In the case of Varnas v. Lithuania,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
Dragoljub Popović,
Işıl Karakaş,
Nebojša Vučinić,
Paulo Pinto de Albuquerque, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 18 June 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no.
42615/06) 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 Tomas Varnas (“the
applicant”), on 17 October 2006.
The Lithuanian Government (“the Government”) were
represented by their Agent, Ms E. Baltutytė.
The applicant alleged that the
length of his pre-trial detention had been unreasonable. He also complained
that unjustified restrictions had been imposed on family visits while he had
been held in detention on remand.
On 1 June 2010 the application was
communicated 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 1975. He is currently serving
a prison sentence in Vilnius.
A. The applicant’s arrest, detention and conviction in
the first criminal case
On 10 March 2004 the applicant was arrested on
suspicion of belonging to a criminal association (nusikalstamas
susivienijimas), led by a certain D.S., who had died during the pre-trial
investigation. He was also suspected of having stolen three high value cars.
On the same day the Vilnius City First District Court ordered
the applicant’s detention for three months. On 1 April 2004 the Vilnius Regional Court upheld the decision. The courts observed that the applicant was
suspected of a very serious crime: belonging to a criminal association since 2001.
The charges against him were based on concrete evidence, and there was a risk
that if he were not detained he might continue his criminal activities. He also
had a prior conviction for disorderly conduct (chuliganizmas), for which
he had already served a sentence. Therefore, his participation in the pre-trial
investigation could be guaranteed only if he were remanded in custody. The
applicant remained in custody in the Lukiškės Remand Prison.
On 31 May 2004 the Vilnius City First District
Court extended the applicant’s detention by three months, upholding the above
reasons and adding that the crimes with which the applicant was charged had
been committed over a long period of time. The court also considered that if the
applicant were released pending trial, he could obstruct the investigation, influence
the victims and witnesses, and contact other suspects, who were being searched
for at that time. On 1 July 2004 the Vilnius Regional Court dismissed an appeal
lodged by the applicant.
On 6 September 2004 the Vilnius Regional Court
extended the applicant’s pre-trial detention. This time, the court observed
that from 2002 to 2004 the applicant had been a member of a highly
sophisticated criminal organisation and had taken part in the theft of seventeen
high value cars in Lithuania. The cars had belonged to citizens of Lithuania, Germany, Latvia, Estonia, the Netherlands and Spain. The crimes had been committed in a
“business” manner (versliškai), with a high level of conspiracy; each
member of the criminal organisation had had a designated role. The criminal
association had thereby caused serious loss to Lithuanian and foreign citizens.
The court also noted that, in the meantime, many investigative measures -
expert examinations, questioning of witnesses - had been carried out.
Accordingly, there was no reason to consider that the pre-trial investigation
had been delayed.
On 9 December 2004 the Vilnius Regional Court upheld the
decision for all the same reasons, but dismissed Vilnius City First District
Court’s argument about the risk of the applicant obstructing the investigation by
influencing witnesses as abstract and not based on specific facts. On the other
hand, the Regional Court noted that the criminal case was especially complex,
and that since the last decision to prolong the detention, further investigative
actions had been carried out.
9. Once
the pre-trial investigation in the first criminal case was concluded in
February 2005, the final notice of suspicion encompassed participation in a
criminal association, committing or attempting to commit thefts of high value property
(some twenty counts), destruction of property, acquiring high value property by
criminal means and the theft of documents.
On 9 March 2005 the Vilnius Regional Court
extended the detention on remand for another three months. On 30 March 2005 the
Court of Appeal dismissed an appeal lodged by the applicant, on the ground that
he might try to hinder the investigation and influence witnesses. The appellate
court observed that, although the case had been forwarded to the trial court
for examination, the applicant might try to influence the witnesses who had yet
to testify in court. The court also took into account the seriousness of the
accusations against the applicant and his prior conviction.
On 31 May 2005 the Vilnius Regional Court
sanctioned another three months of detention on the grounds that the
applicant was accused of very serious crimes and that he had a prior
conviction. The court also emphasised that the case had just been transferred
to the trial court and the evidence had not yet been examined in a courtroom.
Likewise, all the co-accused had not yet been questioned and most of the
victims had not yet testified. Accordingly, there was a risk that the
applicant, if released from detention, might influence those persons.
On 22 June 2005 the Court of Appeal upheld that decision,
noting that Article 242 of the Code of Criminal Procedure obliged the court to
examine evidence - that is, to question the accused, the victims and witnesses
- in the courtroom irrespective of whether they had been questioned during the
pre-trial investigation. Taking into account that those actions had not yet
been carried out and the applicant’s and his co-accused’s tactics of denying
their involvement in the crimes, there was a risk that the co-accused might attempt
to influence other participants in the proceedings if they were released from
detention. Furthermore, the applicant had been charged with belonging to a
criminal association and committing nearly twenty serious crimes. Given the scale
and duration of the criminal activity, and the applicant’s active role in it,
it was reasonable to believe that there were sound reasons for holding him in
custody pending trial.
On 9 September 2005 the Vilnius Regional Court
again sanctioned the extension of the detention for three months.
The applicant appealed, arguing that the
accusations against him had not been proved in the courtroom and thus there were
no grounds to hold that he had committed any crimes. Such a conclusion by the
courts that had sanctioned his detention was in breach of his right to
presumption of innocence. Neither was there any concrete proof that he could
exert influence on other parties to the criminal proceedings if released.
Lastly, the applicant maintained that he had already been detained for eighteen
months. For ten of those months he had been denied any contact with his wife
and family. Although at the time of appeal, his wife could visit him for one
and a half hours a month under the supervision of a guard, because of the applicant’s
status as a person charged with a crime (as opposed to a convicted person), conjugal
visits were not allowed. Thus his status had placed him in a significantly worse
situation than that of a convicted criminal. The applicant argued that long-term
visits were physiologically necessary for both him and his wife, and that the
lack thereof amounted to torture and was a method of extracting a confession.
On 26 September 2005 the Court of Appeal held that
the reasons for detention indicated in the earlier decisions continued to
exist. The appellate court observed that, although it was true that the
detention had been lengthy and had already lasted more than eighteen months,
the maximum statutory limit of eighteen months was only applicable to detention
during pre-trial investigations. This case had been forwarded to the trial court
for examination; the law did not provide for any limitation on the length of
detention once a case was being examined by the trial court. As to the
applicant’s argument about breach of the presumption of innocence, the courts’
findings that the applicant had been implicated in the criminal acts were not
the conclusion as to his guilt, but merely statements that there was sufficient
evidence that he had committed the crimes for the purpose of deciding whether
he should be held in detention. The question of his criminal liability was to be
decided later, when the trial court adopted an accusatory or exculpatory
judgment. Lastly, given the seriousness of the charges against the applicant,
the public interest prevailed against his right to presumption of innocence and
his other rights. It followed that the applicant’s argument that he had been discriminated
against compared with a convicted person as regards the right to receive conjugal
visits was unfounded.
On 5 December 2005 the Vilnius Regional Court
extended the detention by another three months, upholding the argument that the
applicant had been charged with very serious and systematically committed
crimes. By that time, most of the suspects and witnesses had already been
questioned in court, but since it was not the case for the applicant and his
co-accused, the reason to continue the pre-trial detention remained.
On 22 December 2005 the Court of Appeal dismissed an appeal lodged
by the applicant, also observing that the case was extremely complex.
On 27 February 2006 the Vilnius Regional Court
extended the detention for another three months, observing that the essential
reasons for maintaining the applicant in detention had not changed. In
addition, there had been a break in the proceedings because a photographic expert
report had been ordered and the results were not due until the beginning of
March. For that reason, the next court hearing had been scheduled for
17 March. The applicant’s arguments that by depriving him of long-term
visits the investigators had been seeking to extract his confession were not
founded, because the applicant had testified only when he had so wished - he had
been silent during pre-trial investigation, but had chosen to testify only in
court, and only after the witnesses had testified. Lastly, there was a risk
that the applicant, if released pending trial, would go into hiding to avoid a possible
heavy sentence.
On 15 March 2006 the Court of Appeal upheld the decision.
In June 2006 the applicant lodged another appeal
against his detention. He argued that conditions in the Lukiškės Remand
Prison, where he had already been detained for twenty-seven months, were atrocious.
