Communicated on 1 July 2015

SECOND SECTION

Application no. 22740/10 Donatas IMBRAS against Lithuania lodged on 29 March 2010

STATEMENT OF FACTS

The applicant, Mr Donatas Imbras , is a Lithuanian national, who was born in 1979 and lives in Vilnius . He is represented before the Court by Mr S. Zabita , 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.

1. T he applicant ’ s arrest

On 3 June 2006, at about 11.30 a.m., State Border Guard Service (hereinafter “the SBGS”) officers stopped two cars on the Kaunas-Klaip Ä— da highway. The applicant was a passenger in one of those cars. The officers found smuggled cigarettes in the other car. From 1 p.m. to 1.10 p.m. the applicant was searched and at 2.00 p.m. a report of his temporary arrest was drawn up. The applicant was charged with smuggling cigarettes, committed by a group of persons. On the same day, the applicant was placed in detention in the town of Å iauliai. The SBGS officers questioned him from 4.20 p.m. to 5 p.m. The applicant did not confess.

2 . T he applicant ’ s questioning on 5 June 2006 before the pre-trial investigation judge and the applicant ’ s release from detention

The applicant states that on 5 June 2006, and towards the expiry of the statutory 48 hour time-limit for keeping a suspect detained without a court order, the pre-trial investigation officers interrogated him, exerting pressure to confess before the pre-trial investigation judge, unless the applicant wished to stay in detention pending trial. The applicant states that the SBGS officers showed D.P. ’ s confession, incriminating the applicant, to break his resistance.

As the SBGS officers later acknowledged in court, later that day they had driven the applicant from the town of Å iauliai to a courtroom in the town of Pasvalys (some 70 kilometres separate these towns), which they had reached at about 4 p.m. that day. For that journey, the officers used the SBGS car. One of the SBGS officers also testified that the applicant had agreed to testify, and for that reason the officers had taken him to the judge.

According to the applicant, he was taken to the judge in the Pasvalys District Court in handcuffs. Having been warned about that by the pre-trial investigation judge, the SBGS officers removed the handcuffs from the applicant.

As it transpires from the court records, the hearing in the Pasvalys District Court took place in the judge ’ s office, in the presence of a prosecutor and two SBGS officers who had earlier taken the applicant to the court. According to the judge ’ s clerk, the latter assumed that ‘ [the applicant] was taken to the courtroom by convoy, only the officers did not wear uniforms ( a š manau, kad D. Imbr ą į apklaus ą atved ė konvojus , tik jie buvo be uniform ų ) ’ . According to the clerk, the officers remained in the judge ’ s office when the applicant was questioned, but did not pressure the applicant. The clerk could not remember whether the applicant had come to the judge in handcuffs, or whether the judge had given any orders to the officers who had brought the applicant. The applicant did not have a lawyer. In the pre-trial judge ’ s office the applicant was questioned from 4 p.m. until 6 p.m. He confessed to having taken part in transporting the cigarettes and described the circumstances of the crime.

After the questioning, the SBGS officers drove the applicant back to the town of Å iauliai.

The record of the applicant ’ s release from detention indicates that he was arrested on 3 June 2006 at 2 p.m. on suspicion of smuggling cigarettes and released on 5 June 2006, at 2 p.m. The applicant signed that record.

When questioned by the SBGS investigator on 9 August 2007, the applicant stated that his earlier testimony of 5 June 2006 had been given under psychological duress and was thus invalid. The applicant ’ s lawyer was present during that questioning.

3 . T he trial court ’ s judgment

On 29 October 2008 the Å iauliai Regional Court found the applicant guilty of smuggling cigarettes and imposed on him a fine of 22,880 Lithuanian litai (LTL, approximately 6,600 euros (EUR)).

When questioned in the courtroom during the trial, the applicant did not confess to the crime. He insisted that he had incriminated himself on 5 June 2003 because the investigators had earlier shown him D.P. ’ s testimony and ordered him to corroborate that testimony before the Pasvalys District Court judge, unless the applicant wished to remain in detention. The applicant stated that he had been de facto released from detention only in the evening of 5 June 2003, at about 6-6.30 p.m., after having been questioned by the pre-trial investigation judge. It was only then that he had signed the record of his release.

Before the trial court the applicant also noted not that he had not had a lawyer during that questioning. The applicant testified that before he was taken to the judge on 5 June 2005, [the SBGS] officers had informed him that a lawyer would not be present during his questioning before the judge and that, if he wished to have a lawyer, he should find one himself. The applicant ’ s lawyer observed that the applicant had had no opportunity to have a lawyer during the questioning of 5 June 2006, because he had been taken to the courtroom under duress. It was nowhere indicated in the court documents that the applicant had refused a lawyer who had been invited to the hearing of 5 June 2006.

The first instance court dismissed the applicant ’ s arguments about undue influence and breach of his procedural rights. It noted that the applicant ’ s statement which he had given on 5 June 2003 to the pre-trial investigation judge coincided not only with the officers ’ version of events, but also with D.P. ’ s statements. Moreover, the court considered that when questioned before the pre-trial investigation judge, the applicant had disclosed the details of the crime – how payments for the cigarettes were made – which D.P. did not know. Accordingly, there was no reason to doubt the applicant ’ s testimony of 5 June 2003.

4 . T he appellate court ’ s decision

The applicant appealed, noting that he had been detained for more than 48 hours without a court order, in breach of Article 5 § 1 of the Convention. He further maintained that the investigators had thus abused their powers so that the applicant would confess. There was no plausible explanation as to why during three questionings in the course of the pre-trial investigation he had denied his guilt, but had confessed only once, that is, on 5 June 2003, when no lawyer was present.

