23 May 2008

SECOND SECTION

Application no. 37553/05 by Arūnas KUDREVIČIUS and Others against Lithuania lodged on 8 October 2005

STATEMENT OF FACTS

THE FACTS

The applicants, who are all Lithuanian nationals, are: Mr. Arūnas Kudrevicius , born in 1970 and living in Vaitkūnai village, Utenos region; Mr. Artūras Pilota , born in 1973 and living in Ožkasviliai village , Marijampol ė region ; Mr. Kęstutis Miliauskas , born in 1959 and living in Jungėnai village, Marijampolė region; Mr. Virginijus Mykolaitis , born in 1961 and living in Varakiškė village , Vilkaviškis region; and Mr. Bronius Markauskas , born in 1960 and living in Triušeliai village, Klaipėda region. They are represented before the Court by Mr K. Stungys , a lawyer practising in Vilnius .

A. The circumstances of the case

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

On 15 April 2003 a group of farmers held a demonstration in front of the Parliament building to protest about the situation in the agricultural sector with regard to the fall in wholesale prices of various agricultural products and the lack of subsidies for producing those products, attempting to draw attention to the critical situation in the sector and demanding that the State take action .

On 22 April 2003 Parliament adopted a resolution aimed at strengthening the agricultural sector. However, the Government refused to implement the resolution.

On 16 May 2003 “the Chamber of Agriculture” (“ Žemės ūkio rūmai ”) , an organization established to represent the interests of farmers, met to discuss possible solutions to the problems. If there were no positive changes in legal regulation, the measures foreseen included addressing complaints to the administrative courts and the European Court of Human Rights. Meanwhile, it was decided to organize, in three different locations next to the major roads of the State, protests to draw attention to the problems in the agricultural sector.

Prior permission for the protests in the Kalvarija and Pasvalys areas had been received on 5 and 8 May 2003 respectively. The permits designated particular parking lots for the purposes of the protest. The permit for the Klaipeda region, designating an area of 25 metres next to the main road, was received on 19 May 2003.

The protests started on 19 May 2003. The farmers gathered in the designated areas.

On 20 May 2003 the first collective negotiations between the representatives of the farmers and the Government were held . On the same date the representatives of the farmers decided to block the roads next to the designated protest areas.

On 21 May 2003, on the basis of that decision, the farmers blocked and continued to demonstrate on the roads next to Dirpuviai village, on Vilnius- Klaipėda highway, on the 63 rd kilometre of Panev ė žys-Pasvalys-Riga road (A-10), and on the 94 th kilometre of Kaunas- Marijampole-Suvalkai highway. The police had been told in advance about such a possibility, and traffic was directed onto other roads.

On 22 May 2003 the negotiations with the Government representatives continued. On the same date, following the successful outcome of those negotiations, the farmers discontinued the blocking of the roads.

On 21 May 2003 pre-trial investigations against the applicants and a number of other persons were started. The pre-trial investigation was started against Mr. Kudrevičius , Mr. Miliauskas , Mr. Mykolaitis and Mr. Pilota on suspicion of instigating riots under Article 283 § 1 of the Criminal Code (hereafter – the CC) and against Mr. Markauskas on suspicion of breach of public order under Article 284 § 1 of the CC. Between 15 July and 6 August 2003 Mr. Kudrevičius was officially informed that he was suspected of incitement to riot under Article 283 § 1 of the CC, Mr. Miliauskas , Mr. Mykolaitis and Mr. Pilota that they were suspected of breaching public order during the riot under Article 283 § 1 of the CC and Mr. Markauskas that he was suspected of breaching public order during the riot under Article 284 § 1 of the CC. Various requests by the applicants to discontinue the investigations were refused. On 5 September 2003 the cases against the applicants were joined into one.

Aiming to show that the dispute with the Government was of a social nature, on 8 October 2003 the applicants requested the chief investigator to carry out an analysis of the economic situation and to question as witnesses the Prime Minister of the State, the Minister of Financial Affairs, the Minister of the Economy and other persons who had taken part in the collective negotiations with the farmers. Their request was refused. On 13 October 2003 the applicants wrote to the public prosecutor; however, the prosecutor upheld the refusal, stating that the data that would be gathered in the course of such an analysis would not have any connection with the investigation of the organizing of and participation in the riot.

On 4 December 2003 the bill of indictment was brought to the courts. Mr. Mykolaitis , Mr. Miliauskas and Mr. Pilota were accused under Article 283 §1 of the CC of gross breach of public order during the riot. Mr. Markauskas and Mr. Kudrevi čius were accused of incitement to riot under Article 283 §1 of the CC . Article 283 § 1 states the following:

Article 283. Riot. 1. A person who has organized or provoked a gathering of persons to commit public acts of violence, damage property or grossly breach public order in other ways, or a person who has committed acts of violence during a riot, damaged property or grossly breach ed public order in other ways, can be sentenced to temporary deprivation of liberty or imprisonment for up to 5 years ( 283 straipsnis . Riaušės . 1. Tas , kas organizavo ar išprovokavo žmonių sambūrį viešai smurtauti , niokoti turtą ar kitaip šiurkščiai pažeisti viešąją tvarką , taip pat tas , kas riaušių metu smurtavo , niokojo turtą ar kitaip šiurkščiai pažeidė viešąją tvarką , baudžiamas areštu arba laisvės atėmimu iki penkerių metų ).

