THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47679/99 by Arvydas STAÅ AITIS 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 L. Loucaides , Mr P. Kūris , Mrs F. Tulkens , Mr K. Jungwiert , Mrs H.S. Greve , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 24 June 1998 and registered on 23 April 1999,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 1954. He lives in Kaunas .

A. The circumstances of the case

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

The applicant was the owner and director of several holding companies.

On 8 January 1993 criminal proceedings were instituted against him on suspicion that he had concealed his income. On 30 July 1993 the applicant was charged with cheating. On 2 August 1993 the case was transferred to the Vilnius First City District Court. On the same date the applicant was granted bail.

On 25 July 1994 the applicant failed to attend a court hearing, and the judge ordered the applicant’s detention.

On 25 October 1994 another criminal case was instituted against the applicant concerning irregular operations with currency and securities. On the same date, a prosecutor authorised the applicant’s detention on remand. 

Meanwhile, the applicant was suspected of hiding in Russia. On 25 October 1994 the Prosecutor General requested the Russian authorities to extradite him on suspicion of having engaged in irregular operations with currency and securities. On 29 October 1994 the applicant was arrested in Moscow. On 1 November 1994 he was extradited to Lithuania and remanded in custody.

On 9 November 1994 he was charged with irregular operations with currency and securities.

On 10 November 1994 the prosecutor’s decision of 25 October 1994 to authorise the applicant’s detention on remand was revoked on the ground that there had already been a judge’s order regarding the applicant’s detention on 25 July 1994.

On 27 December 1994 the judge of the Vilnius City First District Court decided that the applicant should remain in custody. No term was specified.

On 20 March 1995 the Prosecutor General authorised the applicant’s detention in the criminal case concerning the operations with currency and securities. The Prosecutor General noted that the applicant had previously breached his bail, and that the reasons for his detention were the dangers of absconding and obstructing the establishment of the truth in the case. No term of detention was specified.

On 21 March 1995 the Vilnius Regional Court revoked the detention order of 25 July 1994.

On an unspecified date the criminal cases against the applicant were joined. From 18 May 1995 until 21 August 1996 the term of the applicant’s detention was extended every two months by the Prosecutor General, for fear of the applicant absconding.

On 14 August 1996 the applicant was indicted on nine counts, including cheating, misappropriating the property of another, and irregular operations with currency and securities. There were four other co-accused persons in the case. On the same date the Prosecutor General extended the term of the pre-trial investigation until 21 September 1996.

On 20 August 1996 a judge of the Vilnius Regional Court examined the prosecution’s application to extend the term of the applicant’s detention until 21 September 1996 given the risks of absconding and obstructing the establishment of the truth in the case. The applicant’s defence counsel was present at the hearing.

On 10 September 1996 the pre-trial investigation was concluded. From 10 September 1996 until 14 November 1996, all the accused had access to the case-file.

On 18 November 1996 the Deputy Prosecutor General confirmed the bill of indictment whereby the applicant was charged on nine counts, including cheating (Article 274 of the Criminal Code), embezzlement (Article 275), and irregular operations with currency and securities (Article 329).

On 20 November 1996 the case was transmitted to the Kaunas City District Court. 

On 29 November 1996 the applicant submitted an application to the Kaunas City District Court whereby he complained that the term of his detention on remand had expired. He requested his release. The court did not examine this application.

On 3 January 1997 a judge of the Kaunas City District Court, without hearing the parties, took a decision to commit the applicant and his co-accused for trial. The judge noted no fundamental procedural irregularities in the case. The judge also decided that the applicant’s detention on remand “shall remain unchanged”. No term or grounds for that detention were specified.

The applicant submitted a request to vary the remand, alleging that he had been seriously ill. On 3 March 1997 the judge of the Kaunas City District Court dismissed the request. The reasons for the dismissal were that the applicant had been accused of having committed serious offences, that he had already tried to avoid trial, and that he could therefore abscond and obstruct the establishment of the truth in the case. The applicant’s defence counsel was present at the hearing.

On 23 May 1997 the judge ordered further investigations in the case and returned the case-file to the investigators. In the same decision the judge extended the term of the applicant’s detention for four months. The applicant’s defence counsel was present at the hearing.

The prosecution appealed, complaining that there was no need for further investigation and that the trial could proceed. The applicant’s detention on remand was not mentioned in the prosecution’s appeal.

