THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50551/99 by Vidmantas SIAURUSEVIÄŒIUS 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 20 May 1999,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Vidmantas Siaurusevičius, is a Lithuanian national, who was born in 1958. He died on 18 November 2000. By letter of 17 January 2001, the applicant’s widow expressed her wish to continue the proceedings in his stead. The respondent Government were represented by their Agent, Mr G. Švedas, 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.

On 18 March 1998 the Vilnius Regional Court convicted the applicant on two counts of kidnapping and sentenced him to two years and six months’ imprisonment. Two co-defendants were convicted alongside the applicant.

On 26 August 1998 the Court of Appeal held a “partial appeal” hearing whereby it dismissed the applicant’s appeal against conviction and adjourned the prosecutor’s appeal against sentence. On 30 September 1998 the Court of Appeal held a “full appeal” hearing whereby it granted the prosecutors’ appeal and amended the applicant’s sentence to five years’ imprisonment (see the ‘Relevant domestic law an practice’ part below).

On 8 December 1998 the Supreme Court examined a cassation appeal by one of the co-defendants, upholding the lower courts’ decisions regarding this person’s conviction. The Supreme Court also noted that the applicant had not in the meantime submitted a cassation appeal, and it did not examine the lower courts’ findings regarding the applicant.

The applicant submitted a cassation appeal on 29 December 1998.

By a letter of 7 January 1999, the Acting President of the Supreme Court informed the applicant that his cassation appeal could not be examined as it was “repetitive” in that the question of his guilt had been finally determined by the decision of the Supreme Court on 8 December 1998. The Acting President did not state any other reasons for disallowing the applicant’s cassation appeal. 

B. Relevant domestic law and practice

1. Appeal proceedings

Article 374 of the Code of Criminal Procedure provides for “partial appeal” ( dalinė apeliacija ) or “full appeal” ( pilna apeliacija ) proceedings. This distinction serves to limits the competence of an appeal court where the case is examined by way of “partial appeal” proceedings (Article 377 of the Code). An appeal court shall examine the case by way of “full appeal” procedure only where an appeal discloses: 1) inadequacy of the pre-trial investigation; 2) fact-finding errors by the trial court; 3) errors in applying criminal law; 4) improperly imposed sentence (Article 387 of the Code).

In accordance with the established practice of domestic courts, in most cases “partial appeal” procedure is applied for examining appeals raising points of law, whereas “full appeal” procedure is applied to re-examine the facts established by the first instance court.        

Pursuant to Article 398 § 2, if an appeal ( apeliacinis skundas ) against the first instance judgment is dismissed at appellate instance, the first instance judgment becomes effective on the date when the appellate decision was taken.

Article 398 § 5 provides that, where the first instance judgment is amended on appeal, the unchanged part of the first instance judgment becomes effective on the date when that appellate decision was taken.

2. Cassation proceedings

Under Article 419 of the Code of Criminal Procedure, a cassation appeal ( kasacinis skundas ) may be filed with the Supreme Court within three months of the first instance judgment becoming effective.

Pursuant to Article 417 § 3, “repetitive cassation appeals” ( pakartotiniai kasaciniai skundai ) cannot be examined. A cassation appeal shall be considered as “repetitive” where it concerns the same subject-matter which has been examined on cassation appeal lodged by another party to the proceedings.

According to Article 421 § 1, the President of the Supreme Court shall determine, within three days following receipt of a cassation appeal, whether it was submitted in accordance with the relevant statutory requirements. If the cassation appeal does not comply with the law, it shall be returned to the party concerned. 

COMPLAINTS

Under Article 6 of the Convention and Article 2 of Protocol No. 7 to the Convention the applicant complains that he was deprived of access to the Supreme Court as his cassation appeal was unlawfully disallowed as being “repetitive”. Under Article 6 of the Convention the applicant also complains that the criminal proceedings at first and appeal instances were unfair, that the courts were not impartial, that his defence rights were not respected and that the presumption of innocence was breached.

THE LAW

1 . The Court notes first the fact of the applicant’s  death, and the wish of his widow to pursue the proceedings he initiated.

The Court recalls that, where an applicant dies during the examination of the case concerning criminal proceedings, the heirs or next of a kin of the applicant may in principle pursue the application on the applicant’s behalf (see, mutatis mutandis , Jėčius v. Lithuania , no 34578/97, 31.7.2000, §§ 39-41, ECHR 2000-IX). The Court considers that the applicant’s widow has a legitimate interest to maintain the case in his stead.

2 . The applicant complains that his right to a court under Article 6 of the Convention was breached in that his cassation appeal of 29 December 1998 was not examined. He also alleges various procedural irregularities in connection with the proceedings before the trial and appeal courts. 

Article 6 provides, insofar as relevant, as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... .”

The Government admit that the applicant submitted his cassation appeal in accordance with the statutory time-limit for such appeal under Article 419 of the Code of Criminal Procedure. According to the Government, the applicant was afforded access to the Supreme Court but he did not use that access properly in that his cassation appeal of 29 December 1998 was “repetitive” within the meaning of Article 417 of the Code of Criminal Procedure. In this respect they state that the applicant’s cassation appeal was lawfully disallowed in that it did not refer to “any points of law allowing to consider that the subject-matter of the applicant’s cassation appeal had been different from that” examined by the Supreme Court while entertaining his co-defendant’s cassation appeal on 8 December 1998.

The applicant argues that he submitted his cassation appeal in time, but that the Supreme Court did not examine it. The applicant states that the authorities arbitrarily denied him access to the Supreme Court by reason of examining the cassation appeal of his co-defendant before the expiry of the time-limit for submission of the applicant’s cassation appeal, and subsequently disallowing his own cassation appeal as “repetitive”.

In the light of the parties’ observations, the Court finds that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. 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.

3 . As regards the applicant’s complaint under Article 2 of Protocol No. 7 to the Convention, the Court notes that his case was in fact reviewed at appellate instance. There was thus compliance with the guarantee of the above provision in the present case.

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

Decides that the applicant’s widow can continue the proceedings on his behalf;

Declares admissible the applicant’s complaints under Article 6 of the Convention;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress Registrar President