THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application s no s . 66004/01 and 36996/02 by Valdas VAIVADA and Raimondas VAIVADA against Lithuania

The European Court of Human Rights (Third Section), sitting on 24 November 2005 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr J. Hedigan , Mr C. Bîrsan, Mr V. Zagrebelsky , Mr E. Myjer , Mr David Thór Björgvinsson ,

Ms I. Ziemele judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application s lodged on 7 September 2000 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant s ,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Mr Valdas Vaivada, is a Lithuanian national, who was born in 1969 and lives in TauragÄ—. The second applicant, Mr Raimondas Vaivada, is a Lithuanian national, who was born in 1959 and lives in TauragÄ— region. The second applicant is represented before the Court by Mr V. Gustas, a lawyer practising in Vilnius .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The second applicant is the first applicant ’ s uncle.

The second applicant, who then had a criminal record of two previous convictions, was arrested on 18 July 1997 and questioned in the context of criminal proceedings for theft. He was released on 21 July 1997 .

The first applicant, then having a criminal record of four convictions, was arrested on 19 July 1997 and questioned in the context of another set of criminal proceedings for theft. He was released on 21 July 1997 .

On 22 July 1997 the second applicant was arrested in the context of criminal proceedings for murder of VB, a third person. On the same date the TauragÄ— District Court ordered his detention on remand for two months on the ground that he may abscond from the investigation and commit fresh crimes.

On 31 July 1997 the second applicant was charged with murder.

On 2 August 1997 the first applicant was arrested in the context of criminal proceedings for attempted robbery.

On 4 August 1997 the Tauragė District Court ordered the first applicant ’ s detention on remand for two months because of the danger of his absconding, committing fresh crimes and obstructing the investigation.

On 11 August 1997 the second applicant was also questioned in the attempted robbery case.

On 13 August 1997 a prosecutor charged the first applicant with attempted robbery.

On 15 August 1997 the TauragÄ— District Court ordered compulsory psychiatric examination of the second applicant.

On 19 August 1997 the Klaipėda Regional Court rejected the first applicant ’ s appeal against the detention order.

On 21 August 1997 the two criminal cases for murder and attempted robbery were joined.

On 15 September 1997 the Tauragė District Court extended the term of the second applicant ’ s remand in custody until 22 November 1997 on the same grounds.

On 2 October 1997 the Tauragė District Court extended the first applicant ’ s remand in custody until 2 December 1997 on the same grounds.

On 21 October 1997 two more criminal cases, concerning unlawful possession of firearms and robbery, were joined to the criminal proceedings against the applicants.

On 19 November 1997 the Tauragė District Court extended the term of the second applicant ’ s detention until 21 January 1998 on the ground that he may abscond from the investigation, commit fresh crimes and influence witnesses.

On 27 November 1997 the court prolonged the first applicant ’ s remand in custody for two months on the same grounds.

In late 1997-early 1998 no procedural actions could be carried out in regard to the second applicant in view of his being treated for tuberculosis in the prison hospital.

On 20 January 1998 the Šiauliai Regional Court extended the term of both applicants ’ detention on remand until 1 March 1998 because of the danger of their absconding and influencing the investigation.

On 18 February 1998 four new episodes from other criminal cases, namely damaging property of another, assault, unlawful possession of weapons and causing bodily harm, were joined in the criminal proceedings against the applicants.

On 24 February 1998 one of the two charges of attempted robbery was dropped in regard to the first applicant. At the same time, the charge of murder against the second applicant was reclassified as aggravated murder.

On 25 February 1998 a prosecutor reformulated the charges against the first applicant, accusing him of complicity in murder, attempted robbery, assault, and damaging the property of another. The second applicant, for his part, was charged with aggravated murder, attempted robbery, assault, causing bodily harm, damaging property of another, theft, and unlawful possession of firearms and other weapons.

On 25 February 1998 a prosecutor refused the request by the second applicant ’ s lawyer to order his client ’ s in-patient psychiatric examination.

On 26 February 1998 the investigation was concluded, and the applicants and their defense counsel had access to the case-file.