On 26 August 1997 the Kaunas Regional Court rejected the prosecution’s appeal, holding that further investigation measures were required. The applicant’s defence counsel was present at the hearing. The Regional Court amended the decision of 23 May 1997 insofar as the District Court had decided to return the case-file to the investigators. It ordered the return of the case-file to the Prosecutor General. The applicant’s detention on remand was not mentioned in the decision of 26 August 1997.

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 December 1997 the applicant submitted an application to the Court of Appeal, complaining that the term of his detention had ended on 23 September 1997 and that it had not been extended thereafter. He renewed the complaint on 8 and 21 January 1998. These applications were not examined.

On 29 January 1998 the Court of Appeal examined the prosecuting authorities’ cassation appeal. The 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. The court concluded that, “although the decision to order further investigations is quashed, the decision to commit the accused persons for trial [of 3 January 1997], whereby the question of the remand measures in respect of the accused has been properly decided, remains effective”. The applicant’s defence counsel was present at the hearing.

The applicant applied to the Ombudsman, complaining that his detention had been unlawful. The prison administration stated in reply that, pursuant to Article 106 § 5 of the Code of Criminal Procedure at that time, the applicant could be lawfully detained on remand for more than six years.

Having examined the applicant’s complaint and the observations of the prison administration, on 18 February 1998 the Ombudsman held that Article 20 of the Lithuanian Constitution, Articles 96 and 106 of the Code of Criminal Procedure and Article 9 of the Detention on Remand Act, provided that a person could only be remanded in custody pursuant to an appropriate order, specifying the term of detention. The Ombudsman observed that a detainee ought to be released from prison if the term of detention was not extended by a court.  

On the basis of the above observations, the Ombudsman concluded that:

a) from 1 November 1994 until 20 March 1995 the applicant had been remanded in custody lawfully as there had been a court order on 25 July 1994 authorising his detention;

b) from 20 March 1995 to 14 November 1996 he had been detained lawfully because the authorisation of the Prosecutor General of 20 March 1995 permitted a maximum term of detention for 18 months, i.e. until 20 September 1996; the Ombudsman stated that thereafter the term of the applicant’s detention “extended itself” until 14 November 1996, referring to the fact that the applicant and the co-accused had access to the case-file from 10 September 1996 until 14 November 1996;

c) from 14 November 1996 until 3 January 1997 the applicant’s detention had been unlawful, as throughout that period there had been no decision of a regional court judge authorising detention, as required by Article 25 § 2 of the Act amending the Code of Criminal procedure of 21 June 1996 (no. I-1947);

d) from 3 January 1997 until 27 December 1997 the applicant had been detained lawfully on the basis of a decision of 3 January 1997 whereby the judge had decided that the applicant’s detention on remand should “remain unchanged”;

e) from 27 December 1997 until 29 January 1998 the applicant had been detained unlawfully as the decision of 23 May 1997 to order additional investigation measures and to extend the term of his detention for four months had become effective, following the dismissal by the Regional Court of the prosecution’s appeal on 26 August 1997, pursuant to Article 399 § 1 of the Code of Criminal Procedure. Therefore, the four-month term of the applicant’s detention mentioned in the decision of 23 May 1997 had started running on 26 August 1997 and expired on 27 December 1997. In this connection the Ombudsman also held that, insofar as the Court of Appeal had not suspended the execution of the decision of 26 August 1997 to return the case to the prosecution for additional investigation measures, but had kept the case-file in order to examine the prosecution’s cassation appeal against the above decision, throughout the period from 26 August 1997 to 29 January 1998, the additional investigation of the case could not in fact be carried out; and

f) from 29 January 1998 to 18 February 1998 (the date of the Ombudsman’s conclusions) the applicant had been detained lawfully as the decision of the Court of Appeal of 29 January 1998 had reinstated the decision of 3 January 1997 to commit the applicant to trial, whereby the court had also decided that the applicant’s remand in custody should remain unchanged. 