The cells were overcrowded, lacked proper ventilation and were full of smoke.
The inmates could leave the cell for only one hour a day. They ate, slept, washed
and used the toilet in the same cell. The applicant reiterated his argument
that being deprived of long-term visits and thus physical contact with his wife
for the entire twenty-seven months had had a mental and physical impact on his
well-being. Such a measure was inhuman, degrading and in breach of Article 3 of
the Convention. Lastly, the applicant argued that his pre-trial detention
amounted to a violation of Article 5 of the Convention. He considered that at
that stage of the criminal proceedings, a milder remand measure could have been
imposed on him.
While acknowledging that the applicant had
already been detained “for a long time”, on 9 June 2006 the Vilnius Regional
Court extended his detention on the grounds that the crimes were particularly
serious and the applicant risked a heavy sentence, so might go into hiding if
released. It also noted that the criminal case was particularly complex - there
were seven co-accused, some twenty criminal episodes, and more than eighty people
to be questioned. The court also noted that the applicant’s complaint about inappropriate
conditions of detention did not affect the validity of holding him in custody.
The court decision stipulated that it could be appealed against to the Court of
Appeal. The applicant states that he did not appeal against this decision
because he was convicted ten days later.
By a judgment of 19 June 2006, the Vilnius Regional Court found the applicant guilty of belonging to a criminal association, numerous
counts of theft of high value property by participating in an organised group,
destruction of property and theft of documents. The applicant was sentenced to twelve
years’ of deprivation of liberty, the sentence to be served in a correctional
home (pataisos namuose, see paragraphs 59-61 below). The time that the
applicant had spent in pre-trial detention from 10 March 2004 was subsumed
by the sentence. The court also ordered the continued detention of the
applicant until the judgment came into force or he started serving his sentence.
Six of the applicant’s co-accused were also convicted. Their sentences
ranged from a fine to twelve years’ imprisonment, depending on their roles in
the criminal association and the crimes they had committed.
20. The
applicant, one of the co-accused and the prosecutor lodged appeals against their
convictions.
21. On
1 September 2006 - prior to the coming into force of the trial court’s
judgment - following a request by the applicant, pursuant to Article 315
of the Code of Criminal Procedure (see paragraph 70 below), he was transferred
to the Kybartai Correctional Home to start serving his prison sentence.
On 15 October 2008 the Court of Appeal acquitted
the applicant in respect of the charge of belonging to a criminal association,
but upheld the conviction as regards the remaining charges. The applicant’s
conviction was amended to six years’ imprisonment.
By a ruling of 26 May 2009, the Supreme Court referred
the case for re-examination, having found that the appellate court had not
taken into account all the circumstances of the case and the existing case-law,
and thus had not properly reasoned its conclusion as to the applicant’s
belonging to a criminal association.
By a ruling of 24 April 2012 the Court of
Appeal upheld the Vilnius Regional Court’s verdict of 19 June 2006, with
minor amendments.
B. The applicant’s detention and conviction in the
second criminal case
While the applicant was still serving his
sentence in the first criminal case in the Kybartai Correctional Home, the
prosecutors of the Vilnius region were carrying out a pre-trial investigation in
another criminal case which also concerned two counts of theft of high value
cars, in 2001 and 2002, committed by an organised group. There were six persons
in that group: the applicant, four persons other than those who were charged in
the first set of criminal proceedings, and their leader, the same D.S. as the
one charged in the first set of criminal proceedings (see paragraph 6 above). Having
questioned and charged the applicant, on 15 June 2007 the prosecutor asked
the court to have the applicant transferred from the Kybartai Correctional Home
to the Lukiškes Remand Prison for a period of two months, so that they could finish
the pre-trial investigation and the applicant could read the voluminous pre-trial
investigation materials.
On the same day, pursuant to a detention order issued
by the Vilnius City First District Court, the applicant was moved back to the Lukiškės
Remand Prison. The court’s grounds for holding the applicant in pre-trial
detention in the second set of criminal proceedings were the abundance of
evidence implicating him in the car thefts, the high level of complicity of the
criminal group, and the possibility of a heavy sentence on top of his conviction
of 19 June 2006 for similar crimes. The court therefore considered that
the applicant, if released, might obstruct the investigation by hiding from the
investigators or the court, or commit further crimes. The court also emphasised
that pre-trial detention was being imposed on the applicant in that second
criminal case, irrespective of the fact that he was serving a custodial
sentence for offences in the first criminal case.
The applicant appealed, arguing that he had been
placed in pre-trial detention as early as 10 March 2004 and that the length
of his detention had been out of proportion. However, by a ruling of
5 July 2007 the Vilnius Regional Court dismissed the appeal, upholding the
lower court’s reasoning and pointing out that in the second criminal case the
applicant had been remanded in custody only as of 15 June 2007.
On 3 July 2007 the applicant asked the court
to terminate the pre-trial investigation, arguing that it had been excessively
long. He had been questioned as early as 10 March 2004, and the pre-trial
investigation had been continuing ever since.
On 17 July 2007 the Vilnius City First
District Court dismissed the applicant’s request, finding that he had attempted
to mislead the court by claiming that he had first been questioned as a suspect
in this criminal case on 10 March 2004. He had in fact been questioned in a
different criminal case, for which he had been convicted and was serving a custodial
sentence. In the second criminal case the applicant had been questioned for the
first time only on 15 June 2007, but had refused to reply. The court also held
that there had been no delays in the pre-trial investigation. Lastly, the court
observed that pursuant to Article 215 § 1 of the Code of Criminal Procedure, a
suspect could challenge the length of the pre-trial investigation if the
investigation had not been terminated within six months, which was not yet the
case for the applicant.
The applicant’s appeal was dismissed on 25 July 2007.
On 14 August 2007 the Vilnius Regional Court
extended the applicant’s pre-trial detention for a further three months on the
grounds that there was sufficient evidence against him and he had a prior
conviction for hooliganism. The court likewise observed that on 19 June 2006
the applicant had been convicted of numerous serious crimes committed by a
criminal association, for which heavy deprivation of liberty sanctions applied.
For the court, taking into account that the latter judgment had not yet come into
force, it was reasonable to believe that the risk of a heavy prison sentence
would give the applicant an incentive to hide from the court to avoid criminal
liability. Thus the applicant’s pre-trial detention was in order to guarantee
his participation in the proceedings.
On 30 August 2007 the Court of Appeal dismissed an appeal lodged
by the applicant, upholding the lower court’s reasons and emphasising that the
applicant was suspected of belonging to a criminal association, which was one
of the most dangerous forms of criminal complicity.
On 13 November 2007 the Vilnius Regional Court extended
the applicant’s detention by another three months on the same grounds as before,
reiterating that his twelve-year custodial sentence for the first set of
criminal offences could give him a strong incentive to flee from justice if
released pending his conviction of 19 June 2006.
On 13 December 2007 the Court of Appeal upheld that decision.
Following a decision by the Vilnius Regional
Court of 12 February 2008, the applicant’s pre-trial detention was not
extended further. Having heard the applicant, his lawyer and the prosecutor,
the court held that the applicant’s conviction in the first set of criminal
proceedings and, in particular, the fact that in those proceedings he had also
been detained pending appeal, was sufficient guarantee that he would not flee
from justice in the second set of criminal proceedings.
The Government state that immediately after this decision the
applicant was transferred back to the Kybartai Correctional Home to continue serving
his sentence.
Following a judgment by the Vilnius Regional
Court of 29 September 2008, the applicant was convicted on two counts of
theft of high value property, committed by an organised group. He was sentenced
to five years’ imprisonment.
On 23 February 2009 the conviction, with
minor corrections, was upheld by the Court of Appeal. On 20 October 2009
the Supreme Court dismissed an appeal on points of law lodged by the applicant.
The Government submitted that on 22 May
2009 the applicant had been transferred from the Kybartai Correctional Home to
the Vilnius Second Correctional Home (Vilniaus antrieji pataisos namai),
where he is currently serving his sentence.
C. Visits
On 28 March 2006 the applicant wrote to the
administration of the Lukiškės Remand
Prison requesting a conjugal visit. He noted that during the pre-trial investigation, he had already been
detained for more than two years, during
which time he had had no physical contact with his wife. The applicant
was quite open and wrote that “because of the lack of sexual contact” he was being
tortured physically and mentally, and was in a state of constant stress. The
same day, the remand prison administration told the applicant that detainees who had not been convicted had no right to
conjugal visits.
