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SECOND
SECTION
CASE OF KRAVTAS v. LITHUANIA
(Application
no. 12717/06)
JUDGMENT
STRASBOURG
18 January 2011
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 Kravtas v.
Lithuania,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Dragoljub
Popović,
András Sajó,
Nona
Tsotsoria,
Kristina Pardalos,
Guido Raimondi,
judges,
Ireneu Cabral Barreto, substitute judge,
and
Stanley Naismith, Section
Registrar,
Having
deliberated in private on 14 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 12717/06) 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 Petras Kravtas (“the
applicant”), on 26 March 2006.
- The
applicant was represented by Mr K. Motieka, a lawyer practising
in Vilnius. The Lithuanian Government (“the Government”)
were represented by their Agent, Ms E. Baltutytė.
- The
applicant alleged that the length of the criminal proceedings in his
case had exceeded the “reasonable time” requirement
enshrined in Article 6 § 1 of the Convention. He also argued
that the obligation not to leave his place of residence, imposed on
him by the Lithuanian authorities, was in breach of his right to free
movement.
- On
20 January 2009 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 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1950 and lives in Klaipėda.
- From
15 October 1993 until 30 October 1995 the applicant was the
chairman of the commercial bank Vakarų Bankas.
- On
6 September 1995 a criminal case was instituted regarding
embezzlement of the bank's property.
- The
Government submitted that on 6 November 1995 the applicant was
questioned as a suspect in the case. The questioning of the applicant
lasted for three to four hours, including breaks and examination of
documents.
- On
21 October 1996 the applicant was charged with embezzlement of
property of a high value. He was later also charged with forgery of
an official document. A prosecutor imposed a remand measure on the
applicant pending further action – the obligation not to leave
his place of residence.
- On
30 July 1997 the applicant was arrested and remanded in custody.
On 26 January 1999 the Vilnius Regional Court decided to release
the applicant from pre-trial detention on 29 January 1999, as on
that date the statutory eighteen-month time-limit for holding him in
detention would end.
- From
30 January 1999 until 29 July 1999 the applicant was held
under house arrest.
- From
29 July 1999 until 3 October 2005 the applicant was under
an order not to leave his place of residence.
- On
29 July 1999 the prosecutor brought the case before the Klaipėda
City District Court.
- On
12 August 1999 the Klaipėda City District Court committed
the applicant for trial and set 2 December 1999 as the date of
the first hearing.
- By
a judgment of 20 April 2001, the Klaipėda City District
Court acquitted the applicant, dismissing both charges against him.
The court also acquitted the applicant's co-defendant in the case.
- Following
an appeal by the prosecutor, on 23 April 2002 the Klaipėda
Regional Court upheld the lower court's judgment acquitting the
applicant. The appellate court quashed the trial court's judgment in
respect of the co-defendant and remitted that part of the case to the
prosecutor's office for further investigation.
- The
prosecution and the applicant's co-defendant submitted cassation
appeals.
- On
15 October 2002 the Supreme Court decided that the prosecution
had failed to properly formulate the charges against the applicant
and his co-defendant. The court concluded that this failure was a
violation of essential procedural rules and therefore remitted the
case to the Klaipėda Regional Prosecutor's Office for further
investigation.
- On
6 August 2004 the applicant's lawyer requested the prosecutor not to
proceed with the case, as the applicant had not committed the crimes
with which he had been charged.
- On
13 August 2004 the prosecution dismissed his request.
- On
3 September 2004 the Klaipėda Regional Prosecutor's Office
concluded its pre-trial investigation and notified the applicant
thereof. Having submitted a new bill of indictment, in which the
applicant was charged with embezzlement of property of a high value,
the prosecution transferred the case to the Klaipėda Regional
Court on 9 September 2004.
- By
a judgment of 27 May 2005, the Klaipėda Regional Court
dismissed the charges against the applicant as unfounded. As to the
applicant's co-defendant, he was acquitted of some charges; criminal
action on the remaining charges lapsed through the term of
prescription.
- The
prosecution and the applicant's co-defendant appealed.
- On
3 October 2005 the Court of Appeal acquitted the applicant's
co-defendant of all charges and upheld the remaining part of the
lower court's judgment. The court also ordered that the obligation on
the applicant not to leave the place of residence be terminated. The
decision became final upon the prosecution's decision not to submit a
cassation appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning domestic remedies for
the excessive length of civil and criminal proceedings is reproduced
in the judgment Šulcas v. Lithuania (no.
35624/04, § 52, 5 January 2010).
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 had failed to exhaust
domestic remedies by not claiming redress for the length of the
criminal proceedings. In the alternative, they argued that the
complaint was manifestly ill-founded.
- The
applicant contested the Government's submissions.
- Having
had regard to the Government's arguments and the materials they
submitted, the Court finds that the Government have not presented any
convincing reasons which would require the Court to depart from its
established case-law to the effect that the applicant did not have an
effective domestic remedy at his disposal which he had failed to
exhaust before lodging his application with the Court (see Norkūnas
v. Lithuania,
no. 302/05, §§
29-30, 20 January 2009, and Šulcas v. Lithuania, cited
above, §§ 60 and 62). It follows that the
Government's objection as to
non-exhaustion of the domestic
remedies must be dismissed.