Given the above considerations, the Ombudsman drew the attention of the Prison Department to the fact that the prison administration had had no authority to keep the applicant in detention from 24 November 1996 to 1 January 1997, and from 27 December 1997 to 29 January 1998. The Ombudsman rejected the prison administration’s arguments that there had been court decisions on the applicant’s detention and that Article 106 § 5 of the Code of Criminal Procedure authorised the applicant’s continued remand in custody for more than six years, given that the maximum sentence for the most serious offence with which the applicant was charged was 10 years’ imprisonment. The Ombudsman emphasised that this legal provision was incompatible with the right to be brought to trial within a reasonable time guaranteed by Article 5 § 3 of the Convention. The Ombudsman also drew the attention of the Prosecutor General and the Court of Appeal to the fact that the length of the applicant’s remand in custody had been excessive. Finally he addressed the Parliamentary Committee on Legal Affairs, stating that the provisions of the Lithuanian Code of Criminal Procedure “regulating the terms of detention on remand are not clear or logical [because] calculating the terms depends on various circumstances, including access to the case-file and dates when a particular decision becomes effective”. As such circumstances were not foreseeable and could be interpreted in different ways, the Ombudsman suggested amendments to the Code of Criminal Procedure.               

At a trial hearing before the judge of the Kaunas City District Court on 4 May 1998, the applicant stated that he had been unlawfully detained. He requested the judge to order his release. The applicant also expressed his wish to have access to additional material held in the case-file. In a decision of 4 May 1998, the judge stated that a court would establish whether or not the applicant’s detention on remand had been unlawful when delivering the judgment on the merits of the case. The applicant’s request to vary the remand was rejected on the ground that he might abscond. The judge allowed the applicant to have access to additional material held in the case-file at a time when there are no trial hearings.  

At a trial hearing on 14 May 1998, the applicant repeated his request for bail, complaining about the lawfulness and conditions of his detention. The judge of the Kaunas City District Court noted that the medical experts had not yet submitted their conclusions as to the applicant’s state of health. The judge refused to vary the remand, as there was no guarantee that the applicant would not abscond.

The applicant repeatedly applied to the Ombudsman, alleging in particular that the court decision of 20 August 1996 had not been included in the case-file, and that the prison administration could not know that his detention on remand had been prolonged from 20 August 1996 until 21 September 1996.

On 12 June 1998 the Ombudsman found that in 1994 two concurrent decisions authorising the applicant’s detention on remand had been issued by a court and prosecutor on 25 July 1994 and 25 October 1994 respectively, and that the prosecutor’s authorisation had been revoked on 10 November 1994. From 20 March 1995 the applicant’s detention had again been authorised by a prosecutor, and the court order of 25 July 1994 had been revoked on 21 March 1995. The Ombudsman held that the then Article 106 § 1 of the Code of Criminal Procedure permitted detention on remand for up to eighteen months, provided that the detention had been authorised by the Prosecutor General. Since the applicant had been detained on the basis of prosecution’s authorisation of 1 November 1994 (the date when his actual remand in custody started) until 10 November 1994, and then from 20 March 1995, the statutory term of eighteen months ended on 11 August 1996. The Ombudsman concluded that the applicant should have been released immediately thereafter.

The Ombudsman recognised that the court on 20 August 1996 had extended the term of the applicant’s detention until 21 September 1996. However, the prosecution had not sent that decision to the prison administration, which ought only to act on the basis of formal decisions. In these circumstances, the Ombudsman corrected his conclusion of 18 February 1998 insofar as it concerned his finding that the applicant’s detention had been unlawful from 24 November 1996 until 3 January 1997; he stated that the applicant had in fact been unlawfully detained from 11 August 1996 until 3 January 1997. The Ombudsman drew the attention of the Prosecutor General to the fact that the prosecution had not sent to the prison administration the court decision of 20 August 1996, in breach of Article 107 § 2 of the Code of Criminal Procedure.

On 13 July 1998 the applicant complained to the Kaunas Regional Court that he had requested the Kaunas City District Court to discontinue the unlawful detention, not that the court vary the remand. The applicant referred to the amended provision of Article 109-1 of the Code of Criminal Procedure, which had come into force on 24 June 1998. The applicant requested the Regional Court to quash the decisions of the Kaunas City District Court of 3 January 1997 and 14 May 1998. He stated that he could not remain in custody because of his health, and that the length of the detention had been excessive, in breach of Article 5 § 3 of the Convention. He also requested the Regional Court to hear him in person when examining the appeal.

On 21 July 1998 the applicant announced a hunger strike in connection with his detention.

On 28 July 1998 a judge of the Kaunas Regional Court informed the applicant that his challenge to the decisions of 3 January 1997 and 14 May 1998 was not subject to appeal, pursuant to the then Article 372 § 4 of the Code of Criminal Procedure.

On 9 September 1998 the applicant submitted a request to the judge of the Kaunas City District Court to be released. On 10 September 1998 the judge dismissed the request on the ground that the applicant might abscond.

