THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 59304/00 by Ramūnas JANKAUSKAS against Lithuania

The European Court of Human Rights (Third Section), sitting on 16 December 2003 as a Chamber composed of:

Mr G. Ress , President , Mr P. Kūris , Mr R. Türmen , Mr B. Zupančič , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mrs H.S. Greve , judges ,

and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 22 June 1999,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ramūnas Jankauskas, is a Lithuanian national who was born in 1972, and is currently detained in Sniego prison in Vilnius. The respondent Government were represented by their Agent, Mr Gintaras Švedas and then Mrs Danutė Jočienė .

A. The circumstances of the case

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

1. Criminal proceedings

The applicant, a former police investigator, was suspected of abuse of office and bribery. His detention on remand was ordered by the Å iauliai City District Court on 12 March 1999 on the fear of his absconding and influencing witnesses. The detention was authorised until 22 March 1999. The applicant was arrested on 15 March 1999.

On 19 March 1999 the court extended the term of the detention until 22 May 1999 on the same grounds. On 14 May 1999 the term was extended until 22 July 1999. On 22 July 1999 the term of the applicant’s remand in custody was extended until 10 September 1999. All these decisions were taken in the presence of the applicant and his defence counsel.

On 8 September 1999 the applicant’s detention on remand was extended until 8 November 1999 on the same grounds. The applicant and his lawyer were present before the court. The applicant appealed against this decision. On 24 September 1999 the Court of Appeal dismissed the appeal in the presence of the counsel. The Court of Appeal held in particular that the length of the applicant’s remand in custody had not been excessive.     

On 8 November 1999 the term of the applicant’s remand in custody was extended until 8 January 2000 in the presence of the applicant and his lawyer. On 29 November 1999 the Court of Appeal rejected the applicant’s appeal against the detention order of 8 November 1999. The applicant’s counsel was present at the appeal hearing. 

From 4 January until 14 April 2000 the applicant and his lawyer had access to the case-file.

On 7 January 2000 the Å iauliai Regional Court extended the term of the applicant’s remand in custody on the same grounds. The applicant and his counsel were present at the hearing. The applicant appealed. On 20 January 2000 the applicant was informed by the prison administration that the Court of Appeal would hold a hearing of the appeal on 24 January 2000. On 20 January 2000 the applicant wrote a letter to the Court of Appeal, requesting that he be personally present at the appeal hearing. However, the letter was sent to the Court of Appeal only on 26 January 2000, while the appeal hearing took place on 24 January 2000 whereby the Court of Appeal rejected the appeal in the presence of the applicant’s lawyer. Upon the applicant’s hierarchical complaint, on 21 March 2000 the interior authorities established that the applicant’s letter of 20 January 2000 must have been sent to the Court of Appeal on 21 January 2000, but that it had been unduly delayed because of the fault of the prison administration.

The bill of indictment was confirmed on 23 February 2000. The applicant was committed for trial on 7 March 2000. 

On 2 June 2000 the Šiauliai City District Court extended the term of the applicant’s detention until 8 September 2000 on the ground that he could influence witnesses.

On 1 September 2000 the term of his remand in custody was extended until 8 October 2000.

On 3 October 2000 the Šiauliai Regional Court convicted the applicant of bribery and abuse of office, sentencing him to eight years’ imprisonment.

On 29 June 2001 the Court of Appeal upheld the lower judgment.

On 20 July 2001 the applicant was transferred from the Å iauliai remand prison to Sniego prison in Vilnius.

On 18 December 2001 the Supreme Court rejected the applicant’s cassation appeal in the case.

2. Conditions of detention

a) General conditions of detention

The applicant alleges inadequacy of the conditions of his detention at the Å iauliai remand prison from his placement there on 15 March 1999 until his transfer to the Vilnius Sniego prison on 20 July 2001.

