THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36743/97

by Algis GRAUSLYS

against Lithuania

The European Court of Human Rights ( Third Section ) sitting on 14 September 1999 as a Chamber composed of

Sir Nicolas Bratza, President , Mr J.-P. Costa, Mr L. Loucaides, Mr P. KÅ«ris, Mrs F. Tulkens, Mr K. Jungwiert, Mrs H.S. Greve, Judges ,

with Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 April 1997 by Algis Grauslys against Lithuania and registered on 27 June 1997 under file no. 36743/97;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the Commission’s decision of 14 January 1998 to communicate the complaints concerning the applicant’s detention on remand, and the Court’s decision of 12 January 1999 to communicate the complaint concerning the length of proceedings;

Having regard to the observations submitted by the respondent Government on 16 March 1998, the observations in reply submitted by the applicant on 20 April 1998, the Government’s further observations of 17 February 1999 and the applicant’s further observations of 23 March 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Lithuanian national, born in 1960. He lives in PlungÄ— , Lithuania. He is represented before the Court by Dr. K. Stungys , a lawyer practising in Vilnius.

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

A. Particular circumstances of the case

The applicant is a commercial director of a private company (hereinafter referred to as “the company”). He was suspected of fraud. On 4 October 1995 a criminal case was instituted against him.

The applicant was arrested on 25 March 1996. His detention on remand was authorised by a prosecutor on 26 March 1996.

On 1 April 1996 the applicant was charged with suppressing documents.

On 16 April 1996 he submitted a request to vary the remand and obtain bail.

On 16 May 1996 the applicant was charged with obtaining property of another.

On 17 May 1996 a prosecutor dismissed the request of 16 April 1996. The gravity of the offences alleged against the applicant was mentioned as the reason for remanding him in custody. The prosecutor also stated that the question of varying the applicant’s remand would depend on his “willingness to co-operate and help in investigating this complex case”. On 24 May 1996, by the authorisation of the Deputy Prosecutor General, the term of the applicant’s detention on remand was extended to 30 July 1996.

On 24 July 1996 the Klaipėda District Court extended the term of the applicant’s detention on remand to 25 August 1996. On 19 August 1996 the Klaipėda District Court extended the term of the remand in custody to 25 September 1996. On 23 September 1996 the Klaipėda Regional Court extended the term of the detention on remand to 9 October 1996. The dangers of the applicant absconding and influencing witnesses were mentioned by the courts to justify the need for his being remanded in custody.

The pre-trial investigation in the case was concluded on 27 September 1996. The applicant had access to the case-file from 3 October 1996 until 31 October 1996, while the other three co-accused were given access from 27 September 1996 until 7 November 1996.

In a communication of 27 September 1996 the prosecution informed the prison administration that the pre-trial investigation had been concluded and the access to the case-file had commenced.

On 30 October 1996 the applicant submitted to the prosecution a request to vary the remand measure and obtain bail, contesting the lawfulness of his detention after 9 October 1996. On 8 November 1996 a prosecutor informed the applicant that there were no reasons to vary the remand. The prosecutor stated inter alia , “the access by the accused and their counsel to the case-file was completed on 7 November 1996. On 8 November 1996 the criminal case was transmitted for the confirmation of the bill of indictment. The validity [of the term of the applicant’s detention] was not breached.” No remand decision was taken.

On 12 November 1996 a prosecutor informed the prison administration that the access to the case-file had been completed on 7 November 1996, and that the case had been transmitted to the Chief Prosecutor of the KlaipÄ—da Regional Prosecutor’s Office to confirm the bill of indictment. On the same date a prosecutor informed the prison administration that the bill of indictment had been confirmed, and that case had been transmitted to the KlaipÄ—da Regional Court. No remand decision was taken.

On 19 November 1996 the KlaipÄ—da Regional Court forwarded the case to the Kretinga District Court. No formal decision on the applicant’s detention was taken.  On the same date the applicant applied to the Minister of Justice, claiming that his detention was unlawful. He stated that he was being kept in custody regardless of the fact that the term of the detention had expired on 9 October 1996. The applicant asserted that his rights under Article 5 of the Convention had been violated.