On 15 October 1998 the judge of the Kaunas City District Court found the applicant guilty of the nine charges against him, the applicant and his defence counsel being present. The judge established that the applicant had unlawfully appropriated various assets worth more than 20 million French francs. He was sentenced to seven years’ imprisonment and his property was confiscated.

On 2 November 1998 the applicant appealed against his conviction, alleging various procedural irregularities, including breaches of his rights to legal representation, to examine witnesses, and to have unconditional access to the case-file.  He stated inter alia that the latest extension of the term of his detention on remand was that made by the Vilnius Regional Court on 20 August 1996, and that his remand in custody from 21 September 1996 had been unlawful. He claimed that his detention had been excessively long. On 30 November 1998 the applicant supplemented the appeal, submitting inter alia that Articles 3, 5, 6 and 7 of the Convention had been breached, and that he had been unable to challenge judges and prosecutors who had allegedly fabricated the case against him.   

On 22 March 1999 the Kaunas Regional Court amended the applicant’s conviction as regards the count concerning irregular operations with currency and securities. In this respect the court reclassified the charge under Article 329 of the Criminal Code with that under former Article 87 of the Criminal Code which had been applicable at the time when the crime was committed. The applicant and his defence counsel were present at the appellate hearing. The Regional Court considered that no procedural irregularities had occurred during the pre-trial investigation and trial, noting inter alia that the applicant had had several defence counsel throughout the proceedings, he had had full access to the case-file, experts had been consulted and witnesses had been questioned. The Regional Court upheld the applicant’s overall sentence. 

On 14 June 1999 the applicant lodged a cassation appeal, pleading inter alia that his detention had been unlawful.

On 30 September 1999 the Supreme Court quashed the conviction and the appellate decision because of numerous breaches of domestic criminal procedure, including violations of the applicant’s defence rights. The court ruled inter alia that the applicant could only have been prosecuted on one count of irregular operations with currency and securities under former Article 87 of the Criminal Code, by reference to which he had been extradited from Russia. The court held that the other eight counts could not be put unless the appropriate permission from Russia had been obtained. The court also stated that it had no competence to examine the applicant’s allegations of unlawful detention during the pre-trial investigation. It did not decide on the applicant’s remand, but it ordered the release on bail of his co-accused. The case was returned to the Kaunas City District Court for a new examination to be carried out. The applicant remained in prison. 

On 30 September 1999 the applicant wrote letters to the Prosecutor General, the Minister of the Interior, the Minister of Justice and the President of the Kaunas City District Court, stating that his detention from 30 September 1999 had been unlawful in that, inter alia , the Supreme Court had not mentioned the question of his remand.

By letter of 1 October 1999 a Supreme Court judge informed the Kaunas City District Court and the Prisons Department that the detention order of 3 January 1997 had constituted a valid basis for the applicant’s continued detention on remand because the order of 23 May 1997 had been quashed by the Court of Appeal on 29 January 1998.

On 11 and 13 October 1999 the applicant requested the Kaunas City District Court to release him on the ground that his detention had been unlawful. The applicant pleaded, inter alia , that the question of the lawfulness of his detention remained unclear, as was shown by the necessity of the aforementioned letter of 1 October 1999.

On 25 October 1999 a judge of the Kaunas City District Court returned the case to the prosecution for further investigations to be carried out. The court also extended the term of the applicant’s detention on remand for two months, given the gravity of the nine offences for which he could be convicted if the appropriate permission from Russia were obtained.

On 30 October 1999 the applicant appealed, which appeal was dismissed by the Kaunas Regional Court on 14 December 1999. The court referred to the danger of the applicant absconding as warranting his remand in custody on suspicion of his having committed the nine possible offences. The Regional Court noted that although Russia’s permission to press these charges had not yet been granted, the prosecuting authorities had enough time to apply to the Russian Federation for that authorisation.

On 24 December 1999 the applicant applied to the Kaunas City District Court for release. He stated, inter alia , that he could only be prosecuted for the one offence of irregular operations with currency and securities. He noted that no permission had been obtained from Russia to prosecute him on other charges, and that the courts’ reference to those charges as warranting his remand in custody had been unlawful.

On 24 December 1999 a judge of the Kaunas City District Court rejected the prosecution’s application to extend the term of the applicant’s remand in custody. By reference to Article 399 of the Code of Criminal Procedure, the judge held that the order of 25 October 1999 had become effective on the date when the appeal had been decided, and that the two months’ time-limit for the applicant’s remand in custody had therefore started on 14 December 1999. The applicant remained in prison.

