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SECOND
SECTION
CASE OF BAŠKIENĖ v. LITHUANIA
(Application
no. 11529/04)
JUDGMENT
STRASBOURG
24
July 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Baškiene v. Lithuania,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr V. Zagrebelsky,
Mrs A.
Mularoni,
Mrs D. Jočienė,
Mr D. Popović,
judges,
and Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 3 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11529/04) 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 Ms Aldona Baškienė.
- 3. The
Lithuanian Government (“the Government”) were represented
by their Agent, Ms E. Baltutytė.
- The
applicant alleged under Article 6 § 1 of the Convention that she
had had no right to a court because, after a lengthy examination, no
determination of her civil claims was made. She also complained that
the “reasonable time” requirement had been breached.
- On
15 June 2006 the Court decided to give notice of the application to
the Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Šiauliai.
- In
accordance with an agreement on the division of their mutual property
with her former husband, approved by a court decision on 27 September
1995, the applicant was entitled to a number of shares in two
companies owned by the husband.
- On
17 May 1996 the applicant brought a civil action, requesting that the
value of the shares in one of the companies be awarded to her.
- On
6 September 1996, during the hearing of the applicant’s case,
the Šiauliai City District Court discovered some evidence of
crime, allegedly committed by the director and the chief accountant
of those companies. In particular, they were suspected of
embezzlement and fraud (Articles 274 § 2 and 275 § 1 of the
Criminal Code as then in force). The court considered that, in these
circumstances:
“it was not possible to assess the value of [the
applicant’s] claims; therefore, her civil action should be
referred for an examination in the framework of the criminal
proceedings.”
- On
10 October 1996 the applicant was afforded the status of a victim in
those proceedings.
- On
18 November 1996 she was granted the status of a civil claimant in
the criminal proceedings.
She
was further granted the status of a civil claimant on 18 November
1996.
- On
20 January 1997 several other criminal procedures against the
director were joined in one set of proceedings.
- On
25 June 1997 an expert examination was ordered. It was completed on
17 October 1997.
- On
an unspecified date the applicant requested the institution of
further criminal proceedings against the director and other employees
of the companies, alleging that they had falsified certificates as to
the number and value of the shares which had belonged to her former
husband. On 5 December 1997 the prosecutors dismissed her
request.
- On
13 January 1998 the bill of indictment against the director of the
companies and three other co-accused was approved. The original
charges of embezzlement and fraud were supplemented with accusations
of forgery and negligent accountancy (respectively, Articles 207 §
1 and 322 of the Criminal Code as then in force).
- On
17 February 1998 the accused were committed for trial.
- Hearings
scheduled for 7 April and 18 May 1998 were adjourned at the request
of the defendants.
- On
18 June 1998 the court ordered a further expert examination. It was
completed on 29 December 1999.
- On
27 March and 12 June 2000 the trial was adjourned due to the illness
of the defendants.
- Hearings
scheduled for 6 and 7 September, 25 October, 27 November and 14
December 2000 and 23 January 2001 were partially adjourned because
certain witnesses failed to appear before the court. The court
questioned those witnesses present and ordered the police to bring
the remaining witnesses to the next hearing.
- On
21 February 2001 the hearing was adjourned due to the illness of the
judge.
- On
27 May 2001 the hearing was again adjourned due to the failure of
certain witnesses to appear.
- On
30 May 2001 the hearing was further adjourned since one of the
defendants had failed to appear due to illness.
- On
27 June 2001 another expert examination was ordered at the request of
the prosecution.
- In
a letter to the prosecution of 4 October 2001, the Šiauliai
City District Court noted that the proceedings had lasted an unduly
long time due to deficiencies in the pre-trial investigation.
- On
29 January 2002 the Šiauliai City District Court decided to
exclude the applicant from the list of civil claimants. The applicant
unsuccessfully challenged the decision, the courts ruling that
domestic law did not provide her with a right of appeal.
- On
18 February 2002 the Šiauliai City District Court convicted
the defendants.
