SECOND SECTION

DECISION

Application no. 30782/20 Renaldas PAULIUKEVIÄŒIUS against Lithuania

The European Court of Human Rights (Second Section), sitting on 6 June 2023 as a Committee composed of:

Pauliine Koskelo , President , Egidijus Kūris, Frédéric Krenc , judges , and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 30782/20) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 7 July 2020 by a Lithuanian national, Mr Renaldas Pauliukevičius (“the applicant”), who was born in 1987 and resides in London and who was represented by Mr K. Bitaris, a lawyer practising in Klaipėda;

the decision to give notice of the complaint, under Article 5 § 1 of the Convention, concerning lawfulness of the applicant’s deprivation of liberty to the Lithuanian Government (“the Government”), represented by their Agent, Ms K. Bubnytė-Širmenė, Representative of Lithuania to the European Court of Human Rights, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1 . On 23 December 2004 the Alytus Region District Court found the applicant, who was then seventeen years old, guilty of theft, and sentenced him to nine months’ imprisonment. That sentence was combined with sentences imposed for the applicant’s three previous convictions for property-related offences, and the court imposed a final sentence of one year and three months of imprisonment, suspending the execution of the sentence for two years and six months. The applicant was instead required, for a period of six months, to continue his education and to stay at home between 9 p.m. and 6 a.m. The judgment came into force on 13 January 2005.

2 . On 21 June 2005 the Alytus Region District Court revoked the suspension of the sentence because the applicant had failed to comply with the conditions on him during the period of the suspension (see paragraph 1 above), without any justifiable reasons. The court referred to a court order of 18 April 2005, in which the applicant had been warned that, should he continue to fail to fulfil the conditions imposed by the court, or should he commit a further offence, the suspension of the sentence could be revoked and the custodial sentence activated. The applicant had, however, not fulfilled the conditions even after that warning. The court also established that on 12 January 2005, before the judgment of 23 December 2004 had come into force, the applicant had crossed the Lithuanian State border. The material in the case file showed that he had gone to live in Spain and that he had no intention of returning to Lithuania. In addition, by a court decision of 25 February 2005 the supervision measure imposed in respect of the applicant had been changed to arrest, and a search for him had been initiated. The court concluded that the applicant had intentionally failed to comply with the requirements imposed by the court.

3 . On 23 June 2006 the Ministry of Justice of the Republic of Lithuania issued a European Arrest Warrant in respect of the applicant.

4 . On 2 May 2012 the applicant was convicted by a London Magistrate of assaulting a constable; using disorderly behaviour or threatening or insulting words likely to cause harassment, alarm or distress; and for other criminal acts.

5 . On 17 March 2013 the applicant was arrested in the United Kingdom on the basis of the European Arrest Warrant of 2006; he was released on bail the same day. On 29 November 2013 the Westminster Magistrates’ Court ruled against the execution of the warrant. The court acknowledged that the applicant had fled Lithuania in 2005 “knowing full well that he was about to start a custodial sentence. There [was] a strong public interest in [the United Kingdom] not becoming a safe haven for convicted criminals”. The court also observed that the applicant did not deny having been convicted in the United Kingdom. There was no blame to be attached to the Lithuanian authorities regarding the delay in issuing the European Arrest Warrant. Even so, the court held, “with some hesitation”, that to extradite the applicant to Lithuania to serve his sentence would be disproportionate since the applicant had not been hiding from the United Kingdom authorities and had committed his offences in 2003 and 2004 as a youth; he had also built a family life in London, and, with his partner, had two children, at that time eight and nine years of age.

6 . On 9 February 2017 the Kaunas Regional Court issued a new European Arrest Warrant for the applicant, referring to the fact that in 2016 the Court of Justice of the European Union had held that the body issuing such a warrant should be judicial rather than part of the executive.

