CASE OF ALBRECHTAS v. LITHUANIA – Application no. 1886/06 (2016)

Facts:

The case originated in an application against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms by a Lithuanian national, Mr Alvydas Albrechtas, on 19 December 2005. The applicant alleged a breach of Article 5 of the Convention, arguing that, in court proceedings for his detention on remand, he had not had access to the criminal investigation file.

Issue: Complaint concerning the proceedings of 26 May 2005 in the Vilnius City Second District Court. The applicant argued that this process had not been adversarial because he and his lawyer had been denied access to information concerning the grounds for placing him in pre-trial detention. He invoked Article 5 of the Convention.

The Court considered that the applicant’s complaint fell to be examined under Article 5 § 4 of the Convention, which reads as follows:

“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Court’s assessment:

The Court considers that the crux of the applicant’s complaint is his plea that during the aforementioned court hearing no “equality of arms” ‒ as laid down under Article 5 § 4 of the Convention ‒ was guaranteed on account of the fact that, during the proceedings concerning the applicant’s detention, the court had the opportunity to examine the applicant’s criminal case file, as presented by the prosecutor, but those documents were not disclosed to the applicant or his lawyer. The Court further observes that the applicant raised this particular aspect in his appeal of 13 June 2005, albeit unsuccessfully (see paragraph 28 above), thereby having made full use of the remedy provided by the criminal-law procedure. The applicant even reiterated this argument in the criminal proceedings, when the merits of his case were being decided.

The Court has held that, in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a certain remedy has already been pursued, use of a different remedy which has essentially the same objective is not required (see Jasinskis v. Latvia, no. 45744/08, § 50, 21 December 2010). In the particular circumstances of this case, the Court also considers that the Lithuanian courts’ case-law relied on by the Government focuses more on the length or the lawfulness of detention than on the specific aspect of ‘equality of arms’ within the criminal proceedings concerning the applicant’s detention, which lies at the heart of the applicant’s claim in this case. The Court thus fails to see how the civil law remedy would add any vital elements that were unavailable through the use of the criminal law remedy. Accordingly, the Government’s objection regarding the need to exhaust the civil law remedy must be dismissed. 63. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

Decision of the court:

Decision of the court on the alleged violation of Article 5 § 4 of the Convention.

Holdings: The Court unanimously holds that there has been a violation of Article 5 § 4 of the Convention. In addition, the Court holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.

Costs and expenses: The applicant claimed 2,855 Lithuanian litai ((LTL), approximately EUR 826 for the costs and expenses of the proceedings before the Court. This sum included LTL 2,360 (EUR 683) for the costs of legal representation when lodging this application with the Court, and LTL 495 (EUR 143) for translation costs. The Government disputed the claim. However, the Court awards the applicant’s claim in full.

Damages:

The applicant claimed 200,000 (EUR) in respect of non-pecuniary damage. The Government disputed this claim as unreasonable and excessive. The Court considers that it is impossible to determine and thus it cannot speculate whether or not the applicant’s detention on remand would have been authorised by the Vilnius Second District Court if there had been no violation of Article 5 § 4. As to the alleged frustration suffered by the applicant on account of the absence of adequate procedural guarantees for his detention, the Court finds that, in the particular circumstances of the instant case, the finding of a violation is sufficient and dismisses the remainder of the applicant’s claim for just satisfaction.

 

 

 

CASE OF ALEKSA V. LITHUANIA – Application no. 27576/05

Facts:

Mr Aleksa applied to the European Court of Human Rights against the Republic of Lithuania under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. On 17 November 1992 the Kaunas City Board restored Mr Aleksa’s property rights to part of a building in Kaunas. In a decision given of 21 March 1994, the Kaunas City mayor annulled Mr Aleksa’s ownership rights to the building and 1/12 of a plot of land. On 3 June 1994 Mr Aleksa brought a civil claim challenging the decision of the local authority. In addition to that, on 12 November 1996 the Kaunas City Municipality had unlawfully reduced the size and modified the location of the plot of land assigned to Mr Aleksa. For several years the lower courts had not examined all the relevant circumstances in that case.

Issue: Complaints concerning the excessive length of the civil proceedings and the inability to enjoy one’s possession.

Decision of the Court

Decision of the Court on the alleged violation of Article 6 § 1 of the Convention on account of the length of the proceedings and the partiality of the domestic courts

Holdings: Yes, there was a violation of Article 6 § 1 of the Convention.

Court’s Rationale: In the case in question the overall length of the proceedings was 9 years and 7 months for three levels of jurisdiction. The Court noted that the overall length of proceedings must be assessed in light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute. In addition to that the Court noted that Mr Aleksa failed to complain to the domestic courts regarding the alleged partiality of the judges. In particular, he did not raise that issue in his appeal or in his cassation appeal.

Decision of the Court on the alleged violation of Article 1 of protocol No. 1 to the Convention

Holdings: Yes, there was a violation of Article 1 of Protocol No. 1 to the Convention.

Court’s Rationale: The Court noted that the authorities were required to compensate Mr Aleksa, either by allocating to him another property of equal value or by paying him pecuniary compensation.

Other alleged violations of the Convention

Mr Aleksa further complained, under Article 6 § 1 of the Convention, that the courts had incorrectly applied domestic procedural and substantive law when examining his claims regarding restitution. The Court reiterated that it is not its task under the Convention to act as a court of appeal, or a so-called court of fourth instance, from the decisions taken by domestic courts.

Costs and expenses: The Court held that Lithuania was to pay Mr Pocius 1,000 Euros in respect of non-pecuniary damages.

CASE OF ARBAČIAUSKIENĖ v. LITHUANIA – Application no. 2971/08 (2016)

Facts:

The case originated in an application 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”) by a Lithuanian national, Ms Marija Arbačiauskienė (“the applicant”), on 9 January 2008.

Issue: The applicant alleged that the domestic authorities had failed to enforce the judgment of the Supreme Administrative Court of 5 May 2007, which had confirmed her right to buy a plot of land from the State. She also alleged that she had not had an effective remedy against the lengthy non-enforcement of that judgment. The applicant complained about the non-enforcement of the Supreme Administrative Court’s judgment of 5 May 2007 which had confirmed her right to acquire two hectares of land assigned to her by the local authorities in 1995. The applicant also complained about the length of the enforcement proceedings. She relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations … everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …”

The Court’s Assessment: In light of all of the information and findings, the Court concluded that the actions taken by the domestic authorities to enforce the final and binding judgment of 5 May 2007 cannot be considered sufficiently speedy and falling in line with the principle of the proper administration of justice. It follows that by failing for many years to take the necessary measures to comply with the final judgment in the present case, the Lithuanian authorities impaired the very essence of the applicant’s rights under Article 6 § 1 of the Convention. There has accordingly been a violation of that provision.

Decision of the court:

Holdings: The Court unanimously holds that there has been a violation of Article 6 § 1 of the Convention. Also, the Court found that there has been a violation of Article 13 of the Convention.

Therefore, the Court holds that the respondent State is to enforce the judgment of 5 May 2007 in the applicant’s favour, in full satisfaction of her claim of pecuniary damage, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention; that the respondent State is to pay the applicant, within the same three-month period, EUR 7,000 (seven thousand Euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

 The Court dismissed the remainder of the applicant’s claim for just satisfaction.

Costs and expenses: The applicant did not submit a claim for the costs and expenses incurred before the domestic courts and before the Court. Accordingly, the Court makes no award under this heading.

Damages: The applicant claimed 760,092 Euros (EUR) in respect of pecuniary damage, consisting of EUR 748,378 corresponding to the market value of two hectares of land in the Buivydiškės cadastral area, assessed by the Centre of Registers; EUR 11,714 corresponding to the income which the applicant would have received from agricultural activities on the plot of land until 2015. The applicant also claimed EUR 50,000 in respect of non-pecuniary damage for the distress, inconvenience and negative emotions suffered due to the lengthy non-enforcement of the judgment. The Government contested those amounts. They submitted that the value of the land, provided by the applicant, was unsubstantiated because it had not been assessed in accordance with the land value maps adopted by the State authorities. They further submitted that the allegedly lost income was not related to the violations of the applicant’s rights under Articles 6 and 13 of the Convention. The Government argued that the applicant’s claim for pecuniary damage would be best satisfied by the complete enforcement of the judgment of 5 May 2007. The Government also considered the applicant’s claim for non-pecuniary damage excessive and unsubstantiated. However, the Court considers that the applicant undoubtedly suffered distress and frustration because of the violations of her rights under Article 6 § 1 and Article 13 of the Convention, found in the present case. Making its award on an equitable basis, the Court awards EUR 7,000 under this heading. 

 

CASE OF ARMONIENĖ v. LITHUANIA – Application no._36919/02

Facts: The Applicant, Judita Armonienė, is a Lithuanian national. The case concerned the Applicant’s right to effective protection of the right to private life and the state’s obligation to penalize acts damaging one’s reputation.

In 2002 a major Lithuanian newspaper disclosed information that the Applicant’s husband, Mr Laimutis Armonas, is HIV positive and that he has two children with a woman, who he was not married to and who also had AIDS.

The Lithuanian courts awarded him the maximum sum for non-pecuniary damage – about 2,900 €. The Applicant appealed, arguing that the adjudged sum of money was inappropriate and that there was a violation of her husband’s right to an effective domestic remedy.

Issue: The case was brought to the Court to decide whether the sum awarded in damages was a violation of the Applicant’s human rights under Article 8 of the ECHR – the right to respect for a family’s private life.

Holdings: Yes, there had been a violation of Article 8 of the Convention.

Court’s rationale: The Court noted that the publication of the article about the HIV status of the Applicant’s husband and the information that he was the father of two children by another woman who was suffering from AIDS “cannot be deemed to contribute to any debate of general interest to society”. The Court emphasized that the family lived in a village rather than a big city, therefore such information could lead to opprobrium and the risk of ostracism. Furthermore, the Court states that the publication of such information in the biggest national daily newspaper could have a negative impact on the willingness of others to take voluntary HIV tests.

The Court agrees that a State enjoys a certain margin of appreciation in deciding how to interpret “respect” for private life in particular circumstances. However, the Court stated that facts such as the economic situation of the State should be taken into account when determining the sum of compensation. The imposition of financial limits is not in itself incompatible with a State’s positive obligation under Article 8 of the Convention, however, they cannot deprive the individual of his or her privacy and thereby empty the right of its effective content. In this regard compensation payments or fines which are too high may have a chilling effect on the freedom of the press and therefore constitute a breach of Article 10 of the Convention. Nevertheless, in the presented application, the severe legislative limitations failed to provide the Applicant with the protection that could have legitimately been expected under Article 8 of the Convention.

Just satisfaction: The court held that Lithuania was to pay the applicant the sum of 6,500 €.

Dissenting opinion: Judges Popović and Tsotsoria expressed a partly dissenting opinion and judge Zagrebelsky expressed a dissenting opinion, which are annexed to the judgments.

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CASE OF BAKANOVA v. LITHUANIA – Application no. 11167/12 (2016)

Facts:

Chamber judgement

31.5.2016

  • Violation of Article 2 (effective investigation)

The applicant, Liudmila Bakanova, is a Lithuanian national who was born in 1951 and lives in Klaipėda (Lithuania). The case concerned her complaint about the investigation into her husband’s death (V.B) on board the ship where he had been working as mechanic. On the morning of 24 October 2007 V.B, on a work voyage to Brazil on the private ship Vega, was found dead in his cabin. The ship’s captain assembled a commission to investigate the death and, having inspected the cabin and taken photographs, sent a report to his superiors at the Limarko shipping company based in Klaipėda, Lithuania. The following day the Brazilian police took statements from the captain and chief engineer and a Brazilian doctor gave acute heart attack as the cause of death. The body, embalmed in chemicals and put in a zinc coffin, was then shipped to Lithuania, which it reached on 1 December 2007.

The possible causes of death were subsequently examined in two separate sets of proceedings – criminal and administrative. In the administrative proceedings, the Supreme Administrative Court ultimately dismissed in February 2009 Ms Bakanova’s claim that V.B’s death be considered as a work accident. It notably found that, even though poor working conditions on the ship had been confirmed, the main engine often breaking down and causing leaks of dangerous gases, this could not have caused her husband’s heart attack. The Lithuanian prosecuting authorities, which opened a criminal investigation in October 2007, came to a similar conclusion and discontinued the investigation in December 2010. Ms Bakanova appealed against the decision to discontinue the criminal investigation, arguing that experts had not been able to definitely confirm that her husband had died of a heart attack, given that her husband’s body had been quickly embalmed without an autopsy being carried out. She also pointed to shortcomings in the investigation, such as the absence of blood test results and toxicology tests, the lack of documents concerning safety at work on the ship, the fact that the ship’s logbooks had not been obtained and that the ship had not been inspected after V.B’s death. By a final ruling, however, in September 2011 the Klaipėda Regional Court dismissed her appeal, noting that the cause of death had already been established in a final and binding decision in administrative proceedings in February 2009. Ms Bakanova’s argument that additional evidence should have been collected was considered as serving no purpose, given the amount of time which had already elapsed.

The Court concludes that Lithuanian authorities had conducted several investigative errors which resulted the infectivity of the investigation. The Court, inter alia, holds that the prosecutor had ignored applicants requests for further investigative measures; the state authorities had failed to examine the ship; the authorities had failed to secure the ship’s logbook before it’s disposal; and that it took more than three years for Lithuanian authorities to request Brazilian authorities for legal assistance.

The Court accordingly finds that there has been a procedural violation of Article 2 of the Convention as regards the failure of the Lithuanian authorities to conduct an effective investigation into V.B.’s death.

Just satisfaction: 10,000 euros (EUR) (non-pecuniary damage) and EUR 2,420 (costs and expenses)

 

 

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CASE OF BALČIŪNAS v. LITHUANIA – Application no._17095/02 (2010)

Facts: The applicant, Laimutis Balčiūnas, is a Lithuanian national. He was arrested in 1998 on charges of armed robbery. While still in pre-trial detention, he had another set of criminal proceedings brought against him in May 2000 when he was under suspicion of being a member of a criminal organization involved in detonating explosions in public places. He was released in September 2003, on being acquitted in the second set of proceedings. He was convicted as charged in October 2004, in the first set of proceedings, and sentenced to two years’ imprisonment.

Issue: The case was brought to the Court to decide whether there was a violation of Article 5 § 3 (right to liberty and security) and Article 6 § 1 and § 3 (d) (right to a fair trial) of the Convention.

Holdings: Yes, there had been a violation of Article 5 § 3 of the Convention. No, there had been no violation of Article 6 § 1 and § 3 (d) of the Convention.

Court’s Rationale: Article 5 § 3

The Court noted that the Lithuanian courts, when ordering the applicant’s detention, based their decisions on three main fears, namely that the applicant may escape, obstruct the investigation by influencing witnesses, and commit new crimes. The Court accepts that the applicant’s detention may initially have been warranted by a reasonable suspicion that he was involved in organized crime. At that stage of the proceedings those reasons were sufficient to justify keeping the applicant in custody. However, with the passage of time those grounds became less relevant. Taking into account the rather long period of the applicant’s detention, and noting that he had already been deprived of his liberty for over eighteen months pending the first set of the criminal proceedings, only exceptional reasons could have justified the continuation of detention in the light of Article 5 § 3 of the Convention.

The Court further noted that the reasons given for extending the applicant’s detention were just a brief and abstract repetition of the criteria enumerated in Article 104 of the Code of Criminal Procedure, governing the grounds to maintain a person in detention, without specifying the manner in which those grounds applied to the individual case of the applicant.

The Court could accept that, as submitted by the Government, the fact that the applicant was charged with serious crimes and his co-conspirators testified could have been one of the specific reasons for his continued detention. However, those grounds were not analysed in any great detail in any court order made with respect to the applicant. The reasons given in the orders remained general, theoretical and nearly identical throughout time, without examining the personal circumstances of the applicant, and therefore were clearly insufficient to satisfy the requirements of Article 5 § 3.

Lastly, as emerges from the materials before the Court, the applicant’s situation was further compounded by the inadequate conditions at the Šiauliai Remand Prison where he was held and the fact that, unlike convicted persons, during his pre-trial detention the applicant was deprived of the possibility to benefit from long duration visits from his relatives. Consequently the Court concludes that there has been a violation of Article 5 § 3 of the Convention.

Article 6 § 1 and § 3 (d)

The Court notes that the domestic courts did grant the applicant’s requests that D.R. and M.S. be summoned for questioning, even though the efforts of the Court were futile. As a result, the Court cannot hold that the Lithuanian courts were insensitive towards the applicant and arbitrarily denied him the right to defend himself. On the facts of the case the Court also notes the applicant had argued his inability to question D.R. and M.S. in his appeal and cassation appeal before the domestic courts, which dealt with these issues at significant length and dismissed them as unsubstantiated.

From the reading of the decisions from the Court of Appeal and the Supreme Court it emerges that they did consider the applicant’s arguments in the light of Article 6 § 1 and § 3 (d) of the Convention and gave them reasoned responses, nonetheless finding that, in view of other available evidence, there was enough proof against the applicant. The decisions of the Lithuanian courts seem to be devoid of arbitrariness. Accordingly, the Court is not ready to find that the applicant’s rights of defence were restricted to such an extent that he would have had no fair trial within a meaning of Article 6 § 1 of the Convention. That being so, the Court considers that in the present case there has been no violation of Article 6 § 1 and § 3 (d) of the Convention.

Just satisfaction: The Court held that Lithuania was to pay the applicant 6,000 EUR in respect of non-pecuniary damages.

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CASE OF BALSYTĖ-LIDEIKIENĖ v. LITHUANIA – Application no. 72596/01 (2009)

Facts: The Applicant is the founder and owner of the publishing company “Metskaitliai”. In 2000 a Member of the Lithuanian Parliament (Seimas) distributed a public announcement, stating that the texts published in “Lithuanian Calendar 2000” insulted persons of Polish, Russian and Jewish origin. In the same year the Vilnius City Second District Court found, relying mainly on expert opinion, that the Applicant promoted ethnic hatred by distribution of the material and thus a breach of the Code of Administrative Law Offences had occurred. The Court imposed on Mrs Balsytė-Lideikienė an administrative fine and ordered the confiscation of all copies of “Lithuanian Calendar 2000”.

Mrs Danutė Balsytė-Lideikienė appealed, claiming in particular a violation of Article 10 of the Convention. She also alleged a breach of her defence rights as caused by the absence of experts. In May 2001 the Supreme Administrative Court reviewed the case and dismissed the appeal. 

Issue: The case was brought to the Court to decide whether there is a violation of Articles 6 § 1 (Right to a fair trial) and 10 (Freedom of expression) of the European Convention on Human Rights. 

Holding: Yes, there has been a violation of Article 6 § 1 of the Convention.

No, there has been no violation of Article 10 of the Convention.

Court’s Rationale: The Court emphasizes the importance of the experts’ opinions and the fact that when finding the Applicant guilty, the national courts directly relied on their conclusions and reports and quoted professionals. The Court concluded that the Applicant had not been given the opportunity to question the experts in order to subject their credibility to scrutiny or cast any doubt on their conclusions. For these reasons, the Court held that there had been a violation of Article 6 of the Convention.

