SECOND SECTION

DECISION

Application no. 292/18 Julius TIÅ KEVIÄŒIUS against Estonia

The European Court of Human Rights (Second Section), sitting on 12 May 2020 as a Committee composed of:

Egidijus Kūris , President, Arnfinn Bårdsen , Darian Pavli, judges , and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 19 December 2017,

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

1 . The applicant, Mr Julius Tiškevičius , is a Lithuanian national, who was born in 1976 and lives in Kaunas. At the stage of lodging his application, the applicant was represented before the Court by his wife Ms Margarita Tiškevičien ė and at the later stage, when the parties ’ observations were submitted, by Mr R. Tilindis , a lawyer practising in Vilnius, Lithuania.

2 . The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg , of the Ministry of Foreign Affairs.

3 . The applicant complained under Article 8 of the Convention about the restriction to communicate with his family during criminal proceedings.

4 . On 15 November 2018 notice of the applicant ’ s complaint under Article 8 was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

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

6 . The applicant was suspected of forming and leading a criminal organisation which focused on stealing valuable vehicles form Estonia. The prosecutor ’ s office lodged an application seeking leave to arrest the applicant in the Republic of Lithuania and, on 29 June 2016, the Tartu County Court authorised it. The applicant was arrested in Lithuania and extradited to Estonia on 3 November 2016. He was brought before the Tartu County Court which decided that the decision to detain the applicant should be upheld.

7 . On 7 November 2016 the prosecutor ’ s office issued an order prohibiting the applicant to have long-term and short-term visits, telephone calls and correspondence (hereinafter “restrictions on communication”). It was feared that without the restrictions the applicant could start tampering with evidence and influencing the co-accused and the witnesses. He was authorised to meet with his defence lawyer as well as to correspond with his lawyer, state and local municipality authorities by mail or by phone calls. The order stated that the restrictions were to remain in place until the end of the criminal proceedings. It stated that it was possible to appeal against the order to the Office of the Prosecutor General.

8 . The applicant claims that the order was never served on him nor on his lawyer.

9 . On 5 December 2016 the applicant lodged an application for the partial lifting of the restriction on communication, so that he could communicate with his wife and his daughter.

10 . On 20 December 2016 the prosecutor ’ s office dismissed the application. The prosecutor admitted that the restrictions prevented the applicant ’ s contacts with his family members, but considered that in a given case the interests of the proceedings outweighed the applicant ’ s rights. He noted that the dismissal of the application during the pre-trial proceedings did not prevent the applicant from lodging the application again during the trial.

11 . On the same day, the prosecutor ’ s office submitted the statement of charges to the court, noting, inter alia , that it was justified to keep the restrictions on communication in place.

12 . On 30 December 2016 the Tartu County Court committed the applicant to trial. His pre-trial detention remained in force.

13 . On 10 January 2017 the applicant ’ s lawyer contacted the judge of the Tartu County Court. He noted that the order of 7 November 2016 – which in his view set restrictions on communication only until the end of pre-trial proceedings – was never served on him. He noted that the court, by committing the applicant to trial, had not set any new restrictions on communication. He thus asked the judge to inform the Tartu Prison that the applicant was not prohibited from communicating with his wife and his daughter.

14 . On 16 February 2017 the applicant filed his defence submissions, seeking the lifting of the restrictions on communication. He repeated this request at the court hearing of 22 February 2017.

15 . On 8 March 2017 the Tartu County Court dismissed the application for lifting the restrictions on communication, considering that there was considerable risk that the applicant would start influencing the witnesses. The applicant appealed.

16 . On 24 April 2017 the applicant lodged an application to have his wife participate in the criminal proceedings as his counsel. The judge of the Tartu County Court dismissed the application on 28 April 2017, referring to the restrictions on communication which were still in force.

17 . On 27 April 2017 the Tartu Court of Appeal dismissed the appeal. It found that, at the particular stage of the proceedings, the risk of undermining the criminal proceedings, if the restrictions on communication were to be lifted, outweighed the impact it had on the applicant ’ s family life. The court noted that the applicant was not prevented from lodging the same application again later in the proceedings. In addition, the prosecutor and the court had to analyse, of their own motion, whether the application of restrictions remained proportionate after the witnesses had been heard. The applicant appealed on 31 May 2017 and the Supreme Court refused to examine his appeal on 19 June 2017.

