Communicated on 7 July 2015

SECOND SECTION

Application no. 19536/14 Janina ŽEKONIENĖ against Lithuania lodged on 27 February 2014

STATEMENT OF FACTS

The applicant, Ms Janina Žekonienė , is a Lithuanian national, who was born in 1940 and lives in Gelgaudiškis .

The circumstances of the case

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

On 17 February 2010 the applicant ’ s son, V.Ž., was arrested on suspicion of unlawful possession of drugs. On 19 February 2010 the Šakiai District Court authorised V.Ž. ’ s detention on remand for 14 days.

On the afternoon of 3 March 2010 the applicant arrived at the police station in Å akiai , where her son was detained, to bring him food and clean clothes. Investigator V.B. asked the applicant to go with him to his office in order to testify. When the applicant refused to testify against her son, V.B. took her by the hand and led her to his office. According to the applicant, V.B. wanted her to testify that her son had been involved in drug trading. After the applicant refused to do so, V.B. ordered that she be placed under provisional arrest (Article 140 of the Code of Criminal Procedure); the arrest order indicated that the applicant was suspected of unlawful possession of drugs with the purpose of distribution and that her detention was necessary to prevent her from fleeing, interfering with the investigation or committing further crimes. The applicant was placed in a cell near to her son.

On 4 March 2010 the applicant was presented with a notice that she was suspected of unlawful possession of drugs with the purpose of distribution, under Article 260 § 1 of the Criminal Code, that allegedly in February 2010 she had acquired drugs from unidentified persons, kept them in her daughter ’ s apartment with the purpose of distribution and distributed them. She was questioned as a suspect in the case.

At some point during the day the applicant started feeling weak, having a headache and a pain in her chest. An ambulance was called to the police department and the applicant was given first aid.

On the same day the applicant ’ s lawyer submitted a request to the Šakiai district prosecutor to release the applicant from provisional arrest. Before the district prosecutor made any decision, at 4 p.m. the applicant was released. The following day the district prosecutor rejected the applicant ’ s lawyer ’ s request, but the applicant did not appeal against it because she had already been released.

The applicant states that after her release she was not subject to any further investigative actions. On 3 September 2010 the Šakiai district prosecutor ’ s office discontinued the pre-trial investigation against the applicant on the ground of insufficient evidence that she had committed the crime provided for in Article 260 § 1 of the Criminal Code.

On 25 February 2013 the applicant lodged a civil claim for damages against the State under Article 6.272 of the Civil Code. She claimed that her provisional arrest had been unfounded because she had not committed any crimes, as proven by the subsequent discontinuation of the pre-trial investigation. The applicant also argued that her arrest had been unnecessary because at the time she was 70 years old, ailing and had difficulties walking; she had no prior convictions, was retired and had a place of residence with her husband; thus, it was unlikely that she would attempt to flee or hide from the investigation. She noted that the investigation against her son had been instituted on 17 February 2010 and there was no information that from that day until her arrest she might have committed any crimes or attempted to interfere with the investigation – on the contrary, she had voluntarily come to the police station to see her son. The applicant believed that the real purpose of arresting her was to force her to testify against her son.

The applicant submitted that she had suffered material and moral damages because of the provisional arrest: her blood pressure had risen and as a result she had had to seek medical help and take medication; she had become irritable, started having nightmares and was scared of police officers; she had felt humiliated in front of her son who was detained in a nearby cell, as well as other inhabitants of her village, who now thought of her as a criminal. The applicant requested pecuniary and non-pecuniary damages of 12,300 Lithuanian litai (LTL, approximately 3,562 euros (EUR)).

At the hearing before the Å akiai District Court the applicant further submitted that, after arresting her, the police officers had searched her purse and tried to undress her, but she had resisted. She stated that the cell in which she had been placed was damp and dilapidated and there were smells from the toilet, which made her nauseous.

On 27 May 2013 the Šakiai District Court dismissed the applicant ’ s claim. The court noted that the termination of the pre-trial investigation against the applicant did not make the investigation unlawful ab initio , and found that there had been sufficient grounds for suspicions against the applicant: drugs had been found in the apartment where she lived together with her son, V.Ž., as well as in the applicant ’ s daughter ’ s apartment in the same building; furthermore, while detained, V.Ž. had unlawfully been in possession of a mobile phone, and the police officers had had grounds to believe that he had called the applicant to instruct her to hide the drugs. Accordingly, the court found that the applicant ’ s provisional arrest had been well-founded. The court also noted that the applicant had not appealed against the district prosecutor ’ s decision of 5 March 2010 to refuse her release, which meant that the decision to arrest her had not been declared unlawful. Finally, the court held that the medical documents submitted by the applicant did not prove that the deterioration of her health had been caused by the provisional arrest.

On 29 October 2013 the Kaunas Regional Court rejected the applicant ’ s appeal and upheld the decision of the first instance court on essentially the same grounds. On 18 December 2013 the Supreme Court of Lithuania refused to examine the applicant ’ s cassation appeal as raising only questions of fact and thus giving no grounds for cassation.

COMPLAINTS

The applicant complains under Article 3 of the Convention that she was detained in poor conditions. She claims that the cell in which she was placed was damp and dilapidated and there were strong smells coming from the toilet, which made her nauseous. The applicant complains that she was especially humiliated to be detained next to her son, who was in a nearby cell, and that police officers mocked her about being detained together with her son. She claims that the provisional arrest caused a deterioration of her physical and mental health from which she suffers to this day.

The applicant also complains under Article 5 § 1 (c) of the Convention that her provisional arrest was unlawful and unfounded. She claims that there were no grounds to suspect her of having committed any crimes and that the real aim of the arrest was to force her to testify against her son. The applicant submits that at the time of her arrest she was 70 years old, retired, lived with her husband, had no prior convictions, was ailing and had difficulties walking, so there were no grounds to believe that she would attempt to flee or hide from the investigation.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, with respect to her complaint concerning the conditions of her detention?

2 . Has the applicant been subjected to degr ading treatment in breach of Article 3 of the Convention due to the conditions of her detention (see Enea v. Italy [GC], no. 74912/01, § § 55-59 , ECHR 2009 )?

3. Was the applicant ’ s provisional arrest from 3 to 4 March 2010 in breach of Article 5 § 1 of the Convention? In particular, was the provisional arrest arbitrary, especially in the light of the applicant ’ s advanced age and state of health (see Mooren v. Germany [GC], no. 11364/03, §§ 77-79, 9 July 2009)?