Moreover, the Court paid special attention to the specific language used in “Lithuanian Calendar 2000”. Due to the experts a one-sided description of particular nationalities (especially Poles and Jews) and relations between particular nations “hindered the consolidation of civil society and promoted national hatred”. The Court concluded that the domestic authorities, in the circumstances of the case, had not overstepped their margin of appreciation by considering that there was a pressing social need to take measures against Mrs Balsyte-Lideikiene.

Finally, the Court noted that even though the confiscation measure imposed on the Applicant could be deemed relatively serious and that the fine was only a warning, this was the mildest administrative punishment available. Furthermore, the Court considered that the interference with the Applicant’s right to freedom of expression could thus reasonably be considered necessary in a democratic society for the protection of the reputation or rights of others within the meaning of Article 10 § 2 of the Convention. Consequently the Court held that there had not been a breach of Article 10 of the Convention.

Just satisfaction: Mrs Balsyte-Lideikiene was awarded 2,000 Euros in respect of non-pecuniary damages and 1,645 Euros for costs and expenses.

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CASE OF BANEL v. LITHUANIA – Application no. 14326/11(2013)

Facts: The Case concerns the complaint of the applicant that the State had failed to protect her son’s life and that the criminal investigation of the circumstances into her son’s death had not been effective.

In June 2005 the applicant’s thirteen-year old son died from injuries sustained when part of a balcony broke off from a building and fell on him while he was out playing. In September 2006 the applicant made a civil claim for non-pecuniary damages in criminal proceedings that had been conducted as a result of the accident.

The prosecutor established that the city municipality had known since February 2005 that the building was in a poor state of repair and two municipal officials were indicted for failing to perform their duties. However, because the municipality was undergoing administrative changes entailing a reallocation of the duties and responsibilities, it emerged that there was no-one with specific responsibility for derelict and abandoned buildings and in May 2010, the charges against the two officials were dropped. Following an appeal by the applicant, the regional court upheld the decision to discontinue the criminal proceedings under the statute of limitations.

Issue: The case was brought to the Court to decide whether there is violation of Article 2 (Right to life) of the Convention.

Holdings: Yes, there had been a violation of Article 2 of the Convention.

Court’s Rationale: According to the Court, the State’s duty to safeguard the right to life must also be considered to involve the taking of reasonable measures to ensure the safety of individuals in public places and, in the event of serious injury or death, must also be considered to require an effective independent judicial system to be set up so as to secure legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim. Therefore, in cases involving non-intentional infringements of the right to life, the positive obligations required States to adopt regulations for the protection of people’s safety in public spaces and to ensure the effective functioning of that regulatory framework.

The Court noted that the prosecutor had established that despite knowing the condition of the building the municipality had not complied with its legal duty to care for derelict buildings. On-going administrative reform could not justify inaction on the part of the authorities. Further, although the national authorities had promptly opened a criminal investigation, the investigating officers had not acted with due diligence when collecting evidence, and had ignored possibilities of identifying those accountable. In conclusion, the criminal investigation had not been thorough and the domestic authorities had failed to display due diligence in protecting the right to life of the applicant’s son.

Moreover, the legal system as a whole, faced with an arguable case of negligence causing death, had failed to provide an adequate and timely response consonant with Lithuania’s obligations under Article 2 of the Convention.

Just satisfaction: The court held that Lithuania was to pay the applicant 20,000 Euros in respect of non-pecuniary damages and 8,135 Euros in respect of pecuniary damages.

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CASE OF BIRŽIETIS v. LITHUANIA – Application no. 49304/09 (2016)

Chamber Judgement

14 June 2016

  • Violation of Article 8
  1. The Facts

On November 2006 the applicant began serving a prison sentence at the Marijampolė Correctional Facility. In prison, he wanted to grow a beard for health reasons. He had been diagnosed with tongue cancer and he had undergone radiation treatment. Therefore, shaving irritated his skin. However, the prison rules forbid possibility to let the facial hair grow.

In 2007, the applicant submitted two separate requests to the Prison department but both of the requests were denied due to a medical report stating that no traces of irritation had been found on the applicant’s skin.

The applicant submitted a complaint to the Vilnius Regional Administrative Court, which upheld applicant’s complain. However, later  the Supreme Administrative Court overturned the first-instance judgment

  1. The Court’s assessment

The Court acknowledges that beard while in prison fall in the scope of the Article 8 of the Convention. However, restriction to the article might be justified if the restriction fulfils the conditions set in Article 8 (2). The paragraph states that restrictions:

  • must be made in accordance with the law;
  • must have a legitimate aim (the paragraph offers an exhaustive list of legitimate aims);
  • must be necessary in democratic society.

The Court found that the prohibition on the applicant having a beard in prison was “in accordance with the law”, as the term “law” refers to not to laws set by parliament, but also to rules and regulations set by other authorities, such as prisons.  

Secondly, the Court notes that for it to be compatible with the Convention, a limitation of that right must pursue an aim that can be linked to one of those listed in that provision. The court observes that the Government fails to give explanation how allowing the applicant (or other prisoners) to grow a beard could lead to disorder and crime in the prison. The Court also considerers that hygienic reasons are not justified aim. 

Thirdly, the Court reiterates that the notion of “necessity” implies that the interference with an individual’s right to respect for his or her private life must be proportionate to the legitimate aims pursued. The Court particularly notes the absolute nature of the disputed prohibition is troubling. It considers that the Government did not demonstrate that the absolute prohibition on growing a beard was proportionate.

The Court considers that the applicant’s decision on whether or not to grow a beard was related to the expression of his personality and individual identity, protected by Article 8 of the Convention, and that the Government has failed to demonstrate the existence of a pressing social need to justify an absolute prohibition on him growing a beard while he was in prison.

The Court holds, by six votes to one, that there has been a violation of Article 8 of the Convention.

  • Reparations

The Court considers that in the circumstances of the case the finding of a violation constitutes in itself sufficient just satisfaction for any non‑pecuniary damage sustained by the applicant

The applicant did not submit a claim for costs and expenses incurred before the domestic courts and the Court. Accordingly, the Court makes no award under this head.

 

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CASE OF ČESNULEVIČIUS v. LITHUANIA – Application no._13462/06 (2012)

Facts: The applicant, Petras Česnulevičius, is a Lithuanian national. The case concerned the death of Mr Česnulevičius’ 22-year-old son in August 2000 in Pravieniškės Prison following repeated attacks on the 4th, 5th and then on 6th August by other inmates. On the last occasion he was taken to the prison nurse who, unable to stop the bleeding from a deep stab wound, then took him to the Prison Hospital in Vilnius where he was operated on. His condition deteriorated and the following day he was transferred to Vilnius University Hospital. He died half an hour after arriving. The ensuing autopsy report concluded that A.Č had died from multiple injuries, notably blows to his head, neck, back, stomach, hands and legs. According to the experts, all those injuries occurred some one to three days before his death. A subsequent report by the State Medical Audit Inspectorate further concluded that A.Č had died of traumatic shock which the doctors on duty both at the prison and at the prison hospital had not managed to diagnose. The report also noted that the prison hospital doctor on duty did not have a licence to perform surgery and therefore had not had the right to operate.

On 8 August 2000 the prosecuting authorities launched criminal proceedings on murder charges. During the ensuing investigation four anonymous witnesses identified 11 possible suspects. The proceedings were suspended in total on five occasions by the district prosecutor because the suspects could not be identified. On each occasion they were then reopened by the regional prosecutor with instructions for proper forensic examinations to be carried out and for the case against the 11 suspects to be pursued further by questioning them in more detail.

Issue: The case was brought to the Court to decide whether there is a violation of Article 2 (right to life) of the Convention.

Holdings: Yes, there had been a violation of Article 2 of the Convention.

Court’s Rationale: The Court was not persuaded by the prison governor’s explanation that A.Č refused to be placed in isolation for his own safety. Nor did the Court find the Government’s argument convincing that the second beating had only come to light after A.Č’s death. It would seem suspect that the nurse who had seen A.Č after the second beating and who had testified to bandaging his leg had accepted without question his version of a football injury and, without making any record in the medical file, only disclosed the incident when the institution where she worked had been under investigation. Moreover, the Court had reservations about her testifying to having only observed minor injuries on 6 August 2000 when only a few days later the autopsy report had recorded blows all over A.Č’s body which had been sustained one to three days before death. There had also been deficiencies in the medical care A.Č had received for traumatic shock.

The Court was particularly struck by the fact that he had been treated at the prison hospital by a doctor who did not even possess a medical licence. Despite the serious risk to A.Č’s well-being, the prison authorities had not ensured a safe environment for him. They had failed to detect, prevent and monitor violence from other inmates and, once aware of it, had further failed to respond to it with prompt, diligent and effective coordination between security staff, medical practitioners and prison management. The Court therefore concluded that the authorities had failed to protect the right to life of Mr Česnulevičius’ son in prison, in violation of Article 2.

The investigation, although launched promptly, had been plagued by shortcomings. Notably, it had been suspended and reopened five times due to failure to carry out basic investigative actions so as to assemble a case, even though 11 suspects had been identified. The Court understood the anonymous witnesses’ unwillingness to testify against other inmates, but stressed that there were technical means available to question witnesses without revealing their identity. Moreover, and as suggested by the regional prosecutor, those witnesses could have been questioned once they had finished serving their sentences, a situation which was more than probable given that 11 years has now elapsed since A.Č’s death. In any case, anonymous witnesses were not the only source of evidence. A metal bar and masks had been found at the crime scene. Lastly, no criminal, administrative or disciplinary proceedings have apparently ever been brought against the prison wardens or officers. The Court therefore concluded that the investigation into the death of Mr Česnulevičius’ son had been ineffective, in further violation of Article 2.

Just satisfaction: The Court held that Lithuania was to pay the applicant 30,000 Euros in respect of non-pecuniary damages, 2,015 Euros in respect of pecuniary damages and 770 Euros for costs and expenses.

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CASE OF D.D. v. LITHUANIA – Application no._13469/06 (2012)

Facts: The applicant, D.D., is a Lithuanian national. Suffering from schizophrenia, the applicant was legally incapacitated in 2000. Her adoptive father was subsequently appointed her legal guardian and, at his request, she was interned in June 2004. She was then placed in the Kėdainiai care home, where she remains to date.

In 2005 and with the assistance of her former psychiatrist and then friend D.G., the applicant asked for the guardianship proceedings to be reopened and for D.G. to be appointed as her guardian. The court held a closed hearing on November 2005, but refused the applicant’s request to be assisted by a lawyer on the grounds that her guardian’s lawyer would represent her interests. The applicant alleges that she was taken to the judge’s office during a break in the hearing and warned not to say anything negative about her adoptive father. After the break she agreed to her adoptive father remaining her guardian but asked to be released from the home. Subsequently, the court refused to reopen the guardianship proceedings.

Issue: The case was brought to the Court to decide whether there is a violation of Article 5 § 1 and § 4 (right to liberty and security) and Article 6 § 1 (right to a fair hearing) of the Convention.

Holdings: Yes, there had been a violation of Article 5 § 4 and Article 6 § 1 of the Convention.

Court’s Rationale: Even though the Court was unable to examine the initial appointment of a guardian, as the complaint concerning this aspect of the case had been lodged outside the six-month’s time-limit, it could not overlook the fact that the applicant had not participated in the court proceedings for her incapacitation. As regards the proceedings for a change of guardian, given the applicant’s problematic relationship with her adoptive father and their conflicting interests, her adoptive father’s lawyer could not properly represent her and she should have had her own lawyer. The judge had also refused a request by D.G. for an audio recording to be made and it appeared that the applicant had not been allowed to sit next to D.G. during the hearing.

The applicant had allegedly been taken to the judge’s office during the break and after returning to the hearing room had declared herself content. The general spirit of that hearing had therefore further compounded her feelings of isolation and inferiority, taking a significantly greater toll on her than would have been the case had she had her own legal representation. In light of the foregoing, the Court concluded that the applicant’s proceedings had been unfair and dismissed the Government’s objection of abuse of the right of application.

Under the Court’s practice, persons of unsound mind who were compulsorily confined in a psychiatric institution should in principle be entitled to take proceedings at reasonable intervals before the court to challenge the lawfulness of their continued detention.

This requirement was all the more important in the circumstances of the applicant’s case, where her placement in the home had been requested by her guardian and decided on by municipal and social-care authorities without any involvement of the courts. However, in situations such as the applicant’s, the domestic law did not provide for automatic judicial review of the lawfulness of admitting a person to and keeping him or her in an institution such as the home where the applicant stayed.

Moreover, a review could not be initiated by a person who had been deprived of legal capacity. The applicant had, therefore, been unable to independently pursue any legal remedy of a judicial nature to challenge her continued involuntary institutionalisation. It appeared that she would only have been able to initiate such proceedings through her guardian, the very person who had requested her confinement in the first place.

In these circumstances, the Court considered that where a person capable of expressing a view, despite being deprived of legal capacity, was also deprived of liberty at the request of his or her guardian, he or she must be accorded the opportunity of contesting that confinement before a court with separate legal representation.

In light of the above, the Court holds that there has also been a violation of Article 5 § 4 of the Convention.

Just satisfaction: The court held that Lithuania was to pay the applicant 8,000 Euros in respect of non-pecuniary damages and 5,000 Euros in respect of costs and expenses.

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CASE OF DAKTARAS v. LITHUANIA – Application no. 42095/98

Facts: On 11 May 1998, Mr Henrikas Daktaras applied to the European Commission of Human Rights under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The applicant applied against the Republic of Lithuania alleging that his right to a fair trial guaranteed by Article 6 § 1 of the Convention had been breached. He also claimed that the prosecutor declared him guilty in his pre-trial decision of 1 October 1996, in breach of Article 6 § 2 of the Convention (principle of the presumption of innocence).

On 18 February 1996 a prosecutor at the Organized Crime Division of the Office of the Prosecutor General instituted criminal proceedings against Mr. Daktaras who was suspected of being involved in an offence of demanding and obtaining a ransom of 7000 USD for returning the stolen car of a certain J. M. On 1 April 1996. The applicant was charged on four counts, including blackmail and inciting the victim to make false statement.

The applicant requested the prosecution to discontinue the investigation as the charges were “ill-founded” and argued that the case file did not contain “evidence of guilt”. On 1 October 1996, a prosecutor of the Organized Crime Division dismissed the request of Mr. Daktaras by stating that there are evidence proving that the applicant was guilty. On 2 October 1996, the President of the Supreme Court transferred the case to the Vilnius Regional Court, which found Mr. Daktaras guilty of blackmail and inciting the victim to make false statement. As “principal offender” on the blackmail charge, the applicant was sentenced to seven years and six months of imprisonment. Furthermore, he was fined 15000 LTL and his property was confiscated.

The applicant challenged the decision, claiming that he had been deprived of a fair trial by an independent and impartial court. On 27 May 1997 the Court of Appeal modified the decision of the Vilnius Regional Court stating that the applicant was a “secondary party”, not the principal offender. The sentenced remained unchanged. The judge who had delivered the first sentence wrote a letter to the President of the Criminal Division of the Supreme Court asking him to lodge a petition  and quash the judgment of the Court of Appeal. The President of the CD appointed a rapporteur and a chamber of three judges to examine the case. On 2 December 1997, the Supreme Court quashed the judgment of the Court of Appeal and upheld the decision of the Vilnius Regional Court claiming that the applicant was the principal offender on the blackmail charge.

Issue: The case was brought to the Court to decide whether there is a violation of Article 6 § 1 (right to fair trial) and Article 6 § 2 of the Convention (the principle of the presumption of innocence.

Holdings: Yes, there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention.

Court’s Rationale: The Court noted that the President of the Criminal Division of the Supreme Court has a significant role to play before and during the hearing as he not only takes up the prosecution case, but in addition to his organizational and managerial functions, constitutes the court and appoints its members who are subordinate to him in rank. Therefore, it cannot be said that from an objective point of view, there were sufficient guarantees to exclude any legitimate doubt as to the absence of inappropriate pressure. In addition, the intervention of the President was prompted by the first-instance judge in the present case. Considering the circumstances, the Court finds that the applicant’s doubts regarding the impartiality of the Supreme Court may be said to have been objectively justified and there has been a violation of Article 6 § 1 of the Convention.

Holdings: There has been no violation of Article 6 § 2 of the Convention.

Court’s Rationale: The Court emphasized the importance of the words by public officials in their statements before a person is proved guilty. In the present case, however, the prosecutor used the same terms (suggesting that the evidence of guilt is “proved”) as had been used by the applicant and he had not referred to the question of whether the applicant’s guilt had been established, but to the question of whether the case file disclosed sufficient evidence of the applicant’s guilt to justify proceeding to trial. Therefore, the statements used by the prosecutor in his decision of 1 October 1996 did not breach Article 6 § 2 of the Convention (principle of the presumption of innocence).

Just satisfaction: The Court decided that the finding of a violation of Article 6 § 1 of the Convention constitutes in itself sufficient just satisfaction.

Costs and expenses: The Court held that Lithuania was to pay Mr Daktaras 10,354.22 Euros for legal fees and expenses in connection with the hearing of his case.

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CASE OF ESERTAS v. LITHUANIA – Application no._50208/06 (2012)

In the Chamber’s judgment in the case of ESERTAS v. LITHUANIA (2012) the European Court of Human Rights held, unanimously, that there had been:

  • a violation of Article 6 § 1 (right to a fair hearing) of the Convention;

Principal facts

The applicant, Tomas Esertas, is a Lithuanian national who lives in Kaunas.

In May 2001, he disconnected his flat from the heating provided by one company and installed a new heating system. The old heating provider then repeatedly sent him bills claiming he had not paid for heating. In June 2004 the court found that the old heating company had wrongfully claimed payment for heating. However, in new separate proceedings in 2006 the domestic courts decided differently, adopting a decision that was favourable to the heating company.

Complaints and procedure

 

Relying on Article 6 § 1 (right to a fair hearing), Mr Esertas complained that the overruling of a final judicial decision in his favour had been in breach of the principle of legal certainty.

Decision of the Court  

 

The Court considers that a situation where the facts already determined by a final decision in one case are later overruled by the courts in a new case between the same parties, is similar to the one where, following a re-opening of the proceedings, a binding and enforceable decision is quashed in its entirety. Consequently, such a situation may also amount to a breach of the principle of legal certainty in violation of Article 6 § 1 of the Convention.

In the instant case there is no doubt that the decisive circumstances established by the final decision of June 2004 were reassessed and overruled by the courts in the second proceedings. The Court observes that such a situation was also in breach of the domestic law, which provides that the facts and legal relations that had been established by a court in one case may not be contested in another case.

Having examined the materials submitted by the parties, the Court finds that there was no justification for requiring the applicant to prove again, in the second proceedings, the fact that he was not in contractual relations with Litesko or that no heating was supplied to the flat. These circumstances had been established in the first set of proceedings. It should also be noted that no new factual circumstances were invoked during the second set of proceedings.

The Government have argued that the overruling of the court’s decision of June 2004 was necessary for the correct interpretation and application of the domestic law regulating consumers’ agreements with heating providers. The circumstances established in the court’s decision of June 2004, namely that the applicant was not in a contractual relationship with Litesko and that his flat was not provided with heating by the latter, were disregarded on the basis merely of a different interpretation and application of the domestic law and on the apparently factual argument that the new claim concerned a different period of time. That ground was not a fundamental defect within the meaning of the Court’s case-law and could not justify a departure from the principle of legal certainty. The Court also does not find that the first set of proceedings had been tarnished by a fundamental defect, such as, in particular, a jurisdictional error, serious breaches of court procedure or abuses of power. The Court is therefore of the opinion that departure from the principle of legal certainty was unjustified in the second set of the proceedings.

