FOURTH SECTION

DECISION

Application no. 31378/15 Erikas ŽVIRBLIS against Lithuania

The European Court of Human Rights (Fourth Section), sitting on 30 April 2019 as a Committee composed of:

Paulo Pinto de Albuquerque, President, Egidijus KÅ«ris, Iulia Antoanella Motoc, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 19 June 2015,

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 Erikas Žvirblis, is a Lithuanian national, who was born in 1985 and is detained in Pravieni škės Correctional Facility . He was represented before the Court by Mr M. Muksinovas, a lawyer practising in Vilnius.

2. The Lithuanian Government (“the Government”) were represented by their Agent, most recently Ms L. Urbaitė.

A. The circumstances of the case

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

4. The applicant was suspected of armed robbery. In the course of the pre-trial investigation the applicant was informed about his right to be represented by a lawyer and indicated that he wanted to be represented. In November 2012 the authorities decided to appoint M.B. to represent the applicant at the initial stage of the pre-trial investigation. At that stage, the applicant was also represented by K.L. There is no information in the case-file, whether K.L. was the lawyer of his choice.

5. In 2013, the State Guaranteed Legal Aid Service (hereinafter “the Legal Aid Service”) received a request from the investigator to guarantee legal representation of the applicant during the examination of the extension of his pre-trial detention. L.B. was appointed as the applicant ’ s representative.

6. In May 2014 the Legal Aid Service received a request from the investigator to guarantee the applicant ’ s legal representation during the notification of the suspicion of a crime and during his questioning. V.S. was appointed as the applicant ’ s representative.

7. The Rokiškis District Court decided that legal aid had to be provided for the applicant and M.B. was appointed as the applicant ’ s representative before the first-instance court.

8. In August 2014 the Rokiškis District Court found the applicant guilty of armed robbery and sentenced him to ten years ’ imprisonment; the applicant was also ordered to pay damages. During the proceedings, the applicant pleaded guilty.

9. The applicant did not ask for legal assistance to prepare an appeal but because the presence of a lawyer was mandatory in accordance with domestic law, L.B. was appointed as the applicant ’ s representative at the appellate court ’ s hearing (see paragraph 17 below). On 19 December 2014 the Panev ėžys Regional Court upheld the judgment of the first-instance court. The judgment was served on the applicant.

10. The applicant did not ask the Legal Aid Service to provide him with legal assistance for the preparation of an appeal on points of law.

11 . On 9 March 2015 the applicant lodged an appeal on points of law by himself. He did not make the allegation that he had not received legal aid for its preparation. On 31 March 2015 the Supreme Court did not accept the appeal on points of law for examination. It did not indicate that the appeal did not meet the requirements of domestic law.

12 . On 10 April 2015 the applicant lodged another appeal on points of law. He explained that he had not been able to reach L.B. and that, consequently, his first appeal on points of law had shortcomings; he also applied for an extension of the time-limit for submitting an appeal on points of law. On 30 April 2015 the Supreme Court decided not to extend the time-limit and stated that it was a person ’ s own responsibility to ensure the proper implementation of his or her rights and that breached rights could only be remedied if a person had exercised diligence in trying to vindicate them.

13 . The applicant alleges that he had sent two letters to L.B., one dated 10 January 2015 and the other without a date. According to the applicant, in those letters he had asked L.B. to inform him whether she had submitted an appeal on points of law as they have discussed. The letter without a date was allegedly written in Lukiškės Remand Prison. The applicant provided copies of the letters. He later claimed that an inmate sent his letters to L.B. However, there is no information about that inmate (see paragraph 23 below).

14 . It appears that after the application was communicated to the Government, L.B. was asked to explain the situation. In a letter dated 10 April 2018 L.B. informed the Legal Aid Service that she had represented the applicant during the appeal hearing and that she had not been asked to prepare an appeal on points of law. If the applicant wanted to submit an appeal on points of law, he had to ask the Legal Aid Service to provide him with legal aid first.

15 . From the information provided by the facilities where the applicant had been detained, it appears that between February 2012 and May 2017 the applicant had not sent any letters to L.B. More specifically, between 30 December 2014 and 10 April 2015 the applicant sent three letters: one to the president of the Civil Cases Division of the Vilnius District Court, one to the Zarasai District Court and one to the Vilnius 6 th Police Station.

16 . From the information provided by the Government, it appears that during the appellate proceedings the applicant was detained in Vilnius Correctional Facility. In order to ensure his participation at the court hearing in November 2014, he was transferred to Panevėžys Police Station and subsequently he was transferred back to Vilnius Correctional Facility through Šiauliai Remand Prison. On 19 November 2014 he was transferred to Lukiškės Remand Prison. On 21 November 2014 the applicant was transferred from Lukiškės Remand Prison to Vilnius Correctional Facility where he remained until 20 June 2017.

B. Relevant domestic law

17 . Article 322 § 1 of the Code of Criminal Procedure provides that the prosecutor and the defence counsel have to participate in the court hearing before the appellate court.

18 . Article 367 § 2 of the Code of Criminal Procedure provides that the defense representative has the right to lodge an appeal on points of law only if it is not against the wish of the convicted or acquitted accused person expressed in writing.

19 . The Recommendation on the appointment of a lawyer for the provision of State-guaranteed secondary legal aid in criminal cases, approved by the Order of the Minister of Justice of 9 June 2002, No. 1R ‑ 179, provides that the appointment of a lawyer is organised at each stage of criminal proceedings: during the pre-trial investigation and subsequently once the case has been referred for trial before the first, the appellate and the cassation courts.

