THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53161/99 by Raimundas MEILUS against Lithuania

The European Court of Human Rights (Third Section), sitting on 30 May 2002 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr P. Kūris , Mr B. Zupančič , Mr J. Hedigan , Mrs M. Tsatsa - Nikolovska , Mr K. Traja , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 2 November 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Raimundas Meilus, is a Lithuanian national, who was born in 1972 and lives in Vilnius. He was represented before the Court by Mr A. Josefsen, a lawyer practising in Odense, Denmark. The respondent Government were represented by their Agent, Mr G. Å vedas , of the Ministry of Justice.

A. The circumstances of the case

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

The applicant is a Lithuanian national, born in 1972 and living in Vilnius. He is represented before the Court by Mr A. Josefsen, a lawyer practising in Odense, Denmark.

In November 1994 the applicant became a suspect in a criminal case of fraud. On 29 November 1994 a search was conducted in his flat. On 14 August 1996 the applicant was charged on five counts, including cheating and embezzlement. On 22 August 1996 he was remanded on bail. There were four other co-accused persons in the case.

On 10 September 1996 the pre-trial investigation was concluded. From 10 September 1996 until 14 November 1996 the applicant and the co-accused had access to the case-file. On 18 November 1996 the Deputy Prosecutor General confirmed the bill of indictment. On 20 November 1996 the case was transmitted to the Kaunas City District Court. 

On 3 January 1997 the Kaunas City District Court committed the applicant for trial. On 23 May 1997 the court ordered further investigations in the case and returned the case-file to the investigators.

The prosecution appealed against the above decision, complaining that there was no need for further investigation, and that the trial could proceed. On 26 August 1997 the Kaunas Regional Court rejected the prosecution’s appeal, holding that further investigation measures were required.

On 26 September 1997 the Prosecutor General lodged a cassation appeal against the decisions of 23 May 1997 and 26 August 1997, stating that there was no need for further investigation, and that the trial should resume. On 29 January 1998 the Court of Appeal examined the prosecuting authorities’ cassation appeal. The cassation court quashed the decisions of 23 May 1997 and 26 August 1997, deciding that the trial could be resumed. It transmitted the case to the Kaunas City District Court for a new examination.

On 13 October 1998 the applicant was taken to hospital with a stomach illness.

On 15 October 1998 the Kaunas City District Court found the applicant guilty on four counts, the applicant’s defence counsel being present. He was sentenced to five years’ imprisonment.

On 16 October 1998 the applicant was transferred from the hospital to the prison on the basis of the judgment of 15 October 1998.

Upon the applicant’s appeal, on 22 March 1999 the Kaunas Regional Court amended the applicant’s conviction insofar as it concerned damages which had been awarded against him. The applicant’s sentence was not changed.

Upon the applicant’s cassation appeal, on 30 September 1999 the Supreme Court quashed the conviction and the appellate decision because of numerous breaches of domestic criminal procedure. The Supreme Court found in regard to the applicant that the findings by the lower courts of his guilt on two counts had not been properly motivated, and that the question of damages against him had not been adequately resolved. The case was returned to the Kaunas City District Court for a new examination to be carried out. The Supreme Court ordered the applicant’s release on bail. The applicant was not present during the cassation hearing. He was released on the next day when the decision of the Supreme Court was sent to the prison.

On 25 October 1999 the Kaunas City District Court returned the case to the prosecution for further investigations to be carried out. It appears that to date the investigation has not been concluded and trial has not resumed.

B. Relevant domestic law and practice

Pursuant to Article 398 § 2 of the Code of Criminal Procedure, if an appeal is filed against a judgment of the first instance court, the judgment becomes effective upon the determination of the appeal. Articles 398 § 4 and 399 § 4 provide that the decision of the appellate court becomes effective when it is pronounced. Therefore, a detainee is considered under domestic law as being in detention on remand after his conviction at first instance, until the appellate court determines the appeal against the first instance judgment.