The Court concludes that the applicant’s rights under Article 6 § 1 of the Convention were prejudiced as the courts in the second set of proceedings ignored the previous judicial process. By ignoring res judicata and the final decision of June 2004, the national courts acted in breach of the principle of legal certainty inherent in Article 6 § 1 of the Convention.

Just satisfaction

 

The court held that Lithuania was to pay the applicant 142.47 Euros in respect of pecuniary damages, 4,000 Euros in respect of non-pecuniary damages and 10.94 Euros in respect of costs and expenses.

CASE OF GEDRIMAS V. LITHUANIA – Application no. 21048/12 (2016)

Chamber Judgement

12 July 2016

  • Violation of Article 3 (inhuman treatment) (procedural limb)

The applicant, Aleksandras Gedrimas, is a Lithuanian national who was born in 1950 and lives in Jonava (Lithuania). The case concerned his complaint of having been ill-treated by the police. Mr Gedrimas, who worked as a guard in a garage complex, was on duty during the early morning hours of 23 April 2008, when several police officers arrived at the complex. The officers had been tipped off about a break-in and robbery of a jewellery store nearby and had followed traces from the store to the complex with the help of a police dog.

According to Mr Gedrimas, he had explained to the officers that the garage complex was his workplace and that he had not left it that night. However, the officers had accused him of drunk driving, handcuffed him, pushed him to the floor, and, holding him down, twisted his arms and kicked him in the stomach repeatedly. According to the officers, Mr Gedrimas had refused to comply with their orders to introduce himself, shouted at them and jostled them, obliging them to handcuff him and take him to the police station, where he was identified as the guard of the complex. Mr Gedrimas was released from detention on the same morning.

On the day of Mr Gedrimas’ arrest, the prosecutor opened a pre-trial investigation into his allegations of ill-treatment. Following a number of investigative steps, the prosecutor discontinued the investigation in November 2008, holding that Mr Gedrimas had obstructed the police officers in the performance of their duties, had resisted them and had attempted to punch one of them. On Mr Gedrimas’ appeal, a senior prosecutor reopened the investigation in March 2009. The investigation was subsequently closed and reopened on several occasions. It was discontinued by a court’s decision upheld by a higher court in September 2011.

Relying on Article 3 (prohibition of inhuman or degrading treatment), Mr Gedrimas complained that he had been subjected to inhuman treatment by the police and that the authorities had failed to carry out an effective and objective investigation.

The Court reiterates that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence which cast doubt on the account of events given by the victim. In the absence of such explanation, the Court can draw inferences which may be unfavourable for the Government. After examining the case, the Court finds that the domestic investigation was not thorough and it was not capable of establishing the circumstances of the applicant’s injuries and the responsibility of the police officers involved.

The Court to concludes that the pre-trial investigation into the applicant’s allegations of ill‑treatment by police officers was not in line with the requirements of Article 3 of the Convention. There has accordingly been a violation of that provision under its procedural limb.

Just satisfaction: EUR 10,000 (non-pecuniary damage) and EUR 237.80 (costs and expenses).

 

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CASE OF GIRDAUSKAS V. LITHUANIA – Application no. 70661/01

Facts:

Mr Girdauskas complained under Article 6 § 1 (right to a trial within a reasonable time) of the length of the criminal proceedings.

Mr Girdauskas was suspected of committing various financial irregularities. Criminal proceedings were initiated in light of these suspected irregularities on 15 May 1995. On 7 February 1997 the Kaunas City District Court adjourned the examination of the case in order to conduct an audit of an enterprise owned by the applicant. On the same date the applicant was released on bail. During the period from 7 February 1997 until 13 December 2001 the investigative authorities conducted an audit of the applicant’s company. On 21 February 2001 the trial recommenced.

On 2 April 2002 the Kaunas City District Court convicted Mr Girdauskas on two counts, obtaining property of another and improper operations with currency. The court sentenced him to two years’ imprisonment. Civil damages in the amount of 811,560 Lithuanian litai (LTL) were also ordered against him. Mr Girdauskas appealed that decision. On 25 February 2003 the Supreme Court quashed the appeal judgment, returning the case for a fresh examination at appellate instance.

On 17 April 2003 the Kaunas Regional Court, acting as a court of appeal, pronounced a new judgment, acquitting the applicant on one of the charges against him (obtaining property of another). However, his conviction for improper currency operations was upheld. However, the sentence was reduced to imprisonment of one year.

Issue: Mr Girdauskas complained concerning the excessive length of the civil proceeding. He invoked Article 6 § 1 of the Convention.

Decision of the Court on the alleged violation of Article 6 § 1 of the Convention

Holdings: Yes, there was a violation of Article 6 § 1 of the Convention.

Court’s Rationale:

The Court considered that the applicant’s complaint about the length of proceedings was not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further noted that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The Court noted that the proceedings were pending for more than 8 years and 5 months and considered that it is up to the Government to justify such a long lapse of time since the start of the proceedings. However, the Government failed to show why such a long time was required for the authorities to deal with the case. The Court noted in particular that during more than four years from 1997 to 2001 the proceedings were adjourned for an audit of the applicant’s company to be carried out. This situation was unacceptable from the point of view of Article 6 § 1 of the Convention.

Costs and expenses: The Court held that Lithuania was to pay Mr Girdauskas 4,000 Euros in respect of non-pecuniary damages and 4,000 Euros in respect of costs and expenses.

CASE OF GRAUSLYS V. LITHUANIA – Application no. 36743/97

Facts:

On 2 April 1997 Mr Algis Grauslys applied to the European Commission of Human Rights against the Republic of Lithuania under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Mr Grauslys was a commercial director in a private company. He was suspected of fraud. On 4 October 1995 a criminal case was initiated against him. Mr Grauslys was arrested on 25 March 1996. His detention on remand was authorized by a prosecutor on 26 March 1996. From 9 October until 5 December 1996 there was no valid domestic decision or other lawful basis for his detention on remand in breach of Article 5 of the Convention. Furthermore, throughout the whole period of his detention, from 25 March 1996 to 17 February 1997, he was never brought before a judge or other officer, in breach of Article 5 § 3 of the Convention.

Issue: Mr Grauslys alleged that there had been violations of Articles 5 § 1, 3, 4 and 6 § 1 of the Convention

Decision of the Court on the alleged violation of Article 5 § 1 of the Convention

Holdings: Yes, there was a violation of Article 5 § 1 of the Convention.

The Court noted that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 of the Convention essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. However, the “lawfulness” of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion. The Court must moreover ascertain whether domestic law itself is in conformity with the Convention, including the general principles.

Decision of the Court on the alleged violation of Article 5 § 3 of the Convention

Holdings: No, there was no violation of Article 5 § 3 of the Convention.

The Court noted that during the initial period of Mr Grauslys’ detention from 25 March to 21 June 1996 Lithuania was under no obligation to bring Mr Grauslys promptly before a proper officer as a result of the Lithuanian reservation to Article 5 § 3 of the Convention.

Decision of the Court on the alleged violation of Article 5 § 4 of the Convention

Holdings: Yes, there was a violation of Article 5 § 4 of the Convention.

The Court confirmed that Article 5 § 4 of the Convention entitles arrested or detained persons to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty. This means that the competent court has to examine not only compliance with the procedural requirements of domestic law but also the reasonableness of the suspicion underpinning the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention. Article 5 § 4 guarantees no right, as such, to an appeal against decisions ordering or extending detention, but the intervention of a judicial organ at least at one instance must comply with the guarantees of Article 5 § 4.

Decision of the Court on the alleged violation of Article 6 § 1 of the Convention

Holdings: Yes, there was a violation of Article 6 § 1 of the Convention.

According to the Court’s case-law, the reasonableness of the length of proceedings must be assessed in light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case and the conduct of the applicant and of the authorities dealing with the case.

Costs and expenses: The Court held that Lithuania was to pay Mr Grauslys 40,000 LTL in respect of non-pecuniary damages and 20,000 LTL for legal costs and expenses, plus any value-added tax that may be chargeable.

 

CASE OF GRAUŽINIS v. LITHUANIA – Application no. 37975/97

Facts:

Arminas Graužinis applied to the European Commission of Human Rights under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Mr Graužinis alleged violations of Article 5 § 3 and 4 of the Convention in that he was repeatedly not brought before a judge and he could not contest the lawfulness of his detention.

Mr Graužinis was arrested on 19 May 1997 because an owner of a café alleged that Mr Graužinis had beaten him and threatened to take control of his property. Klaipėda City District Court issued a detention order against Mr Graužinis. On 17 July 1997 the Klaipėda City District Court extended the term of Mr Graužinis’ detention in his absence but with his counsel present. On 5 September 1997 Mr Graužinis appealed, claiming inter alia that his detention on remand was unlawful under domestic law and the Convention. He alleged in particular that the decision was arbitrary, as the court had presented no facts in support of its conclusion that he might abscond or influence witnesses. He requested bail. He finally complained that on 16 October 1997 the judge of the Klaipėda City District Court extended the term of his detention without hearing the parties, thereby breaching the applicant’s right to contest the lawfulness of his detention by way of an adversarial procedure. On 24 February 1998 the Klaipėda District Court convicted him. He was sentenced to 1 year and 4 months’ imprisonment. He did not appeal against the first instance judgment.

Issue: Mr Graužinis invoked Article 5 § 3 and 4 of the Convention in that he was repeatedly not brought before a judge and he could not contest the lawfulness of his detention.

Decision of the Court on the alleged violation of Article 5 § 3 of the Convention

Holdings: No, there was no violation of Article 5 § 3 of the Convention.

Court’s Rationale: Mr Graužinis complained that in the months after his arrest he was repeatedly not brought before a judge. The Court noted that Mr Graužinis was brought before a judge two days following his arrest. The guarantee of Article 5 § 3 was therefore met in the present case. The Court considers that the Mr Graužinis’s complaint that in the course of several months following his arrest he was repeatedly not brought before a judge falls to be examined under Article 5 § 4 of the Convention.

Decision of the Court on the alleged violation of Article 5 § 4 of the Convention

Holdings: Yes, there was a violation of Article 5 § 4 of the Convention.

The Court recalled that Article 5 § 4 of the Convention entitles arrested or detained persons to take proceedings bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty.

In addition, the domestic court dealing with such matters must provide the “guarantees of a judicial procedure”. The proceedings must be adversarial and must always ensure equality of arms between the parties – the prosecutor and the detainee. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required.

Costs and expenses: Lithuania was ordered to pay Mr Graužinis 5,000 LTL in respect of non-pecuniary damages and 3,000 LTL for legal costs and expenses, plus any value-added tax that may be chargeable.

CASE OF GULIJEV v. LITHUANIA – Application no._10425/03 (2008)

Facts: The applicant, Ibrahim Gulijev, is an Azerbaijani national who lives in Biedermansdorf (Austria).

In 2001 the applicant married his partner, a Lithuanian national with whom he already had a five-year old daughter, and obtained a temporary residence permit to live in Lithuania. His request for the renewal of his residence permit was rejected by the Migration Department on the basis of a State Security Department’s “secret” file stating that he posed a “threat to national security and public order”. The applicant appealed to the courts claiming that he had lived in Lithuania since 1989, that he owned property there and had a family and that his wife was expecting another child. The Administrative Court dismissed his appeal relying in particular on the classified State Security Department report and its conclusion that the applicant’s continued presence in Lithuania endangered national security and public order. His further appeals were to no avail. In October 2002 the authorities made an attempt to deport the applicant to Azerbaijan and prohibited him from entering Lithuania until 2099. However, he went into hiding before eventually being deported in November 2003.

Issue: The case was brought to the Court to decide whether there is a violation of Article 8 (right to respect for private and family life) of the Convention.

Holdings: Yes, there had been a violation of Article 8 of the Convention.

Court’s Rationale: The Court noted that the refusal by the authorities to grant the applicant a temporary residence permit and, consequently, his expulsion from Lithuania, had been based solely on a report by the State Security Department, classified as “secret”, which alleged that he had been a threat to national security. However, the contents of that report had never been disclosed to the applicant in the administrative proceedings to deport him. Likewise, no objective material had been presented to the Strasbourg Court to demonstrate that the domestic authorities had good reason to suspect the applicant of having been such a threat. In fact, the authorities had already examined the applicant’s background in the past and had seen no reason to refuse him a temporary residence permit. Moreover, in view of the fact that the applicant’s wife had strong social and cultural ties with Lithuania and that his daughters had been born in that country and lived there all their lives, the Court could not accept, as suggested by the Government, that the family could have established its residence in Azerbaijan. The applicant’s expulsion had therefore amounted to an interference with his right to respect for his family life. Accordingly, the European Court of Human Rights held unanimously that there had been a violation of Article 8 of the Convention.

Just satisfaction: The Court held that Lithuania was to pay the applicant 5,000 Euros in respect of non-pecuniary damages and 700 Euros for costs and expenses.

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CASE OF ILJINA AND SARULIENĖ v. LITHUANIA – Application no. 32293/05 (2011)

Facts: The applicants, Danuta Iljina, and her daughter, Evelina Sarulienė, are two Lithuanian nationals. The case concerned a mother and daughter’s allegations that they and their family were the victims of police brutality in the staircase of their block of flats and that the incident was not adequately investigated. According to expert medical reports carried out immediately after the incident, the applicants had sustained light injuries, including scratches and bruising, caused in particular by hard blunt objects.

The complaint about the incident was considered at three levels: by the Police Internal Affairs Department, the Prosecutor’s Office and the Vilnius First District Court. All found against the applicants, that they would not have been hurt if they had not resisted arrest. Notably, between August and November 2004 the Internal Affairs investigator questioned the applicants, their neighbours as well as the policemen involved in the incident. The prosecuting authorities, basing their decision on those statements, decided to discontinue the pre-trial investigation due to lack of evidence. Ultimately in March 2005, the district court, considering that the pre-trial investigation had been thorough and that the prosecution had taken reasoned decisions, also dismissed the complaint. Neither the prosecution nor the district court considered it necessary to carry out any further questioning of the policemen or witnesses.

Issue: The case was brought to the Court to decide whether there is violation of Article 3 (prohibition of degrading treatment and lack of effective investigation) of the Convention.

Holdings: Yes, there had been a violation of Article 3 of the Convention.

Court’s Rationale: Both parties agreed that the injuries of the two womens – corroborated by medical reports – had occurred during the altercation with the police. The Court found that their injuries were consistent with their version of events, notably being pulled by the arms from a police car and having a foot shut in a door. It also considered that those injuries, together with the fact that the women had witnessed police violence, showed that they had been subjected to degrading treatment.

The Court did not consider, however, that that use of force could be justified by the two women obstructing the police or by members of their family resisting arrest. Indeed, doubt was cast over any necessity to use force by the fact that the charges against the applicants’ family members had been dropped in December 2004. The Court was particularly concerned by the fact that, those charges having been dismissed, neither the prosecution nor the domestic courts considered it important or reasonable to reopen the pre-trial investigation and carry out further, more transparent, questioning, without the psychological pressure which witnesses and victims would naturally have felt at the police station. Lastly, at no stage was it ever established clearly to what extent each police officer had contributed to the injuries sustained by the two women or the members of their family.

The Court therefore concluded that Lithuania was responsible for the physical and mental violence to which the two women had been subjected as well as the inadequacy of the ensuing investigation into the incident, in violation of Article 3.

Just satisfaction: The Court held that Lithuania was to pay the applicants 9,000 Euros each, in respect of non-pecuniary damages, and 1,050 Euros jointly, for costs and expenses.

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CASE OF JGK STATYBA LTD AND GUSELNIKOVAS v. LITHUANIA – Application no. 3330/12 (2013)

Facts: The applicants are JGK Statyba Ltd, a private construction company registered in Lithuania, and Jurijus Guselnikovas, a Lithuanian national. Mr Guselnikovas is a shareholder and a member of the board of JGK Statyba Ltd.

The case concerned the length of two sets of civil proceedings relating to the ownership of two houses and restriction of the company’s property rights by the domestic courts which had seized those houses in order to secure satisfaction of civil claims lodged by private individuals.

The applicant company, whose main activity is construction and real estate, was prohibited for over ten years from selling or transferring the disputed property until the cases had been examined. Initially, a final and binding court decision of 1995 had recognized the company’s ownership of the same houses and dismissed the action by several private individuals for attribution of ownership rights. In July 1996 the company lodged a civil claim for the eviction of one of the unsuccessful claimants from one of the houses.

The courts eventually allowed the company’s claim and dismissed the counterclaim in a decision ultimately upheld in February 2010, and the house was returned to the company in July 2010. The second set of proceedings was brought in June 1996 by another unsuccessful claimant, seeking acknowledgment of his ownership rights to one of the houses. The latter claim was eventually dismissed by a final decision in January 2006.

Issue: The case was brought to the Court to decide whether there is violation of Article 6 § 1 (right to a fair trial within a reasonable time) of the Convention and of Article 1 of Protocol No. 1 (protection of property) to the Convention.

Holdings: Yes, there had been a violation of Article 6 § 1. Yes, there had been a violation of Article 1 of Protocol No. 1 to the Convention.

Court’s Rationale: The Court noted that both proceedings were adjourned several times, because of other related cases. In the Court’s view it might be reasonable for the national courts to await under certain circumstances the outcome of parallel proceedings as a measure of procedural efficiency. However, it is not convinced that the adjournments of the proceedings were really necessary. The Court held that the overall length of the adjournment of both sets of proceedings cannot be justified by the need for procedural efficiency in the present circumstances. Accordingly the Court concluded that the main responsibility for the length of the proceedings rested with the State.

The Court noted that the seizure of property was put in place when there had already been a binding final decision of 1995 which established the applicant company’s ownership rights. In the Court’s view, seizure of the property was not the only available remedy to ensure the satisfaction of the claims in the situation at hand.

Consequently, even though the disputed attachment orders formally served a “legitimate aim”, the Court holds that given the nature and, in particular, the duration of the measures, they could have had certain negative economic consequences on the applicant’s company and hindered its normal activity, restricting its rights and interests more than was necessary.

In light of the foregoing and having regard to the duration and severity of the interference, the Court considers that the seizure orders in both civil cases imposed an excessive burden on the applicant company and accordingly upset the balance that must be struck between the protection of property rights and the requirements of general interest.

Consequently, there had been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.

Just satisfaction: The Court held that the question of the application of Article 41 (just satisfaction) of the Convention was not ready for decision and reserved it.

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CASE OF JOKŠAS v. LITHUANIA – Application no. 25330/07 (2013)

Facts: The applicant is a Lithuanian national employed by the Lithuanian armed forces. His contract was terminated because he had reached retirement age, in accordance with the legal provisions in force.

The applicant challenged this decision before the administrative courts, alleging that he had been discriminated against on grounds of his personal opinions, and asked the courts to obtain and analyse evidence of other soldiers in his battalion who should also have been dismissed on grounds of age. The applicant’s complaints were dismissed and that decision was ultimately upheld by the Supreme Administrative Court.

Issue: The case was brought to the Court to decide whether there is a violation of Articles 6 § 1 (Right to a fair trial) and 10 (Freedom of expression) of the ECHR.

Holding: Yes, there has been a violation of Article 6 § 1 of the Convention.

No, there has been no violation of Article 10 of the convention.