The applicant’s wife repeated her husband’s
request on 4 April 2004. In a letter of 14 April 2004, the prison
administration informed her that pursuant to Article 16 of the Law on Pre-trial
Detention (Kardomojo kalinimo istatymas) and the Internal Regulations
for Pre-trial Detention Facilities (Kardomojo kalinimo vietų vidaus
tvarkos taisyklės) (see paragraphs 57-58 below) a detainee could receive
visits from his relatives or other persons for up to two hours, provided that the
prosecutor or court so permitted. The visits were to be held in a designated room
in the detention facility, under the officers’ constant supervision. Only
persons whom a court had sentenced to deprivation of liberty in a correctional home
(pataisos namuose) had a right to conjugal visits. Accordingly, the
Lukiškės
Remand Prison administration dismissed the request.
On 7 April 2006 the applicant challenged the
above decision before the administrative courts. He emphasised that he had been
held at the Lukiškės
Remand Prison for more than two years without his wife being able
to see him for a conjugal visit. The applicant maintained that the lack of
conjugal visits for such a long time amounted to physical and mental torture,
prohibited by Article 3 of the Convention, and was contributing to the destruction
of his marriage and the deterioration of his family life. He also claimed that
he had been punished without conviction, because the situation he was in could
be compared to a criminal punishment.
In support of her husband’s cause, the applicant’s
wife also wrote to the court, stating that the absence of conjugal visits for
more than two years had caused her “psychological and physical torture, was
damaging her body and mind and destroying her marriage and her family’s
well-being”. She asked the court to order the Lukiškės Remand Prison
administration to grant the applicant conjugal visits, which “were necessary
for her physical and psychological survival”.
The applicant maintained his complaint at a hearing
before the Vilnius Regional Administrative Court. He asked the court to annul
the Lukiškės
Remand Prison administration’s decision, irrespective of the fact
that on 19 June 2006 he had already been convicted by a judgment which had
not yet entered into force. The applicant also asked the court to disregard the
fact that one month earlier he had asked to be transferred to a correctional home
before the accusatory judgment came into force. On those last two points, the applicant
noted that he did not know when he would be transferred to a correctional home from
the Lukiškės
Remand Prison. He also did not rule out the possibility that he might
be returned to that remand prison in the future.
On 11 September 2006 the Vilnius Regional
Administrative Court dismissed the applicant’s complaint. The court observed
that only convicted detainees had a right to conjugal visits; when the
applicant had submitted his request for a conjugal visit to the Lukiškės
Remand Prison, he had not been convicted, therefore he had no
such right. The court also found that the refusal to grant a conjugal visit
could not amount to torture, because torture or cruel behaviour necessitated active
actions. The Lukiškės
Remand Prison administration had merely followed the letter of
the law.
It appears that the applicant did not appeal
against the decision. By then he was already serving his sentence in the Kybartai
Correctional Home, where he could receive conjugal visits.
On 27 August 2007, when the applicant had again
been placed in the Lukiškės Remand Prison in connection with the second
set of criminal proceedings, he again requested a conjugal visit.
On 11 September 2007 the remand prison administration
informed the applicant that he did not have the right to conjugal visits
because he was again being detained on suspicion of having committed offences
which were still under investigation and his status was that of a remand
prisoner.
On 23 October 2007 the applicant lodged a
complaint with the Vilnius Regional Administrative Court, submitting that on
1 September 2006 he had been transferred to the Kybartai Correctional
Home to serve his sentence, where he had received conjugal visits.
Nevertheless, on 15 June 2007 he had been returned to the Lukiškės
Remand Prison to be detained pending investigation. Observing
that the Lukiškės
Remand Prison had refused his request on the basis of the Law on
Pre-trial Detention, the applicant argued that the aim of pre-trial detention
measures should be not to punish or correct a person, but to guarantee that the
proceedings run smoothly. He reiterated his argument about his entitlement to the
presumption of innocence and argued that as a convicted person, he had been entitled
to conjugal visits under the Code on the Execution of Sentences. For the
applicant, the provisions of the Law on Pre-trial Detention barring detainees from
receiving conjugal visits were in breach of Article 3 of the Convention. On the
merits of his complaint, the applicant added that the absence of physical
contact with his wife had been causing him physical and mental suffering. He
also considered that “in a caring society (sąmoningoje visuomenėje)
physical contact (a sexual relationship - lytiniai santykiai) was as normal
an element of life as sleeping and eating”.
In December 2007 the applicant asked the Vilnius Regional Court to return him to the Kybartai Correctional Home. However, on
18 December 2007 the court turned down the request on the ground that
pending the outcome of the second set of criminal proceedings, the applicant’s
legal status was that of a pre-trial detainee and, in accordance with the Law
on Pre-trial Detention, detainees had to be held in a pre-trial detention
facility. Accordingly, it was not possible to transfer the applicant from the Lukiškės
Remand Prison to the Kybartai Correctional Home.
By a decision of 17 January 2008 the Vilnius Regional Court ordered the Lukiškės Remand Prison administration
to re-examine the applicant’s request. The court held that by treating the
applicant only as a detainee and thus disregarding his conviction, the prison
administration had interpreted the domestic law too narrowly and had ignored
the applicant’s dual status. The court also noted that under point 124.2 of the
Internal Regulations for Pre-trial Detention Facilities convicts who, like the
applicant, had been transferred to a pre-trial detention facility from a prison
pending pre-trial investigation in another case could receive conjugal visits.
However, according to rule 125, if the detention facility had no specific
premises for such visits, a long-term visit could be exchanged for two short-
term visits. The Lukiškės
Remand Prison administration was thus ordered to explain why
point 124.2 of the regulations did not apply to the applicant and to answer the
question whether there were facilities for conjugal visits at that institution.
The applicant appealed, emphasising his dual
status, being discriminated against and reiterating his urge for conjugal
visits, which, at that time, appeared to be a question of “life or death”. He objected
strongly to the application of rule 125, insisting that it was his right to
choose whether to exchange a long-term (conjugal) visit for two short-term visits.
The applicant also mentioned that at the Kybartai Correctional Home he had been
assigned to the medium security level (see paragraph 60 below) and thus could
receive one short and one long visit once every three months.
The applicant’s wife asked the court to grant her husband’s
request.
The Lukiškės Remand Prison administration maintained that
the applicant’s status as a detainee was more serious than that of a convicted
person. Accordingly, he had no right to a conjugal visit. It also submitted
that the remand establishment in any case had no premises for conjugal visits.
On 21 November 2008 the Supreme Administrative
Court reversed the lower court’s decision and dismissed the applicant’s complaint.
The court observed that the applicant had been transferred to the Lukiškės
Remand Prison as a suspect in the second criminal case in which his pre-trial
detention had been ordered, and thus the Law on Pre-trial Detention was
applicable to him. As to his dual status, the court held:
“A person who has been sentenced to deprivation of liberty, but
in respect of whom the accusatory judgment has not yet entered into force, and
(or) a convicted person in respect of whom pre-trial detention has been ordered
[in another case] while they were serving a liberty deprivation sentence, have
the same procedural status as those in pre-trial detention. Were it otherwise,
a person who had committed no crime and had not been convicted, but had been placed
in pre-trial detention, would be in a significantly worse situation than a
person who had already been sentenced to deprivation of liberty and in respect
of whom pre-trial detention had been ordered in another criminal case. In the
instant case, the chamber finds it important that [the applicant], as a suspect
in [the second] criminal case, has been placed in pre-trial detention and, for precisely
that reason, he is held in the Lukiškės Remand Prison.
On that ground, the entire set of pre-trial detention rules is applied to the
applicant. Those regulations restrict some of his rights and freedoms with the
aim of achieving a timely and unobstructed investigation of the criminal case
by eliminating any possibility to convey information to other persons, which
could obstruct the objective investigation of the case. Accordingly, the fact
that the applicant has been convicted in another criminal case has no bearing
on the resolution of this case.”