On 27 February 1998 a prosecutor rejected the applicants ’ request to discontinue the proceedings.

On 2 March 1998 the bill of indictment was confirmed, and the case was sent to the KlaipÄ—da Regional Court .

On 15 April 1998 the KlaipÄ—da Regional Court committed the applicants for trial. It further stated in the decision that their remand measures should remain unchanged pending the adoption of a judgment in the case.

On 1 June 1998 the KlaipÄ—da Regional Court adjourned the proceedings inter alia on the ground that victims and witnesses had not come to the hearing.

The second applicant was at the time placed at the prison hospital for treatment of tuberculosis, and could not participate in the trial. In view of his improved health condition, the trial could restart on 19 September 1998 .

On 21 September 1998 the Klaipėda Regional Court returned the case to the prosecutors for further investigative measures to be carried out. In particular, the court noted that certain new facts had been established in the course of the trial, disclosing another possible offence by the first applicant. The investigators were thus obliged to reformulate the charges on the basis of those newly-established circumstances. By the same decision, the Klaipėda Regional Court extended the term of the applicants ’ detention on remand until 20 January 1999 .

On 11 November 1998 the Court of Appeal dismissed the applicants ’ appeal against the decision of 21 September 1998 .

On 17 December 1998 the charge of complicity in murder was dropped in respect of the first applicant.

A new bill of indictment was confirmed on 29 December 1998 . On the same date the case was transmitted to the KlaipÄ—da Regional Court .

On 18 January 1999 and 3 February 1999 the Klaipėda Regional Court extended the term of the applicants ’ detention on remand on the same grounds. The detention was authorised until the adoption of a judgment in the case.

On 28 April 1999 the Klaipėda Regional Court rejected the applicants ’ request to vary the remand in view of the danger that they would abscond and obstruct the investigation.

On 11 May 1999 the case was transmitted to the Å iauliai Regional Court .

On 7 June 1999 the Court of Appeal dismissed the applicant ’ s appeal against their remand.

On 10 June 1999 the Šiauliai Regional Court ordered compulsory psychiatric examination of the second applicant by way of in-patient placement at a psychiatric hospital. By the same decision, the court also rejected the applicants ’ request to discontinue the proceedings and vary the remand.

On 22 December 1999 the Šiauliai Regional Court adjourned the examination of the case on the ground that the second applicant ’ s lawyer had not come to the hearing. By the same decision, the court also rejected the applicants ’ request for release on bail.

On 24 January 2000 the court adjourned the hearing on the basis of the second applicant ’ s refusal to participate therein. The court also ordered his compulsory attendance at the next hearing.

On 9 February 2000 the Å iauliai Regional Court questioned an expert and victim. As other victims and witnesses had not come to attend the hearing, the court ordered their compulsory attendance.

On 13 March 2000 the court returned the case for further investigation to be carried out in view of the prosecutors ’ request to bring a fresh charge against the first applicant. The court also extended the term of the applicants ’ remand in custody until 13 July 2000 .

On 3 May 2000 the Court of Appeal rejected the applicants ’ appeal against the decision of 13 March 2000 . The appeals court noted inter alia the persistence of the danger that, if released, the applicants might abscond, obstruct the investigation and commit fresh offences.

On 12-16 June 2000 the charges were again reformulated against both applicants. The first applicant was charged on three counts, including attempted robbery. The second applicant was charged on seven counts, including murder.

From 21 June to 10 July 2000 the applicants and their defence counsel had access to the case-file.

On 11 July 2000 a new bill of indictment was confirmed, and the case was sent to the Å iauliai Regional Court .

On 13 July 2000 the court adjourned the case in that the second applicant ’ s lawyer had failed to appear at the hearing. On the same date the court extended the term of the applicants ’ detention on remand until 13 October 2000 in view of the danger of their absconding, influencing victims and witnesses, and committing fresh crimes.

On 3 August 2000 the Court of Appeal rejected the applicants ’ appeal against the decision of 13 July 2000 .

On 12 September and 11 October 2000 the trial was again adjourned as certain victims and witnesses had not come to the hearing.

