THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 49093/99 by Stasys SIPAVIÄŒIUS against Lithuania

The European Court of Human Rights ( Third Section) , sitting on 28 November 2000 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr P. Kūris , Mrs F. Tulkens , Mr K. Jungwiert , Sir Nicolas Bratza , Mr K. Traja , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced on 6 April 1999 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 1950 and living in Kaunas . He is represented before the Court by Mr U. Salburg , 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 applicant, a senior police commissioner, was suspected of conspiracy to smuggle non-ferrous metals as he failed to investigate the activities of certain smugglers in 1994. He was arrested on 18 August 1995 in the context of criminal proceedings instituted in 1992. There were eight co-accused in the case, including the applicant.

On 22 August 1995 he was charged with obtaining property by deception ( sukčiavimas ) under Article 274 of the Criminal Code, abuse of office ( piktnaudžiavimas tarnyba ) under Article 285 of the Code, and official forgery ( tarnybinis suklastojimas ) under Article 289 of the Code. On 29 November 1995 the prosecution dropped the last charge. From 1 December 1995 to 18 January 1995 the co-accused had access to the case-file. On 14 February 1996 a prosecutor confirmed the bill of indictment whereby the applicant was indicted for offences under Articles 274 and 285 of the Criminal Code.

On 20 February 1996 the case was transferred to the Vilnius Regional Court.

On 17 May 1996 a judge of the Vilnius Regional Court ordered additional investigations, finding numerous breaches of domestic criminal procedure during the pre-trial investigation. The judge found inter alia that the prosecution had taken no procedural action as to the charge of official forgery against the applicant, which had not been mentioned in the bill of indictment. The judge also requested that the prosecution supplement the charges under Articles 274 and 285 of the Criminal Code.   

On 26 June 1996 the Court of Appeal quashed the above decision, finding that the Regional Court was able to consider the question of committal for trial without further investigation measures. The court ruled that, at that stage, the Regional Court was called upon to decide whether the evidence collected was sufficient to commit the accused for trial, not whether it was complete enough to establish guilt. The Court of Appeal also ordered the applicant’s release on bail. He was released in open court. 

On 9 July 1996 the Court of Appeal remitted the case to the Vilnius Regional Court.

On 20 September 1996 the judge of the Vilnius Regional Court committed the applicant for trial on the charges under Articles 274 and 285 of the Criminal Code. The first trial hearing was scheduled for 28 October 1996.

The applicant submits that the judge failed to appear on 28 October 1996, even though the parties were there.

The first trial hearing took place on 9 December 1996, but was adjourned because of the illness of one of the defendants and the absence of 34 of the 37 witnesses summoned by the court. The next hearing took place on 28 February 1997, and was adjourned due to the illness of another defendant. During the subsequent hearing on 10 April 1997 the trial was adjourned because of the absence of 27 witnesses. On that date the Vilnius Regional Court also decided to accept the applicant’s request to call four witnesses on his behalf. The next trial hearing on 21 May 1997 was adjourned because of the absence of 23 witnesses. The court ordered the compulsory bringing of the witnesses. 

The trial recommenced on 16 June 1997 but was adjourned because of the absence of a legal representative and 18 witnesses. On 3 September 1997 the trial was adjourned because of the illness of two defendants and the absence of 13 witnesses. The next hearing on 21 January 1998 was adjourned in the absence of 8 witnesses. Four witnesses were fined by the court for their failure to attend. On 22 January 1998 none of the eight witnesses appeared, and the court ordered their compulsory attendance. As they were not brought before the court on 23 January 1998, the trial was again adjourned.

The following hearing on 12 March 1998 was adjourned due to the illness of one of the defendants. On 21 April 1998 the trial was adjourned because of the absence of 9 witnesses. The court ordered their compulsory attendance. The witnesses were brought to the court the next day, and the trial hearings took place from 22 to 24 April 1998, on 27 April and 11 May 1998.

During the trial hearing on 24 April 1998 the judge stated:

“… the charge of cheating may be supplemented … [and] the charge under Article 285 [of the Criminal Code] may be amended by adding the ‘selfish interest’ … .”

During the hearing on 11 May 1998 the judge said:

“… the charge under Article 285 may be supplemented … with alleged breaches of [the specific provisions] of the Police Act … .”