Court’s Rationale: The applicant was dissatisfied that when examining his complaint the administrative courts had ignored his repeated requests for access to the military files of four specific servicemen. On this point the Court observes that one of the elements of a fair hearing within the meaning of Article 6 § 1 is the right to adversarial proceedings.

The Court stated that a comparison between the applicant’s situation and that of the other serviceman was indispensable for the applicant to be able to present his grievance.

The failure of the domestic courts to assist the applicant in obtaining evidence had denied the applicant an essential means to argue his case.

In disputes concerning civil rights, such as the present one, such a limited assessment could not be considered an effective judicial review under Article 6 § 1.

The proceedings taken as a whole did not satisfy the requirements of a fair and public hearing within the meaning of Article 6 § 1.

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CASE OF JUCIUS AND JUCIUVIENĖ v. LITHUANIA – Application no. 14414/03 (2009)

Facts: The Applicants, Mr Marijus Jucius and Mrs Gertrūda Juciuvienė, are Lithuanian nationals. The case concerns the complaint by the Applicants about a violation of their right to family life as the domestic courts originally granted permanent custody of their two orphaned nieces to grandparents.

In April 1999 Mr Jucius’ sister and her partner died and the Applicants were awarded temporary custody of their nieces, RS and DS, then four and six months old. The children’s grandparents also applied to adopt RS and DS. Accordingly, the Applicants submitted a counter-claim. On 22 December 1999 the Mažeikiai District Court recognized the girls as their adopted children and in August 2002 the domestic courts decided to grant permanent custody to the grandparents. The court justified this decision on account of the better financial and living conditions of the grandparents, as well as the fact that they were closer blood relatives to the girls. RS, then aged 7, objected and expressed her desire to stay with the Applicants. Unfortunately, her objection was rejected by the court.

On 21 March 2003, when the bailiff attempted to execute the courts’ decision, RŠ refused to leave the home of the applicants and DŠ was taken to the grandparents. The Prosecutor General decided to reopen the proceedings. As a consequence, The Telšiai District Court granted permanent custody of RŠ to the Applicants, who lived in Mažeikiai, and permanent custody of DŠ to the grandparents, who lived in Klaipėda.

Holding: Yes, there has been a violation of Article 8 of the Convention.

The Court found it unnecessary to consider the matter separately under Article 6 § 1.

Court’s Rationale: Firstly, the European Court of Human Rights stated that the existence of “family life” essentially depends on the genuineness of close personal ties.

Furthermore, the Court noted that although Article 8 does not contain any specific time requirements, “the decision-making process leading to such an interference must be fair and such as to afford due respect for the interests safeguarded by Article 8”. Consequently, the Court held that the proceedings had been of crucial importance for the Applicants and had involved an assessment of their character as well as of their nieces’ wishes. It was stressed that to ensure the best interests of the orphaned children in the future, RS and DS should be given the opportunity to be heard before the court and to fully participate in the proceedings.

Unfortunately, the Applicants’ appeal had been determined by way of a written procedure. Furthermore, the courts were prompted to amend those decisions and to rule partly in favour of the applicants by granting them the custody of RŠ only on account of her continued resistance. The Court also recalled that future relations between parent and child should not be determined by the mere passing of time. The ECtHR concluded that “the initial decision-making process which fixed the custody and access arrangements in relation to RŠ and DŠ did not afford the requisite protection of the applicants’ interests as safeguarded by Article 8”.

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CASE OF JUOZAITIENĖ AND BIKULČIUS v. LITHUANIA – Applications no. 70659/01 and 74371/01 (2008)

Facts: The Applicants, Mrs Regina Juozaitienė (1st Applicant) and Mr Jonas Bikulčius (2nd Applicant), are Lithuanian nationals. The case consists of the criminal proceedings against the driver and the police officer. On the evening of Friday 24 July 1998 the sons of the Applicants were found dead in a car with single gunshot wounds to their backs. The deaths had occurred as their sons were passengers in a car which was involved in a police chase. On 25 July 1998 criminal proceedings were instituted against RM (the driver) for manslaughter in regard to the deaths of the two sons.

The driver of the car, who was drunk and made an attempt to flee, was acquitted of the offence of manslaughter. The Applicants’ civil claims for damages against the police were not examined. The court sentenced the driver (RM) to six years’ imprisonment for resisting the lawful orders of the police. It was also decided to institute criminal proceedings against SG (one of the policemen) for the manslaughter of the Applicants’ sons and for exceeding his authority. The Supreme Court upheld the judgment. The criminal proceedings which were opened against one of the police officers, holding him responsible for the deaths, were discontinued by the prosecutor, emphasising that the swerving movements of the car had been the cause of the deaths. The prosecution found no indication of any crime in the actions of officer SG. The Applicants appealed, but the District court rejected their appeals.

Issue: The case was brought to the Court to decide whether there is a violation of Article 2 of the Convention (right to life).

Holdings: Yes, there had been a violation of Article 2 of the Convention (right to life).

Court’s Rationale: Decision whether the Applicants’ sons were deprived of their lives in violation of Article 2 of the Convention: taking into account all the facts in the case, the Court found that the victims were killed by shots fired by SG, whose aim was to stop the car and arrest the driver.

The Court’s task was to decide whether the force used by police officer was “absolutely necessary” and it had neither confirmed it nor dispelled the doubts. By directing fire at the Ford Escort, the officers were running a very high risk of killing the passengers and should have reasonably foreseen that risk. In addition, no eyewitnesses to the chase were identified during the investigation. The Court therefore did not find that the escaping driver posed an obvious danger to the public. In any event, the Court did not consider that the level of the threat required that he had to be stopped immediately by gunfire. The Court considered that their actions indicated a lack of caution in the use of firearms, contrary to what should be expected from law-enforcement professionals. The Court concluded that the use of force by police officers was unlawful.

Decision whether the inquiry into the death of the applicants’ sons was effective:

The Court noted that the investigation into the lawfulness of the shooting was not opened until almost 10 months after the incident. No assessment as to the circumstances and lawfulness of the use of force by SG was made. There had not therefore been a prompt investigation, as required by Article 2. Other claims concerned the exact timing and duration of the chase.

The Court further noted that the domestic authorities had concentrated their inquiry on one version only – that presented by the police – without discussing any further hypotheses, such as those raised by the Applicants, whose doubts had not been scrutinised. Finally, no evidence has been submitted to show that the account of the police was the only objectively possible version of events (e.g. the expert opinion concerning the correlation between the distance and trajectory of the bullets).

Just satisfaction: The court held that Lithuania was to pay the Applicants the overall sum of 30,000 Euros for all forms of damage (pecuniary and non-pecuniary) suffered.

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CASE OF KARALEVIČIUS v. LITHUANIA – Application no._53254/99 (2005)

Facts: The applicant, Vytautas Karalevičius, is a Lithuanian national. On 31 December 1996 Šiauliai City District Court ordered his detention on remand. He was convicted of forgery and suppressing documents on 10 September 1998 and sentenced to five years’ imprisonment. He appealed. On 24 October 2000 the Supreme Court reduced the sentence to three years’ imprisonment.

From 2 January 1997 to 22 September 1999 the applicant had been held at the Šiauliai Remand Prison, where, he alleged, he had lived and slept in cells of less than 20 square metres with 10 to 15 inmates, with an open toilet in each cell; the cells had lacked ventilation and been humid and cold; only one hour’s outside exercise had been permitted per day; there had been a constant lack of hot and cold water; and the applicant had been permitted access to a shower only once in 15 days.

Issue: The case was brought to the Court to decide whether there is a violation of Articles 3 (prohibition of inhuman or degrading treatment or punishment); 5 § 1 (right to liberty and security) and 8 (right to respect for correspondence) of the Convention.

Holdings: Yes, there had been a violation of Article 3 of the Convention; A violation of Article 5 § 1 of the Convention as regards the applicant’s detention from 13 June to 6 August 1997; A violation of Article 5 § 1 of the Convention as regards the applicant’s detention from 29 June to 30 July 1999; A violation of Article 8 of the Convention;

No, there had not been a violation of Article 5 § 1 of the Convention as regards the applicant’s detention from 15 November to 30 December 1999;

Court’s Rationale: The Court observed that for more than three years and one month the applicant had been held in the Šiauliai Remand Prison which, according to the Lithuanian Government, was 100% overcrowded by relevant domestic standards. The applicant had spent most of that time in a space of less than two square metres and for more than a year and a half had lived in an area of 1.51 square metres in a cell of 16.65 square metres together with 10 other inmates. The Court considered it established that the applicant had been confined to his cell for 23 hours daily. In the Court’s opinion, the fact of the applicant being obliged to live, sleep and use the toilet in the same cell with so many other inmates had itself been sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and arouse in him feelings of fear, anguish and inferiority capable of humiliating and debasing him.

The Court noted the Government’s admission that no toilet paper had been given to the inmates during the whole of the applicant’s stay there, that until 1999-2000 the possibility to use the bath had been restricted to less than once a week, and that until 2000 no adequate facilities had existed for laundry of the belongings and bedding of the inmates. Although those factors alone did not justify the stay being regarded as degrading treatment, when added to the serious overcrowding problem they showed that the applicant’s conditions of detention had not been compatible with Article 3. Consequently, the Court concluded that the applicant’s detention amounted to degrading treatment contrary to Article 3 of the Convention.

With regard to the applicant’s periods of detention, the Court identified three: from 13 June to 6 August 1997 no order had been made by a judge authorising the applicant’s detention under Articles 10 and 104-1 of the Code of Criminal Procedure as then in force. The applicant’s detention during that period had therefore been unlawful and the Court concluded that there had been a violation of Article 5 § 1.

With regard to the period of detention from 29 June to 30 July 1999 the Court observed that the applicant’s conviction had been quashed by the Supreme Court on 29 June 1999 but no court order authorising the applicant’s remand had been made until 30 July 1999. The applicant’s detention during that period had therefore not been lawful and the Court concluded that there had been a violation of Article 5 § 1.

The detention from 15 November to 30 December 1999 had been covered by a valid court order. Accordingly, the Court concluded that there had not been a violation of Article 5 § 1 regarding that period.

Lastly, the Court noted that the Government had not denied that all of Mr Karalevičius’s correspondence with the Convention institutions had been opened by the prison administration. Accordingly, it concluded that there had been a violation of Article 8 of the Convention.

Just satisfaction: The Court held that Lithuania was to pay the applicant 12,000 Euros for non-pecuniary damages and 1,000 Euros for costs and expenses.

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CASE OF KASPEROVIČIUS V. LITHUANIA – Application no._54872/08 (2012)

Facts: In October 2006, the applicant was detained for seven days at the Anykščiai Police Remand Facility. The applicant complained to the administration of the Anykščiai Facility that the conditions of his detention had been appalling. In their reply, they explained that full-scale renovation would be required, but said that this was precluded owing to a lack of financial resources. The applicant then lodged a complaint with the Anykščiai District Prosecutor’s Office, but his complaint was unsuccessful. He lodged a further complaint with the Ombudsman. On January 2007 the Ombudsman found the applicant’s complaint valid. However, the facility administration was not to blame for the insufficient funding that had precluded the possibility of improving conditions in the facility.

The applicant then initiated proceedings before the Panevėžys Regional Administrative Court seeking compensation for non-pecuniary damages. On October 2007 the Panevėžys Regional Administrative Court dismissed the applicant’s claims as unfounded. The applicant appealed against the judgment but the Supreme Administrative Court rejected in its entirety the applicant’s claim for pecuniary compensation for the non-pecuniary damages he had sustained.

Issue: The case was brought to the Court to decide whether there is violation of Article 3 (prohibition of torture and of inhuman or degrading treatment) of the Convention.

Holdings: Yes, there had been a violation of Article 3 of the Convention.

Court’s Rationale: In the present case the Court notes that, except for one hour’s walk, the applicant had to spend the entire 24-hour period in his cell. Of the seven days that he spent in the Anykščiai Facility, the applicant shared his cell with another inmate for three days. As has been acknowledged by the administration of the remand facility and established by the Ombudsman and the Supreme Administrative Court, at night the applicant had to use a bucket toilet in the presence of another inmate and be present while the bucket toilet was being used by his cellmate. Furthermore, even though the Government suggested that the inmates could knock on the cell door to ask the guard to take them to the toilet, the Court finds that this measure merely left the inmates at the discretion of the guard. In addition, such a practice appears to have been in contradiction with Lithuanian legislation itself. Finally, the situation the applicant was in did not meet Council of Europe standards to the effect that prisoners should have ready access to sanitary facilities that are hygienic and respect privacy.

The Court also notes that the ventilation system in the remand facility was “ineffective”. Given the lack of appropriate toilet facilities in the cell, it is not unreasonable to conclude that the lack of a proper ventilation system must have contributed to a malodorous cell and thus further aggravated the applicant’s situation. The Court next turns to the Government’s argument that the Anykščiai Facility’s administration had no intention of humiliating the applicant. Be that as it may, it reiterates that although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3.

Indeed, in the present case, the fact remains that the competent authorities took no steps to improve the objectively unacceptable conditions of the applicant’s detention. In the Court’s view, this omission denotes a lack of respect for the applicant. On this point the Court also takes into account that, despite the fact that in 2006 health care specialists had already pointed out “over and over again” the lack of sanitary units in the Anykščiai Facility, the institution was still used to hold remand prisoners.

In light of the above considerations, the Court is of the view that the prison conditions complained of diminished the applicant’s human dignity and aroused in him feelings of anguish and inferiority capable of humiliating and debasing him. In sum, the Court considers that the conditions of the applicant’s detention in the Anykščiai Police Detention Facility amounted to degrading treatment within the meaning of Article 3 of the Convention.

Just satisfaction: The Court held that Lithuania was to pay the applicant 3,000 (EUR) in respect of non-pecuniary damages.

Dissenting Opinion: The dissent agree with the majority that there has been a violation of Article 3 of the convention. However it disagrees regarding the just satisfaction claim awarded to the applicant. In the dissent opinion the sum awarded is excessive. The dissent argued that the applicant was detained in the above mentioned Police Remand Facility for only seven days and although certain domestic regulations on hygiene standards had been breached, nevertheless the minimum level of severity required under Article 3 of the Convention had not been reached as there was no indication that the conditions of detention had affected the applicant’s physical health. In the dissent’s view such facts are of crucial importance and must be taken into account also in light of the case-law of the Court when awarding just satisfaction to applicants in Article 3 cases.

The dissent concludes that the Chamber should have been more cautious when deciding on the non-pecuniary award under Article 41, in order to justify the satisfaction claims as “just” in the circumstances of the case at issue while also taking into account the economic situation or standard of living in the country. In Lithuania, the average minimum monthly salary is 850 Lithuanian Litai, meaning that the applicant, for seven days’ detention without any negative consequences, will receive compensation equal to approximately twelve months’ average salary in that country.

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CASE OF KRAULAIDIS v. LITHUANIA – Application no. 76805/11 (2016)

Chamber JUDGMENT

8 November 2016

Violation of Article 3 of the Convention.

  • The applicant invoked Article 6 § 1 and Article 13 of the Convention, but Court considers that the complaint falls under the procedural limb of Article 3 of the Convention.
  1. The facts

The applicant, driving a motorcycle, collided with a car driven by M.N at around 12.30 p.m. on 28 April 2006 in a residential area of Vilnius. M.N. was not injured, but the applicant suffered a serious injury. On the day of the accident, a sketch describing the circumstances of the accident was drawn up by an investigator from Vilnius City Police Department. However, this sketch was never signed by either of the drivers involved.  The applicant, the driver of the other car and eye-witnesses to the accident were also questioned, all giving contradictory testimonies.

Later, a procedure was started to investigate if M.N had committed a crime by violating road safety. Over the next five years four forensic examinations of the circumstances of the accident were carried out, and two rounds of additional questions were made, to clarify contradictions between different expert opinions. Examinations contained several procedural flaws, which gave reason to doubt the accuracy of the reports. The applicant’s representatives noted that the most grave error was that the forensic examinations were all based on the same unconfirmed sketch of the crash. The pre-trial investigation, closed and reopened in total three times on the grounds that not all the essential circumstances of the case had been examined, was eventually discontinued as time-barred.

  1. Proceeding in the Court

The Court reiterates that Article 3 of the Convention requires that the authorities conduct an effective official investigation into alleged ill-treatment, even if such treatment has been inflicted by private individuals. The procedural obligation under Article 3 of the Convention requires that any investigation should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible for an offence.

The Court notes that the total duration of the pre-trial investigation was five years and one month. In this connection the Court observes there were some short periods of inactivity which had not been explained by the authorities. This gives the Court serious reasons to suspect the effectivity of the authorities’ actions.

The Court finds that It took nineteen months and two reports by court-appointed experts to counter to claims brought up by applicant’s representative. The domestic authorities did not provide any reasons why those actions could not have been taken earlier in the investigation.

Lastly, the Court finds it problematic that the sketch became the basis for all the subsequent forensic examinations, which were central to the repeated discontinuation of the pre-trial investigation, as well as to the dismissal of the applicant’s civil claim.

The Court concludes that the domestic authorities did not display the required level of diligence when investigating the circumstances of the accident, particularly taking into account the grave and irreparable consequences suffered by the applicant. There has accordingly been a violation of Article 3 of the Convention under its procedural limb.

  • The reparations

The Court awards the applicant EUR 3,000 in respect of non-pecuniary damage and  the sum of EUR 753 for covering expenses incurred before the Court.

 

 

 

 

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CASE OF KUDREVIČIUS AND OTHERS v. LITHUANIA – Application no._37553/05 (2013)

Facts: In May 2003 the Lithuanian authorities issued farmers with permits to hold peaceful assemblies in selected areas. The farmers held a peaceful demonstration, but after it dispersed it caused major traffic disruptions on three main roads.

After a successful settlement with the Government, the protest ended. However, criminal charges of rioting were brought against the applicants, and they were all convicted to a sixty-day custodial sentence, suspended for one year, and ordered not to leave their places of residence for more than seven days during that period without the prior agreement of the authorities.

They appealed against the convictions, but they were unsuccessful, and the Supreme Court dismissed their final appeal in October 2005.

Issue: The case was brought to the Court to decide whether there is violation of Article 11 (Freedom of assembly and association) of the ECHR.

Holdings: Yes, there had been a violation of Article 11 of the Convention.

Court’s Rationale: The Court accepted that the demonstration had caused major disruption. However, it stated that the authorities had to show a degree of tolerance towards disruptions during protests, in order for the right of freedom of assembly to be upheld.

In this case, the applicants had permits to hold peaceful protests, the demonstration had not been violent, and negotiations between the farmers and the Government had been underway at the relevant time. They had also acted reasonably by allowing passengers and dangerous goods vehicles to pass during the blockade.

As punishment, the Lithuanian authorities had imposed the ordeal of criminal proceedings, convictions and custodial sentences, which – although suspended – had involved a 12-month restriction on the applicants leaving their place of residence.

The Court therefore held that the applicants’ conviction had not been a necessary and proportionate measure in order to achieve the legitimate aim of preventing disorder, in violation of Article 11.

Dissenting Opinion: The dissent argued that when analysing the aspect of lawfulness, the Supreme Court of Lithuania, in its judgment provided clear legal explanation of the substance of the criminal offence “riot” and the reason for its application in the applicants’ case. The applicants were not punished for their participation in the demonstrations, but for their particular behaviour in the course of those demonstrations.

The dissent noted that the criminal sanctions imposed on the applicants were lenient custodial sentences, which were proportionate to the gravity of their conduct. Furthermore, none of the applicants even had to serve their respective sentences, because the trial judge considered that the aims of punishment could be achieved by suspending the execution of the sentence.