In particular, he alleges that the general conditions in the prison, including the sleeping, sanitary, health and catering facilities, were improper. He complained about these aspects to various executive authorities and the Ombudsman, but he brought no action in this respect before the administrative courts.

b) Specific treatment of the applicant

The applicant also alleges certain specific acts and omissions of the administration of the Å iauliai remand prison.

In particular, he alleges that in January 2000 he was examined by a doctor who prescribed him with medication which was not eventually given to him. He states that in 2000 he applied to the prison administration on several occasions, requesting a medical check up. Those requests were allegedly denied. Only upon the applicant’s letters to the Minister of Health, the state of his health was examined at the prison on two occasions, albeit with significant delays vis-à-vis the dates of his requests.

The applicant also states that in December 1999 his detention conditions were aggravated by the prison administration by way of his transfer from one cell to another. According to the applicant, this measure was imposed in return for his complaints against his detention conditions.

The applicant also alleges that certain disciplinary penalties were imposed on him unlawfully by the prison administration.

The applicant also alleges that on 15 December 2000 was searched by a female officer, and that he was stripped naked during the search.

The applicant did not bring a court action in connection with the above aspects.

The applicant brought an administrative court action, however, complaining about the prison administration’s refusal to take to a meeting with his father a personal photograph and certain official documents from his prison file. On 5 April 2001 the Šiauliai Regional Administrative Court examined the action in the applicant’s presence. The court partly accepted the action, ruling that the applicant could carry a photograph to the meeting with his father. However, the court also stated that the relevant domestic provisions prevented the applicant from taking to the meeting the official documents from his file. On 30 May 2001 the Supreme Administrative Court upheld the above decision.

The applicant also alleges that he was subjected to degrading treatment by the administration of the Vilnius Sniego prison where he has been held since 20 July 2001.

The applicant alleges in this respect that the administration of the Vilnius Sniego prison had unlawfully aggravated his detention conditions by way of his transfer from one cell to another. On 2 July 2002 the Vilnius Regional Administrative Court examined the applicant’s action in this respect. The applicant was present before the court. The court rejected the action as unsubstantiated. On 10 September 2002 the Supreme Administrative Court examined the applicant’s appeal in the presence of his legal representative. The court upheld the lower decision.  

3. Handling of the applicant’s correspondence in prison

a) Opening up and reading of the applicant’s letters

The applicant alleges that his letters to and from the Court and third persons were opened up and read in his absence while he was in the Å iauliai remand prison.

b) Delays in sending the applicant’s letters and withholding of the letters

The applicant also contends that some of his letters were withheld and not sent to the addressees, and some of his letters were sent with unduly delays. For example, on 25 April 2000 the applicant was allegedly informed of the administration’s decision to destroy his Easter greetings letter to his mother on the ground that that the letter had been “cynical”. He brought no court action in regard to the above allegations.

On 9 February 2001 the applicant applied to an administrative court, complaining about censorship of his letter to a lawyer by the administration of the Å iauliai remand prison. However, on 2 April 2001 the applicant wrote a letter to the court, stating that he no longer had any claims against the prison administration. The proceedings were consequently discontinued by decision of the Å iauliai Regional Administrative Court of 4 June 2001. The applicant did not appeal against the decision.   

On 15 October 2002 the Vilnius Regional Administrative Court examined, in the presence of the applicant’s representative, the applicant’s action against the administration of the Vilnius Sniego whereby he had alleged that the prison authority had unlawfully withheld a letter sent to him by the Court of Appeal. The court rejected the applicant’s action, finding that he had been familiarised with the impugned letter, and that the original of the letter had been duly included in the applicant’s file. On 19 November 2002 the Supreme Administrative Court upheld the lower judgment, the applicant’s counsel being present.