During that hearing the trial judge informed the parties that she would pronounce the judgment on 22 May 1998.

On 22 May 1998 the Vilnius Regional Court acquitted the applicant on the count of obtaining property by deception under Article 274 of the Criminal Code. In connection with the charge under Article 285 the court held: “the charge of abuse of office cannot be sustained … . However, [the applicant], being a State official, improperly performed his functions because of negligence” in breach of certain provisions of the Police Act. The judge found the applicant guilty of official negligence ( tarnybos pareigų neatlikimas dėl nerūpestingumo ) under Article 288 of the Criminal Code and sentenced him to one year’s imprisonment. He was also deprived of the right to occupy an official position in the system of law enforcement. The judge reduced the custodial sentence by one third pursuant to an amnesty law, and found that the applicant had completed the sentence on account of the time spent in detention on remand.

The applicant appealed against the judgment of 22 May 1998, stating that the Vilnius Regional Court had convicted him of an offence not covered by the initial charges and in respect of which he had not been in a position to defend himself. He noted in particular that during the trial the judge had in no way indicated that the charge of abuse of office could be replaced by one of official negligence.  

On 9 September 1998 the Court of Appeal dismissed the appeal. The court ruled inter alia :

“the allegation that the reclassification was not permitted is unfounded. Both Articles [285 and 288 of the Criminal Code] punish offences against State office. The court only established that [the applicant] improperly performed his functions as an officer because of negligence, but that he did not deliberately take advantage of his official position contrary to the interests of his office. The [original] charge did not refer to breaches [by the applicant] of specific provisions of the Police Act. In accordance with Articles 279 § 2 and 280 of the Code of Criminal Procedure, the court warned [the applicant] that the charge could be supplemented with breaches of [the specific provisions] of the Police Act. An adjournment was offered for the preparation of the defence, but the parties did not request such an adjournment … . The allegation that [the applicant] could not defend himself against the charges is therefore dismissed.”

The applicant filed a cassation appeal with the Supreme Court, complaining inter alia that the reclassification of the charge had breached his rights to defend himself.

On 2 March 1999 the Supreme Court dismissed the appeal, upholding the decisions of the lower courts. The court held inter alia that the first instance court had reclassified the offence of abuse of office with that of official negligence in accordance with Articles 279 § 2 and 280 of the Code of Criminal Procedure as the court had replaced the initial charge with a lesser one, merely drawing the legal conclusions consistent with the facts laid before it.

B. Relevant domestic law

Relevant provisions of the Criminal Code ( Baudžiamasis kodeksas ):

Article 274 punishes acts of cheating (obtaining property by deception) by a custodial sentence of up to 8 years’ imprisonment. 

Article 285 creates liability for deliberate abuse of office which may be punished by up to 5 years’ imprisonment or a fine.

Article 288 punishes improper performance by State officials of their functions because of negligence with a custodial sentence of up to 4 years’ imprisonment or a fine.

Article 289 creates liability for acts of official forgery of documents, which may be punished by up to 6 years’ imprisonment or a fine.

Disqualification from holding certain public offices may also be imposed as a supplementary penalty for the offences laid down in Articles 285, 288 and 289.

Relevant provisions of the Code of Criminal Procedure ( Baudžiamojo proceso kodeksas ), applicable at the material time:

Article 279 § 2 allowed a court to replace a charge with another one during the trial. Pursuant to Article 280 § 1, a court was entitled to replace a charge with a less severe one, provided that the facts on which the new charge was based did not, in principle, differ from those of the initial one. Under Article 280 §§ 2 and 6, the court could also replace a charge with a more severe one. In the latter case, on the defendant’s request, the court could adjourn the trial to enable a revision of the defence.

On 5 February 1999 the Constitutional Court ruled that the provisions of Article 280  § 1 of the Code were compatible with the principles of a fair trial and defence rights guaranteed by the Constitution. The Constitutional Court also ruled that Article 280 §§ 2 and 6 of the Code, to the extent that it permitted the court to replace a charge with a more severe one, was incompatible with the Constitution.

COMPLAINTS

1. Under Article 3 of the Convention the applicant complains about the conditions of his detention on remand.

2. Under Article 5 §§ 1, 3 and 4 he further alleges the unlawfulness of his remand in custody. He states that he was not brought before a proper officer, and that he was not afforded a court review of his detention. 