On 11 October 2000 the Šiauliai Regional Court prolonged the term of the applicants ’ remand in custody until 13 January 2001 on the same grounds.

On 9 November 2000 the Court of Appeal rejected the applicants ’ appeal against the decision of 11 October 2000 .

On 21, 28 and 29 November 2000 the Å iauliai Regional Court again adjourned the hearings in the absence of certain victims and witnesses. A further decision to order the compulsory attendance of the victims and witnesses was taken.

On 21 December 2000 the court again adjourned the case on request by a victim to order additional expert examination.

On 10 January 2001 the Šiauliai Regional Court extended the term of the applicants ’ detention for three months on the same grounds.

On 2 February 2001 the Court of Appeal rejected the applicants ’ appeal against the decision of 10 January 2000 .

On 10 April 2001 the applicants were convicted: a) the first applicant on one count of attempted robbery; b) the second applicant on five counts of murder, attempted robbery, causing bodily harm, and unlawful possession of two types of weapons. It was found in particular that the second applicant had murdered VB who had come into the second applicant ’ s home to complain about theft. The first applicant was acquitted on the count of murder and sentenced to 2 years and 8 months ’ imprisonment, while the second applicant was sentenced to 7 years and 6 months ’ imprisonment. The first applicant was released in the court-room as the trial court considered that he had served the sentence in view of the time spent in custody.

On 3 December 2001 the Court of Appeal amended the first applicant ’ s conviction, but his sentence of imprisonment remained unchanged. The Court of Appeal also reclassified the second applicant ’ s actions to aggravated murder, sentencing him to 13 years ’ imprisonment.

On 30 April 2002 the Supreme Court quashed the decision of the Court of Appeal insofar as it concerned the second applicant ’ s conviction for aggravated murder, reinstating his sentence of 7 years and 6 months ’ imprisonment as it had been imposed by the first instance court.

On an unspecified date the second applicant completed the sentence, and was released from prison.

B. Relevant domestic law and practice

The previous and new provisions of the Code of Criminal Procedure ( Baudžiamojo proceso kodeksas ):

Since 21 June 1996 arrest or detention may only be ordered by a court or judge.

Article 104 (in force from 21 June 1996 ):

“Detention on remand shall be used only ... in cases where a statutory penalty of at least one year ’ s imprisonment is envisaged.

...

The grounds for detention on remand shall be the reasoned suspicion that the accused will:

(1) abscond from the investigation and trial;

(2) obstruct the determination of the truth in the case [influence other parties or destroy evidence];

(3) commit new offences ... whilst suspected of having committed crimes provided in Articles ... [274] [cheating,] 275 [embezzlement] of the Criminal Code ...”

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

“... [T]he arrested person shall be brought before a judge within not more than 48 hours ... The judge must hear the person as to the grounds of the arrest. The prosecutor and counsel for the arrested person may take part in the inquiry. After having questioned the arrested person, the judge may maintain the arrest order by designating the term of detention, or may vary or revoke the remand measure. ...

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

Pursuant to the amended Article 104-1 (in force from 24 June 1998 until 1 May 2003 ), the prosecutor and defence counsel must take part in the first judicial inquiry of the arrested person, unless the judge decides otherwise. The amended provision also permits the court to extend the detention on remand before its expiry.

Article 106 § 3 (in force from 21 June 1996 to 24 June 1998 ):

“For the purpose of extending the term of detention on remand [at the stage of pre-trail investigation a judge] must convene a hearing to which defence counsel and the prosecutor and, if necessary, the detained person shall be called.”

The Code in force since 24 June 1998 makes obligatory the attendance of the detainee at the remand hearings.

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

“An arrested person or his counsel shall have the right during the pre-trial investigation to lodge [with an appellate court] an appeal against the detention on remand ... . With a view to examining the appeal, there may be convened a hearing, to which the arrested person and his counsel or only counsel shall be called. The presence of a prosecutor is obligatory at such a hearing.

The decision taken by [the 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.”