- In
a letter of 28 May 2002, the Supreme Court informed the applicant
that she could appeal against the judgment of 18 February 2002.
- On
1 July 2002 the applicant requested renewal of the time-limit to
lodge an appeal against her exclusion from the list of civil
claimants.
- On
11 June 2002 the Šiauliai City District Court granted her
request. It was noted that the courts had erred in deciding that the
domestic law had precluded the applicant from appealing.
- On
19 June 2002 the applicant lodged an appeal whereby she challenged
the decision of 29 January 2002 and the judgment of 18 February
2002.
- On
5 July 2002 the Šiauliai City District Court refused to admit
the applicant’s appeal. The court noted that the applicant was
not a participant in the trial, and therefore was not entitled to
appeal against the judgment 18 February 2002. Moreover, the court
found that the applicant had failed to comply with the time-limit for
appeal without good reason.
- On
the same date the applicant challenged that decision.
- On
25 July 2002 the Šiauliai Regional Court granted her appeal.
The court renewed the time-limit for appeal against the judgment of
18 February 2002. It was noted, inter alia, that the courts
had unduly restricted the applicant’s rights by refusing to
accept her appeal.
- On
2 August 2002 the Šiauliai Regional Court quashed the decision
of 29 January 2002 whereby the applicant had been deprived of the
status of civil claimant. It was noted that the impugned decision had
breached the applicant’s rights. The judgment of 18 February
2002 was also quashed, and the case was remitted for a fresh
examination.
- A
hearing scheduled for 8 October 2002 was adjourned as one of the
defendants, certain witnesses and defence counsel had failed to
appear.
- On
11 November 2002 the trial hearing was further adjourned due to the
failure to summon one of the defendants.
- Following
the applicant’s hierarchical complaint about the actions of the
Šiauliai City District Court, an inquiry was conducted by the
Šiauliai Regional Court. In a letter of 27 November 2002, the
latter informed the applicant that the Šiauliai City District
Court had not undertaken all the necessary measures to ensure a
speedy trial.
- On
3 January 2003 the Šiauliai City District Court convicted the
defendants of forgery and negligent bookkeeping, and acquitted them
of the original charges of embezzlement and fraud.
- By
the same judgment, the trial court decided to leave the applicant’s
civil claims “without examination”. The court noted that
the defendants had neither been accused of nor tried for offences
which could have caused damage to the applicant’s interests as
a shareholder. It further reasoned that, as a shareholder, the
applicant had no entitlement to any part of the property of a
joint-stock company. Only if the company had been liquidated could
she claim a part of its property, together with other shareholders.
It noted that the applicant had a possibility to pursue her claims by
way of a separate civil action. The court concluded that “the
applicant should not be deemed a victim or civil claimant in this
case”.
- The
applicant appealed, complaining that she had incurred significant
pecuniary and non-pecuniary damage, particularly as the examination
of the case had taken almost seven years. She reiterated that the
criminal case had been instituted on the basis of her civil action,
and that she had been granted the status of victim and civil
claimant.
- On
12 March 2003 the Šiauliai Regional Court dismissed the
applicant’s appeal. It noted:
“The victim, Baškienė, took part in
the examination of the case throughout the proceedings; she was
entitled [inter alia] to submit a civil claim and the evidence
in order to substantiate it. However ... the submission of a civil
claim does not presuppose the obligation on the part of the court to
satisfy it. ... The first-instance court has reasonably established
that the victim’s right to part of the company’s property
would only arise in accordance with company law, and has correctly
noted that [the applicant] could defend her property rights in
accordance with the civil procedure. ...
When adopting the ... judgment, the court must also
decide on the civil claim. Civil claims can only be granted if [the
defendants are convicted], and it is established that the civil
claimant had suffered pecuniary damage due to the criminal acts in
question; finally, there must be a causal link between the criminal
actions and the damage incurred. ...
The defendants were not tried for any offence which
could have caused damage to [the applicant]. ...
