DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37195/97

by Sigitas RAIÅ ELIS

against Lithuania

The European Court of Human Rights ( Third Section) sitting on 2 March 1999 as a Chamber composed of

Sir Nicolas Bratza , President ,

Mr J.-P. Costa,

Mr L. Loucaides ,

Mr P. KÅ«ris ,

Mr W. Fuhrmann

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 17 July 1997 by Sigitas RAIÅ ELIS against Lithuania and registered on 1 August 1997 under file no. 37195/97;

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

Having regard to the observations submitted by the respondent Government on 26 September 1998 and the observations in reply submitted by the applicant on 27 November 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Lithuanian citizen, born in 1968. He is a boxing trainer, residing in Panevėžys . He is represented before the Court by Dr. K. Stungys , a lawyer, from Vilnius.

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

A. Particular circumstances of the case

The applicant was arrested on 16 June 1997 under the preventive detention rule ( prevencinis sulaikymas ) laid down in the then Article 50-1 of the Code of Criminal Procedure. The decision to order the applicant's preventive detention for 18 days had been taken by the Chief Commissioner of the Panevėžys City Police Department on 9 June 1997 and authorised by the Chief Prosecutor of the Panevėžys City District Prosecutor's Office on 11 June 1997. The applicant's preventive detention was confirmed by the President of the Panevėžys City District Court on 17 June 1997, the applicant not being brought before the judge.

In the preventive detention order it was stated that the applicant was detained as he “may commit a dangerous act, the elements of which are provided for in Articles 75 [ banditism ] or 227-1 [criminal association] or 227-2 [terrorising a person]” of the Criminal Code.

On 19 June 1997 the applicant appealed against the arrest, stating inter alia that there were no grounds to order his preventive detention, that he had not committed any offence, nor had he to be prevented from committing one, and that he had not been informed of any reason for his detention. He also stated that his arrest and subsequent detention were in breach of Article 5 of the Convention.

On 23 June 1997 a judge of the Panevėžys Regional Court dismissed the appeal by holding that "the material submitted by the Panevėžys City Police Department contains sufficient elements which permit ... the preventive detention [of the applicant] under Article 50-1 of the Code of Criminal Procedure". The above decision was final, and could not be the subject of appeal. The applicant was not present when the judge reached his decision.

The applicant was released from custody on 30 June 1997. No criminal investigation was commenced against him thereafter.

B. Relevant domestic law and practice

At the relevant time, Article 50-1 of the Code of Criminal Procedure provided that:

"... having sufficient reasons to suspect that a person may commit a dangerous act, the elements of which are provided for in Articles 75 [ banditism ], 227-1 [criminal association] and 227-2 [terrorising a person] of the Criminal Code, and with a view to preventing the commission of such an act, a chief of the department of the police ... may, by a reasoned decision, with the authorisation of [a prosecutor] ... order the arrest of the person … . The arrest order shall be brought to the attention of the arrested person not more than 24 hours following the arrest.

Within 48 hours, in the presence of the police officer who took a decision to arrest, and the prosecutor who authorised it ... a president of a district court, a judge of a regional court or a president of a division of a regional court shall decide on the lawfulness of the arrest.

The judge, in deciding the question of the lawfulness of the arrest, may of his own motion bring before him the arrested person; however, the judge may also decide in the absence of the arrested person ... . 

The arrested person ... may appeal against the decision of the judge to a higher judge ... . The decision of the higher judge is final and cannot be the subject of appeal ... .

... pursuant to the authorisation of a prosecutor, and confirmed by a judge, a person may be thus detained for no longer than two months ... ."

On 30 June 1997 this preventive detention rule was withdrawn from the Criminal Code.

COMPLAINTS

1. Under Article 5 § 1 of the Convention the applicant complains that he was arrested and kept in custody under the preventive detention rule from 16 June 1997 until 30 June 1997. He states that there was no basis for his preventive detention under any subparagraph of the above provision of the Convention.

2. The applicant complains that he was arrested under the preventive detention rule without being informed of any specific reasons for his arrest in violation of Article 5 § 2 of the Convention.

3. The applicant also complains that he was not "brought promptly before a judge or other officer authorised by law" from the moment of his arrest on 16 June 1997 until his release from custody on 30 June 1997, in breach of Article 5 § 3 of the Convention.

PROCEDURE

The application was introduced on 17 July 1997 and registered on 1 August 1997.

On 1 July 1998 the Commission decided to communicate the application.

The Government’s written observations were submitted on 26 September 1998. The applicant replied on 27 November 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.

THE LAW

1. The applicant complains that his preventive detention was contrary to Article 5 § 1 of the Convention.

Article 5 § 1 of the Convention provides, 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:

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; ... .”

The Government in their observations state that the provision of the then in force Article 50-1 of the Code of Criminal Procedure, which permitted preventive detention in connection with banditism , belonging to a criminal association and terrorising a person, constituted a sufficient legal basis to remand the applicant in custody. They further state that the applicant was detained on suspicion of belonging to a criminal association, which was an offence under Article 227-1 of the Criminal Code.

The applicant contends that there were no concrete offences which he was likely to commit, and that his detention did not fall within any subparagraph of Article 5 § 1 of the Convention.

In the light of the parties’ submissions, the Court finds that the above complaint raises complex questions of fact and law, the determination of which 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.

2. Under Article 5 § 2 of the Convention the applicant complains that he was arrested under the preventive detention rule without being informed of any reason for his arrest.

Article 5 § 2 of the Convention reads as follows:

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

The Government state that the applicant was verbally informed, when being arrested, that he was suspected of belonging to a criminal association. They further assert that the reasons for the applicant’s arrest were formally given in the preventive detention order which included a reference to Article 50-1 of the Code of Criminal Procedure, listing banditism , criminal association or terrorising a person as three criminal acts in the commission of which the applicant could engage.

The applicant argues that he was not verbally informed of any reason for his arrest. Furthermore, the preventive detention order, including a quotation of Article 50-1 of the Code of Criminal Procedure and referring to three different offences, stated no concrete offence in which he might have been implicated. Nor did the Panevėžys Regional Court specify the reason for the applicant’s detention when dismissing his appeal against the preventive detention order on 23 June 1997.

In the light of the parties’ submissions, the Court finds that the above complaint raises complex questions of fact and law, the determination of which 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.

3. Finally, the applicant complains that he was never brought before a judge or other officer from the moment of his arrest on 16 June 1997 until his release from custody on 30 June 1997, in breach of Article 5 § 3 of the Convention which provides 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 concede that the applicant was not brought before a judge throughout his preventive detention. They emphasise however that the applicant was represented by counsel when the judges decided on the lawfulness of the applicant’s preventive detention and examined his appeal.

The applicant contends that the presence of counsel before a judge deciding on his preventive detention cannot replace the principle that the arrested person be personally brought before a proper officer.

In the light of the parties’ submissions, the Court finds that the above complaint also raises complex questions of fact and law, the determination of which 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 THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

S. Dollé N. Bratza

Registrar President