7 . On 8 November 2018 the Alytus District Court dismissed a request by the applicant to be released from the obligation to serve the sentence imposed in 2004 (see paragraph 1 above). The court referred to Article 96 §§ 1-3 of the Criminal Code (see paragraph 12 below) and held that the limitation period for the activation of the applicant’s sentence did not apply. Specifically, the applicant had been present when the 2004 judgment had been pronounced, but in January 2005 he had left Lithuania, thus evading serving the sentence. At that time the applicant had already been aware that another criminal case against him had been transferred to the court. Knowing that an international search for him had been instituted, the applicant had failed to return to Lithuania, which clearly demonstrated that he was avoiding serving his sentence. Although on 17 March 2013 the applicant had been arrested in the United Kingdom on the basis of the European Arrest Warrant, he had been released the same day on bail. That had been an arrest only for the purpose of extradition, and not for the purpose of having him serve the sentence. The three-year limitation period for the activation of the sentence had therefore not started running again on the day of his arrest in the United Kingdom.

8 . On 10 December 2018 the Kaunas Regional Court dismissed an appeal by the applicant and upheld the District Court’s decision refusing the applicant’s request to be released from the obligation to serve his sentence.

9 . In the proceedings here at issue, by a ruling of 12 February 2020 the Alytus District Court refused a request by the applicant that it apply Article 96 § 3 of the Criminal Code and not execute the 2004 judgment because fifteen years had passed since the conviction. The court referred to the applicant’s history of avoiding serving the sentence (see paragraphs 1 and 2 above), and held that this meant that the three-year time-limit for enforcement had stopped running. That being so, the court likewise observed that a limitation period for the execution of the sentence could not be extended indefinitely: the nature of limitation for the execution of a sentence was justified by the fact that serving it long after it had been imposed would not achieve its objective, as it would have lost its deterrent effect and would no longer meet the purpose for which the punishment had been imposed. That had been the rationale behind Article 96 § 3 of the Criminal Code. The only condition under which the fifteen-year limitation period for the execution of a sentence would not apply was where a person committed a further criminal offence (Article 96 § 4).

10 . The District Court also held that when deciding whether there were grounds to apply the provisions of Article 96 of the Criminal Code, the court had not only to assess the information submitted by the participants in the proceedings but also to find out for itself whether, after the judgment had come into force, the applicant had committed any further offences not only in the Republic of Lithuania, but also in any other country, especially in another member State of the European Union. In the case under review, the fifteen-year limitation period for the execution of the sentence would have expired on 13 January 2020, had there been no information that the applicant had committed further criminal offences. An extract from the Register of Suspects and Accused and Convicted Persons issued by the Information Technology and Communications Department of the Ministry of the Interior of the Republic of Lithuania indicated that in 2012 the applicant had been convicted in the United Kingdom (see paragraph 4 above). It followed that the applicant had committed a further criminal offence after the judgment of 2004 (see paragraph 1 above) had come into force and that time had stopped running for the purposes of limitation. Time had begun running again from the day when the further criminal offence had been committed (Article 96 § 4 of the Criminal Code). Accordingly, the limitation period for the execution of the 2004 judgment could not be applied.

11 . By a final ruling of 17 March 2020 the Kaunas Regional Court dismissed an appeal lodged by the applicant, upholding the lower court’s decision as lawful and reasonable. The court disagreed with the submissions of the applicant, who disputed the accuracy of the information from the Register of Suspects and Accused and Convicted Persons. The extract provided had all the required information, it had been approved by the person who prepared such extracts, and the court had no grounds to question the veracity of the information provided in the extract. That information had not been rebutted by any document or any other type of evidence.

12 . The relevant parts of the Criminal Code at the material time read:

Article 96. Limitation period for the execution of a judgment of conviction

“1. A judgment of conviction shall not be executed where:

1) it was not executed:

...

b) within three years following the imposition ... of a custodial sentence for a term not exceeding two years;

... and

2) during the period specified in point 1 of paragraph 1 of this Article the convicted person did not evade serving the sentence and did not commit a further criminal offence.

...