As to [the applicant’s] property rights, they are
not the object of this criminal case. It is the object of civil law
and has only to be decided in accordance with the civil proceedings.”
- The
court further noted that the examination of the case had been
unjustifiably long, in breach of Article 18 of the Criminal Code, the
Constitution and the European Convention of Human Rights. The court
concluded however that, despite the acknowledgement of the breach,
“it was not possible to remedy this flaw at the current stage
of the proceedings”. On the same date, the judgment of 3
January 2003 entered into force.
- The
applicant lodged a cassation appeal, complaining, inter alia,
that the courts had failed to bring additional charges of forgery
against the defendants, which would have allowed their conviction and
the satisfaction of her civil claims. She also alleged that the
length of the proceedings had been excessive.
- On
7 October 2003 the Supreme Court dismissed the applicant’s
cassation appeal. The Supreme Court established that the prosecution
had rightly refused to bring additional charges against the
defendants, as they had found no evidence of the crimes alleged by
the applicant.
- With
respect to the applicant’s civil claims, the Supreme Court
noted that her entitlement to a certain number of shares had not been
questioned. It also found that, in the share certificates issued by
the defendants, the number and value of shares belonging to the
applicant had been wrongly calculated and did not correspond to the
data appearing in the company’s statute. The Supreme Court
concluded, however, that this error did not restrict the applicant’s
rights as a shareholder; nor did it cause her any pecuniary or
non-pecuniary damage. The Supreme Court further concluded that, in
such circumstances, there had been no basis to grant the applicant
the status of a civil claimant.
- Finally,
the Supreme Court endorsed the findings of the appellate court as to
the length of the proceedings. It emphasised, however, that it was
not reasonable to consider that the excessive length was an
“essential violation” of the Code of Criminal Procedure
since, in such a case, the decisions of the lower courts would have
to be quashed, and this would have only further prolonged the
examination of the case.
- The
applicant did not bring a new civil action.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
30 of the Constitution stipulates:
“The person whose constitutional rights or
freedoms are violated shall have the right to apply to court.”
- Article
60 of the Code of Criminal Procedure (in force until 1 May 2003)
provided that a person who, as a result of a crime, sustained
physical, pecuniary or non-pecuniary damage, should be recognised as
a victim. Article 61 of the Code stipulated that a person who had
incurred pecuniary damage caused by the criminal act and requested
compensation should be considered a civil claimant. Under Article 66
of the Code, the person who had filed a civil action in a criminal
case should be entitled to lodge a claim under the civil procedure.
- Article
18 of the Code of Criminal Procedure (in force until 1 May 2003)
provided that the investigation and trial should be conducted within
a reasonable time.
- Article
6.272 § 1 of the Civil Code (which entered into force on 1 July
2001) allows a civil claim for pecuniary and non-pecuniary damage, in
view of the unlawful actions of the investigating authorities or
courts, in the context of a criminal case. The provision envisages
compensation for an unlawful conviction, an unlawful arrest or
detention, the application of unlawful procedural measures of
enforcement, or an unlawful administrative penalty. According to the
domestic case-law (the earliest decision in this respect was taken by
the Vilnius Regional Court on 7 June 2005), this provision may also
allow claims for damages arising from the excessive length of
criminal proceedings. In that decision, the Vilnius Regional Court
assessed the effectiveness of the criminal investigation from the
point of view of Article 5 § 3 of the Convention.
- The
ruling of the Constitutional Court of 19 August 2006 stipulates:
“...by virtue of the Constitution, a person has
the right to claim compensation for damage caused by the unlawful
actions of State institutions and agents, even if such compensation
is not foreseen by law; the courts adjudicating such cases ... have
the power to award appropriate compensation by directly applying the
principles of the Constitution ... as well as the general principles
of law, while being guided inter alia by the principle of
reasonableness, etc”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained about the court’s refusal to determine her
civil claims after almost seven years and five months of examination.
