THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 49098/99 by Sigitas GAIDJURGIS against Lithuania

The European Court of Human Rights ( Third Section) , sitting on 16 January 2001 as a Chamber composed of

Mr J.-P. Costa , President ,

Mr W. Fuhrmann , Mr L. Loucaides , Mr P. Kūris , Mr K. Jungwiert , Mrs H.S. Greve , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced on 26 May 1998 and registered on 24 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 is a Lithuanian national, born in 1958 and living in Å ilutÄ— region. He is represented before the Court by Mr K. Stungys , 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.

On 12 February 1999 the applicant was arrested on suspicion of the unlawful possession of a hunting knife, in breach of Article 235 of the Criminal Code. On 13 February 1999 the Palanga City District Court found inter alia that the knife was 284 mm long and could be considered to be a weapon for the purpose of that provision. The court ordered the applicant’s detention on remand for the alleged offence under Article 235 of the Criminal Code on the grounds of his serious criminal record, his unemployment and a risk that he might commit new offences, within the meaning to Article 104 § 3 (3) of the Code of Criminal Procedure. His remand in custody was authorised until 13 March 1999. The applicant and his defence counsel were present in court.

The applicant appealed against the detention order, asserting that there were no reasons for holding him in custody. He stated in particular that there was no danger of his committing new offences.   

On 1 March 1999 the Klaipėda Regional Court held the appeal hearing in the presence of the applicant’s defence counsel. The Regional Court dismissed the appeal, finding that there was a reasonable suspicion that the applicant had committed an offence. The court held that the District Court had erred in detaining the applicant under Article 104 § 3 (3) of the Code of Criminal Procedure as he had not been suspected of having committed any offence listed in paragraph 6 of that provision. The Regional Court found no reason to suspect that the applicant might commit any new offence envisaged by Article 104 § 3 (3) of the Code. However, it ruled that these errors were not of such a nature or degree as to render the applicant’s detention unlawful. By reference to the fact that the applicant had misled the authorities concerning the question of his address and that he had no permanent place of residence, the Regional Court also held that there was a danger of his absconding, thereby justifying his detention under Article 104 § 3 (1) of the Code of Criminal Procedure.

On 10 March 1999 the Palanga City District Court extended the term of the applicant’s remand in custody to 10 April 1999, emphasising the danger of his absconding, given the applicant’s contradictions about his place of residence. The applicant and his representatives were present in court.

The applicant appealed, claiming that there was no danger of his absconding that the case-file contained no proper evidence of his guilt, and that the alleged offence alleged was minor. He requested the KlaipÄ—da Regional Court to quash the decision of 10 March 1999 and to release him. On 24 March 1999 the KlaipÄ—da Regional Court, in the presence of the applicant’s defence counsel, rejected the appeal as unsubstantiated.

On 8 April 1999 the Palanga City District Court extended the term of the applicant’s remand in custody to 25 April 1999, finding that there was a danger of his absconding, given the applicant’s contradictions about his place of residence. The applicant and his defence counsel were present in court.

On 21 May 1999 the Palanga City District Court convicted the applicant of the unlawful possession of a weapon under Article 235 of the Criminal Code. He was given a prison sentence of three months and 10 days, which was deemed served on account of the time spent in detention on remand. He was released in the courtroom.

The applicant did not appeal against that judgment.    

B. Relevant domestic law and practice

Relevant provisions of the Criminal Code ( Baudžiamasis kodeksas ):

Article 235 of the Criminal Code provides that a person may be punished with a sentence of up to three years’ imprisonment for the unlawful possession, production or sale of weapons specifically made to kill or inflict bodily harm, including hunting knives.

Relevant provisions of the Code of Criminal Procedure ( Baudžiamojo proceso kodeksas ):

Article 10:

“No one shall be arrested or detained save by virtue of a decision of a court or judge.”

Articles 52 § 2 and 58 § 2 provide that the accused and their counsel have the right to submit requests and appeal against acts and decisions of an interrogator, investigator, prosecutor or court.

Article 104:    

“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 the 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 [1] ;

(3) commit new offences … whilst suspected of having committed crimes [2] .”

Article 104-1:

“ … the 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 defence counsel must take part in the inquiry, unless the judge decides otherwise. After having questioned the arrested person, the judge may maintain the arrest order by designating the specific term of detention, or vary or revoke the remand … .

After the case has been transmitted to the court … [it] can order, vary or revoke the detention on remand. The court shall extend the detention on remand before its expiry.”

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

“For the purpose of extending the term of detention on remand a judge … must convene a hearing to which defence counsel, the prosecutor and the detainee, the presence of whom is obligatory, shall be called. The judge decides whether or not to extend the term of detention on remand. … .”

Article 109-1 provides for an appeal to a higher court and 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 defence counsel, or only counsel. If the appellate court finds procedural irregularities that do not affect the essence of the detention order, the court must eliminate the defects without quashing the order.

Pursuant to the general provision of Article 399, a first instance decision, including remand decisions, was not effective pending the time-limit for an appeal against that decision or during the appeal proceedings. The present Article 104-3 § 3 (version in force from 21 December 1999) specifies that all decisions of detention on remand become effective and are executed on the date when they are taken.

