Communicated on 29 September 2016

FOURTH SECTION

Application no. 56795/13 Vytautas BAURAS against Lithuania lodged on 28 August 2013

STATEMENT OF FACTS

The applicant, Mr Vytautas Bauras , is a Lithuanian national who was born in 1964 and lives in Vilnius. He is represented before the Court by Mr V. Barkauskas , 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.

In July 1993 two individuals, R.Ž. and A.Č. , were found dead in R.Ž. ’ s flat in Vilnius. The authorities opened a pre-trial investigation. It was suspected that R.Ž. and A.Č. had been killed by D.A., who was acting upon the orders of the applicant. It was also suspected that the motive for the killing had been to eliminate R.Ž. , who had been the applicant ’ s business partner, so that the applicant would get all the profit from their business.

At the beginning the pre-trial investigation concerned both D.A. and the applicant but on an unspecified later date it was separated into two investigations – one concerning D.A. and the other concerning the applicant. On 22 December 2007 the applicant was served with a notice that he was suspected of having instigated the murders of R.Ž. and A.Č. for personal gain while they were in a helpless state.

On 20 June 2011 the Vilnius Regional Court found D.A. guilty of murdering R.Ž. and A.Č. for personal gain while they were in a helpless state, as set out in Article 129 § 2 (2), (5) and (9) of the Criminal Code.

One of the key pieces of evidence in the criminal case against D.A. was a letter which he had written to the applicant. In that letter, D.A. threatened to reveal that the applicant had promised to pay him for killing R.Ž. so that the applicant would get all the profit from their business. The letter also alleged that the applicant had bought weapons for D.A. to enable him to commit unspecified criminal activities, and had bribed judges and prosecutors in order to help D.A. avoid criminal responsibility for some unspecified offences. In the letter, D.A. stated that the applicant had still not paid him for the murders of R.Ž. and A.Č., and threatened to make all that information public.

According to the judgment of the Vilnius Regional Court, the applicant received that letter from D.A. ’ s father, and subsequently the applicant presented the letter to the police. A forensic examination revealed that the letter had indeed been written by D.A.

During the court proceedings D.A. submitted that the contents of the letter were false. He claimed that the applicant had owed him some money for an unrelated debt, so he had made up the story in the letter in order to scare the applicant into paying him back.

However, the court dismissed D.A. ’ s statements as unreliable. Firstly, the court considered it unlikely that D.A., who at the time of writing the letter had already been suspected of the murders, would falsely incriminate himself to the applicant, especially as their relationship at that time had not been friendly. The court then found that several of the allegations in the letter had been proven – for example, the applicant had admitted to having bought weapons for D.A., and there had indeed been several sets of criminal proceedings against D.A. which had been eventually discontinued. The court also held:

“As the facts laid out in the letter are consistent and objective, there are no grounds to doubt the truthfulness of the contents of the letter; the statement in the letter that [D.A.] – upon the orders of the individual in respect of whom a separate pre-trial investigation was opened – killed [ R.Ž. ] so that all the profit would go to that individual alone, and that all the money which they had jointly owned would belong to the individual in respect of whom a separate pre-trial investigation was opened, must be considered true.”

( Įvertinus tą aplinkybę, kad laiške išdėstyti faktai yra nuoseklūs ir objektyvūs, konstatuotina, kad nėra jokio pagrindo abejoti laiško turinio objektyvumu, bei laiške nurodytas teiginys, jog [D.A.] pagal asmens, kurio atžvilgiu ikiteisminis tyrimas išskirtas į atskirą tyrimą, nurodymus nužudė [R.Ž.], kad visas pelnas eitų vienam minėtam asmeniui ir visi pinigai, kurie buvo jų, liktų asmeniui, kurio atžvilgiu tyrimas išskirtas į atskirą tyrimą, vertintinas kaip atitinkantis tikrovę. )

The applicant was questioned as a witness in that case, and he denied having any connection to the murders.

After D.A. ’ s conviction, the applicant submitted an appeal. He argued that the Vilnius Regional Court had de facto found him guilty of having instigated the murders of R.Ž. and A.Č., despite the fact that he had not been the accused in that case and had not been able to defend himself. He asked the Court of Appeal to remove from the judgment all the passages which alleged his involvement in the murders.

On 12 June 2012 the Court of Appeal dismissed the applicant ’ s appeal. It held that the first-instance court had not examined his guilt in respect of the murders. It also held that the applicant, who had been a witness in the criminal case against D.A., was not legally entitled to ask the court to remove from the judgment the reasoning which had been the basis for D.A. ’ s conviction.

The applicant then submitted a cassation appeal, raising essentially the same arguments and making the same r equest. However, on 28 February 2013 the Supreme Court dismissed his appeal on the grounds that, as a witness in the criminal case against D.A., he was not legally entitled to submit a cassation appeal.

On 11 April 2013 the applicant was served with an indictment and charged with having instigated the murders of R.Ž. and A.Č. for personal gain while they were in a helpless state. At the time when he lodged his application with the Court (28 August 2013), the criminal proceedings against him were still ongoing.

B. Relevant domestic law

The relevant provisions of the Criminal Code read:

Article 24. Complicity and types of accomplices

“...

5. An abettor is a person who has incited another person to commit a criminal act.”

Article 129. Murder

“...

2. A person who murders:

...

2) a person in a helpless state;

...

5) two or more persons;

...

9) for mercenary reasons;

...

shall be punished by imprisonment for a period of eight to twenty years or by life imprisonment.”

The relevant provisions of the Code of Criminal Procedure read:

Article 255. Limits on the examination of a case

“1. The court examines the case only in respect of those accused and those criminal acts which have been referred to it for examination.

...”

Article 312. The right to submit an appeal

“1. An appeal against a judgment which has not yet become final ... can be submitted by a prosecutor, a private prosecutor, a convicted person, a person in respect of whom a case has been discontinued, their defence counsel or legal representative, a victim or his or her representative.

...”

Article 367. The right to submit a cassation appeal

“1. An appeal against a judgment which has become final ... can be submitted by a prosecutor, a victim, his or her representative, a convicted person, an acquitted person, a person in respect of whom a case has been discontinued, their defence counsel or legal representative ... a civil claimant, a civil defendant, their representatives, a person who has provided security for bail, a person whose property or assets have been seized, or their representatives.

...”

COMPLAINTS

The applicant complains that, in the criminal case against D.A., the domestic courts de facto found him guilty of having instigated the murders of two individuals. He submits that such a finding could be considered res judicata , and thereby prejudge the ongoing criminal case against him, despite the fact that he had witness status in the proceedings against D.A. and was therefore not provided with an opportunity to defend himself. He invokes Article 6 §§ 1, 2 and 3 (a) and (c) of the Convention.

The applicant also complains that he was unable to submit an appeal against the judgment of the first-instance court which de facto found him guilty. He relies on Article 2 § 1 of Protocol No. 7 to the Convention.

QUESTIONS TO THE PARTIES

1. W as the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case, in view of the parts of the Vilnius Regional Court ’ s judgment of 20 June 2011 concerning the applicant ’ s alleged involvement in the murders of R.Ž. and A.Č. ?

2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 6 § 2, as required by Article 13 of the Convention?

The parties are requested to inform the Court about any developments in the criminal proceedings against the applicant and submit the judgments adopted in those proceedings.