She invoked 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 fair ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
1. As to the applicability of Article 6 § 1 of the
Convention
- The
Government submitted that the issues examined by the criminal courts
were neither directly nor indirectly related to the applicant’s
civil rights or obligations.
- The
applicant argued that she had sought to defend her rights as a
shareholder, first by bringing civil proceedings and, subsequently,
by acting as a civil claimant in the criminal proceedings.
- The
Court has consistently held that the civil party to criminal
proceedings can claim to be a victim of a violation of Article 6 §
1 of the Convention (see, e.g., Berger v. France, no.
48221/99, 3 December 2002). It is also well-established in the
Court’s case-law that proceedings relating to the reimbursement
of the value of shares fall within the civil limb of Article 6 §
1 (see, e.g., Bakiyevets v. Russia, no. 22892/03, 15
June 2006). The Court will therefore consider whether the particular
criminal proceedings, in which the present applicant was a civil
claimant, related to the determination of her civil rights and
obligations.
- The
Court notes that the applicant first brought her claim to recover the
value of shares by way of civil proceedings (see paragraph 8 above).
It was the initiative of the domestic courts, not that of the
applicant, to refer her civil action for an examination in the
context of the criminal case, instituted on 6 September 1996 (see
paragraphs 8 and 9 above). Subsequently, the applicant was recognised
by the domestic courts as a civil claimant in the criminal case and
retained that status – albeit not without a challenge –
throughout the proceedings, i.e., until the final decision of the
Supreme Court, taken on 7 October 2003 (see, in particular,
paragraphs 40-43 and 46 above). In these circumstances, and recalling
that it is primarily for the national courts to interpret and apply
domestic law, the Court concludes that the proceedings at issue were
sufficiently closely related to the applicant’s civil rights to
fall within the ambit of Article 6 § 1 of the Convention.
2. As to the exhaustion of domestic remedies
- The
Government contended that, if the applicant considered that the
proceedings had been excessively long, she could have filed a claim
for damages before a civil court under Article 6.272 of the Civil
Code which had entered into force on 1 July 2001. In this respect,
the Government referred to a judgment by the Vilnius Regional Court
of 7 June 2005 whereby a former suspect had been awarded damages
under this provision for the excessive length of a criminal case.
- Moreover,
the Government referred to the ruling of the Constitutional Court of
19 August 2006, recognising a general right to claim compensation for
damage caused by unlawful State actions, even in the absence of a
specific legal entitlement. The Government also reiterated that the
Convention was a directly applicable act in the Lithuanian legal
system, and could be directly relied on by the applicant.
- Finally,
referring to the decisions of domestic courts in the present case,
the Government stressed that the courts have expressly acknowledged
the violation of the “reasonable time” requirement. It
was therefore open to the applicant to claim damages on the basis of
the courts’ finding. The Government considered that, in view of
the applicant’s failure to pursue one of the above legal
avenues, her complaint should be rejected for non-exhaustion of
domestic remedies, pursuant to Article 35 § 1 of the Convention.
- The
applicant did not make any submissions on this issue.
- The
Court reiterates that the machinery of complaint to the Court is
subsidiary to national systems safeguarding human rights. This
subsidiary character is reflected in Articles 13 and 35 § 1 of
the Convention (see Scordino v. Italy (no. 1) [GC],
no. 36813/97, § 140, ECHR 2006).
- The
rule in Article 35 § 1 is based on the assumption in
Article 13 (with which it has a close affinity), that there is an
effective domestic remedy available in respect of the alleged breach
of an individual’s Convention rights (see, among other
authorities, Scordino, cited above, § 141; also see,
Kudła v. Poland [GC], no. 30210/96, § 152, ECHR
2000 XI).
- Nevertheless,
the only remedies to be exhausted under Article 35 § 1 of the
Convention are those which relate to the breaches alleged and at the
same time are available and sufficient. The existence of such
remedies must be adequately certain not only in theory but also in
practice (see, inter alia, Scordino, cited above,
§ 142; Vernillo v. France, judgment of 20 February
1991, Series A no. 198, pp. 11–12, § 27; Dalia
v. France, judgment of 19 February 1998, Reports of
Judgments and Decisions 1998-I, pp. 87-88, § 38;
Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002-VIII).