Both the applicant and the prosecution appealed against the decision of 24 December 1999, rejected respectively by the Kaunas Regional Court on 10 and 20 January 2000. The Kaunas Regional Court referred the question of the applicant’s detention to the Vilnius Regional Court.

On 8 February 2000 the Vilnius Regional Court refused the prosecution’s application to extend the term of the applicant’s remand in custody. The court held that the term of the applicant’s detention designated on 25 October 1999 had expired on 25 December 1999, and that his remand in custody after that date had been unlawful. The Vilnius Regional Court also held that the applicant could only be prosecuted on one charge of irregular operations with currency and securities, for which he risked a maximum sentence of five years’ imprisonment. However, the applicant had completed those five years on 29 October 1999. The Regional Court further noted that on 17 January 2000 Russia had given permission to prosecute the applicant on the other charges, but that at the material time the applicant was not charged with any other offence, and could not be deprived of his liberty on that basis. The court concluded that the applicant’s release was warranted. The applicant was released in the courtroom.

It appears that the applicant has not been remanded in custody since. The proceedings are still pending.

B. Relevant domestic law

The relevant domestic law is extensively set out in the judgment of Jėčius v. Lithuania (no. 34578/97, 31.7.00, §§ 35-36).

COMPLAINTS

1. The applicant complains that he was remanded in custody in breach of Article 5 § 1 of the Convention. He states that there were no reasons for his arrest, and that the prosecutors and courts violated various provisions of domestic criminal procedure in ordering his arrest in 1994.

The applicant complains in this respect that in 1995 and 1996 the prison administration was not furnished with copies of the decisions of the prosecution and the courts extending the term of his detention. Furthermore, from 21 September 1996 until 3 January 1997 there was no formal court order as to his detention, in breach of domestic criminal procedure.

The applicant then complains that the judge of the Kaunas City District Court, in deciding that the applicant’s remand in custody should remain unchanged on 3 January 1997, did not notice that the term of that detention had expired on 21 September 1996. In the applicant’s opinion, the judge only justified the unlawful period of his remand in custody and did not properly order his detention.

Moreover, on 23 May 1997 the same judge extended the term of the applicant’s detention for four months. However, after four months, the applicant was not released from prison. According to the applicant, the dismissal by the judge of his applications to vary the remand on 4 and 14 May and 10 September 1998 did not constitute proper orders authorising detention. Therefore, for more than a year, from 23 September 1997 until the date of his conviction on 15 October 1998, the applicant claims that he was held in custody without a proper domestic decision, in breach of Article 5 § 1 of the Convention.   

The applicant further complains that the Supreme Court should have ordered his release on 30 September 1999, having quashed his conviction. In this connection the applicant contends that from thereon the maximum sentence he risked was five years’ imprisonment, but he had already spent longer than that in prison. However, the Supreme Court on 30 September 1999 did not even examine the question of his remand, although it ordered the release on bail of his co-accused. Furthermore, the applicant states that his detention from 30 September 1999 could not be justified by the decision of 3 January 1997 in which no remand term had been specified. Nor did the decisions of 25 October 1999, 14 and 24 December 1999 justify his continued detention. The applicant submits that the courts’ reference to offences with which he could be, but was not, charged at the material time only shows the arbitrary nature of their decisions. Moreover, the term of his detention on remand expired on 25 December 1999. The fact that his remand in custody from 25 December 1999 was not covered by any valid decision was confirmed by the Vilnius Regional Court, which released him on 8 February 2000. Consequently, the applicant submits that his remand in custody from 30 September 1999 to 8 February 2000 was contrary to domestic law and Article 5 § 1 of the Convention.    

The applicant claims that he has suffered a breach of Article 5 § 1 of the Convention in respect to the above periods of his detention on remand.

2. Under Article 5 § 3 of the Convention the applicant complains that the length of his detention on remand was unreasonably long.

3. Under Article 5 § 4 of the Convention the applicant complains that he was unable to obtain a court review of the lawfulness of his detention.