COMPLAINTS

1. Under Article 6 of the Convention the applicant complains that the criminal proceedings against him have been excessively long and unfair.

2. The applicant complains that his transfer from hospital to the prison on 16 October 1998 amounted to treatment contrary to Article 3 of the Convention as at that time he was sick and unfit for detention. The applicant also alleges that he was denied an adequate remedy to complain about the transfer.  

3. The applicant also complains that his detention from 16 October 1998 to 1 October 1999 did not comply with Article 5 of the Convention.

THE LAW

1 . The applicant’s first complaint relates to the length of the criminal proceedings, which began in November 1994 and are still pending. According to the applicant, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government reject the allegation.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required. 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 . To the extent that the applicant complains under Article 6 of the Convention that he did not have a fair trial, the Court recalls that the fairness of criminal proceedings must be examined on the basis of the proceedings as a whole. The Court notes that the trial in the present case is still pending. Accordingly, it would be premature for the Court to deal with the applicant’s complaints under Article 6 until the domestic courts have finally determined the criminal offences alleged against him. In these circumstances, the Court concludes that the applicant cannot at this stage claim to be a victim of a violation of the above provision in regard to this aspect of the case. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

3 . The applicant also alleges a violation of Article 3 of the Convention, which prohibits inhuman or degrading treatment or punishment, in respect of his transfer from the hospital to the prison on 16 October 1998.

The Court recalls that, under the terms of Article 35 § 1 of the Convention, it 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. Where a complaint is made about the absence of an adequate remedy against a particular act which is alleged to be in breach of the Convention, the six-month period runs from the date when that act took place (see, Slivenko v. Latvia [GC] (dec.), no. 48321/99, 23.1.2002, ECHR 2002).

The applicant alleged absence of an adequate remedy in respect of his transfer from the hospital to the prison. However, this act took place on 16 October 1998, whereas the application was 999, that is more than six months after the event at issue. In accordance with Article 35 §§ 1 and 4 of the Convention, the Court is not empowered to entertain this part of the application as it was submitted out of time.

4 . The applicant also alleges a violation of 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; ... .”

The applicant complained about the lawfulness of his detention from 16 October 1998 until 1 October 1999. The Court observes that this period of detention was based on the conviction of 15 October 1998 whereby the first instance court imposed the sentence of five years’ imprisonment for the criminal offences committed by the applicant. Despite the fact that until the date of the appeal decision (22 March 1999) the applicant was considered as a remand prisoner under domestic law (Articles 398-399 of the Code of Criminal Procedure), but for the purposes of the Convention he was a person convicted by a competent court, pursuant to Article 5 § 1 (a) of the Convention, throughout the whole impugned period (see, Daktaras v. Lithuania (dec.), no. 42095/98, 11.1.2000).

It is true that the applicant was released on 1 October 1999 on the basis of the decision of the Supreme Court quashing the conviction. However, this very fact does not itself render the underlying period of the applicant’s detention unlawful within the meaning of Article 5 § 1 (a). The Court has consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law (see, inter alia , Bozano v. France , no. 9990/82, 18.12.1986, § 55, Series A no. 111; Benham v. the United Kingdom , no. 19380/92, 10.6.1996, § 42, ECHR 1996-III).

There is no evidence in the present case that the trial court which convicted and sentenced the applicant lacked competence in this respect, or that the appellate court wanted jurisdiction to confirm the sentence on appeal. The Court also notes that the Supreme Court did not acquit the applicant while quashing the conviction at cassation level. In view of the procedural irregularities established by the Supreme Court, it has not been shown that the applicant’s detention on the basis of the conviction could be considered as arbitrary or unlawful. It follows therefore that from 16 October 1998 until 1 October 1999 the applicant was detained in accordance with the requirements of Article 5 § 1 (a).

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

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint about the length of proceedings;.

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress Registrar President