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SECOND
SECTION
CASE OF NOVIKAS v. LITHUANIA
(Application
no. 45756/05)
JUDGMENT
STRASBOURG
20
April 2010
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 Novikas 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,
Nona
Tsotsoria, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 30 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 45756/05) 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 Andrejus
Novikas (“the applicant”), on 19 December 2005.
- The
Lithuanian Government (“the Government”) were represented
by their Agent, Ms E. Baltutytė.
- On
25 June 2008 the Court
decided to give notice of 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1977 and lives in Klaipėda.
- Following
a report to the police by two witnesses, D.K. and S.N., on 22 April
1998 a pre-trial investigation was started regarding several crimes.
The investigation of other crimes was joined to the case on various
dates. Ultimately 11 different crimes were investigated. On 28 April
1998 the applicant's place of residence was searched. On 30 July 1998
the seizure of the applicant's assets was ordered. However, according
to the Government, no assets were discovered. On 17 August 1998 the
applicant was questioned as a suspect. On 8 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 20 August 2001 the
investigation was officially concluded and, as of that date
until
21 December 2001, the applicant and his co-accused had the
possibility to acquaint themselves with the case file. On 29 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.
- The
Government specified that the case file consisted of 10 volumes and
concerned 9 victims and 10 defendants facing 11 charges. The
Government also submitted that, in the course of the pre-trial
investigation, D.K. and S.N. had disappeared in June 1998. They were
found abroad and returned to Lithuania in November 1998, but
absconded again after June 1999. The authorities later received
information that D.K. had been killed in March 2000. S.N. was never
found again.
- On
14 January 2002 the Klaipėda Regional Court set the dates for
trial. The court held 39 hearings, 17 of which were adjourned because
one of the parties, other than the applicant, failed to be present.
Several hearings were postponed because one of the co-accused went
missing. On 29 January 2003 the court separated the part of the case
which concerned the missing co-accused, and continued the examination
of remainder of the case. The hearing of 1 September 2003 was delayed
until 15 September 2003 as the applicant's lawyer had died and a
replacement had to be organised.
On 9 December 2003 the applicant
failed to appear at the hearing and it was postponed until 17
December 2003, when it was decided to continue the examination of the
case in his absence. The court took into account the fact that the
applicant had already submitted his final statement at the hearing of
28 November 2003.
- On
19 January 2004 the Klaipėda Regional Court sentenced the
applicant to five years' imprisonment for an organised burglary with
3 other co-accused. He was acquitted of several charges: two due to a
lack of evidence and another for being time-barred. The court
examined the testimonies of 7 witnesses and 4 victims, as well as the
submissions of the police and other evidence. It found that the
applicant had not provided any credible evidence to negate the
testimonies of the various witnesses. D.K. and S.N.'s testimonies
given during the pre-trial investigation were read out at the
hearings. One of the co-accused, M.M., also gave a deposition
incriminating the applicant. M.M. was sentenced by the same judgment
but he was dispensed from carrying out the sentence on mitigating
grounds.
- On
19 January 2005, after four hearings, the Court of Appeal upheld the
conviction of the applicant. The court noted that the applicant's
request to question D.K. and S.N. had been dismissed because the
former had died and the latter was missing. Their testimonies during
the pre-trial investigation were read out during the court hearings
in accordance with procedural law and were evaluated in the context
of all other evidence and the testimonies of other witnesses. No
substantial discrepancies in their submissions existed. The court was
able to take into consideration the submissions of these two
witnesses, as not only testimony given during hearings, but also that
given during pre-trial investigations may be legitimate and relevant
for the case under examination. These testimonies were not treated as
superior to the other evidence in the case. As regards the
submissions of the co-accused M.M., the court also noted that his
submissions had been assessed in the context of all other evidence
and the relevant procedural rules had been observed. Moreover, there
was nothing to put in doubt his mental state and his ability to
recollect the facts. The Court of Appeal concluded that the court of
first instance had properly assessed all the evidence in the case and
clarified the discrepancies. Therefore the case had been thoroughly
examined. No bias or unfairness was disclosed in the latter's
decision.