Pursuant to the amended Article 109-1 (in force from 24 June 1998 to 1 May 2003), an appeal may be submitted to a higher court, which would hold a hearing against a decision ordering or extending the term of detention both at the stage of pre-trial investigation and trial, in the presence of the detainee and his counsel, or only his counsel.

Article 226 § 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 detention. Where there are several accused persons, the period during which all the accused and their counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention.”

Since 24 June 1998 this period is no longer relevant for remand decisions.

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

“Decisions of courts ... ordering, varying or revoking a remand measure ... cannot be the subject of appeal ...”

Pursuant to the general provision of Article 399, a first instance decision was not effective pending the time-limit for an appeal against that decision or during the appeal proceedings. Only those decisions against which no appeal was possible, including remand decisions under the former Article 372 § 4, became effective and were executed on the date when they were taken. Pursuant to the amended Article 104-3 § 3 (version in force from 21 December 1999 until 1 May 2003), all decisions of detention on remand become effective and are executed on the date when they are taken, regardless of the fact that an appeal is possible against any such decision under the amended Article 109-1 (as in force from 24 June 1998 to 1 May 2003, see above).

Other relevant provisions of the Code of Criminal Procedure which was in force until 1 May 2003 :

Article 52 § 2 (3) and (8) and Article 58 § 2 (8) and (10) provide, respectively, that the accused and their counsel have the right to “submit requests” and to “appeal against acts and decisions of an interrogator, investigator, prosecutor and court.”

Article 249 § 1:

“A judge individually or a court in a directions hearing, in deciding whether to commit the accused for trial, shall determine ...

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

Article 250 § 1:

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

(2) of the remand measure in respect of the accused ... .”

Article 267 § 1:

“The defendant has the right to ... 3) submit requests; ...

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

Article 277:

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

COMPLAINT S

1. Under Article 5 of the Convention the applicants complained that their detention on remand had been unlawful, that they had not been informed of the reasons thereof, that the length of their remand in custody had been excessive, and that they had not been enabled to appeal against the orders extending the term of their detention.

2. Under Article 6 of the Convention the applicants complained that the trial had been unfair, that the presumption of innocence had been breached, that they had had no legal assistance of their choosing, that they had had no access to the case-file, that they had not been enabled to question witnesses, that the trial court ’ s composition had been unlawful, that the courts ’ assessment of the evidence in the case had been wrong, and that the overall length of the proceedings had been excessive. The second applicant also alleged a violation of Articles 7 and 8 of the Convention in view of his conviction.

THE LAW

1. The applicants complained about their detention on remand under Article 5 of the Convention, which provides, insofar as relevant, as follows:

“1. 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; ... .

2. 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.

3. 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.

4. 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 submitted that the applicants ’ detention on remand had been duly authorised and extended by the domestic courts by way of reasoned decisions. The applicants ’ remand in custody had thus been compatible with domestic law and not arbitrary. The Government admitted that there had been no valid court order as to the applicants ’ detention from 1 March to 15 April 1998 ; they stated however that the domestic law applicable at the material time could be interpreted as requiring no further decision to justify the applicants ’ detention during that period. Furthermore, they stated that the applicants had been informed of the reasons for the detention. The applicants had also been enabled to contest the validity of their detention, even though pursuant to Article 372 § 4 of the Code of Criminal Procedure as applicable at the material time (in force until 1 January 1999 ) they had not been permitted to submit an appeal against orders extending the term of their detention. Finally, the length of their remand in custody had been adequate, in view of the relevance and sufficiency of reasons indicated for the remand indicated by the courts which had extended the term of their detention.

The applicants disagreed, stating there had been no valid court orders authorising their remand in custody. Furthermore, the detention orders had been arbitrary and unlawful. The applicants had not been informed of the reasons for the detention, and they had not been enabled to contest the lawfulness of the orders extending their detention on remand. The length of their remand in custody had been excessive. The first applicant observed in this respect that the total length of his detention on remand had been one year longer than his eventual sentence.