Within the criminal proceedings, a logistics company brought a civil claim against Mr. Kudrevičius , as the person who incited the farmers to block the 63 rd kilometre of the Panev ė žys-Pasvalys-Riga road (A-10), requesting damages of LTL 1,000 (approximately EUR 290) for the loss allegedly incurred due to the blockage of that road.

On 6 February 2004 the Kaunas City District Court decided to examine the case and dismissed a request by Mr. Kudrevičius to discontinue it.

On 17 February 2004 the applicants brought a complaint to the Ombudsman ’ s office requesting acknowledgement that the Ministry of the Economy and the Minister himself had acted in contravention of the Constitution and other laws of the State and had failed to execute their obligations to regulate relations between producers and wholesale buyers in such a manner as to serve the public good. They further requested the Ombudsman to suggest that the Government compensate the damage caused to the farmers by the Ministry of Economy, and if the Government failed to comply, to bring a claim to the courts. On 17 June 2004 the Ombudsman ’ s office informed the applicant that it could not act as a referee in the dispute or solve the economic problems in the sector. It further stated that the Ombudsman ’ s office did not have a role in forming and implementing policy in a particular sector, nor did it determine the need for certain measures.

On 16 August 2004 the Kaunas City District Court suspended examination of the case in respect of Mr. Miliauskas , Mr. Mykolaitis , Mr. Markauskas and Mr. Kudrevičius , as they had failed to present themselves at the hearing. On this date the case was examined only with regard to Mr. Pilota .

On 29 September 2004 the Kaunas City District Court imposed a 60-day custodial sentence ( baudžiamasis areštas ) on the applicants under Article 283 § 1, suspended for one year. The civil claim within the case was granted and Mr. Kudrevičius was ordered to compensate the damage suffered by the company. The court stated that Mr. Kudrevičius had coordinated the actions of other protesters on 21 May at 11 a.m. in the Pasvalys area; he was one of the persons who had conducted the farmers ’ meeting of 16 May, where the decision to block the roads had been taken, and was therefore guilty of incitement to riot. The court further stated that Mr. Markauskas had instructed the protesters to block the road on 21 May at 11 a.m. in the Klaipėda region in full knowledge that such actions were not in conformity with the law and had thus incited them to riot . The court found that Mr.Mykolaitis , Mr. Miliauskas and Mr. Pilota had participated in the riot by blocking the road in the Kalvarija area with their vehicles on 21 May 11 a.m.

On 14 January 2005 the Kaunas Regional Court upheld the decision. As to the applicants ’ complaint that the offence had lost its element of public danger, the court stated that the criminal offence had not lost that element merely because the government had refused to raise the wholesale prices, or because the government had allegedly failed to take the necessary action.

As to the freedom to express opinions, the court stated that the behaviour of the applicants, by which they had guided the actions of other persons in the protest, could not be regarded as a non-punishable expression of their opinion, because they had breached public order by their actions and criminal liability is foreseen for such actions.

As to the applicants ’ complaints regarding a fair trial, the court observed that when video recordings were shown as evidence at the court of first instance, the applicants did not allege that they had been falsified, although they had each been asked if the events shown in the recording were true. The mere fact that the film was made with interruptions does not mean that it was illegitimate evidence. Although the applicants alleged that one of the tapes had been falsified, the judgment was not based on that particular tape. The refusals to question some witnesses were reasoned, the evidence in the case was legitimate and not falsified and no other procedural violations were found. The refusal to question the Prime Minister and other State officials was legitimate, as they did not have any connection with the case.

The court also observed that although Mr. Miliauskas , Mr. Mykolaitis , Mr. Markauskas and Mr. Kudrevičius had failed to attend the first hearing, the court had suspended examination of the case with regard to those applicants. Witnesses had not been questioned in the absence of the applicants concerned. Thus, the rights of the applicants had not been infringed at any point.

As to the applicant ’ s complaint regarding immunity, while some of the applicants were candidates to the Parliament of Lithuania and the Parliament of the European Union at the time of the proceedings, the crime had been committed before they were registered as candidates and thus did not have immunity under the domestic law with regard to this particular crime. Finally, it also concluded that the evidence in the case had clearly shown that on 19 May 2003 the representatives of the farmers had agreed to block the roads if their demands were not satisfied.