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CASE OF L. V. LITHUANIA – Application no._27527/03 (2007)

Facts: The case concerned an application brought by a Lithuanian national, Mr L. At birth he was registered as a girl, with a name clearly identifiable as female. However, from an early age, he submits that he felt his gender was male rather than female.

Although he was diagnosed as a transsexual his doctor initially refused to prescribe hormone therapy in view of uncertainty as to whether or not full gender reassignment could be legally carried out. He was therefore forced to follow the hormone treatment unofficially. Following the adoption of the new Civil Code in 2000, which for the first time introduced a right to gender-reassignment surgery in Lithuanian law, the applicant underwent partial reassignment surgery. However, he agreed with the doctors to defer any further surgical steps pending the introduction of implementing legislation on the conditions and procedure for gender reassignment.

The implementing legislation has not yet been enacted following strong opposition to the bill in the Parliament. The applicant remained a female under domestic law and although he was eventually permitted to change his name to one that was not gender sensitive, his personal code on his new birth certificate and passport and on his university diploma continued to identify his gender as female. He thus faced considerable embarrassment and difficulties in daily life and found himself ostracised to the point where he had become suicidal.

Issue: The case was brought to the Court to decide whether there was a violation of Articles 3, 8, 12 and 14 of the Convention.

Holdings: Yes, there had been a violation of Article 8 of the Convention. There has been no violation of Article 3 of the Convention. There was no need to separately examine the complaints under Articles 12 and 14.

Court’s Rationale: An examination of the facts had shown that the applicant had suffered understandable distress and frustration but not circumstances of such an intense degree as to warrant considering his complaint under Article 3. The Court found it more appropriate to analyse that aspect of the applicant’s complaint under Article 8.

The Court observed that Lithuanian law had recognized the rights of transsexuals to change not only their gender but also their civil status. However, there was a gap in the relevant legislation: the law regulating full gender-reassignment surgery, although drafted, had yet to be adopted. In the meantime, no suitable medical facilities are reasonably accessible in Lithuania.

That legislative gap had left the applicant in a situation of distressing uncertainty as to his private life and the recognition of his true identity. Budgetary restraints in the public health service might have justified some initial delays in implementing the rights of transsexuals under the Civil Code but not a delay of over four years, since 1 July 2003, when the relevant provisions had come into force. Given that only about 50 people (according to unofficial estimates) had been concerned, the budgetary burden on the State would not have been expected to be unduly heavy. Consequently, the Court considered that a fair balance had not been struck between public interest and the rights of the applicant. The Court therefore concluded that there had been a violation of Article 8.

Just satisfaction: The State could satisfy the applicant’s claim for pecuniary damages by the adoption of the requisite subsidiary legislation. Failing that, it was to pay the applicant 40,000 EUR towards the cost of having the final stages of the necessary surgery performed abroad. The applicant was also awarded 5,000 EUR for non-pecuniary damages.

Dissenting Opinion: The applicant’s only argument was founded on a legal gap in the national legal system, stemming either from a failure of the government to pass subsidiary legislation or to introduce a bill to that end. However, there was, and still is, under Lithuanian law, primary legislation which unequivocally meets the applicant’s aspirations. Alleging the ineffectiveness of domestic remedies, without any attempt to turn to the domestic judiciary, the applicant apparently relied on the idea that the courts would somehow be unwilling to find in his favour despite the existence of a clear legal provision in the Civil Code.

The position of the parties is as follows: the applicant failed to exhaust domestic remedies, preferring merely to allege their ineffectiveness, although he was unable to substantiate that allegation, whereas the Government relied on the evolution of the domestic case-law concerning remedies. The dissent agree with the Government’s preliminary objection of non-exhaustion of domestic remedies, and consider the application premature and, therefore, inadmissible pursuant to Article 35 § 1 and § 4 of the Convention.

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CASE OF LALAS v. LITHUANIA – Application no. 13109/04 (2011)

Facts: Mr Lalas is a Lithuanian national. The case concerned his complaint that an undercover police officer had entrapped him into supplying drugs in June 2002 and that subsequently he had been unfairly convicted and sentenced. He further complained about the non-disclosure at his trial of certain evidence relating to the authorisation and use of the Criminal Conduct Simulation Model.

The Applicant was sentenced to three years’ imprisonment. Mr Lalas appealed to the Kaunas Regional Court. On 10 June 2003 the Kaunas Regional Court upheld the conviction and set the sentence at eight years of imprisonment. The Applicant lodged a cassation appeal. In 2003 the Supreme Court dismissed the Applicant’s cassation appeal. On 3 March 2004, the Applicant’s defence counsel submitted a request to the Supreme Court for reopening the case, claiming that the decisions of the court were based on inappropriate evidence which had been gathered unlawfully. This request was dismissed by the Supreme Court. The Applicant relied on Article 6 § 1 of the Convention.

Issue: The case was brought to the Court to decide whether there is violation of Article 6 § 1 (right to a fair trial within a reasonable time).

Holdings: Yes, there had been a violation of Article 6 § 1 (by five votes to two).

Court’s Rationale: The Court reminded (as in Ramanauskas) that there must be adequate safeguards against abuse, as the public interest cannot justify the use of evidence obtained as a result of police incitement. The Court held that its function under Article 6 § 1 is to review the quality of the domestic courts’ assessment of the alleged entrapment and to ensure that they adequately secured the accused’s rights of defence.

The Court had taken into account the following circumstances: there was no evidence that M. had committed any drug offences beforehand. Secondly, the Criminal Conduct Simulation Model was not fully disclosed before the trial court, particularly regarding the purported suspicions about M.’s previous conduct. Moreover, it was Officer V. who took the initiative when he first approached M., asking where he could acquire illegal drugs, and M. then offered to supply them himself. Furthermore, as the transaction progressed, M. was offered a significant sum of money to supply a large amount of narcotics – this obviously represented an inducement to produce the goods. Finally, the first instance court recognized the decisive role played by the police.

The Court agrees with the Government’s position that the Criminal Conduct Simulation Model had been authorised only in respect of M. Nevertheless, during the execution of the model, the police officers uncovered the persons committing crimes, including the Applicant. Thereafter, the Court elaborates on former arguments and reflections.

In these circumstances the Court finds that there has accordingly been a violation of Article 6 § 1 of the Convention. 

Just satisfaction: The Court held that the finding of a violation constitutes in itself a sufficient just satisfaction (non-pecuniary damages). The Court also recalled that, where an individual had been convicted by a court in unfair proceedings, a retrial or reopening of the case represented in principle an appropriate way of redressing the violation.

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CASE OF MALININAS v. LITHUANIA – Application no. 10071/04 (2008)

Facts: In 2003 the Applicant, together with his accomplice, was convicted by the Kaišiadorys District Court of attempted drug dealing in large quantities. The court established that the offence had been disclosed using a “Criminal Conduct Simulation Model” which had been authorized for use by the Prosecutor General on 29 May 2002. The Court found that the Applicant was caught selling psychotropic drugs to an undercover agent, V., under the model.

The trial court concluded that the use of the model in the case had been lawful. The court acknowledged that Mr Malininas’ conduct from the beginning had been influenced by Officer V and added that it had not been established that the applicant had sold or tried to sell drugs to anyone other than this officer.  The Applicant was convicted of the attempted offence and sentenced to three years and six months’ imprisonment.

Mr Malininas appealed. On 10 June 2003 the Kaunas Regional Court upheld the conviction, considering that the Applicant was guilty of a completed offence, not a mere attempt. The Applicant’s sentence was increased to nine years’ imprisonment. Afterwards, the Applicant lodged a cassation appeal, but it was dismissed by the Supreme Court. However, the Applicant’s conviction was again re-classified as an attempt to sell drugs in large quantities, but the sentence of nine years’ imprisonment was retained.

Issue: The case was brought to the Court to decide whether there was a violation of Article 6 § 1 (right to a fair trial).

Holdings: Yes, there had been a violation of Article 6 § 1 (right to a fair trial). The Applicant had also invoked an infringement of Article 8 of the Convention, however, the Court had limited its examination to Article 6.

Court’s Rationale: The Court had taken the following considerations into account: there was no evidence that the applicant had committed any drug offences beforehand. No objective, judicially-verified materials have been presented to the Court to demonstrate that the authorities had good reason to suspect the applicant of drug-dealing or of being pre-disposed to commit such an offence until approached by Officer V. The Court noted that the Applicant had been incited to commit the offence by the undercover police officer. Furthermore, in the recent case the Court concluded that there was an apparent instigation to commit a criminal act by intensively offering a significant sum of money in exchange for the supply of a large amount of drugs. Finally, the first instance court recognised the decisive role played by the police. The above mentioned arguments, in the Court’s view, “extended the police’ role beyond that of undercover agents to that of agents provocateurs” and concluded that the initiative came not from the Applicant but from the agents provocateurs.

Just satisfaction: The Applicant was awarded 1,710 Euros for costs and expenses.

Dissenting opinion: The judgment contains the dissenting opinion of Judge Cabral Barreto.

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CASE OF MEILUS V. LITHUANIA – Application no. 53161/99

Facts:

Mr Reimundas Meilus applied to the European Court of Human Rights against the Republic of Lithuania under Article 6 § 1 of the Convention (trial within a reasonable time).

In November 1994 Mr Meilus became a suspect in a criminal (fraud) case. On 14 August 1996 Mr Meilus was charged on five counts, including cheating and embezzlement. On 15 October 1998 the Kaunas City District Court found Mr Meilus guilty on four counts. He was sentenced to five years’ imprisonment. Upon Mr Meilus’s cassation appeal, on 30 September 1999 the Supreme Court quashed the conviction and the appellate decision because of numerous breaches of domestic criminal procedure. The case was returned to the Kaunas City District Court for a new examination to be carried out.

Issue: Mr Meilus invoked Article 6 § 1 of the Convention.

Decision of the Court on the alleged violation of Article 6 § 1 of the Convention

Holdings: Yes, there was a violation of Article 6 § 1 of the Convention.

Court’s Rationale: According to the Court’s case-law, the reasonableness of the length of proceedings must be assessed in light of the particular circumstances of the case and giving due regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case and the conduct of the applicant and of the authorities dealing with the case.

Costs and expenses: The Court held that Lithuania was to pay Mr Meilus 5 000 Euros in respect of non-pecuniary damages.

CASE OF MISIUKONIS and OTHERS v. LITHUANIA – Application no. 49426/09 (2016)

Chamber Judgement

15 November 2016

-Violation of Article 1 of Protocol No. 1

The applicants, Jurgis Misiukonis, Birutė Misiukonienė, and Jurgita Visockienė, are Lithuanian nationals. Mr Misiukonis and Ms Misiukonienė are married. Ms Visockienė is their daughter, and lives in France. The case concerned payments made for certain property rights.

On 26 January 2001, with the help of a local authority employee E.K., the applicants and their

son/brother V.M. purchased from G.O an entitlement to receive 0.728 hectares of land from the State. In June 2001, the local authority awarded each of them a plot of 0.182 hectares. Two months later, the applicants and V.M. sold their plots of 0.182 hectares to third parties, for 25,000 Lithuanian litai (LTL) each. In January 2002, the district prosecutor brought proceedings challenging the decisions which had led to the applicants and V.M. obtaining the plots. In February 2006 the Vilnius City First District Court held that G.O. had been entitled to receive land and had lawfully sold this entitlement; however, he had only been entitled to receive one plot of up to 0.2 hectares, whereas the remaining land had to be compensated to him in cash. To regularise the situation, the court ordered the applicants and V.M. to pay the State the market value of the four plots that they had received and sold, amounting to LTL 216,000 for each plot, while they remained entitled to receive one new plot of up to 0.2 hectares. The applicants lodged two appeals against the decision, but these were dismissed. In 2007, the district prosecutor concluded that some local authority employees had acted unlawfully in registering the land rights, but the investigation was discontinued as time-barred. The applicants brought a claim against the State for damages. They complained that, though each of them had received LTL 25,000 for selling the land, they had each been ordered to pay the State LTL 216,000 – leading to a loss of LTL 191,000 each. However, the Vilnius Regional Administrative Court dismissed the claim, finding that the applicants should have known that they had received the land unlawfully.

The Court noted that the case falls under the first sentence of the first paragraph of Article 1 of Protocol No. 1, the right to the peaceful enjoyment of property. The court examined the lawfulness, legitimate aim and the proportionality of the state’s interference. It didn’t find reasons do doubt the lawfulness and the legitimate aim of the interference. However,  as regard to proportionality, the Court found that by requiring the applicants to pay to the State more money than they had actually received from selling their land to third parties the authorities placed an individual and excessive burden on the applicants and failed to strike a fair balance between the general interest of the community and the protection of the applicants’ fundamental rights.

The Court rejected the applicants’ claims for pecuniary damages. Nonetheless, the Court underlined that, in order for the State to comply with the present judgment, at the domestic level the applicants should not be required to pay more money than they had obtained from the sale of their land. The Court did not award the applicant with a benefit for non-pecuniary damage.

 

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CASE OF NEKVEDAVIČIUS v. LITHUANIA – Application no. 1471/05 (2013)

Facts: The case concerns the ownership of a plot of land in the city centre of Kaunas, Lithuania. The plot was nationalised following the Soviet occupation in the 1940s. Ownership of the houses was attributed to Mr Nekvedavičius’ father’s former wife, who continued living there until ownership was transferred to third persons in the 1960s. After Lithuania regained independence in 1990, Mr Nekvedavičius started proceedings to regain ownership.

The administrative and civil suits he brought attempting to repossess the buildings were unsuccessful, but he did obtain a judgment in his favour in relation to ownership of the plot of land in November 2001. However, the Lithuanian courts held that it was not possible to return the original land to him because it was being used by other people.

Since then there have been a number of investigations and court hearings but Mr Nekvedavičius has not been compensated for the loss of the land.

Issue: The case was brought to the Court to decide whether there was a violation of Article 6 § 1 (right to a fair hearing within a reasonable time) and Article 1 of Protocol No. 1 (protection of property) to the Convention.

Holdings: Yes, there had been a violation of Article 6 § 1 (right to a fair hearing within a reasonable time); Yes, there had been a violation of Article 1 of Protocol No. 1 (protection of property) to the Convention.

Court’s Rationale: The Court noticed that the judgment of 27 November 2001 guaranteed the applicant the restoration of his property rights, however a significant part of the actions taken by the authorities may be considered ineffective, repetitive and not aimed at restoring the applicant’s property rights.

The Court noticed that the applicant’s inability to have the judgment enforced constituted an interference with his right to peaceful enjoyment of his possessions. It found that the Government did not demonstrate the existence of any exceptional circumstance capable of justifying the delay in enforcing the said judgment and the obstruction to the peaceful enjoyment of the property is mainly attributable to the state.

The Court concludes that the domestic authorities failed to respect the obligations placed on them by the judgment of 27 November 2001 and the principle of the proper administration of justice. By failing to execute the said judgment, the respondent State prevented the applicant from having his property rights restored for a prolonged period of time. Thus the applicant’s legitimate expectation to receive compensation was unjustifiably affected.

Just satisfaction: The court held that Lithuania was to pay the applicant 7,800 Euros in respect of non-pecuniary damages and 8,770 Euros in respect of costs and expenses.

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CASE OF NOVIKAS v. LITHUANIA – Application no._45756/05 (2010)

Facts: The applicant, Andrejus Novikas, is a Lithuanian national. Following a report to the police by two witnesses, on April 1998 a pre-trial investigation was initiated regarding several crimes and on 28 April 1998 the applicant’s place of residence was searched. On September 1999 the applicant was officially informed of the accusations, questioned as an accused and ordered not to leave his place of residence. On 13 August 2001 the public prosecutor again informed the applicant of the accusations against him and questioned him. On December 2001 the public prosecutor concluded the pre-trial investigation in the case by issuing the final bill of indictment and transferred the case to the courts.

In 2004 the Klaipėda Regional Court sentenced the applicant to five years’ imprisonment for organized burglary. On January 2005, after four hearings, the Court of Appeal upheld the conviction of the applicant. The Court of Appeal concluded that the court of first instance had properly assessed all the evidence in the case and clarified the discrepancies. On June 2005 the Supreme Court, in oral proceedings, dismissed the cassation appeal lodged by the applicant.

Issue: The case was brought to the Court to decide whether there was a violation of Article 6 § 1 (right to a fair trial within a reasonable time) of the Convention;

Holdings: Yes, there had been a violation of Article 6 § 1 of the Convention;

Court’s Rationale: As regards the period to be taken into consideration, the Court concludes that the period started on 28 April 1998 with the search of the applicant’s home. The proceedings ended on 28 June 2005, when the Supreme Court made its final decision. The proceedings therefore lasted approximately 7 years and 2 months, at three levels of jurisdiction.

The Court will assess the reasonableness of the length of the proceedings in light of the particular circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and the competent authorities.

The Court considers that the proceedings may be deemed complex given the number of accused and the charges against them, as well as the volume of evidence to be examined. Nonetheless, it cannot be said that this in itself justified the entire length of the proceedings. In their submissions, the Government referred to delays caused by the behaviour of certain members of the accused and witnesses. The Court notes, however, that it is the responsibility of the authorities to ensure the presence of all persons relevant to the proceedings, and to this end they have a number of measures at their disposal. The Court sees no reason why the case could not have been suspended in regard to the missing defendant at an earlier stage. In contrast, the Court notes that the periods from 1 to 15 September 2003 and from 9 to 17 December 2003 are attributable to the applicant, but only account for a total of 22 days.

However, the Court cannot agree with the Government that the applicant’s absconding caused substantial delays. Although the applicant had absconded before the judgment of the Regional Court was adopted, he had been present for most of the proceedings at first instance, which involved the examination of the evidence and the establishment of the facts. As the Regional Court had pointed out, the applicant had submitted his final statement before absconding. Subsequently the courts continued their examination of the case in the applicant’s absence, but in the presence of his lawyer who maintained the defence’s position. Thus the applicant’s failure to appear at the last hearings of the court of first instance and the hearings of the higher courts did not unduly hinder the examination of the case.

Giving due regard to all the material submitted and to its case-law on the subject, the Court considers that in the instant case the overall length of the criminal proceedings was excessive and failed to meet the “reasonable time” requirement. Accordingly, there has been a breach of Article 6 § 1.

Just satisfaction: The Court held that Lithuania was to pay the applicant 1,800 Euros in respect of non-pecuniary damages and 1,500 Euros for costs and expenses;

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CASE OF PADALEVIČIUS v. LITHUANIA – Application no. 12278/03

Facts: The applicant, Juozas Padalevičius, is a Lithuanian national. The case concerned Mr Padalevičius’s complaint about the excessive length of civil litigation and about the annulment of the land-purchase agreement. He further argued that the compensation granted to him by the domestic courts for that land had been derisory.

