Communicated on 13 September 2017

FOURTH SECTION

Application no. 23532/14 Dalia Regina DAINELIENÄ– against Lithuania lodged on 18 March 2014

STATEMENT OF FACTS

The applicant, Ms Dalia Regina DainelienÄ— , is a Lithuanian national who was born in 1944 and lives in Vilnius.

A. The circumstances of the case

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

On 17 April 2009 the applicant was officially notified that she was suspected of having organised the embezzlement of property of high value. It was suspected that the applicant had on more than ten occasions proposed to another individual, who was a company accountant, to transfer money from the company ’ s account to a third person named by the applicant in payment for services which the individual had supposedly provided to the company. However, there had been no such services and the money was to be divided between the applicant, the accountant and the individual receiving the transfer. On 7 May 2009 the applicant was charged with the offences. She denied her guilt.

On 22 July 2011 the Vilnius Regional Court held that the legal classification of the charges against the applicant was incorrect because the total value of the allegedly embezzled property had not been high. The court reclassified the charges as a less serious offence, held that prosecution had become time-barred and discontinued the proceedings.

The prosecutor appealed. On 27 October 2011 the Court of Appeal quashed the decision and remitted the case to the Vilnius Regional Court.

After re-examining the case the Vilnius Regional Court on 10 June 2013 found the applicant guilty of the charges against her. She was given a fine of 12,000 Lithuanian litai (LTL, approximately 3,475 euros (EUR)). She was also ordered to pay part of the damages claimed by the company, amounting to LTL 2,800 (approximately EUR 810).

The applicant lodged an appeal but on 18 October 2013 the Court of Appeal dismissed it and upheld the lower court ’ s judgment in its entirety.

The applicant submitted an appeal on points of law to the Supreme Court. On 17 February 2014 a panel of three judges refused to examine the appeal as not complying with Articles 368 § 2 and 369 of the Code of Criminal Procedure (hereinafter “the CCP”). The chair of the panel, V.G., was the father of M.G., who had been the prosecutor in the case against the applicant before the first-instance and the appellate courts.

B. Relevant domestic law

Article 368 § 2 of the CCP provides that an appeal on points of law must give the name of the court to which it has been submitted and the decision which has been appealed against. It must contain legal arguments demonstrating the existence of the grounds for cassation provided in Article 369 of the CCP, include the appellant ’ s request and be signed by him or her.

Article 369 § 1 of the CCP provides that final court judgments and decisions are examined in cassation proceedings if criminal law has been applied incorrectly or if grave breaches of the CCP have been committed. Article 369 § 2 states that an incorrect application of criminal law means that the general provisions of the Criminal Code have not been applied correctly or there has been an incorrect legal classificati on of criminal charges. Article 369 § 3 states that grave breaches of the CCP are such breaches of the requirements set forth in the CCP as have restricted the rights of the accused or have impeded a court from thoroughly and impartially examining a case and adopting a fair judgment or decision.

Article 372 § 2 of the CCP provides that when an appeal on points of law has been submitted and it conforms to the formal requirements set forth in the CCP, the President of the Supreme Court or the Chair of the Criminal Cases Division of the Supreme Court composes a panel of three judges to whom the appeal and the case file is transferred. Article 372 § 3 provides that the panel of three judges decides in writing whether to accept the appeal for examination. It is admitted if at least one judge on the panel votes in favour. A judge who sat on that panel is not precluded from deciding the merits of the appeal in cassation proceedings.

Article 372 § 5 of the CCP provides that the question of whether to accept an appeal on points of law for examination is decided in a written decision which is final and not subject to appeal. Reasons must be provided for any decision refusing to examine an appeal.

Article 58 § 1 (1) of the CCP provides, inter alia , that a judge cannot participate in proceedings if he or she is a member of the family or a relative of a prosecutor in those proceedings.

Article 374 1 § 1 of the CCP provides that when an appeal on points of law has been accepted for examination and it has been decided to examine it in writing, the parties to the proceedings are informed, inter alia , of the date of the examination, the composition of the chamber and their right to request the removal of judges. The CCP does not contain any provisions on parties ’ rights to be informed about the composition of the initial panel of three judges or the right to request their removal.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention that the Supreme Court panel which decided whether to examine her appeal on points of law was not independent and impartial because its chair was the father of the prosecutor in the same proceedings.

QUESTION TO THE PARTIES

Was the Supreme Court panel which decided whether to examine the applicant ’ s appeal on points of law independent and impartial, as required by Article 6 § 1 of the Convention, in view of the fact that the panel ’ s chair was the father of the prosecutor in the same proceedings (see, mutatis mutandis , Dorozhko and Pozhaskiy v. Estonia , nos. 14659/04 and 16855/04, § 53, 24 April 2008; Micallef v. Malta [GC], no. 17056/06, §§ 102-03, ECHR 2009; Morice v. France [GC], no. 29369/10, § 90, ECHR 2015; and Ramljak v. Croatia , no. 5856/13, §§ 29 and 34, 27 June 2017)?