A . Article 5 § 1 of the Convention

(i) To the extent that the applicants have complained about their brief periods of arrest, respectively, from 19 to 21 July 1997 (the first applicant) and from 18 to 21 July 1997 (the second applicant), it is recalled that, in accordance with Article 35 § 1 of the Convention, the Court may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the “final” domestic decision. In respect of a complaint about the absence of a remedy for a continuing situation, such as a period of detention, the six-month time-limit under Article 35 § 1 starts running from the end of that situation - for example, when an applicant is released from custody (see Jėčius v. Lithuania , no. 34578/97, 31 July 2000, § 44, ECHR 2000-IX).

As the applicants claimed the absence of adequate remedies in connection with the impugned periods of their deprivation of liberty, the Court observes that they were both released after having been questioned on 21 July 1997 , i.e. more than six months before the applications were introduced, with the result that these complaints were submitted out of time.

It follows that this part of the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

(ii) To the extent that the applicants have complained about their detention, respectively, from 2 August 1997 to 1 March 1998 (the first applicant) and from 22 July 1997 until 1 March 1998 (the second applicant), the Court recalls that Article 5 § 1 requires that any period of detention be compatible with domestic law and not arbitrary. A period of detention is, in principle, “lawful” if it is based on a court order. Even flaws in the detention order do not necessarily render the underlying period of detention “unlawful” within the meaning of Article 5 § 1 (see Jėčius cited above, § 56).

The Courts finds it established that during the impugned periods the domestic courts authorised and extended the applicants ’ detention as required by Articles 10, 104 and 104-1 of the Code of Criminal Procedure then in force (see Jėčius , cited above, §§ 65-70, also see the Court ’ s decision of 28 November 2000 in the Stašaitis case cited above). Nor can it be said that the applicant ’ s remand in custody on the basis of those orders was arbitrary. They were detained on suspicion of having committed numerous crimes, given the risk that they might abscond, obstruct the investigation and commit fresh crimes. Consequently, it has not been established that the applicants ’ detention during the above periods was incompatible with Article 5 § 1 (c) of the Convention.

It follows that this part of the application is manifestly ill-founded, and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

(iii) To the extent that the applicants have complained about their detention on remand from 1 March to 15 April 1998, the Court considers, in view of the parties ’ observations on this aspect of the case, 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. It cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

(iv) To the extent that the applicants have complained about their remand in custody after 15 April 1998 , the Court observes that that their detention on remand from the point of view of Article 5 § 1 (c) lasted until their conviction on 10 April 2001 . During the whole of that period the applicants ’ detention on remand was covered by the valid judicial orders which were compatible with the applicable domestic law and not arbitrary (also see point (ii) above). It is true that the first applicant eventually received a sentence of imprisonment which was somewhat lower than the time previously spent by him in custody (see the ‘ Facts ’ part above). However, this circumstance is immaterial for the purpose of determining the lawfulness of the first applicant ’ s underlying period of detention on remand from the point of view of Article 5 § 1 (c), given that the persistence of the suspicion of his having committed all the offences alleged against him, including murder, had not been disproved up until the adoption of the judgment of 10 April 2001.

Consequently, this part of the application is manifestly ill-founded, and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

B . Article 5 § 2 of the Convention

The Court further finds that the applicants were clearly aware about the reasons for their arrest, both factual and legal, in view of those reasons being indicated in the detention orders of 22 July and 4 August 1997 . Their complaints under Article 5 § 2 are thus manifestly ill-founded, and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

C . Article 5 § 3 of the Convention – length of detention

The Court must first determine the period to be taken into consideration. The first applicant ’ s detention on remand lasted from 2 August 1997 until 10 April 2001 . The second applicant ’ s remand in custody lasted from 22 July 1997 until 10 April 2001 . Hence, the total period of the applicants ’ detention on remand to be taken into consideration is slightly more than 3 years and 8 months for each of them.

The Court reiterates that the reasonableness of the length of detention must be assessed in each case according to its specific features. Continued detention may be justified in a given case only if there are clear indications of a genuine public interest which, notwithstanding the presumption of innocence, outweighs the right to liberty. It falls in the first place to the national judicial authorities to examine the circumstances for or against the existence of such an imperative interest, and to 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 facts established by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3. The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. The Court must then establish whether the other grounds given by the judicial authorities were “relevant” and “sufficient” to continue to justify the deprivation of liberty (see Stašaitis v. Lithuania , no. 47679/99, 21 March 2002 , § 82).

