THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications no. 47698/99 and 48115/99 by K ęstutis BIRUTIS, Vidmantas BYLA and Laimonas JANUTĖNAS against Lithuania

The European Court of Human Rights (Third Section) , sitting on 7 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 on 11 and 15 January 1999 and registered on 23 April 1999 and 17 May 1999 respectively,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are all Lithuanian nationals born in 1974, 1968 and 1976 respectively. At present the first and the second applicants are detained in the Lukiškės Prison in Vilnius. The third applicant is currently detained in the Pravieniškės Prison in the Kaunas region. The applicants are represented before the Court by Mr J. Jasiulevičius , 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 applicants, while completing their sentences in the Pravieniškės Prison, were suspected of participating in a riot that took place in the prison on 15 January 1997. 21 detainees, including the applicants, were accused of causing or taking part in the riot.

The third applicant was released from prison after completing his original sentence on 14 February 1997. He was arrested on 25 June 1997 in the context of the proceedings for riot. The first and the second applicants were still completing their original sentences throughout these proceedings.

During the pre-trial investigation two witnesses were examined on behalf of the third applicant. During the trial one witness was called by the Kaunas Regional Court on the third applicant’s behalf. The first and second applicants called no witnesses.

On 3 November 1997 the Kaunas Regional Court convicted all the defendants in the case, including the applicants. The court found that the first and the second applicants had organised the riot and that they had also committed affray. They were sentenced to ten years’ imprisonment. The third applicant was found guilty of having actively taken part in the riot and sentenced to six years’ imprisonment.  

In establishing the first applicant’s guilt, the court referred to the statements of 17 anonymous witnesses who were mostly other detainees. The anonymous statements had been recorded by the prosecution during the pre-trial investigation. The secret witnesses testified that the first applicant had organised the riot. The court further referred to the statements at the pre-trial investigation of three co-accused, J, S and T, confirming the first applicant’s guilt. The Regional Court noted that J, S and T had subsequently changed their testimony, alleging inter alia that prosecutors had forced them to inculpate the first applicant. However, the court considered that the initial statements of J, S and T had been valid, and that they had only changed their evidence upon intimidation by the other defendants. The court also took account of the statements given during the trial by a complainant, a detainee belonging to “a lower caste among prisoners”. The latter had testified that the first applicant had assaulted him on 15 January 1997. The court further noted the evidence given at the trial by five members of the prison staff, alleging that the first applicant had organised the riot. The Regional Court found that on the day of the riot the first applicant had been under the influence of alcohol. In concluding that the first applicant was guilty of riot and affray, the court also noted the indirect evidence: on-site inspection records, material evidence and expert examinations.         

In finding the second applicant guilty, the Regional Court referred to the statements by 19 anonymous witnesses recorded by the prosecution during the pre-trial investigation. The anonymous statements testified that the second applicant had also been an organiser of the riot. As was the case with the first applicant, the court rejected the later statements of J, S and T, finding that their original testimonies given during the pre-trial investigation had constituted sufficient grounds for establishing the second applicant’s guilt. The court also took account of the statements delivered at the trial by two complainants who were detainees belonging to “a lower caste among prisoners”. The latter had alleged that on 15 January 1997 the second applicant had beaten other detainees, attacked members of the prison staff and barricaded the prison. Evidence along the same lines was given by six members of the prison staff summoned during the trial. The Regional Court found that during the riot the second applicant had been under the influence of alcohol. The court also noted that the second applicant’s guilt in committing riot and affray was indirectly proved by on-site inspection records, material evidence and expert examinations.         

As to the grounds for the third applicant’s guilt, the Regional Court referred solely to the statements by six anonymous witnesses recorded by the prosecution during the pre-trial investigation.

The Regional Court concluded that the first and the second applicants had been the apparent organisers of the riot of 15 January 1997, that they had been drunk, and that they had “induced detainees of lower castes to get involved in the offence”. The court also ruled that “the level of participation in the crime by [the third applicant] had been lower”.  

