THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41774/98 by Linas SAUKAITIS against Lithuania

The European Court of Human Rights (Third Section) , sitting on 14 November 2000 as a Chamber composed of

Mr J.-P. Costa, President ,

Mr W. Fuhrmann,

Mr P. KÅ«ris,

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 with the European Commission of Human Rights on 19 January 1998 and registered on 18 June 1998,

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 1978 and living in KlaipÄ—da . He is represented before the Court by Mr A. Petrauskas , a lawyer practising in Vilnius.

A. The circumstances of the case [Note1]

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

The applicant was suspected of robbery. The complainant in the proceedings was a taxi driver, who reported to the police that in the late evening of 18 November 1996 two armed men had appropriated his car and other belongings by threats of force. On 29 May 1997 the Klaipėda Regional Court convicted the applicant of robbery on the basis of the statements by the complainant and an anonymous witness M. The Regional Court sentenced the applicant to 7 years’ imprisonment. His property was confiscated.

On 20 August 1997 the Court of Appeal dismissed the applicant’s appeal. On 11 November 1997 the Supreme Court rejected the applicant’s cassation appeal.

In April 1998 certain third persons, while being interviewed in the context of another criminal case, told the police that they had committed the robbery of 18 November 1996. On 6 October 1998 the Supreme Court quashed the applicant’s conviction on the ground of newly established facts. The court also ruled that the decisions confirming the applicant’s guilt raised “serious doubts as [the complainant’s] statements had been inconsistent … and the testimony of the anonymous witness M had not been assessed carefully”, whereas the applicant’s guilt had been “based essentially on the above evidence”. The Supreme Court returned the case to the prosecution for pre-trial investigation.

On 29 January 1999 a prosecutor discontinued the case against the applicant because of the absence of evidence. By a letter of 15 April 1999 the prosecutor informed the applicant that the case had been discontinued. 

As a result of the above proceedings, the applicant has spent more than 20 months in prison.

He brought no action for damages in connection with his conviction.

B. Relevant domestic law

Article 4 § 1 (1) of the Criminal Damages Act 1997 ( Žalos , padarytos neteisėtais kvotos , tardymo , prokuratūros ir teismo veiksmais , atlyginimo įstatymas ) provides that a person can claim damages in connection with errors by law enforcement authorities where he has been acquitted, or his conviction has been quashed and criminal proceedings discontinued.

Under Article 5 of the Act, in order to obtain damages, a person must sue the Ministry of Justice in accordance with the procedure established by the Act.

COMPLAINT

Under Article 6 of the Convention the applicant complains that he suffered damage as a result of the wrongful conviction on the basis of the anonymous statements.

THE LAW

The applicant complains that he was convicted in breach of Article 6 of the Convention, which states, insofar as relevant, as follows:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair … hearing … by [a] independent and impartial tribunal … .

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

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

The Government claim that the applicant can no longer claim to be a “victim” of a violation of Article 6 of the Convention as he can now apply to the competent authorities for damages in connection with his conviction. They submit that the applicant’s conviction can be considered wrongful for the purpose of Article 4 § 1 (1) of the Criminal Damages Act.

The applicant claims that his conviction was final within the meaning of domestic law when he applied to the Convention institutions. Furthermore, the decision to discontinue the proceedings against him can be revoked at any time by a prosecution order. The applicant concludes that these circumstances preserve his “victim” status.

The Court notes that the applicant had been finally convicted after appealing in accordance with the domestic criminal procedure. Then, after the proceedings had been re-opened, the applicant’s conviction was quashed and the case was discontinued. The question arises whether, in accordance with Article 34 of the Convention, the applicant can still be regarded as a “victim” of a violation of Article 6.

The Court considers that, where criminal proceedings are re-opened after a conviction had become final, a decision quashing the conviction or discontinuing the re-opened proceedings is not in principle sufficient to deprive an individual of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, mutatis mutandis , the Amuur v. France judgment of 25 June 1996, Reports of judgments and decisions 1996-III, p. 846, § 36; the Dalban v. Romania judgment, no. 28114/95, 28.9.1999, § 44).

On the facts of the case, the Supreme Court quashed the applicant’s conviction not only on the ground of newly discovered facts, but also by reason of the improper handling of the evidence by the courts. The above decision could therefore be seen as an acknowledgement, in substance, that the applicant’s right to a fair trial and his defence rights had been breached (see, by contrast, the aforementioned Dalban judgment loc. cit. ).

Furthermore, although the proceedings against the applicant ended with the prosecutor’s decision, this does not affect the applicant’s entitlement to claim damages in connection with the wrongful conviction under Article 4 § 1 (1) of the Criminal Damages Act, in order to obtain redress for the breaches suffered.

The Court concludes that in these circumstances the applicant can no longer claim to be a victim, within the meaning of Article 34 of the Convention, of a violation of Article 6 and that this aspect of the case must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

Finally, the Court notes that the applicant has spent more than 20 months in prison, and that he claims to have suffered inconvenience as a result of the wrongful conviction. The Court considers that Article 3 of Protocol No. 7, which entitles an individual to claim compensation for the wrongful conviction, is also relevant in the present case.

However, the Court reiterates that the applicant has the possibility to obtain reparation for damage suffered in connection with the criminal proceedings by bringing a separate legal action, pursuant to Articles 4 and 5 of the Criminal Damages Act. As the applicant did not avail himself of this right, he has not exhausted domestic remedies in respect of this part of the application as required by Article 35 § 1 of the Convention.

It follows that the application must be rejected pursuant to Articles 34 and 35 §§ 1, 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J.-P. Costa Registrar President

[Note1] Where the parties’ description of the facts differ their respective versions of the facts should be set out separately.