COMPLAINTS

1.  Under Article 5 § 1 of the Convention, the applicant complains that there were no grounds justifying his arrest and subsequent remand in custody. He considers that the substantive provisions of domestic criminal law which permit remand in custody for such a minor offence as carrying of a hunting knife, are inadequate and cannot give rise to “lawful” detention. The applicant claims therefore that the detention order of 13 February 1999 was arbitrary and unlawful. In addition, the Palanga City District Court also breached domestic criminal procedure in issuing that order, as he could not be detained for the fear of his committing new offences, and there were no grounds to suspect his absconding from the trial. Although the order was subsequently found to be invalid in some respects, it was not quashed by the Klaipėda Regional Court on appeal.

2.  Under Article 5 § 1 of the Convention, the applicant further complains that from 13 March 1999 until 24 March 1999 there was no valid court order authorising his remand in custody. The applicant asserts that the term of his detention authorised on 13 February 1999 expired on 13 March 1999. Thereafter, pursuant to Article 399 of the Code of Criminal Procedure, the decision of 10 March 1999 extending the term of his detention was not effective until 24 March 1999, pending the determination of his appeal against that decision.

3.  Under Article 5 § 3 of the Convention, the applicant complains that he was not brought before a judge repeatedly, when the Regional Court examined his appeal on 1 March 1999.

4.  Under Article 5 § 4 of the Convention he complains that the Klaipėda Regional Court failed to order his release on 24 March 1999, regardless of its finding that the detention order of 13 February 1999 had been invalid in some respects.

5.  Under Article 6 of the Convention the applicant complains that his defence rights were violated.

THE LAW

1 . The applicant complains that his arrest and detention on the basis of the order of 13 February 1999 violated Article 5 § 1 of the Convention, which provides, insofar as relevant, as follows:

“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; … .”

The Government state that an offence under Article 235 of the Criminal Code is not considered serious under the criminal law. It nonetheless punishes the unlawful possession of lethal weapons, including the kind of hunting knife found on the applicant. The applicant’s detention was compatible with the exception under Article 5 § 1 (c) of the Convention as he was detained on suspicion of his having committed that offence. Furthermore, the applicant’s remand in custody complied with domestic law and was not arbitrary as it was ordered by the courts with a view to ensuring his attendance at trial.

The applicant argues that the national courts wrongly established the facts and improperly applied inadequate norms of domestic law in authorising his detention, in breach of his right to liberty and security of person under Article 5 § 1 of the Convention.

The Court notes first that the applicant’s arrest was effected on suspicion of his having committed an offence under Article 235 of the Criminal Code, which prohibits the unlawful possession of lethal weapons. While the offence is not deemed serious under domestic criminal law, it may warrant a sentence of up to three years’ imprisonment. Therefore the Court considers that the applicant’s arrest and detention in the context of criminal proceedings concerning an alleged offence under Article 235 of the Criminal Code was compatible with the purposes in Article 5 § 1 (c) of the Convention.

The Court recalls the requirement in Article 5 § 1 that 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 a subsequent finding that a court erred under domestic law in making the detention order will not necessarily retrospectively affect the validity of the intervening period of detention (see the Jėčius v. Lithuania judgment, no. 34578/97, 31.7.00, §§ 56, 65-70).

It has not been alleged that on 13 February 1999 the District Court acted in excess of its jurisdiction. Indeed, it clearly acted within its jurisdiction insofar as it had power to entertain the prosecution’s application and to make an appropriate order in respect of the applicant’s detention under Articles 10, 104 and 104-1 of the Code of Criminal Procedure.

Furthermore, the Court finds that applicant’s detention on the basis of the order of 13 February 1999 could not be said to have been arbitrary, given that the court gave adequate reasons for the order. It is true that the District Court held that the reason for the applicant’s detention was the danger of his possible involvement in new crimes under Article 104 § 3 (3) of the Code of the Criminal Procedure, whereas the Regional Court subsequently replaced that reason with the danger of the applicant’s absconding under 104 § 3 (1) of the Code. However, the Regional Court ruled on appeal that the errors in the detention order of 13 February 1999 did not affect the underlying lawfulness of the applicant’s detention as the reasonable suspicion against him persisted.

The Court considers that the replacement of the formal ground for the applicant’s detention did not change the essence of the remand decisions in view of the facts mentioned by the courts in support of their conclusions, namely the applicant’s contradictory statements concerning his place of residence, as well as his criminal record and unemployment.

It has not therefore been established that, in issuing the detention order of 13 February 1999, the District Court acted in bad faith, or that it neglected to attempt to apply the relevant legislation correctly. The fact that certain flaws in the detention order were found on appeal did not in itself mean that the detention was unlawful (see, mutatis mutandis , the Kamantauskas v. Lithuania decision, no. 45012/98, 29.2.2000).

The Court is satisfied that the detention order of 13 February 1999 complied with “a procedure prescribed by law” and that the period of the applicant’s detention which resulted from it was “lawful” within the meaning of Article 5 § 1 of the Convention.