The court also noted that any measure applied to
a person held in custody could restrict his constitutional rights, and that the
restriction on conjugal visits did not amount to torture, inhuman or degrading
treatment. Neither was the measure in breach of the applicant’s right to
respect for his family life. Lastly, even though in accordance with point 124
of the Internal Regulations for Pre-trial Detention Facilities, convicts who,
like the applicant, had been transferred to a pre-trial detention facility from
a prison pending pre-trial investigation in another case could receive conjugal
visits, this right could be substituted by short visits if the remand
institution did not have facilities for a conjugal visit. The argument that the
Lukiškės
Remand Prison did not have specific premises for conjugal visits
had not been overruled. Therefore, even assuming that the applicant had a right
to a conjugal visit, such visits were impossible from a practical point of
view.
It transpires from the record of the Lukiškės
Remand Prison that during the applicant’s detention pending
investigation in the first criminal case, from 10 March 2004 until his
conviction on 19 June 2006, he received thirty-two short-term visits from
his wife and parents (of which seventeen visits from his wife). He also
received five short-term visits from his wife and parents before being transferred
to the Kybartai Correctional Home, namely between 19 June and 1 September 2006.
The Lukiškės Remand Prison record
also shows that from 1 September 2006, when the applicant was
transferred to the Kybartai Correctional Home to serve his prison sentence, to
15 June 2007, when he was detained as a suspect in the second criminal
case, the applicant received seven long-term visits from his wife and six short-term
visits from his wife and a friend.
During the applicant’s pre-trial detention in
the second criminal case, namely from 15 June 2007 to 12 February
2008, he received four short-term visits from his wife.
Following the decision by the Vilnius Regional
Court of 12 February 2008, whereby the applicant’s detention in the
second criminal case was not extended and he was transferred back to the
Kybartai Correctional Home, and until 22 May 2009, when he was transferred
to the Vilnius Second Correction Home, the applicant received twelve long-term
visits from his wife and seven short-term visits from his wife and friends. Once
in the Vilnius Second Correctional Home, until 28 September 2010, the day
the Government submitted their observations on the admissibility and merits of
the case, the applicant’s wife had paid him thirteen long-term visits, and his
friends and wife had paid him two short visits.
D. Conditions of detention
In May 2006 the applicant submitted complaints to
the authorities about the conditions of his detention in Lukiškės
Remand Prison.
On 16 June 2006, having verified the facts,
the Emergency Situations Centre at the Ministry of Health acknowledged that the
cells at the remand facility were overcrowded. The health care specialists
noted that at the time of their inspection the applicant was being held with
three other persons in a cell measuring 7.94 square meters, although they did
not specify for how long that had been going on. His cell was clean, but needed
some painting and floor repairs. The ventilation met applicable standards.
It transpires from the documents in the case-file before the
Court that the applicant did not institute administrative court proceedings as
regards the conditions of his detention in the Lukiškės Remand Prison.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Legal provisions for pre-trial detention
The Code of Criminal Procedure (hereinafter -
the CCP) provides that the purpose of holding a suspect, an accused or a
convict in remand is to secure his or her presence during the proceedings, and
ensure that the pre-trial investigation, judicial hearing and execution of the
judgment may be carried out unhindered, as well as to prevent him or her from
committing further criminal acts (Article 119). The grounds for ordering pre-trial
detention are a reasonable assumption that a suspect might: 1) abscond or go
into hiding from the investigators or court; 2) obstruct the course of the
proceedings; 3) commit new crimes (Article 122).
Article 2 of the Law on Pre-trial Detention (Kardomojo
kalinimo įstatymas) lists the reasons for pre-trial detention that are
analogous to those mentioned in Article 119 of the CCP.
Under Article 16 of the Law on Pre-trial
Detention, the administration of the relevant remand institution may allow
detainees visits of up to two hours by family members or other persons, but
permission has to be sanctioned by the investigation officer or the court.
Visits must comply with the procedure established by the Internal Regulations for
Pre-trial Detention Facilities (Kardomojo kalinimo vietų vidaus tvarkos
taisyklės), which read as follows:
XV. DETAINEES’ VISITS FROM FAMILY MEMBERS AND
OTHER PERSONS ORDER
“123. As established by Article 16 of the Law on Pre-Trial
Detention of the Republic of Lithuania, the remand prison administration shall
allow untried prisoners visits from relatives or other persons only with the
consent of the officer investigating the case or the court that has jurisdiction
in the case. The same rules shall be applied to convicts who have been
transferred from correctional institutions owing to prosecution in another case
if a remand measure - detention - has been ordered. The length of the visit as
provided by law shall be up to two hours...
124. (...) the number of short-term visits, which last up to
four hours, and long-term visits, which last up to forty-eight hours, is
limited to persons sentenced to deprivation of liberty and:
[...]
124.2. who have been ... transferred to such facilities from a
correctional institution (iš pataisos darbų įstaigų) in
order that investigations may be carried out in criminal cases or while
criminal cases are pending in court (atlikti tardymo veiksmų
baudžiamosiose bylose arba dėl bylų nagrinėjimo teisme); ...
125. Provided that the pre-trial detention institution has no
facility for long-term visits, the convicts listed in point 124 of the Internal
Regulations shall receive two short-term visits instead. In order that
[those convicts] may maintain a social connection with their family or relatives,
the director of the remand prison may grant them supplementary visits...
[...]
129. Anyone who visits a detainee shall apply for a visit in writing...
to the Reception Office ... of the remand prison. He or she shall hand the
request to an employee of the Office together with the written consent of the
officer investigating the case or the court that has jurisdiction in the case.
[...] The Office employee, if satisfied that the visit may be granted, shall
inform the director of the remand prison or his deputy, who shall indicate the
duration of the visit on the written request for a visit. If he refuses to give
permission for a visit, the reasons for refusal shall be indicated. [...] The
consent of the officer investigating the case or the court that has jurisdiction
in the case to grant permission for a visit is valid for only one visit. Only
two adults at a time may visit a detainee or convict; they may be accompanied
by the minor children of the detainee or convict.
[...]
131. A hall shall be equipped for the short-term visits of detainees
and convicts by their relatives or other persons in the premises of the remand prison.
A table measuring not less than 120 cm in width and not more than 70 cm high
shall be installed in the hall. One end of the table shall stand against the
wall of the hall. The table shall be fitted with a wooden partition from the tabletop
to the ground. Wire netting shall be installed along the length of the table
from the ceiling to within 20 cm of the tabletop. Visitors may pass food to the
detainees or convicts through the space between the table and the wire netting.
132. On the side of the table where the detainees and convicts
must sit, cabins measuring not more than 80 cm by 1 metre shall be installed.
All the cabins shall be separated from the ground to the ceiling by partitions.
...
133. On the side of the table where the visitors must sit, a sufficient
number of chairs or stools shall be placed. Cabins shall not be installed on that
side of the table. ...
134. A table for the officers supervising the visits shall be
placed at the end of the visit table. The officers shall have an alarm
connection to the control room.
...
138. The officers supervising the visit shall constantly observe
the visitors, detainees and convicts. During the visit the visitors, detainees
and convicts are not allowed to give each other notes and other objects (except
for food).”
B. Legal provisions for the service of liberty
deprivation sentences
Once an adult has been sentenced to deprivation
of liberty, he or she is transferred to one of three types of correctional
facilities: a correctional home (pataisos namai), a prison (kalėjimas),
or an open colony (atviroji kolonija) to serve the sentence
(Article 62 of the Code on the Execution of Sentences (Bausmių vykdymo kodeksas), hereinafter - the CES).
According to Articles 71 to 76 and 94 of the CES,
once a convict has been placed in a correctional home (pataisos namuose),
in the applicant’s case Kybartai Correctional Home, he or she has a right to short-term
(up to four hours) and long-term (up to forty-eight hours, including conjugal) visits.
The frequency at which convicted inmates can receive visitors is determined
according to the inmate’s security level. Those assigned to the lowest security
level are allowed one short-term visit by their friends and/or relatives and
one long-term visit by a spouse at least once every two months. Convicted inmates
assigned to medium-security level, are allowed one short-term visit and one
long-term visit once every three months. Lastly, inmates assigned to the
highest security level are not allowed any visits, but may make one telephone
call every two months.
Short visits take place in the presence of a guard, but the
guard does not listen to the conversation between the visitor and the inmate.
Long-term visits take place in designated premises within the correctional
institution.
