SECOND SECTION

CASE OF ZABULĖNAS v. LITHUANIA

(Application no. 44438/04)

JUDGMENT

STRASBOURG

18 January 2011

This judgment is final but it may be subject to editorial revision.

In the case of Zabulėnas v. Lithuania,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
	Nona Tsotsoria, President,
	Danutė Jočienė,
	Guido Raimondi, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 14 December 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 44438/04) 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 a Lithuanian national, Mr Vitalijus Zabulėnas 
(“the applicant”), on 30 November 2004.
2.  The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė.
3.  On 11 September 2006 the President of the Second Section decided to communicate the application to the Government. In accordance with Protocol No. 14, the application was assigned to a Committee of three Judges. The Government objected to the examination of the application by a Committee. After having considered the Government's objection, the Court rejected it.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1965 and lives in Kaunas. He was an accountant of a holding company.
5.  In 1994 the applicant became a suspect in a criminal case of fraud.
6.  By investigator's decisions of 29 October 1994, 1 February and 15 May 1996 the applicant's property was seized.
7.  On 28 August 1996 the applicant was charged with unlawful financial activities, fraud, and breaching the currency and securities regulations. Four other persons were charged as his accomplices. It was suspected that the co-accused had misappropriated large sums of money which had been deposited by private persons and companies. More than hundred victims were identified.
On the same day the investigators ordered the applicant not to leave his place of residence.
8.  On 15 October 1998 the Kaunas City District Court convicted the applicant, sentencing him to four years' imprisonment. The applicant was arrested in open court.
9.  On 22 March 1999 the Kaunas Regional Court amended the judgment, acquitting the applicant of some charges and reducing the sentence to two years' imprisonment.
10.  On 30 September 1999 the Supreme Court quashed the lower courts' judgments due to various procedural irregularities. It was established that the applicant had not been given access to the case file, and that the reasoning in the judgments was too vague. The case was returned for fresh examination. The applicant's detention was replaced by an obligation to stay in his place of residence.
11.  On 25 October 1999 the Kaunas City District Court returned the case for an additional pre-trial investigation. On an unspecified date, the case was transmitted to the court for trial.
12.  On 5 January 2004 the Kaunas City District Court again decided to remit the case for additional investigatory measures.
13.  On 25 March 2004 the Kaunas Regional Court quashed the decision, ordering the first instance court to proceed to trial.
14.  On 22 June 2004 the Supreme Court upheld the appellate decision.
15.  On 3 December 2004 the Kaunas City District Court terminated the criminal proceedings because the statutory time-limit for prosecution had lapsed. The civil claims against the applicant and the co-accused were left unexamined. The court also lifted the seizure of the applicant's property.
16.  The applicant appealed against the decision to terminate the proceedings on procedural basis, arguing that he should have been acquitted. By a final ruling of 10 November 2005 the Vilnius Regional Court refused to examine the appeal as the applicant had missed the 
time-limit for lodging it.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
17.  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 ... hearing within a reasonable time by [a] ... tribunal...”
A.  Admissibility
18.  The Government submitted that the applicant had failed to exhaust domestic remedies by claiming redress for the length of the criminal proceedings.
19.  The applicant contested the Government's submission.
20.  The Court refers to its earlier case law, where it already established that at the time when the present application was lodged by the applicant no effective remedy for obtaining a redress for the length of the proceedings existed in Lithuania (see, most recently, Šulcas v. Lithuania, no. 35624/04, §§ 60 and 62, 5 January 2010, and Norkūnas v. Lithuania, no. 302/05, 
§§ 29-30, 20 January 2009). Having examined all the materials submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case. Consequently, the Government's objection as to non-exhaustion of domestic remedies must be dismissed.
21.  The Court also 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
22.  The Court notes that whilst in connection with the criminal proceedings against the applicant his property had already been seized in October 1994, the period to be taken into consideration began only on 20 June 1995, when the Convention entered into force in respect of Lithuania. Given that the proceedings ended by the Vilnius Regional Court's decision of 10 November 2005, within the Court's jurisdiction ratione temporis they therefore lasted ten years and nearly five months. The applicant's case has been adjudicated at three levels of jurisdiction.
23.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the 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 (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, 
ECHR 1999-II)
24.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case 
(see Šulcas and Norkūnas, cited above).
25.  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 the accused and the nature of the alleged offences, i.e. the financial impropriety allegedly committed by the applicant. Neither can the Court overlook the fact that the proceedings had been prolonged by nearly one year due to the applicant's wish to be fully exculpated of criminal charges (see paragraphs 15 and 16 above). However, the Court also notes some omissions in handling the case by the domestic authorities. In particular, the case was remitted for retrial by the cassation court, then returned for additional investigation by the trial court twice and subsequently discontinued because the statutory time-limit had lapsed. Having regard to all these elements, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
26.  There has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
27.  The applicant also complained under Article 5 § 1 that his detention was unlawful, and under Article 5 § 4 that he had no possibility to challenge it. He further complained under Article 3 of the Convention that the conditions of detention in the prison where he had been placed for one month, following the judgment of 15 October 1998, had been inadequate. The Court observes, however, that the applicant was detained until 30 September 1999. The Court further notes that these complaints were first submitted to this Court on 30 November 2004, that is more than five years after the detention. Accordingly, by virtue of Article 35 §§ 1 and 4 of the Convention, the Court is not required to examine this part of the application as it was lodged out of time.
28.  The applicant further complained under Articles 6 §§ 1 and 3 of the Convention that the criminal proceedings were unfair in that he had not been properly informed about the charges against him, that his defence rights had been violated, and that the proceedings were not adversarial. Yet, the present proceedings were discontinued as time-barred and the applicant had not been convicted. Therefore, the applicant cannot claim to be a victim of the alleged violations. It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
29.  In connection to the criminal proceedings against him and with regard to the above complaints, the applicant also invoked Article 13 of the Convention and Article 1 of Protocol No. 4. The Court observes, however, that the applicant's pleas had been examined at three levels of jurisdiction. As a result, his complaint under Article 13 of the Convention must be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. As regards his complaint under Article 1 of Protocol No. 4, the Court notes that for a certain period of time the applicant indeed was deprived of his liberty. Nonetheless, the deprivation was based on the criminal charges against the applicant and not upon his inability to fulfil his contractual obligations. Accordingly, this part of the application must be dismissed as incompatible ratione materiae, pursuant to Article 35 §§ 3 and 4 of the Convention.
30.  On 24 January 2007 the applicant also submitted to the Court additional complaint under Article 7 of the Convention in connection to the criminal proceedings. However, the final domestic decision on this point was given on 10 November 2005, that is, more than six months before this complaint was submitted. By virtue of Article 35 §§ 1 and 4 of the Convention, the Court is not required to examine this part of the application as it was lodged out of time.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
31.  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
32.  The applicant claimed 43,200 Lithuanian litas 
(“LTL”; approximately 12,510 euros (“EUR”)) in respect of pecuniary damage and LTL 952,300 (approximately EUR 275,790) for non-pecuniary damage.
33.  The Government contested these claims.
34.  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.
35.  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 3,400 in respect of non-pecuniary damage.
B.  Costs and expenses
36.  The applicant also claimed LTL 4,500 (approximately EUR 1,304) for the costs and expenses incurred before the domestic courts.
37.  The Government contested these claims as unjustified and unsubstantiated by any documents.
38.  In the absence of supporting documentation, the Court rejects the applicant's claim.
C.  Default interest
39.  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
1.  Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

2.  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, EUR 3,400 (three thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Lithuanian litas 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 18 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos	Nona Tsotsoria 	Deputy Registrar	President