- 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
- The
Government submitted that although criminal proceedings had been
instituted on 6 September 1995 and the applicant had been
questioned as a suspect on 6 November 1995, the institution of
the criminal proceedings and the actions of the investigating
authorities had not had any effect on the applicant until he was
charged on 21 October 1996. The period in question ceased to run
on 3 October 2005 when the Court of Appeal upheld the
applicant's acquittal.
- Whilst
admitting that the criminal proceedings had lasted for a relatively
long time, the Government nevertheless argued that such a time frame
had been preconditioned by the circumstances of the case. The
applicant had been charged with economic crimes, the case was complex
on account of the volume of documentary evidence, it had been
necessary to undertake audit and expert reports, and more than thirty
suspects and defendants had been questioned in related criminal
proceedings. However, there had been no periods of stagnation or
unjustifiable delays attributable to the authorities.
- The
applicant disagreed with the Government and alleged that the length
of the criminal proceedings in his case had been excessive.
- The
Court notes the Government's argument that the applicant was not
charged with embezzlement of the bank's property until
21 October
1996. However, for the reasons outlined below, the Court cannot
concur with the Government's line of reasoning as to the date on
which the applicant became affected by the criminal proceedings.
- The
Court recalls that in criminal matters, in order to assess whether
the “reasonable time” requirement contained in Article 6
§ 1 has been complied with, one must begin by ascertaining from
which moment the person was “charged”; this may have
occurred on a date prior to the case coming before the trial court
(see, for example, Deweer v. Belgium,
27 February 1980, §
42, Series A no. 35), such as the date of arrest, the date when the
person concerned was officially notified that he would be prosecuted,
or the date when the preliminary investigation was opened
(see
Wemhoff v. Germany, 27 June 1968, § 19, Series A no. 7;
Neumeister v. Austria, 27 June 1968, § 18, Series A no.
8; and Ringeisen v. Austria,
16 July 1971, § 110,
Series A no. 13). Whilst “charge”, for the purposes of
Article 6 § 1, may in general be defined as “the official
notification given to an individual by the competent authority of an
allegation that he has committed a criminal offence,” it may in
some instances take the form of other measures which carry the
implication of such an allegation and which likewise substantially
affect the situation of the suspect (see Corigliano v. Italy,
10 December 1982, § 34, Series A no. 57).
- On the facts of the present case the Court notes that
the criminal proceedings were commenced on 6 September 1995.
However, as the Government unequivocally pointed out in their
observations on the admissibility and merits of the case, on
6 November 1995 the applicant was questioned as a suspect, the
questioning lasting for three to four hours. In such circumstances,
the Court holds that on that date the applicant officially learned of
the investigation and began to be affected by it (see Jokitaipale
and Others v. Finland, no. 43349/05, §
29, 6 April 2010). Thus, the period to be taken into account
ran from the latter date until the charge was finally determined by
the Court of Appeal on 3 October 2005, amounting to a total of
nine years and nearly eleven months. The applicant's case was
adjudicated 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. What was 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 those in the present
application (see, most recently, Norkūnas, cited above,
§§ 36-41).
- Turning
to the case at hand, the Court shares the Government's view that the
case was complex. However, the Court finds that some delays in the
proceedings were occasioned by mistakes or inertia on the part of the
domestic authorities. As a result, the case had to be remitted for
further investigation on 15 October 2002 by the Supreme Court,
thereby prolonging the proceedings by two years (see paragraphs 18
and 21 above). In this connection the Court also notes that for
almost nine years whilst the criminal proceedings against the
applicant were pending, remand measures – pre-trial detention,
house arrest and the obligation not to leave his place of residence –
were imposed upon the applicant, further compounding and aggravating
the applicant's situation (see paragraphs 9 and 24 above).
- Thus,
having regard to the above and to its case-law on the subject, the
Court considers that in the instant case the overall length of the
proceedings was excessive and failed to meet the “reasonable
time” requirement. There has accordingly been a violation of
Article 6 § 1 of the Convention.
II. ALLEGED VIOLATIONS OF ARTICLE 5 § 1 OF THE CONVENTION
AND OF ARTICLE 2 OF PROTOCOL NO. 4
- The
applicant complained that the obligation not to leave his place of
residence, imposed upon him from 29 July 1999 until 3 October
2005, was in breach of his right to liberty and his right to liberty
of movement. He relied on Article 5 § 1 of the Convention and
Article 2 of Protocol No. 4 to the Convention.
The
relevant parts of Article 5 § 1 of the Convention read as
follows:
“1. Everyone has the right to liberty and
security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by
law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so...”
Article
2 of Protocol No. 4 provides as follows:
“1. Everyone lawfully within the
territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any
country, including his own.
3. No restrictions shall be placed on the
exercise of these rights other than such as are in accordance with
law and are necessary in a democratic society in the interests of
national security or public safety, for the maintenance of ordre
public, for the prevention of crime, for the protection of health
or morals, or for the protection of the rights and freedoms of
others.