18 . On 19 May 2017 the Tartu County Court, noting that by that time the witnesses proposed by the defence had been heard, partially lifted the restrictions on communication. The applicant was allowed to communicate with his family members by phone. The decision stated that no appeal lay against it. The applicant did not appeal.

19 . At the hearing of 14 August 2017 the applicant requested lifting the remaining restriction on communication with his family. The Tartu County Court decided to keep the remaining restrictions in force.

20 . The applicant repeated his request at the hearing of 5 September 2017. On the same day the Tartu County Court, noting that the witnesses on the side of prosecution as well as defence had been heard, lifted the remaining restrictions on communication with his wife and children.

21 . On 9 October 2017 the Tartu County Court convicted the applicant. All the restrictions on communication, as much as they had remained in force, were lifted. The Tartu Court of Appeal upheld the conviction and the Supreme Court refused to examine the applicant ’ s appeal of points of law on 17 December 2018.

22 . It appears from the excerpt of the record of the applicant ’ s correspondence in prison ( kinnipeetava kirjavahetuse kaart ) , that he had sent letters to his wife on 24 September 2017 and 12 October 2017.

COMPLAINT

23 . The applicant complained under Article 8 of the Convention about not being able to communicate with his family members during criminal proceedings.

THE LAW

Alleged violation of Article 8

24 . The applicant complained of a violation of Article 8, which reads:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

(a) The Government

25 . The Government argued that the case should be declared inadmissible.

26 . The Government asserted that the applicant had abused the right of application. Namely, he had lodged his application with the Court on 19 December 2017, complaining about the restrictions on communication. However, he had completely failed to ment ion that by the decisions of 19 May 2017 and 5 September 2017 the domestic court had, initially partially and then fully, lifted the impugned restrictions. Instead, the applicant had referred to the decision of the Supreme Court of 19 June 2017 (see paragraph 17 above). By doing so the applicant had clearly misled the Court into thinking that the restrictions were still in force. As to the applicant ’ s argument that after his conviction some restrictions had still remained in place in practice, the Government noted that his application had not concerned such post-conviction measures, but rather measures applied during criminal proceedings.

27 . Secondly, the Government raised the argument of non-exhaustion of domestic remedies. The applicant had not challenged the initial decision of 7 November 2016 by which the restrictions on communication had been imposed on him (see paragraph 7 above). Later, he had not challenged the decision of the Tartu County Court of 19 May 2017 by which his application for the restrictions to be lifted had been granted only partially (see paragraph 18 above). Although the latter decision had entailed a reference of it not being appealable, it was the established case-law of the Supreme Court since 2012 that, in fact, such a decision was subject to appeal. The fact that the applicant had later again challenged the restrictions on communication was irrelevant. In any event, he had not appealed against the decision of 14 August 2017 to keep the remaining restrictions in force (see paragraph 19 above). In the light of the foregoing, the Government argued that the applicant ’ s complaint was inadmissible as to the periods before 5 December 2016 and after 19 May 2017 due to non-exhaustion of domestic remedies.

28 . Thirdly, the Government claimed that as the period with regard to which the applicant could be considered to have exhausted domestic remedies – namely the period of five and half months – was relatively short. During that time the imposed restrictions had been justified in the interests of proper administration of the criminal proceedings. The applicant ’ s complaint was therefore manifestly ill-founded.

(b) The applicant

29 . The applicant considered that he had not misled the Court. He noted that although upon his conviction the restrictions on communication had been lifted, in fact he had still been denied long-term visits and the short-term visits had been shorter than expected. Thus, at the time of lodging his application, he had been restricted to communicate with his family.

30 . As to the Government ’ s plea on exhaustion of domestic remedies, the applicant claimed that he had not been served with the decision of 7 November 2016 by which the restrictions on communication had been imposed. Moreover, the application of 5 December 2016 had been lodged because the impugned restrictions had been imposed only for the duration of pre-trial proceedings which, by then, had ended. Under domestic law, it had not been possible to appeal against the decision of the Tartu County Court dated 19 May 2017, by which the restrictions had been partially lifted, and against the decision of the same court dated 14 August 2017. He had lodged an appeal against the decision of the Tartu Court of Appeal of 27 April 2017, as this had addressed the full scope of restrictions. Lodging an appeal against the decision of 19 May 2017 would have resulted in the same issue being examined in parallel in two sets of proceedings.