On 4 December 1996 the applicant submitted to the Kretinga District Court a request to vary the remand and obtain bail. The applicant stressed that he had been kept in detention on remand following the expiry of the term of that detention. On 5 December 1996 a judge of the Kretinga District Court decided to commit the applicant to trial without hearing the parties. The judge also decided that the applicant’s detention on remand should “remain unchanged”. The judge specified no term of that detention. He set 13 January 1997 as the date of the first trial hearing.

The first trial hearing took place on 13 January 1997. On the same date the applicant applied to the Kretinga District Court for bail.

On 15 January 1997 the judge of the Kretinga District Court ordered further investigations in the case. The applicant’s counsel was present at the hearing. The judge noted inter alia that the prosecution had alleged that financial damage to the company and its shareholders had been caused by the applicant and the co-accused. However, no victims had been established and questioned. In addition, the company’s audit had not been properly carried out. The judge held that the trial could not continue until these procedural requirements were not met. By the same decision the judge also dismissed the applicant’s request for bail and extended the term of his detention on remand for 3 months. The dangers of the applicant absconding and “obstructing the establishment of the truth” in the case were mentioned as the reasons for his being held in custody.

On the same date the applicant lodged with the KlaipÄ—da Regional Court an appeal against the above decision, claiming that he had been unlawfully kept in detention after 9 October 1996. On 20 January 1997 the applicant lodged with the KlaipÄ—da Regional Court a further appeal against the decisions of the Kretinga District Court of 5 December 1996 and 15 January 1997. He stated inter alia that Article 5 of the Convention had been breached to his detriment.

On 28 January 1997 the applicant submitted a complaint to the Ombudsman, alleging that the term of his detention had expired on 9 October 1996, and that the prison administration had kept him in custody unlawfully.

On 17 February 1997 the Klaipėda Regional Court held a hearing on appeal, the applicant’s counsel being present. The Regional Court dismissed the appeal insofar as it concerned “the substance of the decision of the Kretinga District Court of 15 January 1997”, pursuant to Article 372 § 4 of the Code of Criminal Procedure as then in force. However, the Regional Court ordered the applicant’s release on bail. He was immediately released from prison.

On 20 February 1997 the Ombudsman drew the attention of the Minister of Interior and the penitentiary authorities to the fact that, from 7 November 1996 until 5 December 1996, the applicant had been remanded in custody in breach of Article 5 § 1 (c) of the Convention.

On 23 June 1997 the additional investigation was concluded. On 17 July 1997 the case was again transmitted to the Kretinga District Court. On 21 July 1997 a judge of the Kretinga District Court committed the applicant to trial.

On 6 October 1997 the judge again decided to order further investigations. He noted that the investigating authorities had breached domestic criminal procedure in conducting the pre-trial investigation and collecting additional evidence. The judge held inter alia that the company’s audit had been faulty, and that the prosecution had not established and questioned victims in connection with the damage made to the company.

Upon the prosecution’s appeal against the above decision, on 17 November 1997 the KlaipÄ—da Regional Court quashed the decision of 6 October 1997. The Regional Court held that no breaches of domestic criminal procedure had been pointed out by the District Court to warrant the collection of additional evidence. The appellate court stated inter alia that the District Court could itself establish and summon victims in connection with the damage made to the company, without returning the case back to the prosecution for further investigation to be carried out.

On 17 December 1997 a judge of the Kretinga District Court joined the case against the applicant and the three co-accused with a case against another defendant. The judge withdrew from the case inter alia on the ground that he had taken decisions on the applicant’s detention on 5 December 1996 and 15 January 1997.

On an unspecified date jurisdiction was transferred from the Kretinga District Court to the Skuodas District Court. On 2 April 1998 a judge of the Skuodas District Court committed the applicant to trial. On 12 June 1998 the judge adjourned the case until 12 September 1998 and ordered further investigation inter alia on the ground that the company’s audit had been faulty. In this respect, the court requested the Ministry of Finance to carry out a fresh audit.   

It appears that, to date, no first instance judgment has been pronounced.

B. Relevant domestic law

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

Article 10 (in force until 21 June 1996):

“No one shall be arrested or detained save by virtue of a decision of a court, or an order of a judge or the authorisation of a prosecutor … .”