COMPLAINT

20. The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that because the State-appointed lawyer failed to submit an appeal on points of law on his behalf, he was not effectively represented and his right of access to court was breached.

THE LAW

21. The applicant alleged that his legal representation was not effective and that he had not had access to court.

He invoked Article 6 §§ 1 and 3 (c) of the Convention, which, in so far as relevant, reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...

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

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

...”

A. The parties ’ submissions

22. The Government firstly submitted that there was no reliable evidence that the applicant had tried to contact the lawyer who represented him during the hearing at the appellate court with a request to prepare an appeal on points of law. Secondly, they stated that the applicant had not requested legal aid for the preparation of the appeal on points of law and in accordance with domestic law the appointment of legal aid was organised at each stage of the criminal proceedings separately (see paragraph 19 above). Thirdly, the Government stated that in his first appeal on points of law the applicant had not mentioned the alleged lack of effective legal assistance (see paragraph 11 above). Fourthly, the applicant could have called the lawyer, the court or the Legal Aid Service in order to find out whether someone would help him to prepare the appeal on points of law or whether it had already been lodged. Fifthly, under domestic law a lawyer could only lodge an appeal on points of law if an accused person expressed such a wish in writing (see paragraph 18 above). In that connection, the Government drew the Court ’ s attention to the applicant ’ s two letters allegedly sent to L.B. They stated that the letter without a date was sent from Lukiškės Remand Prison but at the relevant time the applicant had been detained in Vilnius Correctional Facility (see paragraphs 13 and 16 above). Also, according to the information provided by the facilities, the applicant had not sent any letters to L.B. (see paragraph 15 above) and he had not provided any substantiating documents in his second appeal on points of law either.

23 . The applicant submitted that he could not make any calls or use the internet while detained and he could only use a public telephone which required a card that had to be purchased and was very expensive. He also maintained that in order to send letters, he had to purchase envelopes, paper and pen and that money was needed for that. Lastly, he submitted that he had not been able to contact anyone while detained and that he asked another inmate to contact a lawyer on his behalf. The applicant provided no information about that inmate ’ s personal details or his whereabouts (see paragraph 13 above).

B. The Court ’ s assessment

1 . As regards a possible abuse of the right of individual petition

24. The Court reiterates that an application may be rejected as an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention if, among other reasons, it was knowingly based on untrue facts. Incomplete and therefore misleading information may amount to an abuse of the right of application, especially if the information in question concerns the very core of the case and an insufficient explanation is given for the failure to disclose that information (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014).

25. Turning to the circumstances of the present case, the Court notes that it is not clear from the material in the case file whether the applicant had in fact sent the letters to L.B. The latter stated that she had never received any letters from the applicant and the facilities where the applicant had been detained had no information that any letters had been sent to L.B. by the applicant (see paragraphs 14 to 16 above). Even though the applicant submitted before the Court that another inmate had sent his letters, he had failed to provide any information that would allow identifying that inmate (see paragraphs 13 and 23 above). Nevertheless, the applicant was transferred between detention places (see paragraph 16 above) and had spent some time in Lukiškės Remand Prison where he could have written one of the letters . In these circumstances , the Court has very serious doubts as to the veracity of the applicant ’ s allegations but interprets these doubts to the benefit of the applicant. The Court thus holds that it cannot be ascertained with sufficient certainty that the applicant intentionally misled the Court in order to conclude that the application was lodged in abuse of the right of individual petition within the meaning of Article 35 § 3 (a) of the Convention.

2. As regards the applicant ’ s allegations

26. The right set out in Article 6 § 3 (c) of the Convention is one element, among others, of the concept of a fair trial in criminal proceedings contained in Article 6 § 1 (see Dvorski v. Croatia [GC], no. 25703/11, § 76, 20 October 2015). Although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Jemeļjanovs v. Latvia , no. 37364/05, § 75, 6 October 2016 and the references therein).

27. On the quality of legal assistance, the Court reiterates that it is for the Contracting States to choose the means of ensuring that Article 6 § 3 (c) guarantees are secured in their judicial systems, the Court ’ s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial. The competent national authorities are required under Article 6 § 3 (c) to intervene only if a failure by legal aid counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way (see Hermi v. Italy [GC], no. 18114/02, §§ 95 ‑ 96, ECHR 2006-XIII).

28. The Court observes that under domestic law, a lawyer under the State-guaranteed legal aid scheme is appointed separately before every stage of the proceedings (see paragraph 19 above). In that connection, the Court notes that the applicant did not ask the Legal Aid Service to appoint him a lawyer who would prepare an appeal on points of law. In these circumstances the Court has no reasons to doubt L.B. ’ s explanations that she had never agreed to prepare an appeal on points of law and that she had never received any letters from the applicant in that regard (see paragraphs 13 and 14 above). Also, the applicant only complained about the alleged lack of contact with L.B. in his second appeal on points of law, he had not addressed the Legal Aid Service with a complaint about the quality of legal assistance (see paragraph 12 above).

29. The Court thus concludes that L.B. ’ s activities could not be characterised as manifestly negligent to the extent of denying the applicant the right to defend himself through legal assistance. The Court notes that the applicant ’ s own inactivity contributed to the fact that he had not had a lawyer for the preparation and submission of the appeal on points of law.

30. The application is therefore manifestly ill-founded and must, as such, be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 23 May 2019 .

Andrea Tamietti Paulo Pinto de Albuquerque Deputy Registrar President