The applicants appealed, stating that they had not committed the offences alleged, that the statements of anonymous witnesses had been invalid, that the secret evidence had not been scrutinised either by the defendants or the court, and that the Kaunas Regional Court had ignored certain evidence given during the pre-trial investigation by other detainees. The applicants asserted that they had been tortured during this investigation. In their opinion, almost 300 inmates had taken part in the events of 15 January 1997. The applicants stated they had been victimised by the prison administration who had encouraged anonymous testimonies by other detainees, promising them favourable treatment. Furthermore, the “secret witnesses” had themselves allegedly taken part in the riot and had collaborated with the authorities in order to avoid prosecution.  

The prosecution also appealed against the first instance judgment, requesting severer sentences.

On 29 April 1998 the Court of Appeal dismissed the appeals, finding that the Regional Court had properly established the applicants’ guilt and imposed the correct sentences. It held that domestic criminal procedure permitted the first instance court to take account of evidence given by secret witnesses at the stage of pre-trial investigation, without summoning those witnesses to the trial. The Court of Appeal found no indication that the applicants had been subjected to torture during the pre-trial investigation. 

The applicants lodged a cassation appeal with the Supreme Court, complaining inter alia that the lower courts had not clarified the alleged controversy over the anonymous testimonies. The applicants repeated that they had been subjected to torture by the investigating authorities at the stage of the pre-trial investigation.

On 20 October 1998 the Supreme Court rejected the appeals, finding that the lower courts had properly decided the case. It noted that the first and the second applicants had been convicted not only on the basis of the anonymous testimonies, but also by reference to the statements of the complainants and the prison staff. The Supreme Court found that the third applicant had basically been convicted by reference to the statements of anonymous witnesses. However, in the view of the cassation court, those statements had been consistent and supplementary to other evidence confirming his guilt. No procedural irregularities were found in connection with the courts’ refusal to examine the anonymous witnesses. Nor did the cassation court uphold the applicants’ torture claim. 

B. Relevant domestic law and practice

Pursuant to Article 156-1 § 1 of the Code of Criminal Procedure, in cases pertaining to serious offences a prosecutor or investigator is entitled to keep the identity of a witness secret with a view to ensuring that person’s safety. Under paragraph 2 of this Article, at the stage of pre-trial investigation no one is entitled to have access to the personal details of the anonymous witness except the prosecutor or the investigator. Paragraph 3 provides that any data on the anonymous witness is a State secret. Only prosecutors, investigators and judges are entitled to have access to the personal details of that person.

Article 118-1 § 1 of the Code provides that the identity of an anonymous witness is classified under a code name. The data on the witness is kept in a special investigative record, which is separate from the case-file.   

Pursuant to Article 317-1 § 1 of the Code, where the identity of a witness is secret, a court may dispense with hearing that person by reading out the anonymous statement at a trial hearing. Paragraphs 2 and 3 provide a possibility for the court, of its own motion, to question the anonymous witness in the absence of the parties. Paragraph 4 of the Article states that the court may also question the witness in the parties’ presence at a non-public hearing. In such a case, the court must create acoustic and visual obstacles to prevent other parties establishing the identity of the secret witness.   

Article 265 of the Code provides that a defendant at the trial has equal rights to adduce and contest evidence, and that the trial is conducted by way of an adversarial procedure. Article 267 § 5 specifies that the defendant has the right to take part in the examination of all evidence, and to question witnesses, experts and other persons in order to state his case at the trial, let alone in cases provided for in Article 317-1 of the Code.

Article 31 of the Constitution guarantees the right to a fair trial and lists specific defence rights.

On 19 September 2000 the Constitutional Court held that Articles 267 § 5 and 317-1 of the Code of Criminal Procedure, to the extent that they did not guarantee the right of the defendant to question anonymous witnesses while preserving the secrecy of their identity, unjustifiably limited the defendant’s defence rights in breach of Article 31 of the Constitution.  