Article 104 ( under the Act No. I-551 of 19 July 1994, in force until 21 June 1996):

“Detention on remand shall be used only where based on the decision of a court, order of a judge, or the authorisation of a prosecutor in cases where a statutory penalty of at least one year of imprisonment is envisaged … .

In cases pertaining to offences provided in Articles … 274-3 [cheating], 275-3 [appropriating property of another] … of the Criminal Code, detention on remand may be used on the ground of the gravity of the offence only. …

In deciding whether to authorise detention on remand, a prosecutor … shall personally hear the suspect or defendant when necessary ... .”

Article 104-1 (in force from 21 June 1996 until 24 June 1998):

“… the arrested person shall be brought before a judge within not more than 48 hours … . The judge must hear the person as to the grounds of his arrest. The prosecutor and the counsel of the arrested person may take part in the questioning of the arrested person. After having questioned the arrested person, the judge may maintain the decision to remand in custody by designating a specific term of the detention, or vary or revoke the remand. …

After the case has been transmitted to the court … [the court] can order, vary or revoke the detention on remand.”

Article 106 § 1 (in force until 21 June 1996):

“In the course of pre-trial investigation, detention on remand shall last for no longer than two months. This term can be extended for up to three months by … [a prosecutor]. Where the case is particularly complex, the term of detention on remand can be extended for up to six months by the Prosecutor General or his deputies. In exceptional cases the term of detention on remand can be extended for up to nine months by the Prosecutor General or his deputies, and up to eighteen months - by the Prosecutor General only.”

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

“Detention on remand shall last for no longer than six months. A specific term thereof is designated by a judge who ordered the detention on remand[;] or this term may be extended by the same or other judge of a district court, but for no longer than six months. 

Where the case is particularly complex … the maximum term of detention on remand laid down in the above paragraph may be extended by a regional court judge, but for no longer than three months. The extension of the term may be repeated, but for no longer than eighteen months at the stage of the pre-trial investigation of the case. 

For the purpose of extending the term of detention on remand, a judge … must convene a hearing to which a counsel and prosecutor and, if necessary, the detainee shall be called. The judge decides whether or not to extend the term of detention on remand. …

If the court orders additional investigations in the case, the maximum term of detention on remand can be again extended, but for no longer than four months. …

Throughout the whole of the criminal proceedings the detention on remand cannot last longer than the highest limit of the statutory sentence of imprisonment for the gravest offence alleged.”    

Article 109-1 (in force from 21 June 1996 until 24 June 1998):

“A detainee or his counsel shall have the right during pre-trial investigation to lodge with an appellate court an appeal against the detention on remand. … . With a view to examining the appeal, there may be convened a hearing, to which the detainee and his counsel or counsel alone shall be called. The presence of a prosecutor is obligatory at such a hearing.

The decision taken by the appellate judge is final and cannot be the subject of a cassation appeal.

A further appeal can be determined when examining the extension of the term of the detention on remand.”

Article 226 § 6 (in force until 24 June 1998):

“The period while the accused and his counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention. Where there are several accused persons, the period during which all the accused and their counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention.”

Article 372 § 4 (in force until 1 January 1999):

“No appeal lies against decisions of courts … to commit the accused to trial, … to order, vary or revoke a remand measure … Submissions as to such decisions can be set out in an appeal against the judgment.”

Relevant provisions of the present Code of Criminal Procedure :

Article 10 (in force since 21 June 1996):

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

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

Article 104-1 (in force since 24 June 1998):

“… the arrested person shall be brought before a judge within not more than 48 hours … . The judge must hear the person as to the grounds of the arrest. The prosecutor and the counsel of the arrested person shall take part in the inquiry. The judge, of his own motion or upon a reasoned request of the prosecutor, the arrested person or his counsel, is entitled to hear the prosecutor in the absence of the arrested person and his counsel, or to question the arrested person and his counsel only. After having questioned the arrested person, the judge may maintain the decision to remand in custody by designating the term of the detention, or vary or revoke the remand. …

After the case has been transmitted to the court … [the court] shall order, extend or revoke the detention on remand or vary it with another remand measure before expiry of the term thereof, designated during the preliminary investigation or trial. …”

Article 106 (in force since 24 June 1998):

“Detention on remand shall last for no longer than six months. A specific term thereof shall be designated by a judge who ordered the detention on remand[;] or this term may be extended by the same or other judge of a district court, but for no longer than six months. 