In reply to the applicant ’ s complaint that the same officers who had arrested him on the Kaunas-Klaip ė da highway had taken him to the judge in Pasvalys, the prosecutor acknowledged that ‘ officers drove and delivered the detained [applicant] ( atvežė ir pristatė pas teisėją sulaikytąjį Imbrą ) ’ to the courtroom, but that did not mean any breach of the law. Such procedures were allowed by the regulations of the convoy service.

The applicant ’ s lawyer pointed to the prosecutor ’ s admission that the applicant had been taken to the courtroom by convoy; accordingly, he had not travelled there of his own free will. Above all, the applicant had been taken to the court when he already had to be released. The prosecutor ’ s insinuation that by taking the applicant to the courtroom the officers had done him a favour was nothing but whitewashing.

On 13 January 2009 the Court of Appeal dismissed the applicant ’ s appeal. The court considered that the applicant had been released in Å iauliai at 2 p.m. on 5 June 2003, as was noted in the record of the applicant ’ s release, signed by the applicant himself. For the appellate court, the fact that the SBGS officers had ‘ delivered ( pristat Ä— ) ’ the applicant to the courtroom later that day ‘ raised no suspicions ( nesukelia į tarim ų ) ’ . It was only natural that once the prosecutor had decided to question the applicant in Pasvalys, and the latter had not objected to that, that the authorities had to ‘ take care of the applicant ’ s travel to Pasvalys and his return to Å iauliai ( pasir Å« pinti D. Imbro nuvykimu į Pasval į ir gr įž imu atgal į Å iaulius ) ’ , where the applicant had earlier already been released from detention.

The Court of Appeal also rejected the applicant ’ s suggestion that his guilt was based exclusively on his confession of 5 June 2006. On the contrary, it was also based on D.P. ’ s testimony, which was reliable inasmuch the main details of the crime were concerned. The contacts between the members of the organised group, including on the day they were apprehended, were also proved by their telephone records.

5 . T he Supreme Court ’ s decision

The applicant lodged an appeal on the points of law. He maintained , inter alia , that the Court of Appeal had examined the question of lawfulness of his detention only formally, and had ignored the circumstances in which his confession had been obtained.

The prosecutor admitted that the officers who had delivered the applicant to the Pasvalys District Court on 5 June 2006 had been present in the judge ’ s office, when the applicant was questioned by the pre-trial investigation judge. However, no incident had taken place during that questioning; the applicant had testified voluntarily and had made no complaints.

On 29 September 2009, the Supreme Court rejected the applicant ’ s appeal on points of law, holding that the applicant ’ s arguments about undue influence on him during the pre-trial investigation so that he would confess on 5 June 2006 had been correctly dismissed by the appellate court.

B. Relevant domestic law and practice

Article 20 of the Constitution provides that the freedom of a human being is inviolable. No one may be arbitrarily detained or arrested. No one may be deprived of his freedom, except on grounds and according to procedures established by law. A person detained in flagrante delicto must be brought before a court within 48 hours for the purpose of obtaining a decision, in the presence of the detainee, on the validity of the detention. If the court does not decide that the detainee should be arrested, he or she will be released immediately.

Article 140 § 4 of the Code of Criminal Procedure provides that temporary arrest may last up to 48 hours, and then must be ordered by a judge. The time of temporary arrest starts running from moment when a person was de facto arrested.

Article 31 of the Constitution provides that a person suspected of committing a crime will be guaranteed, from the moment of his or her detention or first questioning, the right to defend himself and the right to a lawyer.

On 28 June 2007 the Senate of the Supreme Court held that when deciding whether evidence has been obtained lawfully, the court must examine whether the manner in which the evidence was obtained did not contradict the requirements prescribed by law ( Aukščiausiojo Teismo Senato B aud ž iamojo proceso kodekso norm ų , reglamentuojan č i ų į rodin ė jim ą , taikymo teism ų praktikoje ap ž valga ).

According to the Rules on Convoy ( Konvojavimo taisykl Ä— s ), approved by the Ministers of Justice and Internal Affairs, the convoy service escorts persons who are arrested, detained or convicted.

COMPLAINT S

The applicant complains under Article 5 of the Convention that his detention without a court order exceeded the 48 hour time-limit, prescribed by the domestic law. He argues that the courts examined the question of lawfulness of his detention on 5 June 2006, but did it so only formally.

Under Article 6 § 1 of the Convention the applicant further complains that when finding him guilty the criminal courts relied on his confession of 5 June 2006, even though that confession had been obtained under duress and in violation of Article 5 of the Convention. He observes having never confessed to the crime, except for that one occasion, when he had no lawyer.

QUESTIONS TO THE PARTIES

1. As regards the events of 5 June 2006, was the applicant deprived of his liberty within the meaning of Article 5 § 1 of the Convention (see Foka v. Turkey , no. 28940/95, § 74 , 24 June 2008 )? The Court specifically refers to the time between 2 p.m. and the moment when the applicant was taken back to Å iauliai town at about 6 p.m. later that day.

If so, was the deprivation of liberty “lawful”, “in accordance with a procedure prescribed by law” and not arbitrary (see Mooren v. Germany [GC], no. 11364/03 , § § 72 and 76-78 , 9 July 2009 ; also see Venskutė v. Lithuania , no. 10645/08 , § § 71-81 , 11 December 2012 )?

2. Has there been a violation of the applicant ’ s right to a fair hearing under Article 6 § 1 of the Convention, on account of the fact that when finding the applicant guilty the courts relied on his testimony given to the pre-trial investigation judge on 5 June 2006? Was the applicant ’ s right to a fair hearing impaired by the fact that when questioned on 5 June 2006 he did not have a lawyer?