3. Where, after a judgment becomes effective, the convicted person evades serving the sentence, time shall stop running for the purposes of limitation. ... [T]ime shall resume running from the date when the convicted person gives himself or herself up to serve the sentence or is detained. However, the judgment may not be executed where fifteen years have elapsed since its coming into force ... and time has not stopped running following the commission of a further criminal offence.

4. Where the convicted person commits a further criminal offence before the expiry of the limitation period for execution of a judgment of conviction, time shall stop running for the purposes of limitation. In this case, the limitation period for execution of the judgment of conviction shall run from the commission of a further serious or minor criminal offence. ...”

13 . The Government provided the Court with a summary of several decisions in which the Lithuanian courts had held that, when deciding whether the fifteen-year limitation period for the execution of a sentence should be applied, convictions not only in Lithuania but also in other European Union countries should be taken into account. The information could be established by referring to data from the Register of Suspects and Accused and Convicted Persons.

14. The applicant complained that the Lithuanian courts’ decision not to release him from the obligation to serve the sentence based on his conviction of 2004 had been in breach of Article 5 § 1 of the Convention.

THE COURT’S ASSESSMENT

15. The Court firstly notes that the applicant currently is at liberty, and therefore the question arises whether Article 5 of the Convention is applicable (see, mutatis mutandis , Fodale v. Italy , no. 70148/01, § 40, ECHR 2006 ‑ VII). Be that as it may, the Court finds that the complaint is in any case inadmissible for the reasons described below.

16. It is well established in the Court’s case-law under Article 5 § 1 that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f), be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law (see Saadi v. the United Kingdom [GC], no. 13229/03, § 67, ECHR 2008, and the case-law cited therein).

17. The Court observes that the Lithuanian courts had clarified already in a previous set of proceedings that the applicant had fled justice in Lithuania and that the conditions set out in Article 96 §§ 1-3 of the Criminal Code therefore did not apply (see paragraphs 7 and 8 above). The domestic courts reasoned that, immediately after his conviction, the applicant had been given several opportunities to correct his behaviour, including the fact that although he had been given a custodial sentence, that sentence had initially been suspended (see paragraph 2 above).

18. In its impugned ruling of 17 March 2020, confirming the lower court’s decision, the Regional Court, in the light of the evidence of the case and having established that the applicant had committed a further offence before the expiry of the fifteen-year limitation period for the execution of a sentence following conviction, considered that it could not apply the provisions of Article 96 § 3 of the Criminal Code. It assessed in this regard the information about the applicant’s conviction in the United Kingdom provided in the Register of Suspects and Accused and Convicted Persons and ruled that there were no grounds to doubt the veracity of that information. Although in his observations to the Court the applicant asserted that he did not know about his convictions in the United Kingdom, the fact remains that, as was also pointed out by the Government, he did not deny that he had committed those criminal offences, this having been at least partially acknowledged by the applicant during the extradition proceedings (see paragraphs 4 and 5 above). Accordingly, in the case at issue the Court has no reason to consider that the procedure prescribed by the Criminal Code was not followed. The Court also finds that the procedure prescribed under domestic law in Article 96 of the Criminal Code was sufficiently precise and foreseeable in its application. Given the examples of the case-law of the domestic courts provided (see paragraph 13 above), which demonstrate the clarity and consistency of the legal interpretation of the provisions of Article 96, it is clear that the applicant could not have reasonably expected to be released from having to serve his sentence as the conditions prescribed in Article 96 §§ 3 and 4 of the Criminal Code had not been met.

19. The Court therefore concludes that, if arrested, the applicant would not be deprived of his liberty in breach of Article 5 § 1 of the Convention as a result of the fact that in 2020 the courts refused to release him from having to serve the sentence and he would thus be detained after conviction within the meaning of Article 5 § 1 (a). In the Court’s view, the procedure prescribed under the domestic law was sufficiently precise and foreseeable and the principle of legal certainty was observed.

20. It follows that the applicant’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 29 June 2023.

Dorothee von Arnim Pauliine Koskelo Deputy Registrar President