4. Other proceedings

The applicant brought an action for defamation against a third person, requesting an award for non-pecuniary damage in the amount of 100,000 Lithuanian litai (LTL), and pecuniary damage in the amount of LTL 500,000. By a final decision of 25 July 2002 the action was disallowed by the Court of Appeal on the ground that the applicant had not paid a stamp duty, representing the combined amount of LTL 25,135.70. The courts held that under the domestic civil procedure a request for an award for non-pecuniary damage must have been charged with a fixed stamp duty of LTL 135.70, whereas a request for an award for pecuniary damage must have been charged with a stamp duty representing five percent of the total amount of the request, i.e. LTL 25,000 in the present case. The courts also held that the applicant had not proved that he may have been entitled to a reduced stamp duty in connection with his defamation claims.  

The applicant has also been unable to bring criminal proceedings for assault against a third person.

B. Relevant domestic law and practice

Article 21 of the Constitution prohibits inhuman and degrading treatment. Article 22 guarantees the right to respect for private life, family life and correspondence.

Conditions of detention of remanded persons are regulated by the Detention on Remand Act 1996. Article 18 of the Act provides that conditions of detention in remand centres shall not be inhuman or degrading, and that these conditions shall correspond to the relevant requirements and norms established by the Ministry of Health and other executive authorities.

According to Article 15 of the Act, letters of remanded persons shall be sent to the addressee within three days from the moment when they were given to the prison administration. Letters to the authorities should be sent within one day. The Act (paragraph 1) provides that remanded persons’ letters can be censored in certain circumstances.

Rule 75 of the Remand Centres Internal Rules ( Kardomojo kalinimo vietų vidaus tvarkos taisyklės ) provides that the remand centre administration cannot open letters of detainees addressed to the European Court of Human Rights if those letters were given to the administration to be sent in a closed envelope.

Rule 83 provides that the remand centre administration shall familiarise the detainee with a reply to his correspondence within three days following receipt of the letter addressed to the detainee. Therefore, all letters received by the detainees are not given to them and are kept in their files by the remand centre administration.

Article 39 of the Public Administration Act provides that the State authorities must compensate pecuniary and non-pecuniary damage for a violation of personal rights of an individual. At the same time, the domestic provisions concerning conditions of detention provide only for a general right of prisoners to apply to a court. However, following the creation in 1999 of administrative courts, which are competent to examine cases pertaining to breaches of the Administrative Code as well as violations of personal rights by the administrative authorities, it has gradually become accepted that these courts are competent to examine actions by prisoners, regardless of their status as remanded or convicted persons, against all the administrative authorities, including prison administration. A number of cases have been entertained by the administrative courts regarding actions for damages by prisoners concerning various aspects of their detention conditions. Apart from the examples of administrative proceedings brought by the applicant in the present case (see the ‘Facts’ section above), regard could be had to the Puzinas (no. 2) v. Lithuania case (no. 63767/00, communicated by the Court to the respondent Government on 7 May 2002), in which an applicant was involved in litigation before the administrative courts regarding the lawfulness of a disciplinary penalty imposed by prison administration in 1999 (the proceedings took place while that applicant was still in prison in 2000), and the legality of his transfer from one prison to another (in the latter case, damages were awarded in favour of the prisoner).    

Relevant domestic provisions regarding the conditions of imprisonment and censorship of correspondence have also been summarised in the Valašinas v. Lithuania (no. 44558/98, 24.7.2001, §§ 92-97, ECHR 2001) and Puzinas v. Lithuania (no. 44800/98, 14.3.2002, § 15-17) judgments. Relevant domestic provisions regarding the applicant’s complaints under Article 5 of the Convention have been summarised in the Stašaitis v. Lithuania judgment (no. 47679/99, 21.3.2002, §§ 51-54).

COMPLAINTS

1. Under Article 3 of the Convention the applicant complained about the conditions of his detention in the Šiauliai remand prison from 15 March 1999 to 20 July 2001. The applicant claimed in this respect that the general conditions of detention in that prison, including the dormitory, sanitary, health and catering facilities, did not conform to the  relevant requirements and norms established by the Ministry of Health and other executive authorities, thus breaching Article 3 of the Convention. The applicant also complained about his specific treatment in the Šiauliai remand prison (see the ‘Facts’ section above). The applicant further complained about his transfer from one cell to another by the administration of the Vilnius Sniego prison. In the applicant’s view, the prisons authorities had thus breached various norms of domestic law as well as Article 3 of the Convention.