THE LAW

1. The applicant complains under Article 5 § 1 of the Convention, which states, 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; … .”

a) To the extent that the applicant complains about the unlawfulness of his detention and the absence of an adequate remedy to contest it before 20 June 1995, which is the date of the entry into force of the Convention in respect of Lithuania, the Court notes that the Convention only governs facts subsequent to its entry into force in respect of each Contracting Party. It follows that this part of the application is outside the Court’s competence ratione temporis (see, mutatis mutandis , Valašinas v. Lithuania, no. 44558/98, 14.3.2000 (dec.)). It is therefore incompatible with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected, in accordance with Article 35 § 4 of the Convention.

b) To the extent that the applicant complains under Article 5 § 1 of the Convention about his detention from 20 June 1995 until 21 September 1996, the Court notes that on 20 March 1995 the Prosecutor General authorised the applicant’s detention on remand without specifying a term, that from 18 May 1995 until 21 August 1996 the term of the applicant’s detention was extended every two months by the Prosecutor General, and that on 20 August 1996 the Vilnius Regional Court extended the term of the applicant’s detention until 21 September 1996.

The Court recalls that Article 5 § 1 requires that any period of detention be compatible with domestic law and not arbitrary (see the Jėčius v. Lithuania judgment, no. 34578/97, 31.7.00, § 56).

It is undisputed that the prosecutors and the Regional Court were competent to decide the question of the applicant’s detention from 20 June 1995 to 21 September 1996 by taking an appropriate decision in this connection (Articles 10, 104 and 106 of the Code of Criminal Procedure as then in force, and the law amending and supplementing the Code of Criminal Procedure of 21 June 1996 (no. I-1347)), and that this period was covered by valid orders authorising the applicant’s remand in custody. The failure of the authorities to furnish the prison administration with copies of some of the decisions did not affect their lawfulness under the domestic law. The applicant’s detention during this period was thus compatible with domestic law for the purpose of Article 5 § 1 of the Convention.

Furthermore, the Court finds that applicant’s detention at that time could not be said to have been arbitrary, given that the prosecutors and the court had based their decisions on the suspicion that the applicant had committed various fraudulent offences. Although the prison administration did not receive copies of certain remand decisions, the applicant and his representative did. If any of these decisions had ordered the applicant’s release, the representative could have presented a copy of the decision to the prison administration for execution. Therefore, the Court considers that whilst the failure of the authorities to furnish the prison administration with copies of the decisions was unfortunate, it did not give rise to arbitrary detention, or affect the legality thereof.

Consequently, the applicant’s detention from 20 June 1995 to 21 September 1996 was “lawful” within the meaning of Article 5 § 1 of the Convention.   

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.

c) The applicant next complains under Article 5 § 1 that from 21 September 1996 until 3 January 1997 there was no formal court order as to his detention, following the expiry of the time-limit ordered on 20 August 1996.

According to the Government, the applicant’s detention on remand for this period was justified by the suspicion that he had committed an offence, the applicant’s and his co- accused’s access to the case-file under the former Article 226 § 6 of the Code of Criminal Procedure, and the fact that the case had been transmitted to the Kaunas City District Court.

The applicant argues that none of the circumstances mentioned by the Government could replace a valid detention order during this period, in breach of domestic law and Article 5 § 1 of the Convention.

The Court has had regard to the parties’ 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.

d) The applicant also complains under Article 5 § 1 that on 3 January 1997 the Kaunas City District Court erred in domestic law when it decided that his detention on remand “shall remain unchanged”. In the applicant’s opinion, the term of his remand in custody had expired on 21 September 1996, and the District Court should have ordered a new remand measure. As a result, his detention from 3 January to 23 May 1997 breached the procedure prescribed by domestic law under Article 5 § 1 of the Convention.

The Government argue that, by way of the decision of 3 January 1997, the District Court authorised the applicant’s detention on remand in accordance with domestic requirements.

The Court recalls the previously cited judgment of Jėčius v. Lithuania (loc. cit. §§ 65-70) in which it held that a domestic court decision declaring that the remand in custody “shall remain unchanged”, does not of itself render the detention invalid in domestic law, or the ensuing detention unlawful within the meaning of Article 5 § 1 of the Convention. The Court finds no reason to draw a different conclusion 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.

e) To the extent that the applicant complains under 5 § 1 of the Convention about his detention from 23 May to 23 September 1997, the Court notes that this period was covered by the judicial detention order of 23 May 1997 which was compatible with domestic law and the Convention.

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.

f) The applicant further complains that his detention on remand from 23 September 1997 to 15 October 1998 was in breach of Article 5 § 1, in that there was no valid court order or other lawful basis for his remand in custody.

