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SECOND
SECTION
CASE OF NORKŪNAS v. LITHUANIA
(Application
no. 302/05)
JUDGMENT
STRASBOURG
20 January 2009
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 Norkūnas v. Lithuania,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
Dragoljub
Popović
András
Sajó,
Işıl
Karakaş,
judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 16 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 302/05) 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, Mr Viktoras
Norkūnas (“the applicant”), on 14 December 2004.
2 The
Lithuanian Government (“the Government”) were represented
by their Agent, Ms E. Baltutytė.
- On
5 December 2006 the
Court decided to communicate the application to the Government. It
was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1966 and lives in Vilnius.
- On
23 June 1995 criminal proceedings were instituted for possible
embezzlement of the property of the Aurabankas commercial bank.
- On
5 January 1996 the bank filed a civil claim for the recovery of
debt against the applicant. The claim was joined to be examined in
the criminal proceedings.
- On
16 January 1997 the applicant was questioned as a witness in the
context of the above-mentioned criminal proceedings.
- On
20 January 1997 the investigation authorities took a decision to
seize the applicant's bank accounts. On 4 February 1997 the
authorities decided to seize the applicant's apartment in Vilnius,
and, on 5 February 1997, to seize his car.
- On
17 December 1999 the applicant was again questioned as a witness
in the context of the aforementioned criminal proceedings.
- On
31 March 2000 charges were brought against the applicant for
fraud on a gross scale by obtaining money under forged agreements to
exchange currency. On the same day the applicant was questioned as
the accused and a remand measure – an obligation not to leave
his place of residence – was imposed on him.
- On
1 December 2000 upon the approval of the bill of indictment the
case was transferred for trial to the Vilnius City First District
Court. In accordance with the rules of jurisdiction the applicant's
criminal case was transferred to the Vilnius City Second District
Court. By order of 12 December 2000 the court committed the
applicant for trial.
- Between
22 January 2001 and 28 June 2002 the case was adjourned thirteen
times in view of the failure of certain witnesses or the co-accused
to appear at a hearing and/or as a result of the illness of certain
participants.
- On
an unspecified date the lawyer of J.P., one of the co-accused in the
case, asked the court to order a medical examination to establish
whether J.P. would be able to serve a prison sentence if convicted.
On 28 June 2002 the Vilnius City Second District Court ordered a
medical expert report for this purpose.
- On
12 September 2002 the officials of the Institute of Forensic
Medicine informed the Vilnius City Second District Court that, due to
an intensive workload and lack of expert staff, the report in the
case would take more time. The trial court was informed that it was
planned to complete the report by 21 October 2002. The court
adjourned the hearing until 5 November 2002.
- Of
the eighteen hearings between 5 November 2002 and 10 October
2003, three were adjourned because the applicant failed to appear
(twice for medical reasons) while the other participants in the
proceedings were present. The remaining hearings were adjourned in
the absence of the other co-accused or their lawyers.
- On
10 October 2003 the Vilnius City Second District Court convicted the
applicant of fraud. It was also established that the criminal
responsibility for forgery had become time-barred. The applicant was
sentenced to one year's imprisonment. The court also granted the
bank's civil claim.
- On
12 February 2004 the Vilnius Regional Court upheld the judgment.
- On
15 July 2004 the Supreme Court dismissed the applicant's cassation
appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
30 of the Constitution stipulates:
“A person whose constitutional rights or freedoms
are violated shall have the right to apply to court.”
- The
Civil Code, in force until 1 July 2001, provided:
Article 483. General liability grounds for causing
damage
“The person who causes damage to a natural person
or to his property ... must compensate it fully, except in cases
prescribed by laws...
A person who causes damage is exempted from liability if
he proves that the damage was not caused because of his fault.
Damage caused by lawful acts must be compensated only in
cases established by law ...”
- Article
6.272 § 1 of the new 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 court, 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 recent domestic case-law, this provision may also allow
claims for damages arising from the excessive length of criminal
proceedings (also see paragraph 26 below).
- 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
relevant article of the Criminal Code, effective from 1 May
2003, provides:
Article 182. Fraud
“2. A person who has by fraud obtained on his own
behalf or that of another the property or pecuniary right of another
of a significant value (...) shall be punished by imprisonment for a
term of up to eight years.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings had
been incompatible with the “reasonable time” requirement
of Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
- The
Government submitted that the applicant should have made a claim for
damages before a civil court under Article 483 of the Civil Code, in
force until 1 July 2001. Relying on the ruling of the
Constitutional Court of 19 August 2006, the Government also
argued that, even presuming that specific redress had not been
enshrined in any law, the applicant could have claimed redress by
directly relying on the Constitution or on the general principles of
law.