Persons who have committed very serious crimes serve
their sentence in prisons (kalėjimuose). Those assigned to medium
security category can receive up to one short-term visit every two months. Upon
permission of the prison administration, such short visit may be exchanged for
a visit by the spouse, held in designated premises and without the guards’
supervision (Articles 83 and 85 of the CES). Persons convicted of negligent
crimes and serving their sentence in open colonies (atvirosiose kolonijose)
can receive unrestricted visits and even home leave for up to two days once a
week (Articles 85 and 91 of the CES).
C. Legal provisions for civil remedies for unlawful pre-trial
detention
. Article
6.272 § 1 of the Civil Code allows a civil claim for pecuniary and
non-pecuniary damage in the event of unlawful actions by the investigating
authorities or a court in the context of a criminal case. The provision
envisages compensation for an unlawful conviction, arrest or detention, or for
the application of unlawful procedural measures of enforcement, or an unlawful
administrative penalty.
. On
1 October 2003 the Supreme Court ruled in the civil case of M.B., who claimed
to have suffered non-pecuniary damage as a result of his allegedly unlawful pre-trial
detention. The Vilnius Regional Court and the Court of Appeal had earlier
dismissed M.B.’s claim on the ground that a civil court had no jurisdiction to
assess the lawfulness of M.B.’s detention in a criminal case. The two courts
also argued that M.B. did not have a right to damages, since the orders to
detain him had not been recognised as unlawful and quashed in his criminal
case.
. The
Supreme Court dismissed that reasoning and noted that the Convention, in
particular Article 5 § 3 thereof, could be directly applied by the Lithuanian
courts and that the lower courts, when deciding M.B.’s claim for damages, had
failed to examine whether the length of his detention had been reasonable,
regardless of the fact that the court orders to detain him had not been quashed
in criminal proceedings. The case was returned to the Court of Appeal for fresh
examination.
. By
a ruling of 20 September 2004, the Court of Appeal granted M.B.’s civil claim
in part and awarded him 7,000 Lithuanian litai (LTL) (approximately 2,027 euros
(EUR)) for the damage he suffered as a result of his detention, the length of
which those courts found to be unreasonable.
. On
28 February 2005 the Supreme Court upheld the above ruling.
. In
another civil case for damages, by a decision of 7 June 2005 the Vilnius
Regional Court acknowledged that criminal proceedings, where the plaintiff had
been accused of improper accounting and ordered not to leave her place of
residence, were delayed because of investigators’ inaction and thus lasted
unjustifiably long. The plaintiff therefore had a right to a compensation, in
accordance with Article 6.272 § 1 of the Civil Code. Given that the
obligation not to leave her place of residence was the mildest procedural
measure and it had been applied for only for eighteen months, the court awarded
the plaintiff LTL 3,000 (approximately EUR 870) in compensation for
non-pecuniary damage.
. On
5 June 2007 the Court of Appeal decided yet another civil case where it
found that the plaintiff had been detained for ten months without a proper legal
basis. The court also established that the pre-trial investigation in the
plaintiff’s case had been unjustifiably long because no investigative actions
had been performed for four years. Having taken into account the Court’s
practice in similar cases and relying on Article 6.272 of the Civil Code, the
court awarded the plaintiff a sum of LTL 20,000 (approximately EUR 5,800)
for non-pecuniary damage.
D. Other relevant legal provisions
The Criminal Code at the relevant time provided
that a person who steals high value property of another
or steals another’s property by participating in an organised group may be
punished by imprisonment for a term of up to eight years (Article 178 § 3). A
person who participates in the activities of a criminal association risks
imprisonment for a term of from three to fifteen years (Article 249 § 1). A
criminal association (nusikalstamas susivienijimas) is the most serious
form of complicity, described as one where three or more persons are linked by
permanent mutual relations and a division of roles or tasks in order to commit
a joint criminal act - one or several serious or grave crimes (Article 25 §§ 1
and 4). Another form of criminal complicity recognised by the Criminal Code is an
organised group (organizuota grupė), which is where two or more
persons agree, at any stage of the commission of a criminal act, to commit several
crimes or one serious or grave crime, with each member of the group performing
a certain task or role (Article 25 § 3).
The Code of Criminal Procedure provides that in
the event that an appeal is lodged against a judgment, the execution of the
judgment will be stayed. Nonetheless, the judgment may be put into effect if the
convicted person submits a written request to start serving his sentence
pending the outcome of his appeal (Article 315).
III. RELEVANT INTERNATIONAL LAW AND PRACTICE
A. International Covenant on
Civil and Political Rights
Article 10 of the International Covenant on
Civil and Political Rights, by which Lithuania has been bound since 20 November
1991, reads as follows:
Article 10
“1. All persons deprived of their liberty shall be treated with
humanity and with respect for the inherent dignity of the human person.
2. (a) Accused persons shall, save in exceptional
circumstances, be segregated from convicted persons and shall be subject to
separate treatment appropriate to their status as unconvicted persons; ...”
General Comment No. 21 on Article 10 of the
International Covenant on Civil and Political Rights was adopted by the United
Nations Human Rights Committee on 10 April 1992. In so far as relevant it
reads:
“4. Treating all persons deprived of their liberty with
humanity and with respect for their dignity is a fundamental and universally
applicable rule. Consequently, the application of this rule, as a minimum,
cannot be dependent on the material resources available in the State party...
9. Article 10, paragraph 2 (a), provides for the segregation,
save in exceptional circumstances, of accused persons from convicted ones. Such
segregation is required in order to emphasize their status as unconvicted
persons who at the same time enjoy the right to be presumed innocent as stated
in article 14, paragraph 2. ...”
B. Council of Europe documents
The European Prison Rules are recommendations of
the Committee of Ministers to member States of the Council of Europe as to the
minimum standards to be applied in prisons. States are encouraged to be guided
by the Rules in their legislation and policies and to ensure wide dissemination
of the Rules to their judicial authorities and to prison staff and inmates.
1. The 1987 European Prison Rules
The 1987 European Prison Rules (Recommendation
No. R (87) 3) were adopted by the Committee of Ministers of the Council of
Europe on 12 February 1987. Part V of the Rules contain a number of
basic principles concerning untried prisoners, including the following:
“91. Without prejudice to legal rules for the
protection of individual liberty or prescribing the procedure to be observed in
respect of untried prisoners, these prisoners, who are presumed to be innocent
until they are found guilty, shall be ... treated without restrictions other
than those necessary for the penal procedure and the security of the
institution.
92. 1. Untried prisoners shall be allowed to inform
their families of their detention immediately and given all reasonable
facilities for communication with family and friends and persons with whom it
is in their legitimate interest to enter into contact.
2. They shall also be
allowed to receive visits from them ... subject only to such restrictions and
supervision as are necessary in the interests of the administration of justice
and of the security and good order of the institution. ...”
2. The 2006 European Prison Rules
On 11 January 2006 the Committee of Ministers of
the Council of Europe adopted a new version of the European Prison Rules (Recommendation
Rec(2006)2). It noted that the 1987 Rules “needed to be substantively revised
and updated in order to reflect the developments which ha[d] occurred in penal
policy, sentencing practice and the overall management of prisons in Europe”.
The 2006 Rules contain, inter alia, the
following principles concerning untried prisoners:
“95.1. The regime for untried prisoners may not be influenced
by the possibility that they may be convicted of a criminal offence in the
future. ...
95.3. In dealing with untried prisoners prison authorities
shall be guided by the rules that apply to all prisoners and allow untried
prisoners to participate in various activities for which these rules provide. ...
99. Unless there is a specific prohibition for a specified
period by a judicial authority in an individual case, untried prisoners:
a. shall receive visits and be allowed to communicate with
family and other persons in the same way as convicted prisoners;
b. may receive additional visits and have additional access to
other forms of communication; ...”
The Committee for the Prevention of Torture and
Inhuman or Degrading Treatment (hereinafter referred to as “the CPT”) visited Lithuania from 14 to 18 June 2010. The relevant parts of its report read as follows:
“c. contact
with the outside world
...
60. The CPT recalls that it is essential that all prisoners,
including remand prisoners, are able to maintain good contact with the outside
world. Granting of contact (via mail, visits or telephone) should therefore be
the rule, and restrictions the exception. Any restriction should be based on
the requirements of the investigation or security considerations and be applied
for a limited period; in accordance with the proportionality principle, the
restriction should also be the least severe possible (a supervision measure
should, for example, be chosen rather than a prohibition).