2. Under Articles 8 and 13 of the Convention the applicant also complained that the prisons authorities had on various occasions delayed or withheld his letters to various State authorities whereby he had complained about his conditions of detention.

3. Under Article 8 of the Convention the applicant further complained about the opening up and reading by the administration of the Å iauliai remand prison of his letters to and from the Court and third persons.

4. Under Article 5 of the Convention the applicant complained that his detention on remand had been unlawful. He also complained about the failure by the administration of the Å iauliai remand prison to send in time his letter to the Court of Appeal of 20 January 2000 whereby he had requested his personal presence at the remand hearing; according to the applicant, this had effectively deprived him of the right to contest the lawfulness of his remand in custody.   

5. The applicant also complained that the criminal proceedings against him had been too long and unfair, in breach of Article 6 of the Convention.  Under this provision the applicant further complained about his inability to obtain amnesty or conditional release.

6. Under Article 6 of the Convention the applicant complained that his civil action for defamation had been disallowed, and that he had been unable to bring criminal proceedings for assault against a third person.

THE LAW

1 . The applicant complained about the conditions of his detention in the Å iauliai remand prison and the Vilnius Sniego prison. In this respect he alleged that he had been subjected to inhuman and degrading treatment, which is prohibited by Article 3 of the Convention.

The Government considered that the applicant’s allegations had been unsubstantiated.

The Court recalls that Article 35 § 1 of the Convention requires to exhaust domestic remedies but that, on the other hand, there is no need to have recourse to remedies which are inadequate (see the Valašinas v. Lithuania decision, no. 44558/98, 14.3.2000).

It is noted that the applicant alleged that the impugned general and specific conditions of his detention (see the ‘Facts’ section above) were incompatible with various domestic provisions as well as the Convention. The Court observes that the Lithuanian law prohibits inhuman or degrading treatment of prisoners in the sense of Article 3, and that the matters concerning the detention conditions in principle fall within the competence of administrative courts which have been created in Lithuania since 1999 (see the ‘Relevant domestic law and practice’ section above). It would appear therefore that the applicant was required by Article 35 § 1 to apply to the administrative courts regarding each aspect of the impugned general and specific detention conditions.

At the same time, the Court recalls its previous finding in the above mentioned Valašinas case in which the applicant complained about the conditions of detention, and where the Court found that no adequate domestic remedies had been available in that respect. In particular, the Court rejected the Government’s argument that the applicant in that case could have applied to the administrative courts to claim damages for the allegedly inadequate detention conditions in that there was a lack of evidence of the existence, in theory or practice, of the relevant court remedy ( ibid. ).

The Court takes note however of the recent practice of the Lithuanian administrative courts which has evolved from the year 2000 onwards. Account can be taken, for example, of the Puzinas v. Lithuania (no. 2) case (no. 63767/00, communicated by the Court to the respondent Government on 7 May 2002), in which an applicant was involved in litigation before the administrative courts regarding the lawfulness of a disciplinary penalty and the legality of his transfer from one prison to another (see the ‘Relevant domestic law and practice’ section above).

The Court also notes that the applicant in the instant case was also involved in litigation with the administration of the Šiauliai remand prison and the Vilnius Sniego prison regarding various aspects of his detention conditions, namely the inability to carry a photograph and certain documents to a personal meeting, the applicant’s transfer from one cell to another, as well as the handling by the prisons authorities of his correspondence.