In this connection, t he Convention case-law has developed four basic acceptable reasons for refusing bail: the risk that the accused will fail to appear for trial (see Stögmüller v. Austria , judgment of 10 November 1969, Series A no. 9, § 15); the risk that the accused, if released, would take action to prejudice the administration of justice (see Wemhoff v. Germany , judgment of 27 June 1968, Series A no. 7, § 14), commit further offences (see Matznetter v. Austria , judgment of 10 November 1969, Series A no. 10, §§ 8-13), or cause public disorder (see Letellier v. France , judgment of 26 June 1991, Series A no. 207, § 51).

The se reasons cannot be gauged solely on the basis of the severity of the possible sentence; it must be assessed with reference to a number of other relevant factors which may either confirm the existence of these dangers or make them appear so slight that they cannot justify pre-trial detention. In this context regard must be had in particular to the character of the person involved and his morals (see W. v. Switzerland , judgment of 26 January 1993, Series A no. 254-A, § 33), as well as other special features such as the possible long persistence of criminal behaviour, magnitude of the damage incurred by the victims of the alleged crime, and the level of dangerousness of the person charged (see, mutatis mutandis, Matznetter , cited above, ibid. )

Arguments for and against release must not be “general and abstract” (see Clooth v. Belgium , judgment of 12 December 1991 , Series A no. 225, § 44). Where a suspect is on remand, he is entitled to have his case given priority and conducted with special diligence (see Matznetter , cited above, § 12).

On the facts of the case, the Court notes, first and foremost, the complexity of the criminal proceedings against the applicants. In fact, t he se proceedings involved a joint examination of e ight different e pisodes alleged to constitute criminal acts committed by the applicants against various victims at different periods of time, the nature of the alleged offences ranging from murder to property crimes. The authorities were thus faced with a very difficult task in conducting the trial and summoning numerous victims and witnesses , the proceedings having been adjourn ed a number of times in view of the failure of some of these participants to appear at trial. The second applicant ’ s treatment from tuberculosis also constituted a factor which had prevented the investigation from proceeding quicker for more than a year (see the ‘ Facts ’ part above).

It is observed that the courts ordering the applicants ’ detention during the impugned period based their decisions on three main fears, namely that the applicants may escape, obstruct the investigation by influencing victims and witnesses, and commit fresh crimes. The Court is satisfied that all these criteria were not general or abstract, and that they were “relevant” to the applicants ’ continuing remand in custody from the point of view of Article 5 § 3. It is noted that the strength of the evidence against the applicants in the case-file - that is the ground that has been frequently criticised by the Court as insufficient to justify a prolonged period of detention on remand - was not relied upon by the domestic courts to justify the detention in the present case (see inter alia Jėčius , cited above, §§ 91-94).

Furthermore, no violation of the domestic statutes was found by the national courts in relation to the length of the applicants ’ detention, nor is there any evidence of any significant delay in the conduct of the proceedings which may have been attributed to the authorities. There is thus no indication that the authorities failed to show due diligence in investigating the case (see, by contrast, Stašaitis , cited above, § 84).

It is true that by the trial court ’ s judgment of 10 April 2001 the first applicant received a sentence of imprisonment of 2 years and 8 months ’ , that is one year less than the time he had spent on remand in custody (see the ‘ Facts ’ part above). However, it is undisputed that prior to that judgment the maximum possible sentence risked by him for the most serious alleged offence (murder) was higher than the total period of his detention on remand (see, by contrast, Stašaitis , cited above, where that applicant had spent four months in custody despite the fact of having already completed the maximum term of punishment for the offence of which he had been accused).