Where the case is particularly complex … the maximum term of detention on remand laid down in the above paragraph may be extended by a regional court judge, but for no longer than three months. The extension of the term may be repeated, but for no longer than eighteen months at the stage of the pre-trial investigation of the case. 

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

If the court orders additional investigations in the case, the maximum term of detention on remand can be again extended, but for no longer than four months.”

Article 109-1 (in force since 24 June 1998):

“A detainee or his counsel shall have the right during the preliminary investigation or trial to lodge with an appellate court an appeal against the detention order or the extension of the term of the detention on remand … . With a view to examining the appeal, there shall be convened a hearing, to which the arrested person and his counsel or counsel alone shall be called. The presence of a prosecutor is obligatory at such a hearing.

The decision taken by the appellate judge is final and cannot be the subject of a cassation appeal … .

A further appeal against the same detention order or the extension of the term for the detention on remand shall be determined when examining the extension of the term of the detention on remand.”

Article 119 § 1 :

“Terms laid down in this Code are counted in hours, days and months … .”

Article 226 § 6 (in force since 24 June 1998):

“… during the period while the accused has access to the case-file, the term of the detention on remand shall be extended in accordance with the normal procedure … .”

Article 249 § 1 :

“A judge individually or a court in a directions hearing, in deciding whether to commit the accused to trial, shall ascertain the following circumstances: …

11) whether the remand measure has been selected appropriately; … .”

Article 250 § 1 :

“After having decided that there is a sufficient basis to commit the accused to trial, a judge individually or a court in a directions hearing shall determine the following questions: …

2) … the [appropriate] remand measure in respect of the accused; … .”

Article 267 § 1 :

“The defendant has the right to: …

3) submit requests; …

11) appeal against the judgment and decisions of a court.”

Article 277 :

“In the course of a trial, a court can decide to order, vary or revoke a remand measure in respect of the defendant.”

The Detention on Remand Act ( Kardomojo kalinimo įstatymas ) (Articles 9 and 35) provides that a person may be held in detention on remand only where there is an appropriate order issued by a court or judge, or (before 21 June 1996) by a prosecutor.

C. Lithuanian reservation

The Lithuanian reservation to Article 5 § 3 of the Convention was in force until 21 June 1996 and provided as follows:

“The provisions of Article 5 § 3 of the Convention shall not affect the operation of Article 104 of the Code of Criminal Procedure of the Republic of Lithuania (amended version No. I-551, July 19, 1994) which provides that a decision to detain in custody any persons suspected of having committed a crime may also, by decision of a prosecutor, be so detained. This reservation shall be effective for one year after the Convention comes into force in respect of the Republic of Lithuania.”

COMPLAINTS

1. Under Article 5 § 1 (c) of the Convention the applicant complains that he was detained without a proper court order from 9 October 1996 until 5 December 1996. The applicant further complains that the judge of the Kretinga District Court on 5 December 1996 decided that the detention should “remain unchanged” without designating a specific term or considering the fact that the term of his detention had expired on 9 October 1996. The applicant further asserts that on 15 January 1997 the Kretinga District Court extended the term of his detention, which had been invalid since 9 October 1996. Hence, the applicant alleges that he was kept in detention on remand unlawfully from 9 October 1996 until the date of his release on 17 February 1997.

2. Under Article 5 § 3 of the Convention the applicant complains that he was never brought “before a judge or other officer authorised by law” throughout the whole period of his detention on remand.

3. Under Article 5 § 3 of the Convention the applicant also alleges that his detention from 25 March 1996 until 17 February 1997 was in breach of his right to trial “within a reasonable time”.

4. Under Article 5 § 4 of the Convention the applicant complains that the former provision of Article 372 § 4 of the Code of Criminal Procedure excluded any appeal against the decisions of courts authorising detention. He asserts that this provision breached his right to take proceedings to contest the lawfulness of the detention. He asserts that the general right for his counsel to “submit requests” for bail did not meet the requirements of Article 5 § 4.

5. Under Article 6 § 1 of the Convention the applicant complains that the criminal proceedings were instituted against him on 4 October 1995. To date, no first instance judgment has been pronounced. The applicant alleges that his right to a “hearing within a reasonable time” was therefore violated.