4. The rights set forth in paragraph 1 may also be
subject, in particular areas, to restrictions imposed in accordance
with law and justified by the public interest in a democratic
society.”
- The
Government submitted that the applicant had failed to exhaust
available domestic remedies, given that he had not appealed against
the decision of 29 July 1999 obliging him not to leave his place
of residence. In the alternative, the Government argued that during
the period the restrictive measure had been imposed on the applicant,
he had, in reality, faced limited restrictions. In particular, the
applicant had been entitled to freely move, work and travel, rather
than being obliged to constantly stay at his place of residence.
Moreover, within the period that the restriction had been applied,
the applicant had travelled in and out of Lithuania at least
fifty-five times. As a result, the reality of the inconvenience that
the restriction had caused the applicant was too insignificant for
the applicant's complaint to be examined under Article 5 § 1 of
the Convention or Article 2 of Protocol No. 4. In the
further alternative, the Government submitted that the obligation
imposed on the applicant not to leave his place of residence was
compatible with the requirements of Article 2 of Protocol No. 4
because it was lawful, pursued a legitimate aim and was
proportionate.
- Having
examined the documents presented to it, the Court shares the
Government's view that the impugned remand measure did not entail
restrictions on the applicant's right to liberty of such severity
that Article 5 § 1 of the Convention would come into play (see,
by converse implication, Guzzardi v. Italy, 6 November 1980,
§§ 92 and 95, Series A no. 39). Consequently, the
complaint, as raised under this provision, must be dismissed as
inadmissible ratione materiae, pursuant to Article 35 §§
3 and 4 of the Convention.
- In
contrast, the Court notes that, as he was under the obligation not to
leave his place of residence, the applicant was free to move
unrestrictedly only within the confines of the city where he lived
and was prohibited from changing his residence or leaving the city
without the authorisation of the prosecuting authority. Therefore,
the Court finds that the obligation not to leave his place of
residence, which, moreover, lasted six years, did restrict the
applicant's right to freedom of movement under Article 2 of Protocol
No. 4 (see Hajibeyli v. Azerbaijan, no. 16528/05, §
58, 10 July 2008). The Court observes, however, that the applicant
failed to challenge the lawfulness and reasonableness of that remand
measure before the domestic authorities. It follows that the
complaint must be dismissed for failure to exhaust domestic remedies,
pursuant to Article 35 §§ 1 and 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Invoking
Article 5 §§ 1, 2 and 3 of the Convention, the applicant
complained that his pre-trial detention was unlawful. The Court
notes, however, that the applicant was detained from 30 July
1997 to 29 January 1999. Given that the applicant lodged the
application with the Court only on 26 March 2006, this complaint must
be dismissed as having been lodged out of time, pursuant to Article
35 §§ 1 and 4 of the Convention.
- Relying
on the same provisions of the Convention, the applicant further
complained that his right to liberty was infringed by his being
placed under house arrest from 30 January to 29 July 1999.
Nonetheless, as with the above-mentioned complaint in respect of the
lawfulness of the pre-trial detention, these matters have been raised
out of time and must therefore be rejected pursuant to Article 35 §§
1 and 4 of the Convention.
- The
applicant also complained that he had not been properly informed
about the nature and cause of the charges against him, as required by
Article 6 § 3 (a) of the Convention. The Court
observes, nevertheless, that the applicant was eventually acquitted
of all the charges against him. The Court holds that under such
circumstances the applicant may not be considered to be a victim
within the meaning of Article 34 of the Convention. Consequently,
this complaint must be dismissed as manifestly ill-founded, pursuant
to Article 35 §§ 3 and 4 of the Convention.
- Lastly,
the applicant complained that the criminal investigation,
during which he was portrayed in the press as a criminal, violated
his right to respect for his privacy. The applicant relied on Article
8 of the Convention. The Court notes, however, that the applicant
failed to raise these issues before the domestic courts. It follows
that the complaint must be dismissed for
failure to exhaust domestic remedies, pursuant to Article 35 §§
1 and 4 of the Convention.
IV. 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 500,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government contested these claims as unsubstantiated.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 4,800 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed 100,000 Lithuanian litai
(LTL,
approximately EUR 28,960) for the costs and expenses incurred before
the domestic authorities and the Court.
- The
Government contested this sum as unreasonable.
- 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 were
reasonable as to quantum.
- In
the present case, the Court notes that part of the fees claimed
concerned the applicant's defence of the criminal charges against him
before the domestic courts. These fees do not constitute necessary
expenses incurred in seeking redress for the violation of Article 6 §
1 of the Convention which the Court has found on account of the
length of the criminal proceedings alone (see Grauslys v.
Lithuania, no. 36743/97, § 74, 10 October 2000).
Accordingly, the Court finds it reasonable to award the applicant EUR
2,000 for costs and expenses.
C. Default interest
- The
Court considers it appropriate that 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;
- 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 4,800 (four thousand eight hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary
damage,
(ii)
EUR 2,000 (two thousand 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
claims 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.
Stanley Naismith Françoise
Tulkens
Section Registrar President
