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MACIONIENE v. LITHUANIA

Doc ref: 32104/96 • ECHR ID: 001-3477

Document date: January 15, 1997

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MACIONIENE v. LITHUANIA

Doc ref: 32104/96 • ECHR ID: 001-3477

Document date: January 15, 1997

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 32104/96

by Ona MACIONIENE

against Lithuania

The European Commission of Human Rights (Second Chamber) sitting

in private on 15 January 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 June 1996 by Ona

MACIONIENE against Lithuania and registered on 2 July 1996 under file

No. 32104/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1941, is a Lithuanian national residing

in Vilnius. She owns a firm called "Konstanta". The facts of the case

may be summarised as follows.

Prior to 20 June 1995, the date on which Lithuania deposited its

instrument of ratification of the Convention and made a declaration

under Article 25 of the Convention, the applicant was involved in

several sets of proceedings, administrative and judicial, related to

her and her firm's assessment to tax.

On 18 October 1995 the President of the Supreme Court (Lietuvos

Auksciausiasis Teismas) introduced a nullity appeal for the

safeguarding of the law with the Civil Chamber of the Supreme Court,

asking for the reinstitution of earlier cassation proceedings on the

ground that in the previous proceedings the courts had not sufficiently

examined the issues of whether statements made by the tax inspector

revealed bias on his part, and of the nature of certain contracts

which, the applicant had claimed, should have been accepted as

constituting expenditure.

On 15 November 1995 the Civil Chamber of the Supreme Court

granted this request and reopened the cassation proceedings.

On 5 December 1995 the Civil Chamber of the Supreme Court

dismissed the cassation appeal. It confirmed the findings of the

previous courts, to the effect, inter alia, that the contracts had been

antedated and were therefore not genuine.

COMPLAINTS

The applicant alleges a violation of her right to a fair trial

under Article 6 para. 1 of the Convention. She considers that the

courts relied only on the statements of the Vilnius Tax Inspectorate,

did not examine the main issues of the applicable law, did not take

into consideration the evidence given by one of her witnesses, and did

not summon another witness on her behalf, thus depriving her of the

opportunity of defending herself.

The applicant also complains:

- that the Vilnius Tax Inspectorate, when making a tax assessment

and imposing fines, did not allow her to be present during the

examination of her case, and thus infringed her right to defend

herself;

- that the courts failed to summon the witness whom the Tax

Inspectorate had also failed to summon, and thereby infringed her right

to obtain the attendance and examination of a witness on her behalf;

- that threats were used by the Chief Tax Inspector on 27 August

1992 with the aim of obtaining evidence from another witness against

the applicant;

- that one tax inspector was a member of the taxation commission

which revised the results of a tax inspection he had himself made;

- that the judges dealt only superficially with the merits of her

case.

As to the hearing of her case before the Civil Chamber of the

Supreme Court in December 1995, the applicant complains that the Court

did not look properly at the main issues of her case, relying only on

statements made by the lower instances.

THE LAW

The applicant complains about violations of her rights guaranteed

by Article 6 (Art. 6) of the Convention. She alleges that her right to

a fair hearing and, in particular, the principle of equality of arms,

was violated by the fact that the courts constantly relied only on the

submissions made by the Tax Inspectorate, rejected evidence given

before them by one witness on her behalf and did not summon another

witness.

Article 6 (Art. 6) of the Convention, so far as relevant,

provides:

"1. In the determination of his civil rights and

obligations or of any criminal charge against him, everyone

is entitled to a fair ... hearing ... by a tribunal

established by law.

3. Everyone charged with a criminal offence has the

following minimum rights:

d. ... to obtain the attendance and examination of

witnesses on his behalf under the same conditions as

witnesses against him."

1. The Commission recalls that it may only deal with applications

dealing with facts which take place subsequent to the entry into force

of the Convention for a particular Contracting State. Lithuania

deposited its instrument of ratification of the Convention and made a

declaration under Article 25 (Art. 25) of the Convention on

20 June 1995.

To the extent, therefore, that the application relates to facts

which occurred before that date, the application is incompatible

ratione temporis with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant also complains of the proceedings subsequent to

20 June 1995.

The Commission first notes that the only judicial decision taken

after 20 June 1995 is the decision of the Civil Chamber of the Supreme

Court to dismiss the cassation appeal of the President of that Court.

The applicant makes no specific complaints about the proceedings

before the Supreme Court beyond a general complaint that the Civil

Chamber did not re-determine the case. However, even assuming

Article 6 (Art. 6) to be applicable, once the cassation proceedings had

been re-instituted, it could not be expected that the court considering

the case would do more than give a new cassation decision. The Civil

Chamber, in its decision of 5 December 1995, gave a new cassation

decision in that it reviewed the previous decisions, and agreed with

the decisions which found against the applicant.

Given that the Commission is not able to examine events prior to

20 June 1995, the Commission is unable to find any unfairness in the

proceedings before the Supreme Court.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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