- The
Government further contended that the applicant could have applied to
the domestic courts claiming redress for the length of the criminal
proceedings pursuant to Article 6.272 of the Civil Code, in force
after 1 July 2001. In this respect the Government submitted a
copy of a judgment by the Supreme Court of 6 February 2007 whereby a
person had been awarded damages under this provision for the
excessive length of criminal proceedings which had been instituted in
1998 and discontinued in 2004. In view of the applicant's failure to
lodge such a claim in the present case, the complaint about the
length of the proceedings should be rejected for non-exhaustion of
domestic remedies, pursuant to Article 35 §§ 1 and 4 of the
Convention.
- The
applicant contested the Government's argument, stating that no
adequate remedy existed which he could exhaust in relation to his
Convention complaint as to the excessive length of proceedings.
-
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. 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.
Nevertheless, the only remedies to be exhausted under Article 35 §
1 of the Convention are those which relate to the breaches alleged
and which 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 Baškienė v.
Lithuania, no. 11529/04, §§ 63-65, 24 July
2007).
- As
for the Government's argument that the applicant could have brought a
claim based on Article 483 of the Civil Code, in force until 1 July
2001, and the general principles of law or the Constitution, the
Court considers that they have not adduced any credible 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 (see Gečas v. Lithuania, no. 418/04,
§ 51, 17 July 2007 and, mutatis mutandis,
Četvertakas v. Lithuania, no.
16013/02, § 30,
20 January 2009, not yet final ).
- The
Court also notes that in similar circumstances it has already decided
that the possibility of claiming damages for the excessive length of
proceedings under Article 6.272 of the Civil Code had not – at
the moment of the introduction of the application – acquired a
sufficient degree of legal certainty requiring its exhaustion for the
purposes of Article 35 § 1
(see Gečas v. Lithuania,
cited above, §§ 45-50). The Court sees no reason to depart
from that conclusion in the present case. It further observes that as
an example of the relevant domestic case-law regarding Article 6.272
of the Civil Code the Government relied on the decision of the
Supreme Court of 6 February 2007. However, the key events in the
present case occurred long before that - the criminal proceedings
lasted from 1997 until 2004
(see paragraph 36 below) and the
application was lodged with the Court on 14 December 2004.
Therefore there is no indication that such a remedy was available to
the applicant at the material time. It follows that this part of the
application cannot be rejected for non-exhaustion of domestic
remedies.
- The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. As there
are no other grounds warranting its rejection, the Court concludes
that it must be declared admissible.
B. Merits
- The
Government submitted that the orders to seize the applicant's
property had never been executed in practice. Therefore the
applicant's situation was only negatively affected as of 31 March
2000, when criminal charges were brought against him, he was
questioned as the accused and the remand measure – an
obligation not to leave his place of residence – was imposed on
him. Consequently, the Government claimed that the period to be taken
into account began on 31 March 2000.
- The
Government further argued that, taking into consideration the
economical-financial nature of the crimes committed and the number of
co-accused, the case was complex. They conceded that the applicant
had not caused delays in the course of the pre-trial investigation.
The Government nonetheless contended that, until the applicant
started serving his sentence on 7 July 2004, his situation had
not been aggravated disproportionately as the only coercive measure
imposed on him had been an obligation not to leave his place of
residence. As regards the judicial proceedings the Government argued
that no delay could be attributed to the courts. The hearings were
adjourned twenty-six times because of the failure of co-accused,
their counsel or witnesses to appear before the trial court. It
further noted that the examination of the case before the court of
first instance was aggravated by the fact that one of the co-accused
suffered from mental illness and therefore numerous adjournments of
the case were necessary. From the above the Government concluded that
there had been no breach of the right to a trial within “reasonable
time”, conferred by Article 6 § 1 of the Convention.
- The
applicant disagreed, stating that the case was not complex and the
authorities' attempts to summon the co-accused and witnesses were not
sufficient to discharge the State of its obligation to respect the
reasonable time requirement. The length of the proceedings has been
excessive in his case.
- The
Court reiterates that in criminal matters the “reasonable time”
referred to in Article 6 § 1 begins to run as soon as a person
is “charged”; this may occur on a date prior to the case
coming before the trial court. A “charge” may be defined
as the official notification given to an individual by the competent
authority of an allegation that he has committed a criminal offence,
a definition that also corresponds to the test whether the situation
of the suspect has been substantially affected (see Eckle v.
Germany, 15 July 1982, § 73, Series A no. 51).