The Government argue that the applicant failed to exhaust domestic remedies in that he failed to appeal against the order of 23 May 1997. The Government further state that the decision of the Court of Appeal of 29 January 1998, whereby the validity of the detention order of 3 January 1997 was reinstated, and the first instance decisions of 4 and 14 May and 10 September 1998 dismissing the applicant’s requests for release, constituted valid orders for his remand in custody under domestic criminal procedure. The Government contend that the applicant’s remand in custody at this stage was accordingly compatible with Article 5 § 1 of the Convention.

The applicant submits that the term of his detention ordered on 23 May 1997 expired on 23 September 1997, and that thereafter there was no valid domestic order or other lawful basis for his detention on remand within the meaning of Article 5 § 1 of the Convention. In particular, the Court of Appeal was not competent to decide on his detention on remand at cassation instance as no appeal lay against such decisions at the material time. Furthermore, the dismissals of his requests for release did not constitute orders authorising his detention in accordance with the relevant domestic requirements.

To the extent that the Government allege non-exhaustion of domestic remedies, the Court notes the statutory bar under former Article 372 § 4 of the Code of Criminal Procedure (in force until 1 January 1999) which deprived a detained person of the right to appeal decisions extending the term of detention (see the comparable context of Article 5 § 4 of the Convention in the aforementioned Grauslys v. Lithuania judgment, loc. cit. §§ 51-55). Consequently, the Government’s objection cannot be accepted.  

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.

g) Finally, the applicant complains under Article 5 § 1 that his detention from 30 September 1999 to 8 February 2000 was unlawful and arbitrary.

The Government argue that the Supreme Court, by quashing the applicant’s conviction on 30 September 1999, reinstated the detention order of 3 January 1997. This order constituted a lawful basis for the applicant’s remand in custody until 25 October 1999. On that date a new detention order was issued, in accordance with the relevant domestic requirements, based on the suspicion that the applicant had committed an offence. The applicant’s detention on remand was further authorised until his release on 8 February 2000. The fact that these orders were subsequently found to be partially unlawful did not violate Article 5 § 1 of the Convention.

The applicant argues that neither the domestic law, nor the requirement of the protection from arbitrariness under Article 5 § 1 of the Convention, permitted his remand in custody from the moment when his conviction was quashed on 30 September 1999 until his release on 8 February 2000.

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.

2. The applicant further complains of a violation of his right to “trial within reasonable time” under Article 5 § 3 of the Convention.

The Government submit that the Court is only competent to examine this complaint for the periods from 20 June 1995 (the date of the entry into force of the Convention with regard to Lithuania) until 15 October 1998 (the date of the first instance conviction), and from 30 September 1999 (the date when the conviction was quashed) until 8 February 2000 (the applicant’s release). In the Government’s view, the authorities adduced “relevant and sufficient” reasons for the applicant’s detention throughout these periods, in particular the danger of his absconding and obstructing the establishment of the truth. Furthermore, the complexity of the case and the numerous charges against the applicant and his co-defendants constituted a natural reason for the protraction of the proceedings. There were no delays that could be attributed to the authorities. Overall, the length of the applicant’s pre-trial detention was not excessive.

The applicant argues that the sole fact that the prosecuting authorities and the lower courts were investigating charges for several years discloses a violation of Article 5 § 3 of the Convention.

The Court has had regard to the parties’ 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.

3. Lastly, the applicant alleges a violation of his right “to take proceedings” to review the lawfulness of his detention under Article 5 § 4 of the Convention.

The Government state that the domestic law afforded the applicant ample opportunity to contest the lawfulness of his detention, namely to submit requests for release, which were reviewed by the domestic courts. In addition, the trial court on many occasions of its own motion controlled the appropriateness of the applicant’s detention, and the appellate court examined the applicant’s allegations about the unlawfulness of his detention in his appeal against the conviction, thereby affording him the guarantees of Article 5 § 4 of the Convention.

The applicant argues that he was unable to contest the lawfulness of his remand in custody in view of the statutory bar to appeal against court decisions authorising his detention on remand.

In the light of the parties’ submissions, 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.

For these reasons, the Court unanimously

Declares inadmissible the applicant’s complaints under Article 5 § 1 of the Convention about the period of his detention until 21 September 1996, and from 3 January to 23 September 1997;

Declares admissible, without prejudging the merits, the remainder of the application.

S. Dollé J.-P. Costa Registrar President