Admittedly, in view of the long total period of the applicants ’ detention, it may be argued that certain of the reasons relied upon by the domestic courts to justify the continuing remand in custody – namely the fear of the applicants ’ absconding and influencing the investigation – may have lost their “sufficiency” from the point of view of Article 5 § 3 of the Convention by the time the applicants ’ were convicted and their remand in custody ceased to apply. However, in view of the applicants ’ dangerous character and the long persistence of offensive behaviour attested by their criminal record, the fear of their re-offending continued to remain a “sufficient” reason to warrant their detention on remand during the whole of the impugned period (see, mutatis mutandis , Matznetter , cited above, § 11).

In view of the above circumstances, and given in particular the number and seriousness of the charges against the applicants coupled with their propensity to crime, the Court considers that the total length of the applicants ’ detention on remand was not excessive within the meaning of Article 5 § 3.

It follows that this part of the application is manifestly ill-founded, and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

D . Article 5 § 4 of the Convention

The applicants essentially complained under this provision that they had not been able to submit an appeal against the court orders extending the term of their detention. The Government admitted that until 1 January 1999 the statute applicable at the time had not permitted such an appeal, and that thereafter applicants had availed themselves of the opportunity to appeal against the detention orders taken after that date. The Court observes therefore that the essence of the applicants ’ complaints in this part of the application is that the statutory bar under Article 372 § 4 of the Code of Criminal Procedure, which was applicable until 1 January 1999 (see Stašaitis , cited above, §§ 51, 90-92), allegedly prevented them from contesting the lawfulness of the court orders extending the term of their detention, namely the orders of 15 September, 2 October, 19 November, 27 November 1997, 20 January, 15 April and 21 September 1998.

Having regard to th e parties ’ observations on this aspect of the case, the Court considers 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. It cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicants also alleged a violation of Article 6 of the Convention, which provides, insofar as relevant, as follows:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ... .

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

...

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

... ”

To the extent that the applicants have alleged the excessive length of the impugned proceedings, the Court notes that the total length of the proceedings at three levels of jurisdiction was slightly more than 4 years and 9 months. The Court reiterates its finding above, in the context of the applicants ’ complaint about the length of their detention, that the proceedings could be regarded as complex, and that the authorities were faced with a very difficult task in conducting the trial and questioning various victims and witnesses, the case being adjourned a number of times because of the failure of certain victims or witnesses to appear at trial. It is also to be noted that the second applicant ’ s treatment from tuberculosis constituted a factor which had prevented the investigation from proceeding quicker for more than a year. Furthermore, no significant delay could have been attributed to the authorities during the investigation or trial. The Court concludes therefore that the proceedings viewed as a whole may not be deemed unduly long.

To the extent that the applicants have alleged other breaches of Article 6 of the Convention, the Court recalls that it is not its task under the above provision to review alleged errors of fact and law committed by the domestic judicial authorities and that, as a general rule, it is for the national courts to assess the evidence before them and to apply domestic law. The Court ’ s task is to ascertain whether the proceedings as a whole were fair. The key element in this respect is that the applicants were afforded ample opportunities before the courts at three levels of jurisdiction, personally or through their defence counsel, to state their case and challenge the evidence that they considered false. There is no appearance of a breach of the applicants ’ presumption of innocence. Furthermore, there is no evidence of a lack of subjective or objective impartiality of the courts. Nor is there an indication of any procedural disadvantage of the applicants vis-à-vis the prosecution during the trial. There is thus no appearance of a violation of the principle of the equality of arms or a breach of the applicants ’ defence rights (see Karalevičius v. Lithuania (dec.), no. 53254/99, 6 June 2002 ). Accordingly, it has not been shown that the trial was unfair.

To the extent that the second applicant has also alleged other breaches of the Convention as a result of his conviction, the Court finds these complaints unsubstantiated.

It follows that the applicants ’ complaints in this part of the application are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. They must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants ’ complaint s under Article 5 § 1 of the Convention about the lawfulness of their detention on remand from 1 March to 15 April 1998, and under Article 5 § 4 of the Convention about their inability to contest the lawfulness of the court orders extending the term of their detention until 1 January 1999;

Declares inadmissible the remainder of the application s .

Vincent Berger Boštjan M. Zupan čič Registrar President