Mr Padalevičius became the owner of the land belonging to the Noreikiškės settlement, situated on the LAA, due to Lithuanian law. On 5 June 1995, civil proceedings were brought by a group of private individuals for annulment of the land-purchase agreements, including that of the Applicant. On 27 June 1995 the Kaunas District Court ordered the seizure of the Applicant’s land. However, on 10 May 2002 the Constitutional Court adopted a ruling, finding that the Government decrees are in contradiction with the Constitution (Art. 23) and with the Restitution Law (Art. 12 § 1 (15)). Hence, the acts violated the rights of the former owners of the land, who had the right to restitution of their property. In 2002 the Panevėžys Regional Court reversed the decision of the Kaunas District Court. The court ordered restitution and obliged the local authorities to return to the applicant the money that he had previously paid for the plot of land at issue. The Applicant alleged i.a. that the Panevėžys Regional Court had examined the case in the absence of their lawyer. He also alleged that it is impossible to execute the appellate court’s decision since it ordered restitution in “single-use investment vouchers”, which no longer have pecuniary value and that the annulment of the land-purchase contracts was contrary to the right to protection of private property and would amount to re-privatisation.

On 31 January 2003 the Supreme Court upheld the decision. However,  it noted that the appellate court had taken a reasonable decision to hear the case in the lawyer’s absence. By a decision of 14 March 2005 the Deputy Governor of Kaunas County restored the former owners’ title to the plot of land on the LAA settlement. 

Issue: The case was brought to the Court to decide whether there was a violation of Article 6 § 1 of the ECHR (right to a fair hearing within a reasonable time) and violation of Article 1 of Protocol No. 1 to the Convention (protection of property).

Holding: Yes, there has been a violation of Article 6 § 1 of the Convention.

No, there has been no violation of Article 1 of Protocol No. 1 to the Convention.

Court’s Rationale: Mr Padalevicius complained about the excessive length of civil litigation within the meaning of Article 6 § 1. According to the Court, if the outcome of proceedings was decisive for civil rights and obligations, those proceedings came within the scope of Article 6 § 1. The Court held that the proceedings before the Constitutional Court about the constitutionality of the Government’s decrees on the basis of which the land purchase agreement had been concluded had been closely linked to the proceedings before the civil courts. In the instant case, the Court concluded that the reasonable time required by Article 6 § 1 had been exceeded, and that there had therefore been a breach of that provision.

In connection with Article 1 of Protocol No. 1, the Court would not regard as disproportionate every imbalance between the relevant public interest and the effects of restitution laws on the particular individual concerned. A certain “threshold” of hardship is essential to determine a breach of the Applicant’s Article 1 Protocol No. 1 rights. In this case the Court does not consider that such a threshold of hardship has been reached and this part of the application has been found manifestly ill-founded and must be rejected. 

Just satisfaction: The court held that Lithuania is to pay the applicant, within three months from the date on which the judgment becomes final,  2,500 Euros in respect of non-pecuniary damages and 869 Euros for costs and expenses.

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CASE OF PAKSAS v. LITHUANIA – Application no. 34932/04 (2011)

Facts: The applicant, Rolandas Paksas, is a former President of Lithuania who was removed from office by Parliament following impeachment proceedings for committing a gross violation of the Constitution and breaching the constitutional oath.

The Constitutional Court found that, while in office as President, the applicant had, unlawfully and for his own personal ends, granted Lithuanian citizenship to a Russian businessman, disclosed a State secret to the latter by informing him that he was under investigation by the secret services, and exploited his own status to exert undue influence on a private company for the benefit of close acquaintances.

On 22 April 2004 the Central Electoral Committee found that there was nothing to prevent the applicant from standing in the presidential election called as a result of his removal from office. However, on 4 May 2004 the Seimas amended the Presidential Elections Act by inserting a provision to the effect that a person who had been removed from office in impeachment proceedings could not be elected President until a period of five years had expired. The matter was referred by members of parliament to the Constitutional Court, which ruled on 25 May 2004 that such a disqualification was compatible with the Constitution, but that subjecting it to a time-limit was unconstitutional. On 15 July 2004 the Seimas passed an amendment to the Seimas Elections Act, to the effect that anyone who had been removed from office following impeachment proceedings was disqualified from being a member of parliament.

Issue: The case was brought to the Court to decide whether there is a violation of Article 3 of Protocol No. 1 (right to free elections) to the Convention.

Holdings: Yes, There had been a violation of Article 3 of Protocol No. 1 (right to free elections) to the Convention.

Court’s Rationale: The Court noted that, as a former President of Lithuania removed from office following impeachment proceedings, the applicant belonged to a category of people directly affected by the rule set forth in the Constitutional Court’s ruling of 25 May 2004 and the Act of 15 July 2004. Since he had thus been deprived of any possibility of running as a parliamentary candidate, he was entitled to claim that there had been interference with the exercise of his right to stand for election.

Assessing the proportionality of the interference, the Court observed on the one hand that, Article 3 of Protocol No. 1 did not exclude the possibility of imposing restrictions on the electoral rights of a person who had, for example, seriously abused a public position or whose conduct had threatened to undermine the rule of law or democratic foundations.

On the other hand, while not wishing either to underplay the seriousness of the applicant’s alleged conduct in relation to his constitutional obligations or to question the principle of his removal from office as President, the Court noted the extent of the consequences of his removal for the exercise of his rights under Article 3 of Protocol No. 1: he was permanently and irreversibly deprived of the opportunity to stand for election to Parliament. That appeared all the more severe since removal from office had the effect of barring the applicant not only from being a member of parliament but also from holding any other office for which it was necessary to take an oath in accordance with the Constitution.

The Court found it understandable that a State should consider a gross violation of the Constitution or a breach of the constitutional oath to be a particularly serious matter requiring firm action when committed by a person holding an office such as that of President of Lithuania. However, that was not sufficient to persuade it that the applicant’s permanent and irreversible disqualification from standing for election as a result of a general provision was a proportionate means of satisfying the requirements of preserving democratic order.

The Court noted that Lithuania’s position in that area constituted an exception in Europe. It then observed that not only was the restriction in question not subject to any time-limit, but the rule on which it was based was also set in constitutional stone, with the result that the applicant’s disqualification from standing from election carried a connotation of immutability that was hard to reconcile with Article 3 of Protocol No. 1. Lastly, it found that although the relevant legal provision was worded in general terms and was intended to apply in exactly the same manner to anyone whose situation corresponded to clearly defined criteria, it was the result of a rule-making process strongly influenced by the particular circumstances.

Accordingly, and having regard especially to the permanent and irreversible nature of the applicant’s disqualification from holding parliamentary office, the Court concluded that there had been a violation of Article 3 of Protocol No. 1.

Just satisfaction: The Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damages sustained by the applicant.

Dissenting Opinion: The dissent disagree with the majority that the applicant’s complaint under Article 3 of Protocol No.1 was admissible and well-founded. It argued that since no judicial remedy was available, the final domestic decision was, at the latest and at best from the applicant’s perspective, the Act of 15 July 2004. That date constitutes the starting-point for the six-month period. In his application the applicant did not raise, even in substance, the complaint concerning his ineligibility to stand for election to the Seimas. He did not raise that complaint until 30 September 2005, one year later, in a supplement to his application.

The judgment finds only a “narrow” violation. The conviction of the majority is that lifelong disqualification from standing for election is excessive and thus unacceptable. And the case-law generally takes a strict approach to prohibitions of this type. However, the allegations against the applicant were not trivial either, and it was the national parliament which, following a ruling by a high-level court, removed him from office and passed the impugned Act. In such a specific and delicate field as electoral law, and in a case involving the complex relations between the different public authorities, subject to the ultimate scrutiny of the electorate, and thus the sovereign people, restraint should be advocated; the State has a wide discretion, and therefore it seems that the legitimate European supervision in this case should be restricted or limited.

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CASE OF POCIUS V. LITHUANIA – Application no. 35601/04

Facts:

Mr Pocius applied to the European Court of Human Rights alleging that the Lithuanian courts made a judgment in his case on the basis of classified evidence presented by the police and never disclosed it to him. Kaunas City Police informed Mr Pocius that his permits to keep and carry a firearm for defense purposes as well as a hunting rifle were revoked because he was placed on an “operational records file”. Mr Pocius, in court, challenged the entry of his name into those operational records and asked for its removal. The proceedings before the national courts was unfair, in particular as a result of not having access to the evidence on which the decision of the courts was made.

Issue: Mr Pocius invoked Article 6 § 1 of the Convention.

Decision of the Court: The Court decided that there was a violation of Article 6 § 1 (right to a fair trial) of the Convention.

Court’s Rationale:

The Court found that the revocation of that license and the subsequent judicial proceedings had an effect upon the civil rights of Mr Pocius. The Court stated that, according to its case-law, the principle of equality of arms requires each party to be given a reasonable opportunity to present his or her case. Furthermore, according to that rule, parties have a right to provide evidence and discuss all evidence adduced or observations filed with a view to influencing the court’s decision. There was a violation of Article 6 § 1.

Other alleged violations of the Convention

Invoking Article 6 § 1 of the Convention, Mr Pocius further complained that the length of the proceedings before the Lithuanian courts was excessive. The Court finds that the length of the proceedings in issue did not exceed the “reasonable time” requirement of Article 6 § 1 of the Convention. It follows that this complaint should be dismissed as manifestly ill-founded, pursuant to Article 35 § 3 and § 4 of the Convention.

Costs and expenses: The Court held that Lithuania was to pay Mr Pocius 3,500 Euros in respect of non-pecuniary damages.

CASE OF PYRANTIENĖ v. LITHUANIA – Application no. 45092/07 (2013)

Facts: The case concerned Ms Pyrantienė’s complaint about the level of compensation she had received when the Lithuanian authorities had repossessed a plot of land she had once owned.

In 1996 Ms Pyrantienė acquired the 0.5 hectare plot of land from the State. However, a number of years later the sale was quashed by the Lithuanian courts because it was found that the State did not have the right to sell the property. A valuation of the property in 2005 found that it was worth 112,500 LT. Yet in October 2006 the Lithuanian courts held that Ms Pyrantienė would only receive LTL 1,466 in compensation, as this was the value of the investment vouchers she had used to buy the land in 1996.

Her appeal of this level of compensation was dismissed by the Lithuanian Court of Appeal in February 2007.

Issue: The case was brought to the Court to decide whether there is a violation of Article 1 of Protocol No. 1 (protection of property) to the Convention.

Holdings: Yes, there had been a violation of Article 1 of Protocol No. 1 (protection of property) to the Convention.

Court’s Rationale: According to the Court any interference by a public authority with the peaceful enjoyment of possession should be lawful, must satisfy the criteria for public interest and must pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised. It also reiterates that an interference with the peaceful enjoyment of possessions must strike a “fair balance” between the demands of public interest and the requirements of the protection of the individual’s fundamental rights.

The Court stated that the decision of the courts to annul the land purchase agreement was prescribed by law, and that it pursued a legitimate aim, that is, in the public interest, as it was in order to satisfy the restitution claims of persons from whom that property had been expropriated. However, the Court reiterates that any interference with property must, in addition to being lawful and having a legitimate aim, also satisfy the requirement of proportionality.

The Court holds that the compensation awarded to the applicant did not reflect the real value of the property or the fact that it had been acquired in good faith. The disproportion between the land’s market value and the compensation awarded is too significant for the Court to find that a “fair balance” was struck between the public interest and the applicant’s fundamental rights.

Taking account the foregoing considerations, the Court concludes that the conditions under which the applicant had her title to the plot of land removed imposed an individual and excessive burden on her and that the authorities have failed to strike a fair balance between the demands of public interest on the one hand and the applicant’s right to the peaceful enjoyment of her possessions on the other.

Just satisfaction: The Court held that the question of the application of Article 41 (just satisfaction) was not ready for decision and reserved it for examination at a later date.

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CASE OF RAMANAUSKAS v. LITHUANIA – Application no_74420/01 (2008)

Facts: The applicant, Kęstas Ramanauskas, is a Lithuanian national. He worked as a prosecutor in the Kaišiadorys region. He submitted that he had been approached through a private acquaintance by a person previously unknown to him who was, in fact, an officer from a special anti-corruption police unit. The officer offered the applicant a bribe of USD 3,000 in return for a promise to obtain a third party’s acquittal. The applicant had initially refused but later agreed as the officer had repeated the offer a number of times.

The officer informed his employers and in January 1999 the Deputy Prosecutor General authorised him to simulate criminal acts of bribery. Shortly afterwards, the applicant accepted the bribe from the officer. In August 2000 he was convicted of accepting a bribe of USD 2,500 and sentenced to imprisonment. The judgment was upheld on appeal and the applicant’s cassation appeal was dismissed by the Supreme Court which found that the evidence corroborated the applicant’s guilt, which he himself had acknowledged. Once his guilt had been established, the question of whether there had been any outside influence on his intention to commit the offence had become irrelevant.

Issue: The case was brought to the Court to decide whether there was a violation of Article 6 § 1 (right to a fair trial) of the Convention.

Holdings: Yes, there had been a violation of Article 6 § 1 of the Convention.

Court’s Rationale: The Court considered that the national authorities could not be exempted from their responsibility for the actions of police officers by simply arguing that, although carrying out police duties, the officers were acting “in a private capacity”. It was particularly important that the authorities should have assumed responsibility, as the initial phase of the operation took place in the absence of any legal framework or judicial authorisation. Furthermore, by authorising the officer to simulate acts of bribery and by exempting him from all criminal responsibility, the authorities had legitimised the preliminary phase ex post facto and made use of its results. Moreover, no satisfactory explanation had been provided as to what reasons or personal motives could have led the officer to approach the applicant on his own initiative without bringing the matter to the attention of his superiors, or why he had not been prosecuted for his acts during that preliminary phase. On that point, the Government had simply referred to the fact that all the relevant documents had been destroyed.

The actions of the officer and the applicant’s acquaintance had gone beyond the mere passive investigation of existing criminal activity: there was no evidence that the applicant had committed any offences beforehand, in particular corruption-related offences; all the meetings between the applicant and the officer had taken place on the initiative of the latter; and, the applicant seemed to have been subjected to blatant prompting on the part of his acquaintance (the officer) to perform criminal acts, although there was no objective evidence to suggest that he had been intending to engage in such activity.

Throughout the proceedings, the applicant had maintained that he had been incited to commit the offence. Accordingly, the domestic authorities and courts should at the very least have undertaken a thorough examination of whether the prosecuting authorities had incited the commission of a criminal act. To that end, they should have established in particular the reasons why the operation had been mounted, the extent of the police’s involvement in the offence and the nature of any incitement or pressure to which the applicant had been subjected. That was especially important having regard to the fact that VS was never called as a witness in the case since he could not be traced. The applicant should have had the opportunity to state his case on each of those points.

However, the domestic authorities denied that there had been any police incitement and took no steps at the judicial level to carry out a serious examination of the applicant’s allegations. More specifically, they did not make any attempt to clarify the role played by the protagonists in the applicant’s case, despite the fact that the applicant’s conviction was based on evidence obtained as a result of the police incitement of which he complained.

The Court noted the Supreme Court’s finding that, once the applicant’s guilt had been established, the question of whether there had been any outside influence on his intention to commit the offence became irrelevant. However, a confession to an offence committed as a result of incitement could not eradicate either the incitement or its effects.

The Court concluded that the actions of the officer and the applicant’s acquaintance with the officer had the effect of inciting the applicant to commit the offence of which he was convicted and that there was no indication that the offence would have been committed without their intervention. There had therefore been a violation of Article 6 § 1.

Just satisfaction: The Court held that Lithuania was to pay the applicant 30,000 Euros in respect of all damages.

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CASE OF SAVENKOVAS v. LITHUANIA – Application no. 871/02 (2009)

Facts: The case concerned Mr Savenkovas’ complaint about the conditions of his detention in Vilnius prisons until July 2003 and the censorship of his correspondence by the prison administration.

The Applicant, a person with previous convictions, was convicted in October 2000 of robbery, illegal possession of ammunition, assault and an attempt to abscond. He was sentenced to five years and ten months’ imprisonment and his property was confiscated. The Applicant appealed, claiming that the case against him had been fabricated and that the conviction was arbitrary, but his allegations were dismissed. The Applicant was not present at the appeal hearing but was represented by officially-appointed counsel. Furthermore, the Applicant lodged a cassation appeal, but in 2001 the Supreme Court dismissed this appeal in the presence of his lawyer.

In 2003 Mr Savenkovas’ sentence of imprisonment was upheld, but the order to confiscate his property was waived. On 30 July 2003 the Applicant was released after having completed the sentence. However, in the same year he was arrested and prosecuted on another charge. According to the information mentioned by the parties, the Applicant was remanded in custody pending trial.

Issue: The case was brought to the Court to decide whether there was a violation of Article 3 (prohibition of torture and inhuman or degrading treatment or punishment) and Article 8 (right to respect for private and family life) of the Convention. The alleged violations of other Articles of the Convention and Protocol No. 1 were rejected by the Court as being manifestly ill-founded.

Holdings: Yes, there had been a violation of Articles 3 and 8 of the Convention.

Court’s Rationale: The Court held that the conditions in the prisons had failed to respect basic human dignity and must therefore have been prejudicial to his physical and mental state. Moreover, “the overcrowded and unsanitary conditions of the Applicant’s detention at the Lukiškės Remand Prison amounted to degrading treatment in breach of Article 3 of the Convention”.

Furthermore, the Court found that there had been a violation of Article 8. The Court notes that there was systematic censorship of the correspondence of prisoners at the material time, with the apparent exception of letters to State institutions and the Court. Moreover, incoming and outgoing correspondence suffered certain delays and prisoners could not retain their incoming mail. The Court concluded that the Government has not presented sufficient reasons to show that such an extensive control of the Applicant’s correspondence was necessary in a democratic society.

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CASE OF SIDABRAS AND DŽIAUTAS v. LITHUANIA – Applications no. 55480/00 and 59330/00

Facts: The case concerns two applicants,  Mr Juozas Sidabras and Mr Kęstutis Džiautas, who are both Lithuanian nationals. They both worked for the Lithuanian branch of the KGB (the Soviet Security Service). After 1990, the first Applicant, Mr Sidabras, found employment as a tax inspector at the Inland Revenue and the second Applicant, Mr Džiautas, worked as a prosecutor at the Office of the Prosecutor General of Lithuania, investigating organized crime and corruption cases in particular.

In May 1999, the Applicants were found to have the status of “former KGB officers” and to be subject to the employment restrictions imposed by Article 2 of the Law on the Evaluation of the USSR State Security Committee (NKVD, NKGB, MGB, KGB) and the Present Activities of Permanent Employees of the Organization. As a result of these restrictions, both Applicants were dismissed from their positions.

Both Mr Sidabras and Mr Džiautas brought an administrative action against the security intelligence authorities, pleading that their dismissal was unlawful. On 9 September 1999, the Higher Administrative Court held that Mr Sidabras’ dismissal had been justified and his appeal was also dismissed. In 1999, the Higher Administrative Court allowed Mr Džiautas’s claim and reinstated him. However, following an appeal by the security intelligence authorities, the Court of Appeal quashed the previous judgment. His appeal to the Supreme Court has failed.

Issue: The case was brought to the Court to decide whether there was a violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 8 (right to respect private and family life) or Article 8 alone. The Court also examined if there is a breach of Article 10 (freedom of expression) of the Convention taken alone and in conjunction with Article 14.

Holdings: By five votes to two, it was found that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect to private life) of the Convention; No, there had been no violation of Article 10 (freedom of expression) taken alone or in conjunction with Article 14.

Court’s Rationale: The Court submitted that a far-reaching ban on taking up private sector employment does effect “private life”. The Court held that the Applicants “were treated differently from other persons in Lithuania who had not worked for the KGB and who as a result had no restrictions imposed on them in their choice of professional activities”. The Court also observed that the Applicants were treated in an inappropriate way as “the  KGB Act was to regulate the employment prospects of persons on the basis of their loyalty or lack of loyalty to the State”.