The applicant or his counsel appeared before the administrative courts at each stage of the proceedings he brought. The courts examined the applicant’s actions and adopted reasoned decisions thereon, accepting the applicant’s claim on one occasion (see the ‘Facts’ section above). There is thus no reason to doubt that the administrative judicial procedure would have been inadequate in regard to the rest of the applicant’s complaints about the impugned conditions of his detention.

It follows therefore that an adequate remedy capable of affording redress for a breach of Article 3 was available to the applicant to complain about the general and specific conditions of his detention. Consequently, the Court will be prevented by the exhaustion rule under Article 35 § 1 from examining the applicant’s complaints concerning his detention conditions insofar as they have not been submitted to the administrative courts.

The Court notes that the applicant exhausted domestic remedies in regard to his complaint that he has been prevented from taking a personal photograph and certain documents from his file to a meeting with his father. It is noted however that that the refusal of the prison authorities to let the applicant carry the photograph was found by the administrative courts to have been unlawful. The applicant has not alleged that he has been subsequently prevented from showing personal photographs during personal meetings in prison. It follows that in this respect the applicant can no longer claim to be a victim of a violation of the Convention within the meaning of Article 34.

To the extent that the applicant claims that he could not take certain official documents from his prison file to the meeting with his father, the applicant has not shown that this situation can amount to treatment prohibited by Article 3. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

The applicant also exhausted domestic remedies in connection with his complaint about his transfer from one cell to another while in the Vilnius Sniego prison. However, the Convention does not guarantee, as such, the right to a particular prison regime, and the applicant has not submitted any evidence showing that the conditions of detention in the new cell, or indeed in the old cell, at the Vilnius Sniego prison could have been incompatible with Article 3. Accordingly, this complaint is also manifestly ill-founded within the meaning of Article 35 § 3.

The remainder of the applicant’s complaints under Article 3 must be rejected for non-exhaustion insofar as they have not been submitted to the administrative courts (see above).

Consequently, this part of the application must be declared inadmissible pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

2. Under Article 8 of the Convention which guarantees inter alia the right to respect for one’s private life and correspondence, and Article 13 which guarantees the right to an effective remedy, the applicant complained that the prisons authorities had on various occasions delayed and withheld his complaints about his detention conditions addressed to the State authorities. In this respect the applicant also alleged breaches of various norms of domestic law.

In view of the applicant’s allegation that the impugned acts or omissions of the prisons authorities were incompatible with the Convention as well as the domestic law, the Court considers that the applicant was required by Article 35 § 1 to apply to the administrative courts in this connection (also see above).

The applicant applied to a court in regard to his allegation that a letter to his lawyer had been unlawfully intercepted by the administration of the Šiauliai remand prison. Yet the proceedings were subsequently discontinued on the applicant’s request, and he in any event did not appeal against the decision discontinuing the procedure. It follows that in this respect the applicant has failed to exhaust domestic remedies as required by Article 35 § 1.

The applicant exhausted domestic remedies in regard to his claim that the administration of the Vilnius Sniego prison had unlawfully withheld a letter sent to him by the Court of Appeal. It is noted however that the domestic courts found that the applicant had been familiarised with the impugned letter, and that the letter had been duly included among the official documents in the applicant’s file. It has not been alleged that the applicant may at any time have access to the letter or make its copy. Hence, the Court cannot detect a violation of Article 8 simply on the ground of the fact that the original of the letter had been included in the applicant’s prison file. Nor has there been a violation of Article 13 in this respect. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

The remainder of the applicant’s complaints in this part of the application must be rejected for non-exhaustion insofar as they have not been submitted to the administrative courts (also see above).

Hence, this part of the application must be declared inadmissible pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

3. Under Article 8 of the Convention the applicant also complained about the opening up and reading by the administration of the Å iauliai remand prison of his letters to the Court and third person.

The Government did not deny that some of the applicant’s letters were subjected to censorship in that it was permitted by the domestic provisions on remand conditions, let alone the applicant’s communications with the European Court of Human Rights.

The applicant disagreed, claiming that the routine censorship of all his correspondence breached Article 8.