- The Court further notes that it is incumbent on the
Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one. Moreover, the assessment of whether
domestic remedies had to be exhausted is normally carried out with
reference to the date on which the application was lodged with the
Court (see, Baumann v. France, no. 33592/96, § 47,
22 May 2001; Scordino, cited above, § 144; Grizincic
v. Slovenia, no. 26867/02, § 99, 3 May 2007).
- Turning
to the case at hand, the Court first has to assess whether the
domestic courts’ conclusions regarding the length of the
proceedings could be deemed an express acknowledgement of the
violation of the “reasonable time” requirement. The Court
has certain doubts in this respect. It notes, in particular, that the
Supreme Court had not been prepared to equate the excessively lengthy
examination to a breach of one of the essential elements of a
criminal procedure. In this respect it noted that the quashing of the
lower-courts’ decisions would only further prolong the
proceedings (see paragraphs 43 and 47 above). Even assuming that
there has been an acknowledgement of the breach of Article 6 § 1
of the Convention, the Court observes that no reference to any
possible redress was made by the domestic courts. This leads to the
second question which the Court has to answer - whether any
possibility of redress was accessible to the applicant.
- The
Court recalls its conclusion in Simonavičius v. Lithuania
(no. 37415/02, §§ 32-35,
27 June 2006) and Kuvikas v.
Lithuania (no. 21837/02, §§
41-45, 27 June 2006),
where it has assessed the measure indicated by
the Government – a claim for damages under Article 6.272 of the
Civil Code – and concluded that it did not satisfy the test of
“effectiveness”. Moreover, the Court notes the fact that,
in the decision of the Vilnius Regional Court of 7 June
2005 which the Government have cited as an example of the application
of Article 6.272, the
expeditiousness of the criminal investigation had been assessed from
the viewpoint of Article 5 § 3 of the Convention, and not
Article 6 § 1.
- The
Court finds no reason to depart from its existing case-law in this
regard. In particular, the Court reiterates that the remedy suggested
by the Government is based on a provision of the Civil Code which
became effective on 1 July 2001, while the first example of the
relevant domestic case-law in this respect dates from June 2005.
There is no indication that such a remedy – even in theory –
was available to the applicant during a considerable part of the
proceedings in the present case which had been instituted on 17 May
1996. Nor has it been shown that Article 6.272 of the new Civil Code
could have been applied retroactively to delays which had occurred
prior to its entry into force (see, e.g., the Simonavičius
judgment, cited above, ibid.).
- To
the extent that the Government have argued that the applicant could
have lodged a compensation claim for the period starting on 1 July
2001, the Court notes that, at the
time of the introduction of the present application and before June
2005, no domestic law or practice existed to indicate that Article
6.272 of the Civil Code could have afforded relief for the breaches
of the “reasonable time” requirement. Nor have the
Government presented any further (post-June 2005) examples of the
application of this provision in relation to the excessive length of
proceedings.
- The
Court reaffirms its position that, where the legislature has
introduced a new domestic remedy, it will pay due regard to the
significance of that development by, inter alia, allowing the
State a wide margin of appreciation to organise matters in a manner
consistent with its own legal system and traditions (see, e.g.,
Scordino, cited above, § 189).
- However,
this was not the situation in Lithuania when the present application
was introduced. Three elements are pertinent in this respect: (a) the
absence of any specific statutory redress for the excessive length of
proceedings, (b) the general nature of Article 6.272 of the Civil
Code, referring to the State’s liability in tort, and (c) the
lack of any body of case-law showing the application of that
provision in excessive-length cases.