The Court therefore considered that the prohibition on occupying various private sector posts for former KGB agents caused consequential effects on the enjoyment of their right to respect for their “private life” within the meaning of Article 8. The Court noted that referring to particular occupations, it was impossible to ascertain any reasonable link between the positions concerned and the legitimate aims sought by the ban on holding those positions. In the Court’s view, such a legislative scheme constitutes a “lack of the necessary safeguards for avoiding discrimination and for guaranteeing an adequate and appropriate judicial control of the imposition of such restrictions”.

The Court also considered relevant the fact that the 1999 Act came into effect almost a decade after Lithuania had declared its independence and the applicants left the KGB many years before the entry into force of the 1999 Act. The Court concluded that the ban on the Applicants seeking employment constituted a disproportionate measure. The Court therefore held, by five votes to two, that there had been a violation of Article 14, taken in conjunction with Article 8.

Just satisfaction: The court held that Lithuania was to pay each of the applicants 7,000 Euros in respect of pecuniary and non-pecuniary damages, as well as 2,681.37 EUR and 2,774.05 EUR respectively for costs and expenses.

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CASE OF ŠLEŽEVIČIUS V. LITHUANIA – Application no. 55479/00

Facts:

Mr Adolfas Šleževičius applied to the European Court of Human Rights against the Republic of Lithuania under Article 6 § 1 of the Convention (trial within a reasonable time).

In January 1996 two members of the Seimas (Parliament) wrote letters to the Prosecutor General, requesting the initiation of criminal proceedings against Mr Šleževičius in connection with allegations of financial impropriety amounting to abuse of office. On 24 January 1996 proceedings began. On 10 October 1996 a prosecutor from the Office of the Prosecutor General charged the applicant with two counts of abuse of office.

The courts refused to examine the merits of the case on three occasions in 1997, 1998 and 1999, finding that the charges against the applicant had been vague and speculative. Furthermore, a substantial part of the time was spent on the procedural disputes involving the courts of ordinary and constitutional jurisdiction, regarding the prosecutors’ appeals against judicial findings of inadequate investigations and the inability to proceed to trial.

On 26 May 2000 Mr Šleževičius appealed to the Office of the Prosecutor General, claiming that the proceedings had not been definitively discontinued. On 31 August 2000 a prosecutor from the Office of the Prosecutor General dismissed the appeal, holding that the case had been discontinued in accordance with the relevant domestic requirements. Mr Šleževičius was also informed that he could apply to a court to challenge the decision of 18 April 2000.

Issue: Mr Šleževičius complained concerning the excessive length of the civil proceedings. He invoked Article 6 § 1 of the Convention.

Decision of the Court on the alleged violation of Article 6 § 1 of the Convention

Holdings: Yes, there was a violation of Article 6 § 1 of the Convention. The Court found that the length of the proceedings was excessive and did not satisfy the “reasonable time” requirement.

Court’s Rationale: The Court found that in criminal matters, the “reasonable time” referred to in Article 6 § 1 of the Convention began to run as soon as a person was “charged”. The Court noted that all the proceedings lasted for four years, two months, and 25 days at one level of substantive jurisdiction. According to the Court’s case-law, the reasonableness of the length of proceedings must be assessed in light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case and the conduct of the applicant and of the authorities dealing with the case.

Costs and expenses: The Court held that Lithuania was to pay Mr Šleževičius 30,000 Lithuanian litai in respect of non‑pecuniary damages, 70,000 (seventy thousand) Lithuanian litai in respect of costs and expenses, plus any value-added tax that may be chargeable.

CASE OF URBŠIENĖ and URBŠYS v. LITHUANIA – Application no. 16580/09 (2016)

Chamber Judgement

8 November 2016

  • Violation of Article 6 § 1 – on account of the refusal of legal aid

The applicants, Rimanta Irena Urbšienė and Dalius Urbšys, are Lithuanian nationals who were born in 1963 and 1964 respectively and live in Kaunas (Lithuania). They are a married couple. The case concerned the fairness of civil proceedings that they had been party to.

Between 2001 and 2009, the applicants were involved in protracted litigation brought against a company owned by Mrs Urbšienė, consisting of a claim for rent arrears brought by another company, and also bankruptcy proceedings. The proceedings involved a large number of hearings, judgments and appeals in various courts. On some occasions, the applicants were granted legal aid. However, on multiple occasions the applicants were denied legal aid, on the grounds that their cases were directly related to their commercial or independent professional activities. The claim for rent arrears ended when the Court of Appeal found against the applicants in October 2009, following an oral hearing where none of the parties were present. The applicants were denied legal aid to make a cassation appeal. This meant that one could not be made, as under domestic law such appeals had to be submitted by a lawyer. The applicants alleged that the decisions of the domestic courts had been unlawful, and brought proceedings against the State for damages. Among their allegations, they complained about not being granted legal aid. However, their claim was rejected by the Vilnius Regional Court, the Court of Appeal and eventually the Supreme Court, the last judgment being on 24 February 2015.

Relying in particular on Article 6 § 1 (right to a fair hearing and access to court), the applicants complained that they had been refused legal aid and that that refusal, based solely on the fact that they as individuals had been engaged in commercial activities, had notably limited their access to court. They also complained that they had not been properly notified of the Court of Appeal hearing in October 2009.

The Court recalls that there is no obligation under the Convention to make legal aid available for all disputes in civil proceedings. Nevertheless, the question of whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the specific facts and circumstances of each case. The Court finds that by being denied legal aid to prepare claims with regard to the bankruptcy and rent arrears proceedings, to prepare the cassation appeal against the Court of Appeal’s refusal to transfer the applicants’ cases to the Vilnius Regional Court and to prepare the claim concerning the reopening of the bankruptcy case and for their representation in the reopened rent arrears case on several occasions the applicants were deprived of an adequate opportunity to present their case effectively to the domestic courts.

As regard to the applicants’ complaint that they had not been properly notified of the Court of Appeal hearing in October 2009, the Court concludes that there has been no violation of the applicants’ right to a fair hearing enshrined in Article 6 § 1 of the Convention on account of a lack of proper notification of a hearing before the appellate court as the substance of the case made the applicants’ personal participation in the hearing before the Court of Appeal unnecessary

Just satisfaction: EUR 3,000 (non-pecuniary damage) and EUR 500 (costs and expenses).

 

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CASE OF UŽUKAUSKAS v. LITHUANIA – Application no. 16965/04 (2010)

Facts: The case concerns the complaint by the applicant about the Lithuanian courts having taken decisions in his case on the basis of classified evidence presented by the police and never disclosed to him.

The applicant held a firearms licence which was revoked by the Lithuanian authorities on the grounds that he was listed in the operational records file compiled by law-enforcement officers which contained information about his alleged risk to society. He was required to hand in his arms to the police in return for payment.

He challenged the entry of his name in the operational records file in the domestic courts, which, however, dismissed his action on the basis of classified material submitted by the police, without disclosing it to the applicant.

Issue: The case was brought to the Court to decide whether there was a violation of Article 6 § 1 (right to a fair hearing) of the Convention.

Holdings: Yes, there had been a violation of Article 6 § 1 (right to a fair hearing);

Court’s Rationale: The Court recalled that, in court proceedings, each party had to be given a reasonable opportunity to present their case under conditions which placed neither of them at a disadvantage vis-à-vis each other. Further, both parties needed to have access to the presented evidence and observations of the other party. However, in some cases it was legitimate to withhold evidence from the defence in order to preserve the fundamental rights of another individual or to safeguard public interest.

While the Court accepted the Lithuanian Government’s position that documents constituting State secrets might be disclosed only to those with relevant authorization, it noted that Lithuanian law and judicial practice provided that such information could not be used as evidence in court against anyone, unless it had been declassified. In addition, it could not be the only evidence on which courts based their decisions.

The data in the operational files in respect of Mr Užukauskas had been of decisive importance for his case given that the courts had based their decisions primarily on the information contained in them. Had Mr Užukauskas known the content of those records he might have been able to persuade the judges that the police had acted without good reason and thus to have his name removed from those files. The judges, however, had examined those records behind closed doors. The records had been presented to the court by the police and had constituted the only evidence of the applicant’s alleged danger to society. Accordingly, the decision-making process had not complied with the requirement of adversarial proceedings or equality of arms and had not incorporated adequate safeguards to protect the interests of the applicant.

Just satisfaction: The court held that Lithuania was to pay the applicant 3,500 Euros in respect of non-pecuniary damages and 1,290 Euros in respect of costs and expenses.

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CASE OF UŽUKAUSKAS v. LITHUANIA – Application no. 16965/04

In the Chamber’s judgment in the case of UŽUKAUSKAS v. LITHUANIA, the European Court of Human Rights held, unanimously, that there had been:

  • a violation of Article 6 of the Convention (right to a fair hearing). 
  1. Principal facts:

The applicant, Mr Robertas Užukauskas, is a Lithuanian citizen. The case originates from the claim of the applicant, according to which the proceeding for removing his names from an “operational records file” has been unfair in that the principles of fairness and equality had not been respected. He invoked Article 6 § 1 of the Convention (right to a fair hearing).

In 1999, the applicant was granted a license to keep a firearm. On 17 July 2002, the validity of his license was extended. In November 2002, the applicant submitted a request for a license to keep another type of firearm. On 19 December 2002, police officials refused to grant a new license to the applicant considering that he had been listed in an “operational records file” (database where police authorities register the names of persons that are suspected of being involved with or preparing criminal activity) six days earlier, on 13 December 2002. On April 16 2003, the police notified the applicant that his license to keep a pistol and hunting rifle had been revoked and that under Article 38 of the Law on the Control of Guns and Ammunition the applicant was obliged to hand in his firearms to the authorities. He was notified that he would receive money for his guns. The applicant challenged the entry of his names into the operational records file. On 25 September 2003, the Kaunas Regional Administrative Court dismissed his action based on classified material which had been submitted by the police and observed by the judges without it being disclosed to the applicant. The court found that listing the name of the applicant in the operational record was lawful in view of the information about him held by the police. The applicant appealed, complaining that the court had not examined the classified material during the hearing and he had no access to it. On 29 October, the Supreme Administrative Court upheld the decision noting that the evidence was classified as a “state secret”. In July 2004, the applicant was granted a new license and his guns were returned to him.

Decision of the Court:

Decision regarding the applicability of 6 § 1 of the Convention: taking into account the principle of equality of arms which requires each party to be given a reasonable opportunity to present his or her case under conditions that do not place the litigant at a substantial disadvantage in front of the opponent, the Court found that the Lithuanian decision–making procedure did not comply with the requirements of adversarial proceedings or equality of arms and did not incorporate adequate safeguards to protect the interests of the applicant. Consequently, there had been a violation of 6 § 1 of the Convention.

The Court agreed with the Lithuanian Government on that document which constitute “State secret” may only be disclosed to persons who possess appropriate authorization. However, such information may not be used as evidence in court against a person unless it has been declassified and it may not be the only evidence on which courts base their decisions. In the present case,  the operational file was the only evidence of the applicant’s alleged danger to society. Therefore, it was of decisive importance. Despite several attempts on the part of the applicant to get access to the classified material, Lithuanian authorities have repeatedly refused his claim. As the evidence was classified as a “State secret”, Lithuanian courts made their decisions behind closed doors and they merely presented their conclusions to the applicant. Therfore, it was not possible for the applicant to have been apprised of the evidence against him and he did not have the opportunity to answer it. Consequently, the Court decided that there has been a violation of Article 6 of the Convention (right to a fair hearing).

Just satisfaction: The Court awarded the claimed sum in full to the applicant and Lithuania was ordered to pay 4,455 Lt (approximately 1,290 EUR)  to the applicant.

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CASE OF VALAŠINAS v. LITHUANIA – Application number 44558/98 (2001)

Facts: The Applicant, Mr Juozas Valašinas, is a Lithuanian national. The case concerned the conditions of the Applicant’s detention in Pravieniškės prison and his treatment there.

The arguments of the Applicant concerned were as follows:

  1. General conditions of detention
  2. Specific acts by the prison administration:
    1. The body search of 7 May 1998
    2. Alleged victimization of the Applicant and the absence of review
  • The control of correspondence with the Convention organs

Issue: The case was brought to the Court to decide whether there is a violation of Article 3 (prohibition of degrading treatment), Article 8 (right to respect for correspondence) and Article 34 (right of individual petition) of the Convention.

Holdings: Yes, there had been a violation of Article 3 (prohibition of degrading treatment) and Article 8 (right to respect for correspondence) of the Convention.

No, there had been no breach of Article 34 (right of individual petition) of the Convention.

Court’s Rationale: The Court emphasized that under Article 3 of the Convention the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured. The Court found that the general conditions of detention in Pravieniškės prison did not breach Article 3 of the Convention.

As regards the body search of the applicant on 7 May 1998, the Court considered that, whilst strip searches may be necessary on occasions to ensure prison security or prevent disorder or crime, they must be conducted in an appropriate manner. In the Court’s opinion the way in which this particular search had been conducted showed a clear lack of respect for the Applicant, and in effect diminished his human dignity. The Court concluded that it had constituted degrading treatment in breach of Article 3 of the Convention.

As regards the alleged victimisation of the Applicant, the Court found that the Applicant had not been victimised for the expression of his views or the exercise of his legitimate rights and freedoms. The Court considered that the disciplinary penalties imposed on the Applicant had not been arbitrary, had been subjected to a proper review by the prison administration and the Ombudsman, and had not amounted to treatment contrary to Article 3 of the Convention.

The Court concluded that the control of the Applicant’s correspondence with the Convention organs constitutes a violation of Article 8 of the Convention. However, there had been no breach of Article 34 of the Convention – thus the Applicant’s right of petition was not infringed.

 (hudoc.echr.coe.int – Press release 558/24.7.2001)

Just satisfaction: The Court awarded the Applicant 6,000 LTL for non-pecuniary damages and granted him 1,693.87 LTL for legal costs and expenses.

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CASE OF VALIULIENĖ v. LITHUANIA – Application no. 33234/07 (2013)

Facts: On February 2001, Ms Valiulienė applied to the city district court to bring a private prosecution, stating that she had been beaten by her partner J.H.L. on several occasions. In January 2002, a judge of that court forwarded her complaint to the public prosecutor, ordering him to start his own pre-trial criminal investigation. J.H.L. was charged with having injured the complainant. The investigation was subsequently suspended several times, due to J.H.L.’s failure to appear in court and insufficient evidence, and reopened on appeal by a higher prosecutor on the grounds that the investigation had not been sufficiently thorough.

The prosecutor discontinued the investigation in June 2005, holding that under the new code of criminal procedure, following legislative reform in May 2003, a prosecution in respect of minor bodily harm should have been brought by the victim in a private capacity. The city district court upheld that decision in September 2005, noting that a prosecutor had a right, but not an obligation, to open an investigation. There was no information in the case file to indicate that the case was of public interest or that the victim could not protect her rights by means of a private prosecution.

Ms Valiulienė subsequently lodged another request to bring a private prosecution, which was eventually refused without examination on 8 February 2007, as the prosecution had become time-barred.

Issue: The case was brought to the Court to decide whether there is a violation of Article 3 (prohibition of torture and of inhuman or degrading treatment) of the Convention.

Holdings: Yes, there had been a violation of Article 3 (prohibition of torture and of inhuman or degrading treatment) of the Convention.

Court’s Rationale: The Court noted that Ms Valiulienė had addressed the city district court as early as February 2001 to bring a private prosecution against her partner. She had provided specific descriptions of each incident of ill-treatment and had indicated the names of several witnesses. The Court found that the Lithuanian authorities had received sufficient information from her to raise suspicion that a crime had been committed.

While the authorities had initially acted without undue delay, the investigation had been suspended repeatedly following the transfer of the case to the public prosecutor. The fact that the prosecutor’s decisions had been quashed by the higher prosecutor as not being thorough enough indicated a serious flaw on the part of the State.

Furthermore, even though the Lithuanian Code of Criminal Procedure had changed in May 2003, the prosecutor had decided to return the case to Ms Valiulienė for private prosecution only two years after the legislative reform. The decision had been upheld despite Ms Valiulienė’s plea that it would entail the risk of her partner enjoying impunity, given that the time-limit for prosecution was approaching. The Court underlined that even after the legislative reform it would have been possible for a public prosecutor to investigate acts causing minor bodily harm, provided that this was in the public interest.

As a result of the prosecutor’s decision, the circumstances of the case had never been established by a competent court of law. Therefore, one of the purposes of criminal prosecution, namely the effective protection against acts of ill-treatment, had not been achieved in Ms Valiulienė’s case.

Just satisfaction: The Court held that Lithuania was to pay Ms Valiulienė 5,000 Euros in respect of non-pecuniary damages.

Dissenting Opinion: In the dissent’s opinion, the Court had incorrectly relied on Article 3 in the circumstances of the present case. The position of the Chamber is not supported by the Court’s case-law, where domestic violence cases are mostly examined from the perspective of Article 8 of the Convention. The applicant’s complaint in connection with the physical attacks on her should have been examined under Article 8 of the Convention as the Court has previously held in various contexts.

The dissent argued that the attacks against the applicant did not attain the minimum level of severity to fall within the scope of Article 3. Although the applicant was beaten by her live-in partner on five occasions, each time she sustained only minor health impairments, which did not cause any short-term health problems.

Accordingly, in the particular circumstances of the present case (very minor injuries), it cannot accept that the applicant was subjected to ill-treatment which was sufficiently serious to be considered inhumane and degrading and thus to fall within the scope of Article 3 of the Convention. Taking into account its specific circumstances, the case should have been examined exclusively under Article 8 of the Convention.

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CASE OF VARNAS v. LITHUANIA – Application no._42615/06 (2013)

Facts: The case concerned the applicant’s complaint that he had been denied conjugal visits from his wife, despite repeated requests, while convicted prisoners were allowed such visits.

In March 2004, the applicant was placed in pre-trial detention, where he spent more than two years until, in June 2006, he was convicted of a number of offences, including theft of high-value property, and sentenced to six years’ imprisonment. While he was serving his sentence, he was again placed in pre-trial detention in June 2007, when a second criminal investigation was brought against him. In a judgment upheld in October 2009 he was convicted on another two counts of theft committed by an organized group and sentenced to five years’ imprisonment.

Issue: The case was brought to the Court to decide whether there is a violation of Article 14 (Prohibition of discrimination) in conjunction with Article 8 (Right to respect for private and family life) of the Convention.

Holdings: Yes, there had been a violation of Article 14 (Prohibition of discrimination) in conjunction with Article 8 (Right to respect for private and family life) of the Convention.

Court’s Rationale: The Court noticed that the duration of visits for remand prisoners, such as the applicant, was shorter than that which the law allowed in respect of a convicted person. Above all, remand prisoners had no right to conjugal visits at all, while convicted prisoners could receive long-term visits, including conjugal visits, lasting up to forty-eight hours once every three months, on special separate premises, and without surveillance.