The Court notes that Rule 75 of the Remand Centres Internal Rules prohibits censorship of detained persons’ communications with the European Court of Human Rights. It follows that the applicant must have applied to the administrative courts in regard to his complaint about the opening up and reading by the prison administration of his letters to and from the Court. As the applicant failed to do so, he did not comply with the exhaustion rule under Article 35 § 1 (also see above). It follows that the applicant’s complaints about the censorship of his communications with the Court must be rejected under Article 35 §§ 1 and 4 of the Convention.

To the extent that the applicant complains about the censorship by the Šiauliai remand prison of his letters to and from third persons, in view of the parties’ observations 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. This part of the application 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.

4. The applicant complained 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:

(a) the lawful detention of a person after conviction by a competent court;

... ;

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;

... .

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 Court notes however that the applicant has not shown that any period of his remand in custody was not covered by reasoned detention orders taken by the competent courts; and that thus his remand was incompatible with domestic law or arbitrary within the meaning of Article 5 § 1 (c) (see, mutatis mutandis , Jėčius v. Lithuania , no. 34578/97, 31.7.2000, §§ 65-70, ECHR 2000-IX; also see Stašaitis v. Lithuania, no. 47679/99, 21.3.2002, §§ 55-76). There is further no indication that the applicant’s current imprisonment is incompatible with Article 5 § 1 (a).

The Court observes that the applicant had the opportunity to apply to a court to contest the lawfulness of his detention, in accordance with the requirements of Article 5 § 4. It must be noted that the courts, while taking orders authorising and extending the term of his detention on remand, held hearings in the presence of the applicant and his lawyer. Furthermore, the orders authorising and extending the term of the applicant’s detention were speedily reviewed at appeal instance (see the ‘Facts’ section above; also see, by contrast, Graužinis v. Lithuania, no. 37975/97, 10.10.2000, §§ 27-35).

It is true that on 20 January 2000 the applicant wrote a letter to the Court of Appeal, requesting that he be personally present at a hearing of his appeal against the order of 7 January 2000 extending the term of his detention on remand. Due to the negligence by the remand prison administration the letter was not sent to the Court of Appeal in time, as a result of which the appeal hearing took place, without the applicant being present, on 24 January 2000. However, while the authorities’ failure to convey to the Court of Appeal the applicant’s request of 20 January 2000 was unfortunate, it had no significant consequences on the applicant’s ability to contest the lawfulness of his detention in accordance with the requirements of Article 5 § 4 for the following reasons: a) it is undisputed that the applicant’s personal presence at the appeal hearing of 24 January 2000 was not mandatory under the domestic criminal procedure; b) the applicant had been brought in person before the court which extended the term of his detention on 7 January 2000 - a judge had personally heard the applicant less than three weeks before the hearing of 24 January 2000; c) the detention order of 7 January 2000 was taken on the same grounds as the previous detention orders, and there is no evidence that in his appeal against the above order the applicant had presented any factual arguments requiring his personal presence at the hearing of 24 January 2000; d) the applicant’s lawyer was present at the hearing of 24 January 2000.

Hence, the Court does not consider that the applicant’s presence at the appeal hearing of 24 January 2000 was required for the purpose of Article 5 § 4 (see, by contrast, the above mentioned Graužinis v. Lithuania case, where an applicant was not brought in person before the courts extending the term of his detention regardless of the change of factual and legal circumstances mentioned by the courts in justification of the need for the continuing custody, and where there was no review on appeal of the orders extending the term of the detention). Viewed as a whole, the proceedings initiated by the applicant in the present case afforded him a speedy and effective control of the lawfulness of his detention, as required by Article 5 § 4.  

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Consequently, it must be rejected under Article 35 § 3 and 4.

Article 6 provides, insofar as relevant, as follows:

“1. In the determination 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 ... .”