- On
28 June 2005 the Supreme Court, in oral proceedings, dismissed the
cassation appeal lodged by the applicant. The court observed that the
reading of the testimonies of the two missing witnesses had been
justified in the circumstances of the case and had been in accordance
with the domestic law. The court also noted that it did not deal with
the evaluation of the circumstances of the case as this was the
prerogative of the lower courts.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article 6.272 § 1 of the Civil Code allows a
civil claim to be made for pecuniary and non-pecuniary damage arising
from the unlawful actions of 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 recent domestic
case-law, this provision may also allow claims for damages arising
from the excessive length of criminal proceedings. In particular, by
a judgment of 6 February 2007, the Supreme Court awarded an
individual damages under this provision on account of the excessive
length of criminal proceedings which had been instituted in 1998 and
discontinued in 2004 (see Norkūnas v. Lithuania,
no. 302/05, §§ 26 and 30, 20 January 2009). Other relevant
domestic law concerning domestic remedies for the excessive length of
civil proceedings is reproduced in the judgment of Četvertakas
and Others v. Lithuania (no. 16013/02, § 20-22, 20
January 2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial tribunal...”
A. Admissibility
1. The parties' submissions
- The
Government argued that the applicant had failed to exhaust all
effective domestic remedies as he had not applied to the domestic
courts, claiming redress for the length of the criminal proceedings
under Articles 6.272 of the Civil Code, which can be applied
retrospectively. Relying on the Ruling of the Constitutional Court of
19 August 2006, the Government also argued that, even assuming that
specific redress had not been enshrined in any law, the applicant
could have claimed redress by relying directly on Constitution.
Moreover, having regard to the fact that the Convention was a legal
act of direct applicability and had precedence over Lithuanian law,
the applicant could have relied on it, alleging the unlawfulness of
the State authorities' inaction and requesting redress in the
domestic courts. Lastly, the Government maintained that the length of
the criminal proceedings had been reasonable and therefore this
complaint was manifestly ill-founded.
- The
applicant contested these submissions, maintaining that no effective
domestic remedies existed.
2. The Court's assessment
- As
the Court has held on numerous occasions, the purpose of Article 35 §
1 of the Convention, which lays down the rule on exhaustion of
domestic remedies, is to afford the Contracting States the
opportunity of preventing or putting right the violations which are
made against them before such allegations are submitted to the Court
(see Scordino v. Italy
(no. 1) [GC], no. 36813/97, §
141, ECHR 2006-V). This rule is based on the assumption, reflected 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 Kudła v. Poland
[GC],
no. 30210/96, § 152, ECHR 2000-XI). Nevertheless,
the only remedies which the Convention requires to be exhausted are
those which relate to the breaches alleged and at the same time are
available and sufficient. The existence of such remedies must be
sufficiently certain not only in theory but also in practice, failing
which they will lack the requisite accessibility and effectiveness
(see, inter alia, Vernillo v. France, 20 February 1991,
§ 27, Series A no. 198; Dalia v. France, 19 February
1998, § 38, Reports of Judgments and Decisions
1998-I; Mifsud v. France (dec.) [GC],
no. 57220/00,
ECHR 2002-VIII).
- In this connection, the Court refers to its conclusion
in the cases of Šulcas v. Lithuania (no. 35624/04, §§
60-63, 5 January 2010) and Norkūnas v. Lithuania (cited
above, § 30), where it decided that a claim for damages under
Article 6.272 of the Civil Code or direct reliance on the
Constitution did not satisfy the test of “effectiveness”
in contexts of the present kind. The Court finds that the Government
have not submitted any convincing arguments which would require the
Court to depart from this established case-law.
- It
follows that the Government's objection as to non-exhaustion of the
domestic remedies must be dismissed.
- The Court considers that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
- First, the Government argued that the period to be
taken into consideration started on 17 August 1998 when the applicant
was questioned as a suspect because he had only become affected by
the criminal proceedings as of this date. The Government submitted in
this regard that, during the search of the applicant's place of
residence on 28 April 1998, no evidence was found or taken by the
police and no property belonging to the applicant was seized under
the order of 30 July 1998.
- Whilst conceding that the applicant had not caused
substantial delays, the Government nonetheless submitted that he had
contributed to the length of the investigation. The Government stated
that the applicant had been responsible for the breaks in the
hearings between 1 and 15 September and 9 and 17 December 2003, the
first period having been allowed for the applicant to find a
replacement lawyer and the second period having been caused by the
applicant's failure to appear in court. As of 17 December 2003 the
case was examined by the regional court and the higher courts in the
applicant's absence as he had absconded.
- The Government also argued that the case was complex
on account of the volume of evidence, the pre-trial investigation in
which the authorities had had to carry out a number of procedural
actions and investigate the crimes which had occurred years before,
the number of charges against the defendant and 9 other
co-defendants, the complexity of the crimes and the large number of
the witnesses and victims heard, some of whom had needed
interpreters. The Government also drew attention to the fact that
D.K. and S.N. had left Lithuania. They had been found and returned to
Lithuania but then absconded again. The Government noted that the
applicant had been allowed to acquaint himself with the case file
between 10 October and 3 December 2001, separately from his defence
counsel. The Government submitted that, out of 39 hearings, 13 had to
be postponed as some of the co-defendants, their counsel, the victims
or witnesses had failed to appear. Finally, 3 hearings had had to be
postponed as one of the applicant's co-defendants had absconded and
the case had to be suspended in respect of this person.