- In
these circumstances, the Court remains unconvinced that the
possibility of claiming damages for the excessive length of
proceedings under Article 6.272 of the Civil Code had – at the
moment of the introduction of the present application – already
acquired a sufficient degree of legal certainty requiring its
exhaustion for the purposes of Article 35 § 1 of the Convention
(see, mutatis mutandis, Jakubowska v. Luxembourg
(dec.), no. 41193/02, 28 September 2006; also see, a contrario,
Charzynski v. Poland, no. 15212/03, § 41, 1 March 2005).
- Finally,
whereas the Government argued that the applicant could have brought a
claim based on the general principles of law, the Constitution, or
the Convention, they have not adduced any evidence to demonstrate
that such a remedy had any reasonable prospect of success, especially
before the ruling of the Constitutional Court on 19 August 2006.
B. Compliance with Article 6 § 1
- In
the Government’s view, the applicant had not been precluded
from bringing a separate set of civil proceedings even during the
examination of the criminal case. They acknowledged, however, that it
had been the initiative of the domestic authorities to start criminal
proceedings on the basis of the applicant’s civil claims
introduced on 17 May 1996. The Government further stated
that the domestic courts had been obliged to leave the applicant’s
claims unexamined, as it had been established in the process of the
criminal proceedings that the applicant had not incurred any
pecuniary or non-pecuniary damage as a result of the acts for which
the defendants had been convicted.
- The
applicant reiterated that, while the courts had referred her civil
action for examination in the context of the criminal case, they had
ultimately failed to take a decision. Furthermore, the authorities
had delayed the examination of the criminal case by adding and
disjoining separate sets of proceedings to the principal one.
- The
Court notes that two interrelated issues arise out of the applicant’s
complaint under Article 6 § 1. The Court finds it necessary
first to determine whether, given the circumstances of the present
case, the applicant had the benefit of an effective right to a court.
It will then proceed to examine whether the “reasonable time”
requirement of Article 6 § 1 has been respected (see, mutatis
mutandis, Sukhorubchenko v. Russia, no. 69315/01,
§§ 41-54, 10 February 2005).
1. Right of access to a court
- The
Court reiterates that the procedural guarantees laid down in Article
6 § 1 secure to everyone the right to have any claim relating to
his or her civil rights and obligations brought before a court or
tribunal; in this way it embodies the “right to a court”,
of which the right of access, that is the right to institute
proceedings before courts in civil matters, constitutes one aspect
(see Golder v. the United Kingdom, judgment of 21 February
1975, Series A no. 18, pp. 13-18, §§ 28-36).
- The
institution of proceedings does not, in itself, satisfy all the
requirements of Article 6 § 1. The Court recalls that the
Convention is intended to guarantee not rights which are theoretical
or illusory but those which are practical and effective. The right of
access to a court includes not only the right to institute
proceedings but also the right to obtain a “determination”
of the dispute by a court. It would be illusory if a Contracting
State’s domestic legal system allowed an individual to bring a
civil action before a court without ensuring that the case is
determined by a final decision in the judicial proceedings. It would
be inconceivable for Article 6 § 1 to describe in detail
procedural guarantees afforded to litigants – proceedings which
are fair, public and expeditious – without ensuring that the
parties’ civil disputes will be finally determined (see
Multiplex v. Croatia, no. 58112/00, § 45,
10 July 2003; Kutić v. Croatia, no. 48778/99,
§ 25, ECHR 2002-II; also see, Sukhorubchenko cited
above, § 43). Moreover, the Court has found a violation of
the right of access to a court in cases where the proceedings were
stayed for a significant period of time by operation of law (see
Multiplex v. Croatia, cited above, §§ 53-55;
Kutić v. Croatia, cited above, §§ 32-33;
Immobiliare Saffi v. Italy [GC], no. 22774/93, § 70,
ECHR 1999-V).