To the extent that the applicant alleges a violation of his right to trial “within a reasonable time” under Article 6, the Court notes that the proceedings at three court instances lasted from 12 March 1999 (the moment of the applicant’s arrest) until 18 December 2001 (the Supreme Court judgment). The Court does not find that the “reasonable time” requirement was breached in the present case. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3.

To the extent that the applicant alleges absence of a fair trial in connection with the criminal case against him, the Court recalls that it is not its task 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 (see, inter alia, Daktaras v. Lithuania (dec.), no. 42095/98, 11.1.2000). 

The key element in this respect is that the applicant had ample opportunities before the courts at three levels of jurisdiction, personally or through his defence counsel, to state his case and challenge the evidence that he considered false. 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 applicant vis-à-vis the prosecution during the trial. There is further no evidence of a breach of the applicant’s defence rights. Accordingly, it has not been shown that the trial was unfair. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3.

To the extent that the applicant complains about his inability to obtain amnesty or conditional release, the Court recalls that the Convention does not confer, as such, the right to release on licence or require that parole decisions be taken by or subject to review by a court. A penalty involving deprivation of liberty which the offender must undergo for a period specified in the court decision is justified at the outset by the original conviction and appeal proceedings. Furthermore, Article 6 is not applicable in connection with any proceedings which do not involve the determination of “a criminal charge” against the applicant (see Ganusauskas v. Lithuania, no. 47922/99, 7.9.1999). There is no evidence that in the present case there has been a violation of Articles 5 and 6 as a result of the applicant’s inability to obtain amnesty or conditional release ( ibid. ). Hence, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3.

Accordingly, this part of the application must be rejected under Article 35 § 3 and 4 of the Convention.  

6. Finally, the applicant alleged a violation of Article 6 of the Convention in regard to his inability to institute criminal proceedings for assault and civil proceedings for defamation against third persons.

The Court observes first that Article 6 does not guarantee, as such, the right to institute criminal proceedings against others.

To the extent that the applicant alleged absence of access to a court to claim defamation, the Court considers that the applicant had that access, but that he did not use it properly by failing to comply with the relevant procedural requirements, namely to pay a stamp duty.

The Court recalls that the requirement to pay fees to civil courts in connection with claims they are asked to determine is compatible with Article 6 § 1 unless it impairs the very essence of the right of access to a court (see Kreuz v. Poland , no. 28249/95, 19.6.2001, §§ 52-67, ECHR 2001-VI).

In the present case, the stamp duty was fixed in the amount of LTL 135.70 insofar as the applicant claimed non-pecuniary damages in connection with the alleged defamation. The sum as such does not appear excessive. The applicant has not denied that his action for defamation would have been examined if he had only requested an award for non-pecuniary damage, given that the overall stamp duty in that case would have only been LTL 135.70.

It appears that the applicant eventually refused to pursue his action as a result of his inability to pay the stamp duty for his request to award pecuniary damages which he had estimated at LTL 500,000. It is true that the stamp duty for this part of the action, fixed in accordance with the domestic civil procedure at LTL 25,000 and representing a portion of five percent of the request for the award for pecuniary damage, does not appear low as such. However, the applicant has failed to present any argument explaining the need for such a significant amount of pecuniary damages claimed in connection with the alleged defamation, given in particular that the absence of a request to award pecuniary damages would have reduced the total amount of the stamp duty to just LTL 135.70.

In these circumstances, the Court does not consider that the essence of the applicant’s right to a court was violated as a result of the requirement to pay the stamp duty in order to allow the applicant’s claim for defamation by a third person (see, by contrast, the Kreuz case cited above where a more significant amount of a court fee was ordered by the courts to allow a civil claim alleging unlawfulness of an official act).  

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Consequently, it must be rejected under Article 35 § 3 and 4.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint under Article 8 of the Convention about the opening up and reading by the administration of the Šiauliai remand prison of his letters to and from third persons;

Declares the remainder of the application inadmissible.

Vincent Berger Georg Ress Registrar President