- The applicant contested the Government's arguments. He
argued that the period to be taken into consideration started on 22
April 1998, when the pre-trial investigation had started. He also
maintained that the authorities were responsible for the delays in
the proceedings.
2. The Court's assessment
- As regards the period to be taken into consideration,
the Court notes that, until the search of the applicant's place of
residence, no procedural steps were taken with regard to the
applicant which might have significantly affected his situation. The
Court has held on several occasions that a search of an applicant's
residence constitutes a substantial interference with that
individual's life (see, among others, Strategies and
Communications and Demoulin v. Belgium, no. 37370/97, § 42,
15 July 2002). The Court considers that such a search, even if the
authorities fail to find anything relevant for the investigation, in
itself substantially affects a person's situation. Accordingly, the
Court concludes that the period to be taken into account started on
28 April 1998 with the search of the applicant's home. The
proceedings ended on 28 June 2005, when the Supreme Court took the
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 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 the
competent authorities. 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 1997-IV; 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, among many other authorities, the afore-cited
Portington v. Greece, § 21, and Norkūnas v.
Lithuania, § 41).
- Turning
to the facts of the present case, the Court considers that the
proceedings may be deemed complex, owing inter alia to the
number of accused and the charges against them, as well as the volume
of evidence to be examined (see paragraph 21). 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 accused and witnesses (see
paragraph 21 above). 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 (related to the death of the
applicant's defence counsel) and from 9 to 17 December 2003 (when the
applicant had failed to appear in court) 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.
- Having regard to all the material submitted to it 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.
- There has accordingly been a breach of Article 6 §
1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
30. The
applicant also complained that he was denied the right to question
the witnesses D.K. and S.N., which resulted in unfair trial. He also
suggested that his requests to put certain questions to witnesses
were denied. He invoked Article 6 § 3 (d), which reads, in so
far as relevant, as follows:
“Everyone charged with a criminal offence has the
following minimum rights:
...
(d) to examine or have examined witnesses against him
and to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him; ...”
- The
Court first notes that the guarantees of Article 6 § 3 (d) of
the Convention are specific aspects of the right to a fair hearing
guaranteed by the first paragraph of this provision. Consequently,
the complaint will be examined under the two provisions taken
together (see, among other authorities, Asch v. Austria,
judgment of 26 April 1991, Series A no. 203,
p. 10, § 25).
- The
Court recalls that evidence must normally be produced at a public
hearing, in the presence of the accused, with a view to adversarial
argument. There are exceptions to this principle, but they must not
infringe the rights of the defence. As a general rule, paragraphs 1
and 3 (d) of Article 6 require that the defendant be given an
adequate and proper opportunity to challenge and question a
prosecution witness, either when that person testifies or at a later
stage (see Van Mechelen and Others v. the Netherlands, 23
April 1997, § 51, Reports 1997 III).
- As the Court has stated on a number of occasions (see,
among other authorities, Isgrò v. Italy, judgment of 19
February 1991, Series A no. 194-A, p. 12, § 34), it may prove
necessary in certain circumstances to refer to depositions made
during the investigative stage. If the defendant has been given an
adequate and proper opportunity to challenge such depositions, either
when they were made or at a later stage, their admission in evidence
will not in itself contravene Article 6 §§ 1 and 3 (d). The
corollary of that, however, is that where a conviction is based
solely or to a decisive degree on depositions which have been made by
a person whom the accused has had no opportunity to examine or to
have examined, whether during the investigation or at the trial, the
rights of the defence may thereby be restricted to an extent which is
incompatible with the guarantees provided by Article 6 (see
Unterpertinger v. Austria, judgment of 24 November 1986,
Series A no. 110, pp. 14-15, §§ 31-33; Saïdi
v. France, judgment of 20 September 1993, Series A no. 261-C, pp.
56-57, §§ 43-44; Van Mechelen and Others, cited
above, § 55).
- In regard to the circumstances of the present case,
the Court observes that in contrario to Lucà v.
Italy (no. 33354/96, ECHR 2001 II) the statements made by
D.K. and S.N. were not the sole evidence on which the domestic
courts' findings were based (see paragraphs 8 and 9 above).
