claim to be a victim" within the meaning of

Article 25 (Art. 25) of the Convention (No. 7945/77, Dec. 4.7.78, D.R.

14, p. 228). In any event, the Commission considers that the length of

the criminal proceedings against the applicant did not exceed the

"reasonable time" requirement under Article 6 para. 1 (Art. 6-1) of the

Convention.

It follows that this complaint must be rejected as being

manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of the

Convention.

7. He also invokes the right under Article 6 para. 3 (b)

(Art. 6-3-b) of the Convention "to have adequate time and facilities

for the preparation of his defence". He asserts that the above

provision of the Convention has been violated because the five days

from 30 May to 4 June 1996, during which the applicant was given access

to the case-files, were not counted towards the period of his

detention.

Article 6 para. 3 (Art. 6-3) reads so far as relevant as follows:

"Everyone charged with a criminal offence has the following

minimum rights:

... b. to have adequate time and facilities for the

preparation of his defence ..."

The Commission notes that this complaint relates solely to a

period of five days in the investigation phase of the proceedings.

During that period the applicant with his counsel were in fact given

access to the case-files, that is, facilities were being granted for

the preparation of his defence.

It follows that this part of the application must be rejected as

being manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of

the Convention.

For these reasons, the Commission:

by a majority, DECLARES INADMISSIBLE:

- the applicant's complaints that he was not informed of

any reasons for his arrest under the "preventive detention"

rule, and that he did not "have adequate time and

facilities for the preparation of his defence",

- the applicant's complaint that he was deprived of the

right to a "hearing within a reasonable time";

by a majority, DECLARES ADMISSIBLE, without prejudging the

merits, the remainder of the application.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

Menu

JECIUS v. LITHUANIA

JECIUS v. LITHUANIA

LEXI