- The
Court recalls that on 16 January 1997 the applicant was
questioned as a witness in the criminal proceedings for the possible
embezzlement of the property of a commercial bank. On 20 January
1997 the investigation authorities took a decision to seize the
applicant's bank accounts. Nothing in the case file indicates that
the above-mentioned decision or subsequent decisions to seize the
applicant's apartment and car were not executed in practice. For that
reason the Court considers that by 20 January 1997 the
applicant's situation had already been affected to a degree amounting
to a “charge” within the meaning of Article 6 § 1
of the Convention, and that the period to be taken into consideration
started on that date (see ŠleZevičius v. Lithuania,
no. 55479/00, § 26, 13 November 2001). The criminal
proceedings ended with the decision of the Supreme Court of 15 June
2004. They thus lasted almost seven years and five months (seven
years, four months and twenty-six days) at three levels of
jurisdiction.
- The
Court will assess the reasonableness of the length of the proceedings
in the 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 of the
relevant authorities. On the latter point, what is at stake for the
applicant has also to be taken into account (see, among many other
authorities, Philis v. Greece (no. 2), 27 June 1997,
§ 35, Reports of Judgments and Decisions 1997 IV,
and Portington v. Greece, 23 September 1998, § 21,
Reports 1998 VI).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
application (see Mattoccia v. Italy, no. 23969/94,
§§ 75-81, ECHR 2000 IX, and Kangasluoma v.
Finland, no. 48339/99, §§ 29-36, 20 January
2004).
- Applying
these principles to the instant case, the Court considers that the
proceedings may be deemed complex, owing, inter alia, to the
number of participants and the illness of one of the co-accused as
well as the nature of the offences - financial impropriety by the
applicant. Furthermore, there were some delays not entirely imputable
to the authorities, given the failure of certain participants to
attend court hearings and the need to order a medical expert report
(see paragraphs 12-15 above).
- As
to the conduct of the authorities, the Court nonetheless notes that
three years elapsed from the moment the applicant's bank accounts and
property were seized until the charges were brought against him
(see
paragraphs 8 and 10 above). The Court also observes that pre-trial
investigation and the proceedings at first-instance lasted almost six
years and nine months. As the Government conceded, no significant
delay was caused by the applicant himself during the pre-trial
investigation. Nor can it be considered that the applicant had
contributed to the length of criminal proceedings before the trial
court (see paragraph 15 above). The Court also has regard to the fact
that it took more than four months for the experts to produce a
medical report due to the lack of staff (see paragraphs 13-14 above).
- The
foregoing considerations are sufficient to enable the Court to
conclude that the total length of the impugned criminal proceedings
exceeded the “reasonable time” requirement. There has
accordingly been a violation of Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained that he had been imprisoned for debt. He
relied on Article 1 of Protocol No. 4
which reads:
“No one shall be deprived of his liberty merely on
the ground of inability to fulfil a contractual obligation.”
43. The
Court reiterates that in the present case the applicant was convicted
of fraud, which is a crime under domestic law, and imprisoned as a
result. It follows that the applicant's complaint is not related to
imprisonment for an inability to fulfil a contractual obligation.
Accordingly, this complaint is incompatible ratione
materiae within the meaning
of Article 35 § 3 of the Convention and must be rejected in
accordance with Article 35 §§ 3 and 4
thereof.
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 40,000 euros (EUR) in material damages for the loss
of his job, caused by the violations of the Convention. He also
claimed EUR 10,000 in respect of non-pecuniary damage.
- The
Government considered these claims to be unjustified.
- The
Court is of the view that there is no causal link between the
violation found under Article 6 and the alleged pecuniary damage
(see, Simonavičius v. Lithuania, no. 37415/02,
§ 51, 27 June 2006). Consequently, it finds no reason
to award the applicant any sum under this head.
- However,
the Court considers that the applicant has suffered certain
non-pecuniary damage as a result of the excessive length of the
criminal proceedings, which is not sufficiently compensated by the
finding of a violation (loc. cit., § 52). Making its assessment
on an equitable basis, the Court awards the applicant EUR 2,000 under
this head.
B. Costs and expenses
- The
applicant also claimed 6,500 Lithuanian litas
(LTL,
approximately EUR 1,880) for costs and expenses incurred before the
domestic courts and before the Court. In support of his claim the
applicant submitted the pay slips for a sum of LTL 2,500
(approximately EUR 725) which he had paid for his legal
representation.
- The
Government contested these claims as unsubstantiated and unreasoned.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the applicant the sum of EUR 725
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 applicant's complaint concerning
the excessive length of criminal proceedings admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the first applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following sums, to be converted into the currency of the
responded State at the rate applicable at the date of settlement:
(i)
EUR 2,000 (two thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage, and
(ii)
EUR 725 (seven hundred and twenty-five euros) in respect of costs and
expenses, plus any tax that may be chargeable to this applicant;
(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
claims for just satisfaction.
Done in English, and notified in writing on 20 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise
Tulkens
Registrar President