3. Under Article 6 § 1 of the Convention the applicant complains that the proceedings were unreasonably long, as there were many unjustified stoppages during the pre-trial investigation and trial.

4. Under Article 6 §§ 1 and 3 (a) and (b) of the Convention the applicant complains that he had not been charged with official negligence, the crime for which he was eventually convicted. According to the applicant, the offence of negligence is completely different from that of abuse of office, which was the deliberate crime alleged by the prosecution throughout the trial. He claims that he found out about the charge of official negligence only from the first instance judgment. As a result he also had no time or facilities for the preparation of his defence.

5. Under Article 6 §§ 1 and 2 of the Convention the applicant further alleges that the courts breached the principles of fairness and the presumption of innocence in that they wrongly found on the facts and improperly applied the provisions of domestic law. He alleges in addition that he had an unfair trial as the courts convicted him of official negligence and imposed a sentence of imprisonment for this minor offence solely to justify the ten months he had spent in detention on remand.

THE LAW

1. The applicant complains that the conditions of his detention on remand amounted to a violation of Article 3 of the Convention, which provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The applicant also alleges a violation of Article 5 of the Convention in connection with his detention on remand. Article 5 states, 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; … .

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 Court finds that this part of the application was submitted out of time because, assuming that there were no adequate remedies in regard to the alleged violations of Articles 3 and 5 of the Convention, in this respect the “final” date under Article 35 § 1 of the Convention was 26 June 1996, when the applicant was released from prison, which is more than six months before the date on which the application was introduced (see the Valašinas v. Lithuania decision, no. 44558/98, 14.3.2000; also see, as regards the absence of a remedy in connection with a period of pre-trial detention, the Jėčius v. Lithuania judgment, no. 34578/97, 31.7.2000, §§ 96-102; the Grauslys v. Lithuania judgment, no. 36743/97, 10.10.2000, §§ 51-55).

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

2. The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him were excessively long.

Article 6 § 1 of the Convention provides, insofar as relevant, as follows:

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

The parties agree that the period to be taken into consideration started when the applicant was arrested on 18 August 1995. The proceedings ended with the cassation judgment of 2 March 1999. They thus lasted over three and a half years, at three levels of jurisdiction.

The Government submit that the proceedings concerned allegations of large scale corruption of various State officials and were thus particularly complex. Charges were brought against 8 defendants concerning various episodes from 1992 to 1995. In the course of the pre-trial investigation many witnesses were questioned, and 37 witnesses were summoned by the trial court. Various requests by the defendants to call witnesses also slowed down the trial. In addition, complex expert examinations were carried out in the case. 9 trial hearings were adjourned because of the non-attendance of certain witnesses, and four were adjourned due to the illness of some of the defendants. The Government contend that the pre-trial investigation and trial were conducted speedily, that no delay could be attributed to the authorities, and that the length of the proceedings was thus compatible with the “reasonable time” requirement of Article 6 § 1 of the Convention.

The applicant admits that the case could be regarded as complex. However, he contends that his case bore no relation to that of four of the co-accused. The authorities were thus at fault in merging seven different cases into one, which caused the pre-trial investigation and trial to be drawn out from 1992 to 1999. In any event, the complexity of the case did not relieve the State authorities from their obligation to afford him a speedy trial. He refers to several matters which caused delay, particularly between 17 May and 9 December 1996. In the applicant’s view, the delays were attributable to the authorities, and could not be justified. The applicant submits that none of his actions gave rise to an adjournment throughout the trial.

The Court notes that these complex proceedings lasted three and a half years over three instances, with an interim procedural matter being raised at two levels of jurisdiction. Whilst some periods may be identified as causing delay, the Court finds that the proceedings viewed as a whole may not be deemed unduly long. It finds therefore that this complaint is manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. Accordingly it must be rejected pursuant to Article 35 § 4.

3. The applicant also claims that the reclassification of a charge upon conviction breached his rights under Article 6 §§ 1 and 3 (a) and (b), which provide, 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 … .