...
The CPT recommends that the relevant legislation be amended in
order to establish the principle that remand prisoners are entitled to receive
visits and make telephone calls. Any restriction on a given remand prisoner’s
right to receive visits or make telephone calls should comply with the above
criteria (i.e. be based on the requirements of the investigation or security
considerations, be applied for a limited period, and be the least severe
possible). Moreover, the restrictive approach to visits and phone calls taken
by the prosecutorial/judicial authorities must be reviewed without waiting for
the adoption of new legislation or regulations.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE
CONVENTION
The applicant complained that the length of his pre-trial
detention had been excessive. He relied on Article 5 of the Convention,
which, in so far as relevant, reads 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:
(a) the lawful detention of a person after
conviction by a competent court;
...
(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;
...
3. Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be brought
promptly before a judge or other officer authorised by law to exercise judicial
power and shall be entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees to appear for trial.”
A. The parties’ submissions
1. The applicant
The applicant argued that the length of his pre-trial
detention had been disproportionate. He observed that he had been detained from
10 March 2004 and implied that the Lithuanian courts had repeatedly extended his pre-trial detention without a valid
reason.
2. The Government
At the outset the Government maintained that, in
his complaints before the domestic courts, the applicant had not explicitly
complained about the length of his pre-trial detention, failing to invoke Article
5 of the Convention. Furthermore, whilst conceding that the applicant had
appealed against “almost all” of the court decisions to remand him in custody
in the first criminal case, the Government argued that the applicant had had a
possibility to seek redress on the basis of the civil remedy provided for in
Article 6.272 of the Civil Code. In that connection, they also referred to the domestic
courts’ case-law, in which the Supreme Court had explicitly established that
the unreasonable length of pre-trial detention could constitute its
unlawfulness, and that the courts, in deciding on the unlawfulness of detention,
should also examine the matter in the light of Article 5 § 3 requirements (see paragraphs
62-66 above). The Government pointed out that in that civil case, the Court of Appeal
had awarded compensation for non-pecuniary damage caused by unreasonably long
detention. However, given that in the instant case the applicant had not availed
himself of that opportunity, his complaint was inadmissible for failure to
exhaust domestic remedies.
Alternatively, the Government submitted that the
complaint was unfounded. As regards the first criminal case, the period of the
applicant’s detention to be taken into account for the purposes of Article 5 §
3 of the Convention amounted to about two years and three months. That being
so, the applicant’s detention had not been in breach of the
above provision. The courts had given relevant and sufficient reasons for
holding the applicant in custody. The Government recalled that the applicant
had initially been suspected of only three counts of theft of high value property
and of belonging to a criminal association. However, he had later been charged
with further multiple episodes of theft and other criminal acts. The case was
very complex and the case-file voluminous. The severity of the sentence that
might have been imposed on the applicant also had to be taken into account, as
well as the fact that the applicant had refused to give evidence and had denied
the charges brought against him.
. The applicant’s
detention in the second criminal case, while his sentence in the first criminal
case had been pending, had lasted some eight months. However, the
applicant’s detention had been justified by the reasonable suspicion that he might
obstruct the proceedings or attempt to abscond and the authorities’ obligation
to expedite the second criminal proceedings speedily. The mere fact that the applicant
had at the same time been serving a liberty deprivation sentence following his
conviction in the first criminal case neither ensured his participation in the
second criminal proceedings (as the first criminal case had been pending before
the Court of Appeal and a final judgment had not yet been given), nor prevented
the investigation from being obstructed. Moreover, similarly to the first
criminal case, the charges in the second one concerned crimes committed by an
organised group, for which the applicant was facing a severe penalty.
B. The Court’s assessment
Turning to the applicant’s complaint that his
pre-trial detention had been too lengthy, the Court observes
that in the instant case the applicant’s pre-trial
detention was broken into two periods. Although in both sets of criminal
proceedings the applicant was charged with somewhat similar crimes, they
concerned different criminal associations and, except for D.S. and the
applicant, different persons were accused and convicted. The Court also recalls
that a period of an applicant’s detention should be regarded as a “continuing
situation” as long as the detention has been effected in the same type of
detention facility in substantially similar conditions (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 78, 10 January 2012).
Short periods of absence during which the applicant is taken out of the
facility for interviews or other procedural acts would have no influence on the
continuous nature of the detention. However, the applicant’s release or
transfer to a different type of detention regime, both within and outside the
facility, would put an end to the “continuing situation”. Complaints about the
conditions of detention must be lodged within six months of the end of the
situation complained about or, if there is an available domestic remedy, of the
final decision in the process of exhaustion (see, most recently, Yefimenko
v. Russia, no. 152/04, § 72,
12 February 2013).
. As
regards the circumstances of the instant case, the applicant has been twice
held at the Lukiškės
Remand Prison. In between, for some nine months he served his liberty
deprivation sentence in the Kybartai Correctional Home, in conditions he
clearly saw as more favourable than those in remand prison. Accordingly, the Court will treat the applicant’s pre-trial
detention as two separate non-consecutive periods (also see, by converse
implication, Solmaz v. Turkey, no. 27561/02, §§ 34-37, 16 January 2007,
and, more recently, Idalov v. Russia [GC], no. 5826/03, § 125, 22 May 2012) and
deal with each of them in turn.
1. The applicant’s
pre-trial detention in the first set of criminal proceedings
. The
Court notes that in the first criminal case the applicant’s pre-trial detention
began after his arrest on 10 March 2004. He was then detained, for the purposes
of Article 5 § 3 of the Convention, until his conviction by the Vilnius Regional Court on 19 June 2006. From that date the applicant was detained “after
conviction by a competent court”, within the meaning of Article 5 § 1 (a), and
therefore that period of his detention falls outside the scope of Article 5 § 3
(see Kudła v. Poland [GC], no. 30210/96, § 104, ECHR
2000-XI).
. The
Government have argued that the applicant failed to lodge a civil claim for
damages as regards the reasonableness of holding him in detention. On this
point the Court reiterates the Convention organs’ constant case-law to the
effect that an action for damages cannot be seen as an effective remedy in
respect of complaints under Article 5 § 3 about the excessive length of time
spent on remand (see Woukam Moudefo v. France, no. 10868/84,
Commission decision of 21 January 1987, DR 51, p. 73; Egue v. France,
no. 11256/84, Commission decision of 5 September 1988, DR 57, p. 60; Tomasi
v. France, judgment of 27 August 1992, § 79, Series A no. 241-A;
Yağcı and Sargın v. Turkey, nos. 16419/90 and 16426/90,
Commission decision of 10 July 1991, DR 71, p. 253, and judgment of 8 June
1995, § 44, Series A no. 319-A; Haris v. Slovakia, no. 14893/02,
§ 38, 6 September 2007). In all those cases, the
main basis for such a decision was that the right to obtain release and the
right to obtain compensation for a deprivation of liberty in breach of Article
5 are two separate rights, enshrined respectively in paragraphs 4 and 5 of
that Article. That distinction is also relevant for the purposes of Article 35
§ 1. This line of reasoning is of particular importance where the person
concerned is still in custody. In such circumstances, the only remedy which may
be considered sufficient and adequate is one which is capable of leading to a
binding decision for his or her release (see Gavril Yosifov v. Bulgaria,
no. 74012/01, § 40, 6 November 2008).
. However,
in a number of other cases the Court has accepted that, if the impugned detention
has come to an end, an action for damages, which is capable of leading to a
declaration that the detention was unlawful or in breach of Article 5 § 1 and
to a consequent award of compensation, may be an effective remedy in respect of
complaints under this provision (ibid., § 41).
. In
the Court’s view, where the applicant’s complaint of a violation of Article 5 §
1 of the Convention is mainly based on the alleged unlawfulness of his or her
detention under domestic law, and where this detention has come to an end, an
action capable of leading to a declaration that it was unlawful and to a
consequent award of compensation is an effective remedy which needs to be
exhausted, if its practicability has been convincingly established (see Kolevi v. Bulgaria (dec.),
no. 1108/02, 4 December 2007). The Court considers that the same holds true as
regards the complaint under Article 5 § 3 of the Convention. To hold otherwise
would mean to duplicate the domestic process with proceedings before the Court,
which would be hardly compatible with its subsidiary character (see, most
recently, Demir v. Turkey (dec.), no. 51770/07, 16 October 2012, §§
22-24).