PROCEDURE

The application was introduced on 2 April 1997 and registered on 27 June 1997.

On 14 January 1998 the European Commission of Human Rights decided to communicate the application to the respondent Government and to invite them to submit written observations on admissibility and merits.

The Government’s written observations were submitted on 16 March 1998. The applicant replied on 20 April 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court, in accordance with the provisions of that Protocol.

On 13 January 1999 the Court decided to invite the respondent Government to submit further observations. The Government’s further observations were submitted on 17 February 1999. The applicant submitted his further observations on 23 March 1999.

THE LAW

1. The applicant complains that Article 5 § 1 (c) of the Convention was breached to his detriment in that there were no proper court orders or any legal basis for his detention from 9 October 1996 until 17 February 1997.

Article 5 § 1 of the Convention reads, insofar as relevant, as follows:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:  ...

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ... .”

The Government in their observations submit that the applicant’s detention was justified for the purpose of the above provision of the Convention as he was remanded in custody based on the reasonable suspicion of his having committed the crimes alleged.

The applicant maintains that his detention on remand was in breach of Article 5 § 1 (c) of the Convention in that there was no court decision authorising his detention from 9 October 1996 until 5 December 1996. He submits that from 9 October 1996 until 7 November 1996 he was kept in custody under the then provision of Article 226 § 6 of the Code of Criminal Procedure, which permitted his detention as long as he and other co-accused had access to the case-file. The applicant states that the system of authorising detention by reference to whether a detained person and his co-accused consult the material held in the case was incompatible with Article 5 § 1 (c) of the Convention. He further contends that neither on 5 December 1996 nor on 15 January 1997 did the courts properly resolve the question of his detention on remand, in that they prolonged the detention, which was no longer valid. The applicant contends that from 9 October 1996 until the moment of his release on 17 February 1997 there was no formal order or proper legal basis for his detention, in breach of Article 5 § 1 (c).

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. This part of the application 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 complains under Article 5 § 3 of the Convention that throughout his detention he was not “brought promptly before a judge or other officer”.

Article 5 § 3 of the Convention reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Government in their observations refer to the Lithuanian reservation to Article 5 § 3 of the Convention, which was effective until 21 June 1996. They state that the above reservation was intended to mean that a prosecutor, although competent to authorise detention, could not be regarded as “other officer authorised by law” for the purpose of Article 5 § 3 of the Convention as his legal position in criminal proceedings implied his partiality towards a person arrested. The Government explain that as a result of the reservation, the applicant, who had been detained on the basis of the authorisation of a prosecutor, had neither the right to be brought promptly before a prosecutor, nor the right to be subsequently brought before a judge.

The applicant contests the validity of the above reservation. In his opinion, the reservation cannot be interpreted in such a manner so as to limit the application of Article 5 § 3 more than can be inferred from the very text of the reservation. In any event, the applicant considers that the Government cannot hide behind their own failure to bring him before a proper officer when he was initially arrested to justify their subsequent failure to bring him before a judge or other officer after the reservation expired.

The Court finds that this part of the application raises complex questions of fact and law, including questions as to the validity of the Lithuanian reservation, the determination of which should depend on an examination of the merits. This complaint 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. The applicant claims that he has been denied the right to a trial “within a reasonable time” in further violation of Article 5 §§ 3 and 4 of the Convention.

The Court notes that the applicant was kept in detention on remand from 25 March 1996 until 17 February 1997; his detention thus lasted for 10 months and 22 days. The prosecutors and courts substantiated their decisions to remand the applicant in custody, emphasising inter alia the dangers of his absconding or influencing witnesses. The Court is of the opinion that the applicant’s detention did not exceed the “reasonable time” referred to in Article 5 § 3 of the Convention. 

It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

4. The applicant alleges that he had no possibility to contest the lawfulness of his detention on remand as envisaged by Article 5 § 4 of the Convention, which reads as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Government refer to various provisions of the Code of Criminal Procedure which, in their view, afforded the applicant opportunities to contest the lawfulness of his detention. They argue that the applicant or his representative could “submit requests” under Articles 52 § 2 (3), 58 § 2 (8) or 267 § 1 (3) of the Code, and appeal against any procedural decisions of a court in accordance with Articles 52 § 2 (8), 58 § 2 (10) or 267 § 1 (11) thereof. Furthermore, pursuant to Articles 249 § 1 (11), 250 § 1 (2) and 277 of the Code, in the course of a trial, a court is either required or entitled proprio motu to examine the question of the lawfulness of detention. The Government thus conclude that the applicant could challenge the decisions ordering or extending his detention on remand, as a result of which his release was ordered on 17 February 1997.