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

(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

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

The Government state that the applicant did not exhaust domestic remedies on this point, as in his cassation appeal he alleged that the reclassification was unlawful under domestic criminal procedure, but did not complain of any violation of a fair trial or defence rights within the meaning of Article 6 of the Convention. Furthermore, during the trial hearings on 24 April and 11 May 1998 the applicant was warned by the judge that the charges against him could be amended, and was offered an adjournment to prepare his defence. However, the applicant did not request an adjournment, in accordance with Article 280 of the Code of Criminal Procedure, thus failing to comply with the requirements of Article 35 § 1 of the Convention. In any event, according to the Government, the replacement of the charge of abuse of office was in accordance with the domestic substantive and procedural requirements. In addition, the fact that the trial judge had twice warned the applicant on 24 April and 11 May 1998 afforded him the guarantees of Article 6 §§ 1 and 3 (a) and (b) of the Convention.

The applicant contests these arguments, stating that he availed himself of all remedies available under Lithuanian law to obtain redress for a violation of Article 6 §§ 1 and 3 (a) and (b) of the Convention, but to no avail. The applicant claims in addition that Article 280 of the Code of Criminal Procedure does not permit a defendant to apply for adjournment of the trial where a judge intends to replace a charge with a less severe one. Therefore, even assuming that he had been informed that the charge of abuse of office could have been replaced with the lesser charge of official negligence, Article 280 of the Code of Criminal Procedure would have not entitled him to request adjournment of the trial. Therefore, the Government’s argument that he did not avail of the right to request the court to adjourn the case under the above domestic provision is unfounded.

The applicant admits that during the hearings of 24 April and 11 May 1998 the trial judge warned him of the possible aggravation of the charge of obtaining property by deception and the amendment to the charge of abuse of office. However, neither of those warnings indicated a possible reclassification of the charge of abuse of office under Article 285 of the Criminal Code or an introduction of a new charge of official negligence under Article 288 of that Code, as confirmed by the transcripts of those hearings. By reference to the Pelissier and Sassi v. France judgment ([GC] no. 25444/94, ECHR 1999-II, 25.3.99 §§ 51-63), the applicant concludes that he was convicted of a completely different offence than was alleged before the conviction, in breach of Article 6 §§ 1 and 3 (a) and (b) of the Convention.

With regard to the Government’s non-exhaustion argument, the Court notes that, in his appeals against conviction, the applicant complained in his appeals that the reclassification of the charge breached his defence rights. Furthermore, it is undisputed that the charge upon which the applicant was convicted, i.e. official negligence under Article 288 of the Criminal Code, is considered by the domestic criminal law to be less severe than the charge of abuse of office under Article 285 of that Code, or indeed any other charge pressed against the applicant prior his conviction. The Court observes therefore that Article 280 of the Code of Criminal Procedure invoked by the Government did not permit the applicant to apply for an adjournment of the trial in connection with the reclassification of the charge in this case (see the ‘Relevant domestic law’ part above).

Moreover, the Court notes that, while the Government submit that the applicant was “offered an adjournment to prepare his defence”, they do not specify that he was in fact offered an adjournment to defend himself against a charge under Article 288 of the Criminal Code, to enable him to prepare his defence on this particular point. Nor did the Court of Appeal say that the applicant had been offered such an adjournment in its decision of 9 September 1998. It follows that no “adjournment” mentioned by the Court of Appeal or referred to by the Government in their observations constituted a remedy within the meaning of Article 35 § 1 of the Convention in this respect.

The Court is satisfied that the applicant exhausted all available domestic remedies in regard to this part of the application, as required by Article 35 § 1 of the Convention.

The Court has had regard to the parties’ other observations on this aspect of the case. It 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.

4. Under Article 6 §§ 1 and 2 of the Convention the applicant further complains of breaches of the principles of fairness and the presumption of innocence, incorrect findings of fact and domestic law, as well as an improper punishment.

To the extent that the applicant complains that the domestic courts denied him a fair trial in that they wrongly convicted 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, mutatis mutandis , the Bernard v. France judgment of 23 April 1998, ECHR 1998-II, p. 879, § 37).

It is undisputed that the applicant was convicted by the competent courts and sentenced in accordance with the domestic criminal law. The applicant has presented no evidence indicating a lack of impartiality or a breach of the presumption of innocence by the national authorities.

In these circumstances, the Court finds that these complaints do not disclose a violation of the first or second paragraphs of Article 6 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.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint about the reclassification of a charge against him under Article 6 of the Convention;

Declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa Registrar President