. The
Court notes that Article 6.272 of the Civil Code provides for a possibility to
obtain compensation for pre-trial detention that had been unreasonably long. It
also takes cognisance of the Lithuanian courts’ case-law on this matter, which both
recognised that the person’s detention had been too lengthy, and awarded
pecuniary compensation for his suffering. Accordingly, and whilst acknowledging
that the civil law avenue was not an effective remedy to be exhausted while the
applicant was still in pre-trial detention, given that that remedy could not have
allowed his release pending trial, the Court is of the view that the applicant
had to use that avenue once he had been convicted by the trial court on 19 June
2006, or at least after he had started serving his sentence on 1 September
2006, but, in any case, before lodging his application with the Court on
17 October 2006. Given that the applicant did not do so, the Court holds
that his complaint under Article 5 § 3 about the reasonableness of the length
of his pre-trial detention in the first set of criminal proceedings must be
rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
2. The applicant’s detention in the second set of
criminal proceedings
. The
Court notes that on 15 June 2007 the Vilnius Regional Court ordered the
applicant’s pre-trial detention in the second set of criminal proceedings. The
Court nevertheless observes that his detention following that date fell within
the ambit of Article 5 § 1 (a) of the Convention, given that he was
already serving the prison sentence imposed by the Vilnius Regional Court which
had convicted him in the first set of criminal proceedings on 19 June 2006
(see paragraph 19 above). The Court further considers in this connection that
there is nothing in the case-file giving reason to doubt that this was a lawful
detention of the applicant after conviction by a competent court. Accordingly, this part of the complaint must be dismissed as manifestly
ill-founded, within the meaning of Article 35 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14
The applicant complained that his inability to
receive conjugal visits from his wife during his pre-trial detention had caused
him intolerable mental and physical suffering and had threatened to break up his
family. He was also displeased that his entitlement in that respect had been more
restricted than that of a convicted person serving a prison sentence. He alleged
that Article 3 of the Convention had been breached.
The Court considers that the essence of the
applicant’s grievances appears to be the allegedly unjustified difference in
treatment as concerns family visits between himself, as a person in pre-trial
detention, and a convicted prisoner serving a prison sentence. It therefore finds
that the applicant’s complaints fall to be examined under Articles 8 and 14 of
the Convention, which, in so far as relevant, provide as follows:
Article 8
“1. Everyone has the right to respect for his private and
family life ...
2. There shall be no interference by a public authority
with the exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other
status.”
A. Arguments of the parties
1. The applicant
The applicant complained about the refusal of
his requests for conjugal visits while he had been detained in the Lukiškės
Remand Prison. He emphasised that he had been in pre-trial detention
for a significantly long time, totalling more than three years. Irrespective of
such length of detention, under the domestic law a person being held on remand
was not entitled to conjugal visits. For the applicant, it was remarkable that Lithuanian
law allowed persons who had already been convicted, even those sentenced for
the most serious crimes, such a right. In his view, a person in pre-trial
detention should be entitled to the presumption of innocence until proved
guilty by a court. However, in his case the opposite was true: his guilt had
not yet been established, but he had had to face much more serious restrictions
than those already convicted, and thus had been punished without conviction.
The applicant further maintained that the lack
of conjugal visits had amounted to torture. The conjugal visits were
indispensable for maintaining a social and physical connection between him and
his wife. Moreover, sexual contact was vital for his mental and physical health.
The lack of conjugal visits had also denied the applicant the possibility of
having children and risked breaking up his marriage and the loss of family
happiness. Lastly, the applicant was also dissatisfied with the Lukiškės
Remand Prison administration’s excuse that the facility had no premises for
long-term visits.
2. The Government
The Government maintained, at the outset, that in
his complaints of alleged torture and punishment without conviction before the
domestic courts, the applicant had invoked only relevant domestic-law
provisions. However, he had not relied on Article 14 of the Convention in conjunction
with Article 8, and had thus failed to complain of alleged discrimination and
interference with respect for his family life.
They also doubted whether the applicant could be
considered a victim of a Convention violation, given that he had been deprived
of conjugal visits only for a very short time. As to the first period of his pre-trial
detention, the applicant had first asked the domestic authorities for a
conjugal visit only on 28 March 2006. Soon thereafter, he had been convicted
and, on 1 September 2006, had been transferred to the Kybartai Correctional
Home to serve his sentence, where he had been able to receive conjugal visits. As
to the second period of his pre-trial detention, the applicant had submitted a
request for a conjugal visit on 27 August 2007. Having been returned to
the Kybartai Correctional Home some six months later, that is to say on 12
February 2008, the applicant had again been able to receive conjugal visits.
Should the Court find the applicant’s complaint
admissible, the Government wished to point out that pre-trial detention by its
nature entailed some restrictions on a prisoner’s private and family life and
that some measure of control over a prisoner’s contacts with the outside world
was called for. Thus it was not, in itself, incompatible with the Convention (see
Van der Ven v. the Netherlands, no. 50901/99, § 68, ECHR 2003-II).
Even presuming that there had been an interference with the applicant’s right
to respect for his family life, that interference met Article 8 § 2
requirements.
Firstly, the interference was “prescribed by
law” (see paragraphs 57-61 above), in accordance with which convicted persons were
allowed two types of visits from their relatives and other persons: short-term
visits lasting up to four hours, and long-term visits, including conjugal ones,
lasting up to forty-eight hours, which took place in special separate premises
without surveillance by the prison administration. As to the persons in
pre-trial detention, they may receive visits from their family and relatives
lasting up to two hours.
The Government considered that there was a
legitimate aim for distinguishing between the two above-mentioned categories of
persons who are deprived of their liberty. The grounds for imposing pre-trial detention
were to ensure that the proceedings until the case was examined by a court and
the judgment was pronounced were unhindered. The authorities had to make sure
that the suspect would not obstruct the investigation by tarnishing the
evidence and intimidating witnesses, and that the circumstances of the criminal
acts were identified. The restrictions were also necessary so that the suspect
would not abscond or commit further crimes. That was why a suspect’s contacts
with the outside world could be subjected to more or less severe restrictions,
depending on the complexity of the case and the seriousness of the criminal
acts under investigation. As to a convicted person, the circumstances of his criminal
case and the evidence given by witnesses were to be considered as established
once the court judgment had entered into force. Thus a convict could enjoy less
restricted visits from his family, as an objective and unhindered investigation
was no longer at stake. Accordingly, given the different purposes of pre-trial detention
and deprivation of liberty after conviction, the fact that national law
provided for different entitlement for remand prisoners and convicts was objectively
and reasonably justifiable.
The Government also advanced an argument that it
was usually presumed that the length of pre-trial detention would be relatively
short. Therefore, even where a suspect’s contacts with the outside world were
restricted, it should not amount to a violation of his right to respect for
family life, where it lasted for a relatively short period of time.
On the matter of alleged discrimination, the
Government also submitted that, had the applicant been transferred to the remand
facility but continued to enjoy the rights guaranteed to convicts, that would have
put those who were being held on remand but with no previous convictions, or
who were not serving sentences imposed in other criminal cases, in an unfair
position. Such a risk of reverse discrimination had been confirmed by the Supreme Administrative Court on 21 November 2008 (see paragraph 49 above).
The Government considered that the restriction
on the applicant to receive conjugal visits had been proportionate and had not
prevented him from having regular contact with his family. On this point they
noted that during his pre-trial detention in the first criminal case, the applicant
had received thirty-seven short-term visits from his wife and parents. During
the period of some eight months when the applicant had been detained on suspicion
that he had been involved in a second criminal case, his wife had paid him four
short-term visits. For the Government, it was also important to observe that the
applicant had not requested more short-term visits while in pre-trial
detention.
Lastly, concerning the conjugal visits, it was
worth noting that once the applicant had been convicted in the first set of
criminal proceedings and started serving his sentence on 1 September 2006
in the Kybartai Correctional Home, he had received seven long-term visits from
his wife until being returned to the remand facility on 15 June 2007. Furthermore,
after the decision of 12 February 2008 not to extend his detention, the
applicant had been transferred back to the Kybartai Correctional Home where he had
continued to enjoy the right to conjugal visits. The Government were therefore
certain that the restrictions on the applicant’s right to respect for his
family life in accordance with his status as a remand prisoner were
proportionate to the purpose of the detention, namely to ensure that the course
of the criminal proceedings was not obstructed.