The applicant contends that the statutory provisions cited by the Government had no practical effect on his situation, as he could not in fact challenge the lawfulness of his detention. In particular, his complaints against his detention of 16 April 1996 and 30 October 1996 were disregarded by the prosecution. Furthermore, his request of 4 December 1996 to vary the remand and review the lawfulness of his detention was completely ignored by the judge of the Kretinga District Court in his decision of 5 December 1996. The applicant further submits that the above decision was reached by the judge individually, without convening a hearing, which prevented himself or his representative from putting arguments against the continued detention. Moreover, pursuant to Article 372 § 4 of the Code of Criminal Procedure, there was no possibility to appeal against the above decision, and the same judge again decided on the applicant’s detention on 15 January 1997, dismissing the applicant’s request for bail and ignoring the absence of any domestic decision authorising his detention from 9 October until 5 December 1996. The applicant concludes that neither the examination of his requests for bail, nor, as such, the statutory competence of courts of their own motion to determine the need for his being held in custody, enabled him to effectively challenge the lawfulness of his detention before a proper court as required by Article 5 § 4 of the Convention.

In the light of the parties’ submissions, the Court finds that the above complaint raises complex questions of fact and law, and that its determination should depend on an examination of the merits. Therefore, this part of the application cannot be rejected as manifestly ill-founded under Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

5. Under Article 6 § 1 of the Convention the applicant complains that the criminal proceedings were instituted against him on 4 October 1995 and that, to date, no first instance judgment has been pronounced in the case. The applicant alleges that, accordingly, his right to a “hearing within a reasonable time” was violated.

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

“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time ...  .”

The Government submit that the case is extremely complicated. There are four co-accused in the case, charged with various offences relating to serious financial fraud. The case-file comprises 15 volumes, or 3898 pages. Audits of four different companies were made to collect evidence in the case. 12 expert examinations were carried out during the pre-trial investigation. 67 witnesses were questioned. Certain investigative measures were conducted not only in Lithuania, but also in Russia and the United Kingdom. In the Government’s opinion, there were no procedural stoppages or defects that could be attributed to the authorities. The decisions to carry out further investigation were prompted by the requests of the applicant and the co-accused. In addition, the accused was trying to influence witnesses during the pre-trial investigation. Overall, the Government consider that the applicant’s entitlement to “a hearing within a reasonable time” has been respected in the instant case.

The applicant does not agree. He states that the collection of additional evidence in the case cannot be held against him to justify the tardiness of the authorities. On the contrary, the courts, in ordering further investigation, recognised that the investigating authorities had not done their job properly. The requests to carry out further investigations were made by the defendants to avoid arbitrary convictions on the basis of improper evidence. He further emphasises that the authorities took no procedural steps from the moment when the pre-trial investigation was concluded on 27 September 1996 until his committal to trial on 5 December 1996. Furthermore, the prosecution and courts were involved in disputes concerning not only factual but also legal questions; in the applicant’s view, such disputes cannot be justified for the purposes of the above provision of the Convention. The applicant also states that he, unlike the co-accused, is only charged on two counts. He did not try to influence witnesses in the case or otherwise obstruct the course of proceedings. Overall, there are no reasons to justify the tardiness of the authorities in the present case.

The Court considers that the above complaint raises complex questions of fact and law, and that its determination should depend on an examination of the merits. Therefore, this part of the application cannot be rejected as manifestly ill-founded under Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court,

unanimously, DECLARES ADMISSIBLE , without prejudging the merits, the applicant’s complaint about the lawfulness of his detention, the inability to have that detention reviewed by courts, and the length of criminal proceedings against him;

by a majority, DECLARES ADMISSIBLE the applicant’s complaint that he was not “brought promptly before a judge or other officer”;

unanimously, DECLARES INADMISSIBLE the applicant’s complaint about the length of his detention on remand.

         S. DOLLE N. BRATZA

                      Registrar    President