COMPLAINTS

1. Under Article 6 §§ 1 and 3 (d) of the Convention the applicants complain that they were deprived of a fair trial and that their defence rights were breached. The applicants state in this connection that they were convicted on the basis of the anonymous evidence, which was not scrutinised by themselves, their representatives or the courts.

2. Under Article 5 of the Convention the applicants complain that they were unlawfully deprived of their liberty as a result of an arbitrary conviction in riot proceedings. Under this provision the third applicant also complains that he was not informed of any charge against him following his arrest on 25 June 1997.  

3. The applicants further complain that they were tortured to force them to incriminate themselves and other detainees at the stage of pre-trial investigation. They invoke no provision of the Convention in connection with this complaint.  .. D d 06/07/1999 06/07/1999 06/07/1999 47698/99 and 48115/99 .......... .......... .......... 1 1

THE LAW

1. The applicants complain under Article 6 §§ 1 and 3 (d) of the Convention that provides, insofar as relevant, as follows:

“1. In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law. … .

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 submit that at no point during the proceedings did the applicants request the authorities to examine the anonymous witnesses. They thereby failed to exhaust domestic remedies. In the absence of any such request by the applicants, the courts were justified in not scrutinising the anonymous statements. In any event, the applicants’ conviction was not based exclusively or to a decisive extent on the anonymous evidence. Three identified witnesses were examined during the proceedings on the third applicant’s request, while the first and second applicants did not request the hearing of any witnesses. The Government conclude that the applicants’ defence rights and the principle of a fair trial were not violated in the present case.

The applicants contest the Government’s non-exhaustion argument as being purely formalistic, stating that throughout the proceedings they challenged the charges against them and their convictions based on anonymous evidence. Their complaints essentially involved the restriction on their defence rights and the lack of a fair trial, and they demonstrated to the domestic courts the need to scrutinise the anonymous statements, to permit the applicants to test this evidence under the same conditions as the prosecuting authorities, and to examine more open evidence before reaching a conclusion in the case. The failure of the courts to take account of these submissions resulted in a violation of the Article 6 of the Convention.

As to the Government’s non-exhaustion argument, the Court notes that the applicants, at the trial and in their appeals to the higher courts, complained that their convictions were based on the evidence of anonymous witnesses. The Court is thus satisfied that the applicants exhausted domestic remedies as regards this part of the application, in compliance with Article 35 § 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 (see, by contrast, the Kok v. the Netherlands, no. 43149/98, decision of 4 July 2000). 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 applicants further complain that their deprivation of liberty breached Article 5 of the Convention, which reads, 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:

(a) the lawful detention of a person after conviction by a competent court; … ;

(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; … .

2. Everyone who is arrested shall be informed promptly, in a language that he understands, of the reasons for his arrest and of any charge against him. … .”

As regards the third applicant’s complaint about the lack of information or reasons for his arrest on 25 June 1997, the Court notes that he did not lodge his application to the Court before 15 January 1999. Accordingly, in respect of this matter, the third applicant has failed to comply with the six months’ time-limit laid down in Article 35 § 1 of the Convention, and this aspect of the case must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

As regards the applicants’ complaint that they were unlawfully detained after the trial, it is undisputable that they were deprived of their liberty after conviction by a competent court, in accordance with Article 5 § 1 (a) 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.

3. Finally, the applicants allege that they were tortured. The Court considers that Article 3 of the Convention, which prohibits torture or inhuman or degrading treatment or punishment, is relevant in this regard. The Court notes however that the applicants’ allegations of torture were rejected as unsubstantiated by the domestic courts. The applicants have presented no medical records or any prima facie evidence, which could prompt the Court to depart from the conclusions of the domestic authorities in this respect.

It follows that this part of the application is also 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 applicants’ complaints under Article 6 §§ 1 and 3 (d) of the Convention;

DECLARES INADMISSIBLE the remainder of the applications.

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.