Communicated on 25 May 2016

FOURTH SECTION

Application no. 5394/12 Robertas POCIUS against Lithuania lodged on 18 January 2012

STATEMENT OF FACTS

The applicant, Mr Robertas Pocius , is a Lithuanian national who was born in 1960 and lives in Palanga . He is represented before the Court by Mr A. Jucys , a lawyer practising in KlaipÄ—da .

A. The circumstances of the case

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

The applicant was a customs officer. In 2003 he came under suspicion of participating in smuggling. He was a head of division in the customs office and agreed to let a cargo of shoes pass the border without being declared. The suspicion against him was based on the reports of other officers, intercepted telephone conversations and other evidence.

The applicant was placed under arrest on 5 May 2003. On 19 May 2003 his arrest was annulled and he was ordered not to leave the country.

On 28 July 2004 a bill of indictment was drawn up.

The applicant was suspended from his official duties from 9 May 2003 to 9 August 2004 as a result of the restrictive measures against him. From 9 August 2004 to 8 March 2007 he was suspended from his official duties owing to the ongoing proceedings and the official investigation.

1. Criminal proceedings against the applicant

On 14 July 2006 the Klaipėda Regional Court acquitted the applicant. The court found that the applicant had not committed any offence as he had been ill at the time. Moreover, the transcript of the telephone conversation was found to be incorrect because it stated that the applicant had said “cargo” but the court found that that word had not been used.

On 3 March 2007 and 12 July 2007 the Court of Appeal and the Supreme Court respectively upheld the decision of the court of first instance.

In the meantime a commission at the customs office carried out an internal investigation into alleged abuse of authority. On 7 March 2007 the commission proposed terminating the official investigation against the applicant. One day later, on 8 March 2007, the applicant was reinstated and an order was made to pay him his salary for the full period of his suspension, from 9 May 2003 to 7 March 2007. However, it emerged that the prosecutor had launched a cassation appeal and the order to pay his salary was suspended until that had been dealt with.

On 26 July 2007 a new order was issued to pay the applicant ’ s salary for when he was suspended, but only for the period from 9 August 2004 to 8 March 2007. The applicant complained to the domestic courts and the Vilnius Regional Administrative Court held that he had to start civil proceedings for damages, including unpaid salary for when he was suspended .

2. Civil proceedings for damages

The applicant started court proceedings for damages. He sought pecuniary damages of 35,000 Lithuanian litai ( LTL) (approximately 10,000 euros (EUR) ) in respect of pecuniary damages for legal aid, EUR 15,019 for unpaid salary for his illegal suspension from 9 May 2003 to 9 August 2004 and EUR 173,772 in respect of non-pecuniary damages.

On 3 June 2008 the KlaipÄ—da Regional Court held that the transcript of the telephone conversation which had a mistake in it had not been the only ground to start criminal proceedings against the applicant but had influenced the restrictive measures applied to him. The court then satisfied the applicant ’ s requests and awarded him EUR 15,019 in respect of pecuniary damages, EUR 1,158 for legal aid and EUR 5,792 in respect of non ‑ pecuniary damages.

On 4 December 2008 the Court of Appeal stated that the court of first instance had made some procedural mistakes and returned the case for fresh examination.

On 30 March 2009 the KlaipÄ—da Regional Court again awarded the applicant EUR 15,019 in respect of pecuniary damages, EUR 1,448 for legal aid and EUR 5,792 in respect of non-pecuniary damages.

On 19 November 2009 the Court of Appeal upheld the decision of the court of first instance.

On 3 May 2010 the Supreme Court held that the Court of Appeal had not properly examined the alleged illegal actions of the State, which was a precondition for establishing the State ’ s civil liability. The court also stated that the lower courts had not assessed if writing the word “cargo” in the transcript of the telephone conversation had been the main reason for applying restrictive measures on the applicant. The case was therefore returned to the Court of Appeal.

On 14 June 2011 the Court of Appeal elaborated on the notion of illegal actions necessary for the State to incur liability. The court stated that although the word “cargo” had been mentioned in the telephone call transcript and that it had later been found that that word had not in fact been used, the mention of that specific word had not been the only trigger for initiating criminal proceedings. It found that the pre-trial investigation had started before the transcript had been made, the applicant had been suspected of more than one crime, the bill of indictment had been based on the reports of other officers, statements, searches of the crime scene, reports and searches of smuggled goods, as well as on various conspiracies and telephone conversations. The court concluded that law-enforcement officials had done nothing illegal and dismissed the applicant ’ s civil claim.

On 20 September 2011 the applicant ’ s cassation appeal was dismissed as not raising any important legal issues.

B. Relevant domestic law

Article 53( 1 )( 8) of the Statute on the Internal Service provides that an officer can be dismissed from his job if he has been convicted of a premeditated crime or a misdemeanour by a final court judgment.

Article 6.272 § 1 of the Civil Code allows a civil claim to be lodged in respect of pecuniary and non-pecuniary damage caused by the unlawful actions of investigating authorities or the courts. The Article in question makes provision for compensation for unlawful conviction, unlawful arrest or detention or for the application of unlawful procedural measures in enforcement proceedings. The relevant part of the provision reads as follows:

Article 6.272. Liability for damage caused by the unlawful actions of preliminary investigation officials, prosecutors, judges and the courts

“1. Damage resulting either from unlawful conviction, unlawful arrest as a suppressive measure, unlawful detention, the application of unlawful procedural measures in enforcement proceedings, or the unlawful imposition of an administrative penalty (arrest) shall give rise to full compensation by the State, irrespective of the fault of the preliminary investigation officials, prosecution officials or courts.”

COMPLAINT

The applicant complains under Article 1 of Protocol No. 1 to the Convention about the refusal to pay his salary for part of the period when he was suspended or to give him any compensation, despite the fact that he was acquitted in the criminal proceedings.

QUESTION TO THE PARTIES

Was the refusal to pay the applicant ’ s salary for part of the period when he was suspended or to pay him any compensation, although he was acquitted in the criminal proceedings, in line with Article 1 of Protocol No. 1 to the Convention?