- Turning
to the facts of the present case, the Court recalls that the
applicant sought a determination of her rights as a shareholder. On
17 May 1996 she brought a civil action, which was then joined to the
criminal proceedings opened on the basis of the applicant’s
civil action on 6 September 1996. The judgment in the criminal
proceedings was adopted by the Šiauliai City District Court on
3 January 2003 and came into force on 12 March 2003, leaving the
applicant’s civil claims without any judicial determination,
and depriving her of her “civil-claimant” status in the
context of that criminal case. However, the final decision on the
matter was taken by the Supreme Court on 7 October 2003 (see
paragraphs 39-42 and 46 above). From the introduction of the
applicant’s civil claims until the above decision, almost seven
years and five months had lapsed.
- The
Court would stress several elements concerning the facts of the
present case: The applicant’s civil claims introduced on 17 May
1996 were joined to the criminal proceedings on the initiative of the
domestic courts, considering that her interests as a shareholder
might have been infringed by the suspected criminal actions. In these
circumstances, the applicant could not have reasonably been expected
to bring another civil action independent from the criminal case to
which her initial claims had been joined. The Court is particularly
struck by the fact that the applicant had to wait almost seven years
and five months to be told that the criminal courts no longer
considered it appropriate to examine her civil action in the context
of the criminal case (see paragraph 80 above). The Court
considers that the cumulative effect of these elements was such as to
deprive the applicant of an effective right to a court.
- Accordingly,
there has been a violation of Article 6 § 1 of the Convention
(see, mutatis mutandis, Sukhorubchenko cited above,
§§ 53-54).
2. Length of the proceedings
- The
Court reiterates that almost seven years and five months lapsed from
the date when the applicant had introduced her civil claims until the
adoption of the final decision to leave her civil claims unexamined,
most of this delay having occurred during the examination of the
impugned criminal proceedings. Given the domestic courts’
acknowledgement that the proceedings had been unreasonably long (see
paragraphs 42, 43, and 47 above), and taking into account the fact
that the Government have not adduced any convincing explanation for
the delay, the Court considers that the “reasonable time”
requirement was not respected.
- Consequently,
there has been a further breach of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention
(cited above) that the courts had been biased, that they had erred in
fact and law, and that they had failed to examine all the relevant
evidence and give adequate reasons for their decisions. She further
complained about the refusal of the prosecution to bring additional
charges against the defendants.
- The
applicant also complained that no effective remedy had been available
to her to challenge the excessive duration of the examination of her
civil claims. She relied on Article 13 of the Convention, which is
worded as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
applicant finally complained that her property rights had been
violated since, following protracted proceedings, the courts had
refused to examine her civil claims. She invoked Article 1 of
Protocol No. 1, 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.”
- In
view of its finding of a violation of the applicant’s right of
access to a court and the “reasonable time” requirement,
the Court does not consider it necessary to examine separately the
remainder of the applicant’s complaints.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicant claimed 1,811,035 Lithuanian litai
(“LTL”; about 524,532 euros [“EUR”]) as
compensation for pecuniary damages, and LTL 800,000 (about EUR
231,704) in respect of non-pecuniary damages.
- The Government contested these claims as
unsubstantiated and excessive.
- The Court does not discern any causal link between the
violation found and the pecuniary damage alleged by the applicant. It
therefore makes no award in this respect. However, it considers that
the applicant may be considered to have suffered some non-pecuniary
damage as a result of the breach of her rights which cannot be
compensated by the Court’s finding of a violation alone.
Nevertheless, the amount claimed is excessive. Making its assessment
on an equitable basis, as required by Article 41 of the Convention,
the Court awards the applicant the sum of 5,000 euros (“EUR”)
under the latter head.
B. Costs and expenses
-
The applicant did not claim costs and expenses and, accordingly,
there is no cause to make an award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning access to
court and the excessive length of the proceedings admissible, and
finds that there is no need to examine separately the remainder of
the application;
- Holds that there has been a violation of Article
6 § 1 of the Convention as regards the absence of an effective
right to a court;
- Holds that there has been a violation of Article
6 § 1 of the Convention in relation to the excessive length of
the proceedings;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable, which sums are to be converted into the currency
of the respondent State at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 24 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F. Tulkens
Registrar President