Moreover, the frequency of visits and the type of contact (short-term or conjugal) to which convicted prisoners were entitled differed according to the security level both of the prisoner and of the facility in which he was being held. In contrast, the restrictions on the visiting rights of remand prisoners were applicable generally, regardless of the reasons for their detention and the related security considerations. However, international instruments such as the International Covenant on Civil and Political Rights and the European Prison Rules of 1987 stressed the need to respect the remand prisoner’s status as a person who was to be presumed innocent, while the European Prison Rules of 2006 provided that, unless there was a specific reason to the contrary, untried prisoners should receive visits and be allowed to communicate with family and other persons in the same way as convicted prisoners. In that regard the Court had already had occasion to hold that, inasmuch as it concerned restrictions on visiting rights, the aim of protecting the legitimate interests of an investigation could also be attained by other means, such as the setting up of different categories of detention, or restrictions adapted to the individual case.

As to the reasonableness of the justification for the difference in treatment between remand prisoners and convicted prisoners, security considerations relating to any criminal family links were absent in this particular case. The applicant’s wife was neither a witness nor a co-accused and there was no indication that she had been involved in criminal activities. Accordingly, the Court was not persuaded that there was any particular reason to prevent conjugal visits. The Government, like the Lithuanian administrative courts, had in essence relied on the relevant statutory provisions, without any reference as to why the restrictions had been necessary and justified in the applicant’s specific situation.

Lastly, although the applicant had received short-term visits and so had not lost all contact with his wife, the physical contact available during those visits appeared to have been especially limited, as the couple had been separated by wire netting. Such limited physical interaction had further been compounded by the fact that they had been under the constant observation of a guard.

The particularly long period of the applicant’s pre-trial detention (two years) had reduced his family life to a degree that could not be justified by the inherent limitations involved in detention. The refusal of the remand prison authorities to grant the applicant a conjugal visit had also been based on a lack of appropriate facilities. However, that reason could not withstand the Court’s scrutiny. The authorities had therefore failed to provide reasonable and objective justification for the difference in treatment of remand prisoners compared to convicted prisoners and had thus acted in a discriminatory manner.

Just satisfaction: The court held that Lithuania was to pay the applicant 6,000 Euros in respect of non-pecuniary damages.

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CASE OF VARNIENĖ v. LITHUANIA – Application no. 42916/04 (2013)

Facts: The case concerned Varnienė’s rights to a plot of land in Valakupiai. In 2000 local authorities restored her rights to part of this plot, which had belonged to her mother but had been nationalised in the 1940s.

Ms Varnienė also launched an action to have 0.33 hectares of the plot, which remained government property, returned to her. However, this claim was dismissed in December 2001 because the relevant land had been designated as a forest of national importance which was to be bought out by the State. This decision was quashed by the Supreme Administrative Court in February 2002, and Ms Varnienė obtained an order obliging the local authority to return the land to her. However, the local authority appealed the execution order, and in May 2004 the Supreme Administrative Court ruled that its previous judgment ordering the land to be returned to Ms Varnienė had been made in error.

Issue: The case was brought to the Court to decide whether there is violation of Article 6 § 1 (right to a fair trial) and Article 1 of Protocol No. 1 (protection of property) of the Convention.

Holdings: Yes, there had been a violation of Article 6 § 1 (right to a fair trial); Yes, there had been a violation of Article 1 of Protocol No. 1 (protection of property) of the Convention.

Court’s Rationale: The arguments used to justify the reopening of the proceedings were essentially the same as those employed by the Vilnius local authorities in the first set of administrative proceedings. Those arguments had already been examined and rejected by the Supreme Administrative Court on appeal, the reopening of the proceedings can be regarded as an attempt by the authority to re-argue the case on the points which had failed on appeal. The legal bases it relied upon were identical to those that existed during the first set of administrative proceedings.

The Court holds that the resumed examination of the applicant’s case and setting aside of the decision of  February 2002 infringed the principle of legal certainty and the applicant’s “right to a court” under Article 6 § 1 of the Convention.

The Court observes that the then final and effective decision of February 2002 provided the applicant with an enforceable claim which constituted a “possession” within the meaning of Article 1 of Protocol No. 1. Despite all efforts by the applicant a decision which could be attributed solely to the Vilnius local authority had not been reached. Furthermore, after the administrative court proceedings were reopened, on 20 May 2004 the Supreme Administrative Court deprived the applicant of all the fruits of the previously final court decision in her favour.

In these circumstances the Court finds that there has been interference with the applicant’s right to the peaceful enjoyment of her possessions, which amounts to a “deprivation” of property within the meaning of the first paragraph of Article 1 of Protocol No. 1.

Just satisfaction: The court held that Lithuania was to pay the applicant 8,000 Euros in respect of non-pecuniary damages and 580 Euros in respect of costs and expenses.

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CASE OF VENSKUTĖ v. LITHUANIA – Application no._10645/08(2012)

Facts: The applicant, Marytė Venskutė, is a Lithuanian national. The case concerns her complaint that the State Border Guard Service investigators arrived at the restaurant where she was working on 25 May 2005, at about 10.30 a.m., to question her in an insurance fraud case and that she was then taken to their headquarters for questioning. She was released the following day and the (fraud) investigation against her was subsequently dropped.

Issue: The case was brought to the Court to decide whether there was a violation of Article 5 § 1 (right to liberty and security) of the Convention.

Holdings: Yes, there had been a violation of Article 5 § 1 (right to liberty and security) of the Convention.

Court’s Rationale: In the present case it is disputed by the parties whether at about 10.30 a.m. on 25 May 2005 the applicant accompanied the SBGS officers to their Vilnius headquarters of her own free will or as a result of mental coercion by the officers.

In this context the Court notes that during the civil proceedings the applicant’s colleagues at the restaurant testified that “the applicant was arrested”, “the applicant was taken away quickly”, the officers “showed identification of some kind” and “demanded that the applicant went with them”, and “the officers took the applicant with them”. Even though in their decisions the civil courts did not mention that evidence, the Court finds that it gives certain credibility to the applicant’s argument that there was an element of coercion which affected the applicant’s liberty and that she was arrested at her workplace.

In these circumstances, the Court concludes that between 10.30 a.m. and 3 p.m. on 25 May when the Service investigators drew up the report of her provisional arrest, she was de facto deprived of her liberty within the meaning of Article 5 § 1.

The Court has already found that during the time at issue the applicant was questioned by the investigators, yet no record of her questioning was drawn up. Accordingly, the applicant did not have her rights explained to her, either as a witness or as a suspect. In this context the Court notes that a record of the applicant’s questioning as a suspect was not drawn up until the following day at 4.15 p.m. The Court finds this particularly troubling, given that the investigating officers appear to have relied on tactics where someone was first brought to their premises to testify as a witness or even in an unspecified capacity, while in reality they considered that person to be a suspect.

Lastly, the Court has had occasion to hold that the absence of an arrest record must in itself be considered a most serious failing, as it has been the Court’s constant view that unrecorded detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a most grave violation of that provision.

In this case the Court has already concluded that as of 10.30 a.m. on 25 May 2005 the applicant was under the control of the Service officers. Whilst acknowledging that the record of her provisional arrest was drawn up some four hours later, the Court nonetheless observes that that document indicated the applicant’s arrest time as 3 p.m. The lack of a proper record of the applicant’s arrest is therefore sufficient for the Court to hold that her confinement for that time was in breach of Article 179 of the CCP, which provides that each investigative action must be documented, and contrary to the requirements implicit in Article 5 of the Convention for the proper recording of deprivations of liberty. Given the intentional omission on the part of the SBGS officers to apply the relevant legislation correctly, the Court also finds that the applicant’s detention until 3 p.m. was “arbitrary”.

Just satisfaction: The court held that Lithuania was to pay the applicant 7,500 Euros in respect of non-pecuniary damages and 2,000 Euros in respect of costs and expenses.

 

 

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CASE OF YUSIV v. LITHUANIA – Application no. 55894/13 (2016)
  1. Facts

On the evening of 22 October 2011, the applicant, 16 years-old Ukrainian citizen, was arrested in Kaunas after an attempted runaway. He was suspected of committing a robbery earlier that evening. During the time in custody, the applicant got serious bruises in his body and afterward he had problems walking. The applicant claims that those injuries were caused by an officer who hit him with truncheon and kicked him inside a police car.

Applicants claims were not concordant with the testimonies of the police officers who were witnessing the arrest (eventually there were 8 officers). According to officers statements, the applicant had, despite warnings, resisted the apprehending. Hence, the officers had to use physical coercion, mainly truncheon and handcuffs. According to the officers, who were using the police car where the applicant was placed, no physical coercion was used inside the police car.

The Division of Crimes against the Civil Service and Public Interest of the Criminal Investigation Unit of the Kaunas District Police Department launched an preminaliry inquiry on the applicants allegations. This unit concluded that no pre-trial investigation should be opened. However, due to applicant’s mother’s appeal, Kaunas City Prosecutor decided to open the investigation. On 12 December 2012 the Kaunas City Prosecutor discontinued the pre-trial investigation. The prosecutor held that physical force had been used against the applicant only to the extent that was strictly necessary to arrest him. Kaunas District Court upheld the prosecutor’s decision and later the Kaunas Regional Court upheld that judgment.

  1. Issue

The applicant complained that that he had been ill-treated (inhuman treatment) by the police during his arrest on 22 October 2011 and that the authorities had failed to carry out an effective and objective investigation, which is a violation;

Article 3 of the Convention.

 

  • Court’s Rationale:

The court recalls its case law noting that allegations of ill-treatment contrary to Article 3 must be supported by evidence, which is proof “beyond reasonable doubt”. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities strong presumptions of fact will arise in respect of injuries. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence which cast doubt on the account of events given by the victim.

In the present case the court finds that the applicant was sixteen years old at the time of his arrest, he was alone against eight police officers. Therefore, even if the applicant had indeed been swearing at the officers, had fallen to the ground, and had attempted to kick or bite them, the Court is not convinced that it was strictly necessary for several trained police officers to resort to physical force of such severity as in the present case in order to make the applicant more cooperative.

When considering the investigations of the applicants allegations, the Court states that authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions. In this case, The Court notes that that the multiple injuries on the applicant’s body appeared to have been caused by blows from a truncheon. However, none of the police officers specified, nor were they ever asked to do so during the investigation, under what circumstances and how many times the truncheon had been used against the applicant. The investigation did not attempt to determine the exact origin of all of the applicant’s numerous bruises, nor did it assess whether the force used during the applicant’s arrest had been strictly necessary and proportionate. 

The Court finds it particularly troubling that the decisions of the domestic authorities to discontinue the pre-trial investigation relied exclusively on the statements of the police officers, and their statements were assessed much less critically than those of the applicant. The Court also takes note that other persons were present in the vicinity of the railway station at the time of the incident but that none of them were identified and questioned.

The Court to concludes that the pre-trial investigation into the applicant’s allegations of ill-treatment by police officers was not in line with the requirements of Article 3 of the Convention. There has accordingly been a violation of that provision under its procedural limb.

  1. Just satisfaction

Lithuania must pay for the applicant (1)  EUR 15,000 in respect of non-pecuniary damage; (2) EUR 1,872 in respect of costs and expenses.

 

 

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CASE OF ŽIČKUS v. LITHUANIA – Application no._26652/02 (2009)

Facts: The applicant, Egidijus Žičkus, is a Lithuanian national. He received various state awards in the 1990s in recognition of his contribution to the independence of Lithuania and the Lithuanian army. The case concerned his complaint that, publicly denounced as a former secret KGB collaborator, he lost his job and is now prevented from working in the private sector.

In September 2000, a special governmental commission, responsible under a domestic law introduced in January 2000 for assessing the activities of those who had collaborated with the KGB, found that Mr Žičkus had helped the KGB during the Communist era. That information was published in the “Official Gazette” in July 2001. As a result, that same month, he was dismissed from his Human Resources post at the Ministry of the Interior, the reason given being the published information in respect of his past activities. He brought proceedings before the administrative courts seeking to have the conclusions of the governmental commission as regards his KGB involvement annulled, but his claim was dismissed. Following those domestic court decisions, Mr Žičkus also alleges that he was disbarred from practicing as a barrister.

Issue: The case was brought to the Court to decide whether there is a violation of Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination) of the Convention.

Holdings: Yes, there had been a violation of Article 14 taken in conjunction with Article 8 of the Convention.

Court’s Rationale: The Court recalled that the requirement of loyalty to the State was an inherent condition of being employed as a civil servant by the State and emphasised that State-imposed restrictions on one’s opportunities to find employment in the private sector, because of lack of loyalty to the State, could not be justified under the Convention in the same manner as restrictions in the public service.

In particular, the domestic law applied in Mr Žičkus’s case had exhibited a number of drawbacks: it had not differentiated between different levels of former involvement with the KGB and had come into force at least a decade after he had ceased collaborating with the KGB. In addition, there had been nothing in the case file to indicate that Mr Žičkus would have posed an on-going danger to national security had he been employed in some areas of the private sector after 2000. Finally, the Lithuanian authorities had themselves recognized Mr Žičkus’s loyalty to the country by bestowing State awards upon him. The Court concluded that there had, therefore, been a violation of Article 14 of the Convention taken together with Article 8 as a result of Mr Žičkus having effectively been banned from seeking employment in various branches of the private sector.

Just satisfaction: The Court held, by four votes to three, that the finding of a violation constituted in itself sufficient compensation for any non-pecuniary damages. Mr Žičkus was awarded 3,432 Euros for costs and expenses.

Dissenting Opinion (1): The finding of a violation of Article 14 of the Convention taken together with Article 8 does not, in the dissenting opinion, afford sufficient redress and the applicant should have received compensation for the pecuniary and non-pecuniary damages incurred.

Dissenting Opinion (2): The dissent observed that the private-sector employment ban was not unconditional. Pursuant to Article 6 § 1 of the Law, the “former secret collaborators” had a time-limit of six months in which to admit to their collaboration to the State authorities. Furthermore, only if a person failed to admit to such collaboration within the prescribed time-limit were the fact of collaboration to be published in the “Official Gazette” and, consequently, that individual would then be prevented from pursuing certain types of professional activities in the private sector. In the present case the applicant had failed to admit to his collaboration. This resulted in the fact of his collaboration with the special services of the former USSR being published in the “Official Gazette”.

The dissent noted that the applicant had not presented any arguments which would explain and/or justify his failure to admit to his past collaboration, or his attempt to circumvent a legitimate requirement imposed on him by the Law. Furthermore, the admission of past collaboration in itself would not have led to any penalties. On the contrary, had the applicant admitted to his collaboration, that fact would have remained secret and he would not have faced any employment-related restrictions.

Accordingly, having regard to the legitimacy of the aims pursued by the State and an overall assessment of the proportionality of the measures provided for in the Law, and especially, the possibility of a discharge in respect of past behaviour, the dissent cannot find that the restrictions placed on the applicant’s employment because of his failure to comply with the requirements of the Law were disproportionate and thus discriminatory. The State cannot be held responsible for the failure of the applicant to comply with the Law.

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CASE OF ŽILINSKIENĖ v. LITHUANIA – Application no. 57675/09 (2015)

Facts:

The case originated with an application against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms by a Lithuanian national, Ms Kostancija Žilinskienė (herein referred to as ‘the applicant’), on 19 October 2009. The case involves a dispute about the restoration of title to land in the Radviliškis area. In 2000 the Radviliškis Land Department of the Šiauliai County Administration recognised L.S.G.’s right to the restoration of title to this 4.07 hectares of land. The plot of land in question had belonged to two other individuals and had been nationalised by the Soviet regime. That same year L.S.G and the applicant, a resident of the Šiauliai Region, signed a notarised agreement by which L.S.G. transferred to the applicant the right to the restoration of title to 2.07 hectares of the above-mentioned plot of land. The agreement did not indicate whether the applicant had given any money to L.S.G. in exchange for this right. However, the applicant subsequently claimed that she had paid approximately 405 Euros.

In 2004 the Special Investigation Service began investigating allegations of fraud, forgery of documents and abuse of office (under Articles 182, 228 and 300 of the Criminal Code) relating to the restoration of property rights by the Radviliškis Land Department. In January 2005 the prosecutor of the Šiauliai Region launched a similar investigation, with the two investigations subsequently being joined. As a result, on 11 November 2008 the Radviliškis District Court granted the prosecutor’s request for an annulment of the agreement between the applicant and L.S.G. The court held that L.S.G. had not been P.M. and E.M.’s relative or heir and thus, under the applicable law, had not been entitled to the restoration of title to their land. Therefore, the court declared the agreement between the applicant and L.S.G. null and void ab initio, confiscated the plot of land from the applicant, and returned it to the State.

During the proceedings the applicant claimed that she had paid LTL 1,400 (EUR 405) to L.S.G. for the right of title to the land, and L.S.G. acknowledged that she had received an unspecified sum of money. However, since no such payment had been mentioned in the text of their agreement, the court held that the right of title had been transferred to the applicant for free and did not award her any compensation. On 17 February 2009 the Šiauliai Regional Court dismissed the applicant’s appeal and upheld the decision of the lower court. The court found that the applicant had not proved that she had paid for the transfer of the right of title. It also noted that under the Civil Code, property which had been unlawfully obtained for free could be confiscated from an owner, irrespective of whether the owner had acquired such property in good faith.

Issue: The applicant complained that she had been deprived of her land, of which she had been a bona fide owner, without receiving any compensation. She relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Court’s Assessment: In the present case it is not disputed that there has been an interference with the applicant’s property rights. Having found that this interference falls to be considered as “deprivation of possessions” within the meaning of the second sentence of Article 1 of Protocol No. 1, the Court needed to ascertain whether the impugned deprivation was justified under that provision. Considering the lawfulness of the interference, the Court found that the deprivation was in accordance with the law, as required by Article 1 of Protocol No. 1.

The Court was satisfied that the applicant was a bona fide owner, as found by the domestic courts, and that her proprietary interest in the enjoyment of the land had been sufficiently established. As a result, the Court found that the applicant had a “legitimate expectation” of being able to continue to enjoy that possession.

When applying the rule of Article 1 of Protocol No. 1, the Court reiterated that Article 1 of Protocol No. 1 to the Convention, which guarantees in substance the right to property, comprises three distinct rules. The first rule, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of the peaceful enjoyment of property. The second rule covers deprivation of possessions and makes it subject to certain conditions. The third rule recognises that the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to the peaceful enjoyment of property, must be construed in light of the general principle laid down in the first rule.

The foregoing considerations are sufficient to enable the Court to conclude that the conditions under which the applicant had her title to the plot of land removed imposed an individual and excessive burden on her and that the authorities failed to strike a fair balance between the demands of the public interest on the one hand and the applicant’s right to the peaceful enjoyment of her possessions on the other. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

The Court also emphasised the principle of Proportionality. It was reiterated that any interference with property must, in addition to being lawful and having a legitimate aim, also satisfy the requirement of proportionality. It is necessary that a fair balance be struck between the demands of the general interest of the community and the requirements of the protection of the fundamental rights of the individual in question, the search for such a fair balance being inherent in the whole of the Convention. The requisite balance will not be struck where the person concerned bears an individual and excessive burden.

Decision of the Court:

Holdings: The Court holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention.

Costs and Expenses: The Court ruled that the applicant be paid 405 Euros, plus any tax that may be chargeable to the applicant, in respect of costs and expenses.

Damages:

The applicant made a claim for 405 Euros in pecuniary damages. This was the sum that the applicant claimed to have paid to L.S.G. for the right to the restoration of title to the land. A claim was also made for 5,790 Euros, which she stated was the investment made in improving the land. The applicant also claimed 1,448 Euros in respect of non-pecuniary damage for suffering and emotional distress caused by the violation. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awarded the applicant a lump sum of EUR 2,500 in respect of pecuniary and non-pecuniary damage.