31 . The applicant alleged that it had never been proven that he would have attempted to influence the witnesses.

32 . As regards the Government ’ s objection that the applicant had abused the right of application, the Court reiterates that under this provision an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untrue facts (see Akdivar and Others v. Turkey , 16 September 1996, §§ 53-54, Reports of Judgments and Decisions 1996 ‑ IV; Varbanov v. Bulgaria , no. 31365/96, § 36, ECHR 2000 ‑ X; Rehak v. the Czech Republic ( dec. ), no. 67208/01, 18 May 2004; Popov v. Moldova (no. 1) , no. 74153/01, § 48, 18 January 2005; Kerechasvili v. Georgia ( dec. ), no. 5667/02, ECHR 2006 ‑ V; Miro ļ ubovs and Others v. Latvia , no. 798/05, § 63, 15 September 2009; and Centro Europa 7 S.r.l . and Di Stefano v. Italy [GC], no. 38433/09, § 97, ECHR 2012). The submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information (see Hüttner v. Germany ( dec. ), no. 23130/04, 19 June 2006, and Kowal v. Poland ( dec. ), no. 2912/11, 18 September 2012). The same applies if important new developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts (see Centro Europa 7 S.r.l . and Di Stefano , cited above, and Miroļubovs and Others , cited above). However, even in such cases, the applicant ’ s intention to mislead the Court must always be established with sufficient certainty (see Al- Nashif v. Bulgaria , no. 50963/99, § 89, 20 June 2002; Melnik v. Ukraine , no. 72286/01, §§ 58-60, 28 March 2006; Nold v. Germany , no. 27250/02, § 87, 29 June 2006; and Centro Europa 7 S.r.l . and Di Stefano , cited above).

33 . Turning to the circumstances of the instant case, the Court notes at the outset that in his application lodged with the Court on 19 December 2017 the applicant complained, relying on Article 8 of the Convention, about the restrictions on communication imposed on him on 7 November 2016. To substantiate his claim he submitted, among other documents, the order of the prosecutor ’ s office dated 7 November 2016, his application for the partial lifting of the restrictions ( 5 December 2016), the dismissal of the prosecutor ’ office of this application (20 December 2016), and the decisions of the Tartu County Court (8 March 2017), Tartu Court of Appeal (27 April 2017) and the Supreme Court (19 June 2017). He also submitted an excerpt, without any further comments, of the record of his correspondence in prison, from which it appeared that he had sent letters to his wife on 24 September 2017 and 12 October 2017. However, the applicant, who was represented by his wife at the initial stage of the proceedings before the Court, failed to inform the Court of the fact that the restrictions which he complained of, had, in fact, been already partially lifted on 19 May 2017 and fully lifted on 5 September 2017.

34 . Based on the information submitted by the applicant, the Court gave notice to the parties of the case on 15 November 2018, observing that “[a]t the time of [lodging his application with] the Court, on 19 December 2017, the impugned restrictions were still in force.” The applicant did not notify the Court that its understanding of the facts did not reflect the reality.

35 . In his observations the applicant did not claim that he had not been aware of the first partial and then full lifting of the impugned restrictions. Instead, he raised claims, which he did not substantiate, about his visiting rights being limited after he was convicted.

36 . In the light of the foregoing observations, the Court considers that the applicant must have been aware of the lifting of the restrictions on communication before he lodged his application with the Court. By not informing the Court of such developments, he misled the Court about the facts which concerned the very core of the case. He has provided no plausible explanation that would justify the failure to disclose the concerned information.

37 . Accordingly, the Court upholds the Government ’ s preliminary objection that the applicant ’ s conduct constituted an abuse of the right of application within the meaning of Article 35 § 3 (a) of the Convention. Given the above conclusion it is not necessary for the Court to examine the Government ’ s other preliminary objections.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 11 June 2020 .

Hasan Bakırcı Egidijus Kūris Deputy Registrar President