Communicated on 11 October 2017

FOURTH SECTION

Application no. 67816/14 Donatas KRYŽEVIČIUS against Lithuania lodged on 10 October 2014

STATEMENT OF FACTS

The applicant, Mr Donatas Kryževičius , is a Lithuanian national who was born in 1983 and lives in Palanga . He is represented before the Court by Mr S. Aviža , a lawyer practising in Vilnius.

A. The circumstances of the case

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

On an unspecified date the Klaipėda regional prosecutor ’ s office opened a pre-trial investigation concerning allegations relating to the appropriation of property and the f alsification of documents. On 4 December 2013 the applicant ’ s wife was questioned as part of that investigation. Her status was that of a “special witness” – in line with the Code of Criminal Procedure (hereinafter “the CCP”), she was questioned about her own possibly criminal activity and was exempted from liability for refusing to testify or giving false testimony (see Relevant domestic law below).

On 9 April 2014 the applicant was called as a witness in the same investigation. He refused to testify, on the grounds that the investigation related to his wife ’ s possibly criminal activity and he could not be compelled to testify against her. By a prosecutor ’ s decision of 26 May 2014 the applicant was given a fine of 650 Lithuanian litai (LTL ‑ approximately 188 euros (EUR)) for refusing to testify, as provided in Article 163 of the CCP (see Relevant domestic law below).

The applicant submitted a complaint to a senior prosecutor. He argued that the status of a “special witness” was similar to that of a suspect, and therefore he should not have been compelled to testify against his wife, who had such status. On 9 June 2014 a senior prosecutor at the Klaipėda regional prosecutor ’ s office dismissed the applicant ’ s complaint on the grounds that, according to the CCP, only family members of a suspect or an accused were exempted from liability for refusing to testify, but the CCP did not extend such a privilege to family members of a “special witness”.

The applicant submitted a complaint to the Klaipėda District Court, raising the same arguments as before. He also asked the court to refer the matter to the Constitutional Court for a ruling on whether the CCP provisions which exempted family members of a suspect or an accused from liability for refusing to testify, but not family members of a “special witness”, complied with the Constitution. On 9 July 2014 the Klaipėda District Court dismissed the applicant ’ s complaint and upheld the reasoning in the prosecutor ’ s decision. It also stated that there was no reason to refer the matter to the Constitutional Court. That decision was final and not open to any further appeal.

Subsequently the applicant submitted an appeal to the KlaipÄ—da Regional Court, but the court refused to examine it, as there was no provision for such an appeal in law. He then submitted an application to reopen the proceedings to the Supreme Court, but the court refused to examine it, on the grounds that it had no authority to reopen proceedings concerning procedural penalties given in line with the CCP.

B. Relevant domestic law

1. Witnesses in criminal proceedings

The relevant part of Article 31 of the Constitution provides:

“It shall be prohibited to compel anyone to give evidence against himself, or his family members or close relatives.”

Article 82 § 2 of the CCP provides that family members or close relatives of a suspect or an accused can refuse to testify or answer certain questions.

Article 83 §§ 2 and 3 of the CCP provide that a witness who, without a good reason, does not appear when summoned by a pre-trial investigation officer, prosecutor or court, or refuses to testify without lawful grounds, can be punished by a fine or detent ion, in accordance with Article 163 of the CCP. At the material time, Article 163 provided for a fine of up to LTL 3,900 (approximately EUR 1,130) and detention of up to one month.

Article 80 § 1 of the CCP provides that persons who are to give testimony about their own possibly criminal activity cannot be questioned as witnesses unless they agree to b e thus questioned. Article 82 § 3 and Article 83 §§ 2 and 4 of the CCP provide that when such persons are questioned, they have the right to legal representation and to ask that they be granted status as a suspect, and they are exempted from liability for refusing to testify or giving false testimony.

2. Right to appeal during a pre-trial investigation

Article 63 § 1 of the CCP provides that, during a pre-trial investigation, complaints against procedural acts and decisions taken by a prosecutor can be submitted to a senior prosecutor. If a senior prosecutor dismisses a complaint, a further complaint can be submitted to a pre-trial investigation judge. Article 64 § 6 provides that decisions taken by a pre-trial investigation judge are final and not open to any further appeal, except when the CCP explicitly provides otherwise.

Article 163 § 4 of the CCP provides that a person who has been given a penalty for refusing to testify by a pre-trial investigation judge or a court can submit a complaint to the same judge or court. The decision taken by that judge or court with regard to the complaint can then be appealed against to a higher court.

COMPLAINTS

The applicant complains under Article 6 § 1 and Article 8 of the Convention that he was compelled to testify against his wife. He argues that the status of a “special witness” is very similar to that of a suspect, because the person is testifying about his or her own possibly criminal activity and may be declared a suspect at any point in the investigation. He therefore submits that he should have been exempted from liability for refusing to testify against his wife.

The applicant also complains under Article 2 § 1 of Protocol No. 7 to the Convention that he did not have a possibility to appeal against the Klaipėda District Court ’ s decision of 9 July 2014.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s rights guaranteed by Article 6 § 1 and Article 8 of the Convention, in view of the fact that he was punished for refusing to testify in the criminal proceedings in which his wife had the status of a “special witness” (see, mutatis mutandis , Van der Heijden v. the Netherlands [GC], no. 42857/05, §§ 61-67, 3 April 2012)?

2. Has there been a violation o f Article 2 § 1 of Protocol No. 7 to the Convention, in view of the fact that the applicant did not have a possibility to appeal against the Klaipėda District Court ’ s decision of 9 July 2014 (see, mutatis mutandis , Galstyan v. Armenia , no. 26986/03, § 124, 15 November 2007, and Kamburov v. Bulgaria , no. 31001/02, §§ 22-27, 23 April 2009 )? Was that in accordance with the domestic law?