On 4 October 2005 the Supreme Court, sitting as a panel of seven judges, dismissed a cassation appeal by the applicants. The court stated that the conviction of the applicants had been in accordance with the law. The Supreme Court performed a careful examination of the provision of the CC applied to the applicants and found that the qualification of their actions under this provision had been reasoned and legitimate. In particular, the applicants had been sentenced for the crime under the law which was valid at the time of committing the crimes and the sentence had been imposed in accordance with the provisions of the CC. The court of first instance had established all the prerequisites for the application of the CC provision, namely, that there had been a crowd and that public order had been breached, as the facts that the major roads had been blocked, traffic had been stopped and the work of the institutions had been disturbed were sufficient to allow such a conclusion to be reached.

The court also stated that the applicants had not been sentenced for expressing their opinion or imparting ideas, but for actions by which they had grossly breached public order. While part of the examination of the case had been carried out without some of the applicants being present, they had failed to submit any legitimate reasons for their absence, and thus the courts had had the right to examine the case without them. Furthermore, the conviction was based solely on the evidence examined at the hearing at which all applicants had been present. The representative of the applicants had also had every opportunity to question any witness in the case. The question of the immunity of the candidates to Parliament had also been justly settled. Finally, the court stated that decisions of the courts are not meant to be monographs and they cannot contain extensive reflections on the doctrine of law.

COMPLAINTS

The applicants complain ed under Article 1 of Protocol No. 1 to the Convention that the farmers ’ produce was underpriced . In particular they alleged that blocking the major State roads had been an adequate and proportionate means to protect their possessions, that is, to demand appropriate prices and subsidies for their production, and as well compensation for the under pricing.

Under Article 11 of the Convention the applicants complained that the criminal investigation and the penalizing of the expression of their opinions during the strike and for participating in it violated their right to strike and the right to take appropriate measures to defend the interests of members of trade unions.

Under Article 10 of the Convention the applicants complained that they had been punished for imparting information to the farmers about the situation in the agricultural sector and for expressing their opinion on how to deal with the issue. They alleged that the requirements of Article 10 § 2 of the Convention for the restriction of the freedom of expression had not been met, in particular, that Article 283 of the CC was not a legitimate ground to restrict their freedom of expression.

The applicants complained under Article 7 of the Convention that the provisions of the CC , under which they were sentenced, were not clear ly defined by law and had been freely interpreted by the national courts; furthermore they alleged that they had been sentenced for actions that were not crimes under either domestic or international law. The applicants maintained that violation of traffic regulations could not be regarded as a feature of the crime under Article 283 of the CC and that violation of Articles 124 1 and 131 of the Code of Administrative Offences c ould not be regarded as a gross breach of public order. Therefore, the applicants should have been punished under Articles 124 1 and 131 of the Code of Administrative Offences. The applicants submitted that in the European Union the blocking of roads is understood as a form of strike , and made a reference to EU regulation no. EC-2679/98 on the free movement of goods. According to the applicants, i n the course of the unfair proceedings , in which the courts had artificially construed the application of Article 283 § 1 of the CC to the applicants ’ actions, they had been wrongly sentenced for organizing and taking part in a riot and for gross breach of public order during the riot . The courts had failed to analyse the ir reasons for blocking the roads and ignored the fact that the crimes had been committed out of indispensable defence, as the applicants had been trying to protect their property.

Under Article 6 of the Convention the applicants complained that through the abuse of the criminal law the strike had been criminalized. They also complained that a number of procedural violations had occurred. In particular, they alleged that the courts had violated the rights of the applicants to make submissions, that their requests to question certain witnesses (the politicians who took part in the negotiations with the farmers) and to order the expert analysis had been dismissed. They further submitted that the court of appeal had refused their request to view all the video recordings of the scene, in particular, the parts that would prove that they had been falsified. They also complained that as Mr. Miliauskas , Mr. Mykolaitis , Mr. Markauskas and Mr. Kudrevičius had not been present at the hearing, the court had suspended examination of the case with regard to them, but it had nonetheless questioned 8 witnesses about the blockage of the roads, and those witnesses were not questioned again later. They further complained that the domestic courts did not request the Supreme Elections Commission to annul the immunity they were entitled to as parliamentary candidates thus breaching the provisions of the law on elections. Finally the applicants alleged that joining the cases against the applicants into one resulted in a lengthy trial.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicants ’ freedom of expression, within the meaning of Article 10 § 1 of the Convention?

If so, was that interference prescribed by law and necessary in a democratic society? Was the interference proportionate, having regard to the fact that the applicants were given a custodial sentence in criminal proceedings?

2. Has there been an interference with the applicants ’ freedom of peaceful assembly and association, within the meaning of Article 11 § 1 of the Convention?

If so, was that interference prescribed by law and necessary in a democratic society? Was the interference proportionate, having regard to the fact that the applicants were given a custodial sentence in criminal proceedings?

3. Has there been a violation of Article 7 of the Convention, in particular, was the crime clearly defined by law? Reference is made to the allegations by the applicants that the Criminal Code does not clearly define the notion of “gross breach of public order”.

4. Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention? Reference is made to the applicants ’ allegations regarding the following:

Participation in the hearings and the serving of the summons;

Use of audio-video materials and alleged falsification of the recordings;

The evidence on which the convictions were based and the alleged breach of the right to question witnesses.