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.