Furthermore, the Court cannot overlook the fact that it became
impossible for the authorities to have these witnesses examined at
court hearings due to factual circumstances. The Court notes that the
testimony of these two witnesses was read out in the hearing before
the Regional Court. In the circumstances of the case, the measures
taken in that respect may be considered to have been sufficient to
enable the applicant to challenge such testimony and its credibility
in the course of the criminal proceedings
(see mutatis
mutandis S.N. v. Sweden, no. 34209/96, § 52, ECHR
2002 V). The Court observes that a decisive role in the
applicant's conviction was played by M.M.'s depositions, the
importance of whose testimony was recognized by the applicant
himself, as well as by the other evidence in the case supporting the
testimonies of these three people. Finally, the Court observes that
the applicant did not raise any complaints in his appeals about the
questioning of witnesses. Nevertheless, having regard to the various
elements considered above, the Court concludes that the complaints
under paragraphs 1 and 3 (d) of Article 6 are to be rejected as being
manifestly
ill-founded, pursuant to Article 35 §§ 3 and
4 of the Convention.
- The
applicant complained separately under Article 6 § 1 of the
Convention that he was deprived of a fair and impartial hearing in
that his procedural requests were denied and his conviction had
allegedly been based solely on the testimony of one witness and the
co-accused M.M. He challenged the courts' examination of the
depositions by D.K. and S.N. and the credibility of the depositions
by his co-accused M.M. Under Article 6
§ 2 of the
Convention, the applicant alleged that the presumption of innocence
was violated as a consequence of the unfair trial. The Court
considers that these complaints all fall to be examined under Article
6 § 1 cited above (paragraph 12).
- In this connection the Court reiterates that the
examination of evidence is primarily a matter for regulation by
national law and, as a rule, it is for the national courts to assess
the evidence before them. The Court also notes that there is no
absolute right under the Convention to have all procedural requests
satisfied and it is primarily for the domestic courts to assess the
necessity of the measure requested. The Court has nevertheless to
ascertain whether the proceedings considered as a whole were fair, as
required by Article 6 § 1 (see García Ruiz v. Spain
[GC], no. 30544/96,
§§ 28-29, ECHR 1999 I; Lucà
v. Italy, no. 33354/96, § 38, ECHR 2001 II), which in
the case of criminal proceedings includes the observance of the
presumption of innocence.
- The Court notes at the outset that the issue of the
credibility of the testimony by the co-accused M.M. was fully
addressed by the domestic courts.
- On
the basis of the materials submitted, the Court observes that, within
the framework of these proceedings, the applicant was able to
introduce all necessary arguments in his defence and contest the
evidence he considered false. Moreover, the judicial authorities gave
his submissions due consideration. The conviction was based on the
testimony of several witnesses, as well as on the supporting evidence
(see paragraphs 8 and 9 above). The case was examined at three levels
of jurisdiction and the applicant's appeals were dismissed as
unfounded. The decisions of the domestic courts do not appear to have
been unreasonable or arbitrary. The Court notes that the applicant
adduced no evidence showing any bias in the domestic courts, either
from the objective or subjective standpoint.
- The
Court next observes that the Regional Court convicted the applicant
after adversarial proceedings, in which he had the possibility to
challenge the evidence produced against him. The applicant's
conviction was upheld by the Court of Appeal and by the Supreme Court
after a full review of the case in oral hearings. There is no
indication that the domestic courts had a preconceived idea of the
applicant's guilt.
- Having
regard to the foregoing, the Court considers that the criminal
proceedings against the applicant were fair and satisfied the
requirements of Article 6 § 1 of the Convention. It follows that
this part of the application must also be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
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 135 398 Lithuanian litas (“LTL”;
approximately 39,246 euros (“EUR”)) in respect of
pecuniary and
non-pecuniary damage.
- 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; it therefore rejects this claim.
However, deciding on an equitable basis, it awards the applicant EUR
1,800 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed LTL 14 722, 60 (approximately EUR 4,267) for
the costs and expenses incurred before the domestic courts and the
Court.
- The
Government contested this claim.
- 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, the Court notes that part of the fees claimed
concerned the applicant's defence to the criminal charges against him
before the domestic authorities. These fees do not constitute
necessary expenses incurred in seeking redress for the violation of
the Convention which the Court has found under the “reasonable
time” aspect of Article 6 § 1 of the Convention (see
Grauslys v. Lithuania, no. 36743/97, § 74, 10 October
2000). In the light of the documents in its possession, the Court
finds it reasonable to award the applicant EUR 1,500 for costs and
expenses.
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 complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
3. 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, the following sums, to be converted into the national
currency of that State at the rate applicable on the date of
settlement:
(i)
EUR 1,800 (one thousand eight hundred euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage,
(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that
may be chargeable to the applicant, for costs and expenses;
(b) 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 20 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