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

2 . The applicant next complains under Article 5 § 1 about the alleged unlawfulness of his detention from 13 to 24 March 1999, as a result of the absence of any legal effect in the order of 10 March 1999 extending the term of his remand in custody, in view of the provisions of Article 399 of the Code of Criminal Procedure.

The Government state that this part of the application should be rejected for non-exhaustion, a submission which the applicant contests.

The Court is not required to decide whether or not the facts submitted by the applicant in this part of the application disclose any appearance of a violation of the Convention because, indeed, the applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention.

It is true that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. However, it not only requires that applications should be brought before the appropriate domestic courts of first instance, but also that full use be made of appellate remedies. It normally also requires that the complaints raised before the Court should first have been made to the domestic courts, at least in substance (see the Cardot v. France judgment of 19 March 1991, Series A no. 200, p.18, § 34).

The Court notes that the applicant availed himself of the right to appeal against the detention order of 10 March 1999, in accordance with Article 109-1 of the Code of Criminal Procedure. It is undisputed that in his appeal the applicant was entitled to contest all aspects of fact and law concerning the lawfulness of his detention as based on that order.

However, in that appeal the applicant contested the reasons for his detention, but he made no allegations concerning the validity of the term of his detention which resulted from that order; nor did he refer to Article 399 of the Code of Criminal Procedure. Thus he did not provide the Lithuanian courts with an opportunity to redress his grievance, as envisaged by Article 35 § 1 of the Convention (see, among many other authorities and mutatis mutandis , the Cardot judgment cited above, p. 19, § 36).

It follows that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

3 . The applicant further alleges a violation of Article 5 § 3 of the Convention, which reads:

“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.”

The Court recalls that Article 5 § 3 does not include a right to be brought repeatedly before a judge (see the Graužinis v. Lithuania judgment, no. 37975/97, 10.10.2000, § 25). The Court notes that the applicant was brought before a judge the day after his arrest. The guarantee of Article 5 § 3 was therefore met in the present case. 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.

4 . The applicant further complains under Article 5 § 4, which reads:

“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 submit that the applicant was afforded the guarantees of a judicial procedure within the meaning of Article 5 § 4, as his appeals against the orders authorising detention and extending the term thereof were examined at hearings before the Klaipėda Regional Court in the presence of the applicant’s counsel. The Regional Court was justified in refusing to order the applicant’s release on 1 March 1999 in that it confirmed the essential lawfulness of the applicant’s remand in custody, having remedied the irregularities in the detention order of 13 February 1999.

The applicant contests the Government’s submissions, stating that on 1 March 1999 the Regional Court found that his detention had been unlawful, and that the failure of the appeal court to release him on that date amounted to a violation of Article 5 § 4 of the Convention.

The Court recalls that Article 5 § 4 of the Convention entitles arrested or detained persons to take proceedings bearing upon the procedural and substantive conditions which are essential for the lawfulness, in Convention terms, of their deprivation of liberty. In addition, the domestic court dealing with such matters must provide the guarantees of a judicial procedure. The proceedings must be adversarial and ensure equality of arms between the parties - the prosecutor and the detainee. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see the Graužinis judgment cited above, §§ 30-31).

The Court notes that the applicant’s complaint under Article 5 § 4 is confined to the allegation that the appellate court failed to release him on 1 March 1999 when finding that the detention order of 13 February 1999 had been partially defective. However, the Court has found above that the said order was compatible with Article 5 § 1 of the Convention, regardless of certain domestic irregularities established in the appeal court’s decision of 1 March 1999. There was therefore no obligation under Article 5 § 4 for the Regional Court to release the applicant on that date.

The Court further notes that the applicant was entitled to appeal against the first instance decisions ordering and extending his detention, and that these appeals were examined by the Regional Court at the hearings on 1 and 24 March 1999, in the presence of defence counsel. Furthermore, the District Court held hearings when authorising the applicant’s remand in custody on 13 February, 10 March and 8 April 1999, in the presence of both the applicant and his counsel.

The Court considers that the applicant’s complaint that he was not brought before the Regional Court on 1 March 1999 must also be examined under Article 5 § 4 (see the Graužinis judgment mentioned above, § 25). The Court notes that the overall length of the applicant’s detention on remand was three months and ten days. During that period the applicant appeared with his lawyer three times before a first instance judge to present his arguments against his remand in custody. His lawyer was subsequently present at two appeal hearings whereby he was able contest all legal and factual aspects concerning the first instance decisions authorising the applicant’s remand in custody. In these circumstances, the Court considers that the “appropriate guarantees of judicial procedure” were observed in the present case.

Against the above background, the Court finds no indication of any significant procedural irregularity, which might disclose an appearance of a violation of Article 5 § 4 of the Convention. It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

5 . Finally, the applicant alleges a violation of Article 6 of the Convention, which guarantees the right to a fair trial and various defence rights. The Court observes however that the applicant did not appeal against his conviction, and thereby failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention.

It follows that this part of the application must be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President

[1]  influence other parties or destroy evidence;

[2]  provided in Article 104 § 6 of the Code of Criminal Procedure; the exhaustive list of offences in that provision does not include an offence under Article 235 of the Criminal Code.