Published on 9 October 2023

SECOND SECTION

Application no. 35321/21 Žygimantas ŽUKAUSKAS against Lithuania lodged on 2 July 2021 communicated on 18 September 2023

SUBJECT MATTER OF THE CASE

The application concerns the assistance of a lawyer in proceedings concerning detention on remand.

On 22 May 2021 the applicant was arrested on suspicion of drug-related crimes. He authorised lawyer A.R. to represent him in the proceedings. On 23 May 2021 he was officially notified of the suspicions against him and questioned in the presence of his lawyer. On the same day the prosecutor lodged a request with the pre-trial investigation judge to authorise the applicant’s detention on remand for three months.

In the morning of 24 May 2021, the prosecutor telephoned the applicant’s lawyer and informed her that a hearing concerning the detention on remand would be held on that same day; the prosecutor asked the lawyer whether she agreed to holding the hearing via videoconference. The applicant’s lawyer agreed and asked the prosecutor to provide her with evidence on the basis of which detention on remand was sought. The prosecutor told the lawyer that he would call her back.

In a later official report, the prosecutor stated that during that phone call he had misunderstood the applicant’s lawyer as saying that she would not be able to participate in the hearing without accessing the case file first. The prosecutor told this to the pre-trial investigation judge and asked about the possibility to postpone the hearing. The judge rejected such a possibility and ordered that the applicant should be represented by a court-appointed lawyer. The applicant’s lawyer A.R. was not informed.

The hearing concerning the detention on remand was held before the pre ‑ trial investigation judge of the Vilnius District Court on 24 May 2021, at 11.25 a.m. The applicant submits that during the hearing the judge informed him that A.R. was unavailable and that he would be represented by a court-appointed lawyer; he agreed to be represented by the court-appointed lawyer because he had been misled by the judge.

The pre-trial investigation judge authorised the applicant’s detention on remand for 10 days. The applicant’s lawyer A.R. learned about that decision later on that same day.

The applicant lodged an appeal against the decision. He submitted, inter alia , that his right to legal defence had not been ensured because during the hearing he had not been represented by a lawyer of his own choosing and because the representation by the court-appointed lawyer had been ineffective. However, on 1 June 2021 the Vilnius Regional Court dismissed the appeal. In particular, it found that during the hearing before the pre-trial investigation judge the applicant had not asked for the court-appointed lawyer to be removed, and there was no indication that that lawyer had represented him ineffectively.

In October 2021 the Judicial Council asked the Judges’ Ethics and Disciplinary Commission to open disciplinary proceedings against the aforementioned pre-trial investigation judge, stating that there were grounds to believe that the judge had failed to properly organise the hearing, which had resulted in an unjustified restriction of the applicant’s right to be represented by a lawyer of his own choosing.

In November 2021 the Lithuanian Bar Association opened disciplinary proceedings against the aforementioned court-appointed lawyer, on the grounds that, inter alia , he had represented the applicant without being acquainted with the case file and without apprising himself of the applicant’s position regarding the suspicions against him.

The applicant complains that at the hearing of 24 May 2021 he was not represented by the lawyer of his own choosing. He submits that his lawyer A.R. was not informed about the time of the hearing and not provided with the information needed to join the videoconference, and that the applicant was misled by the prosecutor and the pre-trial investigation judge that A.R. was unavailable. He also submits that there was no legal basis for the court ‑ appointed lawyer to represent him because the decision on his appointment was drawn up only after the hearing. Moreover, the representation by the court-appointed lawyer was ineffective because the latter did not have enough time to get acquainted with the case file and he did not contact A.R. in order to coordinate the legal strategy with her. The applicant raises these complaints under Article 6 § 3 (c) of the Convention.

QUESTIONS TO THE PARTIES

Did the applicant have effective assistance of a lawyer during the hearing of 24 May 2021 concerning his detention on remand, as required by Article 5 § 4 of the Convention (see Lutsenko v. Ukraine , no. 6492/11, § 96, 3 July 2012, and Černák v. Slovakia , no. 36997/08, § 78, 17 December 2013)? In particular:

(a) Was the decision to have the applicant represented by a court ‑ appointed lawyer rather than the lawyer of his own choosing justified by relevant and sufficient reasons (see, mutatis mutandis , Dvorski v. Croatia [GC], no. 25703/11, §§ 81-82, ECHR 2015)?

(b) Was the legal assistance provided to the applicant by the court ‑ appointed lawyer practical and effective (see, mutatis mutandis , Beuze v. Belgium [GC], no. 71409/10, §§ 131-36, 9 November 2018)? The Court refers, in particular, to the applicant’s argument that the court-appointed lawyer did not have enough time to get acquainted with the case file prior to the hearing.