In sum, the Government concluded that there
were no indications that the applicant had suffered any discrimination in the enjoyment
of his Convention rights. Accordingly, there had been no violation of Article
14, read in conjunction with Article 8 of the Convention.
B. The Court’s assessment
1. Admissibility
The Court considers that
the issue of exhaustion of domestic remedies as regards the applicant’s alleged
failure to properly complain about interference with his family life (paragraph
95 above) is closely linked to the merits of his plea that he, as a remand
detainee, had been discriminated against because of the absence of conjugal
visits. Thus, the Court finds it necessary to join the Government’s objection
to the merits. The Court further considers that this part of the application is
not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. No other ground for declaring it inadmissible has been
established. Therefore, it should be declared admissible.
2. Merits
The Court reiterates that Article 14 of the
Convention protects individuals in similar situations from being treated
differently without justification in the enjoyment of their Convention rights
and freedoms. This provision has no independent existence, since it has effect
solely in relation to the rights and freedoms safeguarded by the other
substantive provisions of the Convention and its Protocols. However, the
application of Article 14 does not presuppose a breach of one or more such
provisions and to this extent it is autonomous. For Article 14 to become
applicable, it suffices that the facts of a case fall within the ambit of
another substantive provision of the Convention or its Protocols (see Sidabras
and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 38, ECHR 2004-VIII).
The Court will therefore establish whether the
facts of the case fall within the ambit of Article 8, whether there has been a
difference in the treatment of the applicant and, if so, whether such different
treatment was justified under Article 14 of the Convention.
(a) Whether the facts of the case fall under Articles
8 and 14 of the Convention
. The Court has held that detention,
like any other measure depriving a person of his or her liberty, entails
inherent limitations on private and family life. However,
it is an essential part of a detainee’s right to respect for family life that
the authorities enable him or, if need be, assist him, in maintaining contact
with his close family. Such restrictions as limitations imposed on the number
of family visits, supervision over those visits and, if so justified by the
nature of the offence, subjection of a detainee to a special prison regime or
special visit arrangements constitute an interference with his rights under Article 8 but are not, by themselves, in
breach of that provision (see, among other authorities, Bogusław
Krawczak v. Poland, no. 24205/06, §§ 107-108, 31 May 2011; Moiseyev v.
Russia, no. 62936/00, § 246, 9 October 2008; and Trosin v. Ukraine, no. 39758/05, § 39, 23 February
2012).
The Court has also had
occasion to establish that more than half of the Contracting States allow for
conjugal visits for prisoners (subject to a variety of different restrictions).
However, while the Court has expressed its approval for the evolution in
several European countries towards conjugal visits, it has not so far interpreted
the Convention as requiring Contracting States to make provision for such
visits. Accordingly, this is an area in which the Contracting States enjoy a
wide margin of appreciation in determining the steps to be taken to ensure
compliance with the Convention with due regard to the needs and resources of
the community and of individuals (see Dickson v. the United Kingdom [GC], no. 44362/04, § 81, ECHR 2007-V).
In the present case the Court observes that the
applicant and his wife lodged numerous complaints with the Lukiškės
Remand Prison authorities and the criminal and administrative
courts, claiming that the absence of conjugal visits was discriminatory and
also detrimental to their physical and mental health and could have done
irreparable harm to their family (see paragraphs 13, 17, 36, 38-40, 45 and 48
above). The Court thus accepts that the prohibition of conjugal visits which
the applicant had complained of comes within the ambit of Article 8 (see, by
contrast, Epners-Gefners v. Latvia, no. 37862/02, § 65, 29 May
2012). It therefore rejects the Government’s
objection as to failure to exhaust domestic remedies. The Court accordingly
concludes that Article 14 of the Convention, in conjunction with Article 8, is
applicable in the present case (see E.B. v. France [GC], no.
43546/02, § 47, 22 January 2008).
(b) Whether the applicant had an “other status” and
whether his position was analogous to convicted prisoners
Remanding a person in custody may be regarded
as placing the individual in a distinct legal situation, which even though it
may be imposed involuntarily and generally for a temporary period, is
inextricably bound up with the individual’s personal circumstances and
existence. The Court is therefore satisfied - and it has not been disputed
between the parties - that by the fact of being remanded in custody the applicant
fell within the notion of “other status” within the meaning of Article 14 of
the Convention (see, mutatis mutandis, Shelley v. the United Kingdom
(dec.), no. 23800/06, 4 January 2008, and Clift v. the United Kingdom,
no. 7205/07, §§ 55-63, 13 July 2010).
In order for an issue to arise under Article 14, there
must be a difference in the treatment of persons in analogous, or relevantly
similar, situations (see D.H. and Others v.
the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007-IV).
The requirement to demonstrate an “analogous position” does not mean that the
comparator groups must be identical. The fact that the applicant’s situation is
not fully analogous to that of convicted prisoners and that there are
differences between the various groups based on the purpose of their
deprivation of liberty does not preclude the application of Article 14. It must
be shown that, having regard to the particular nature of his complaint, the
applicant was in a relevantly similar situation to others who were treated
differently (see Clift, cited above, § 66).
The applicant’s complaints under examination
concern the legal provisions regulating his visiting rights in remand prison.
They thus relate to issues which are of relevance to all persons detained in
prisons, as they determine the scope of the restrictions on their private and
family life which are inherent in the deprivation of liberty, regardless of the
ground on which they are based.
The Court therefore considers that, as regards
the facts at issue, the applicant can claim to have been in a relevantly
similar situation to a convicted person (see Laduna v. Slovakia, no. 31827/02, § 58, ECHR 2011).
(c) Whether the difference in treatment was justified
A difference in treatment is discriminatory if
it has no objective and reasonable justification, in other words, if it does
not pursue a legitimate aim or if there is not a reasonable relationship of
proportionality between the means employed and the aim sought to be realised.
The Contracting States enjoy a margin of appreciation in assessing whether and
to what extent differences in otherwise similar situations justify a different
treatment. The scope of this margin will vary according to the circumstances,
the subject matter and the background. The Court has accepted that, in
principle, a wide margin of appreciation applies in questions of prisoners and
penal policy (see Clift, cited above, § 73, with further references).
As to the facts of the present case, the Court
notes that the applicant was detained pending trial from 10 March 2004 to 19
June 2006. During that period and until on 1 September 2006 when he was
transferred to the Kybartai Correctional Home to serve his sentence, the regime
of his detention was governed by the Law on Pre-trial Detention and the
Internal Regulations for Pre-trial Detention Facilities. Under that legislation,
all accused persons detained during investigations and judicial proceedings
were entitled to receive visitors for up to two hours on short-term visits.
During the same period, the statutory duration
of short-term visits for convicts serving their sentence in a correctional home
and assigned to medium security level, as the applicant claimed it was in his
case (see paragraph 48 above), was fixed at a maximum of four hours. In
addition, a convict could receive long-term visits, including conjugal ones, lasting
up to forty-eight hours once every three months, which took place on special
separate premises without the surveillance of the guards.
Thus, at the relevant time, the duration of visits
for a person detained pending trial, such as the applicant, was shorter (two
hours) than that which the law allowed in respect of a convicted person (four
hours). Above all, a person detained pending trial had no right to conjugal
visits at all. Moreover, the frequency of visits and the type of contact
(short-term or conjugal visits) to which convicted persons were entitled
differed according to the security level of the liberty deprivation facility in
which they were being held and according to that of the prisoner (paragraphs
58-61 above). In contrast, the restrictions on the visiting rights of remand prisoners
were applicable in a general manner, regardless of the reasons for their
detention and the related security considerations.
The Court notes the Government’s argument that
the grounds for imposing pre-trial detention and thus limiting the suspect’s
contacts with the outside world serve to guarantee an unhindered investigation.
That being so, it also observes that Article 10 § 2 (a) of the International
Covenant on Civil and Political Rights requires, inter alia, that
accused persons should, save in exceptional circumstances, be subject to
separate treatment appropriate to their status as unconvicted persons who enjoy
the right to be presumed innocent (see paragraphs 71 and 72 above). The 1987 European
Prison Rules contain an analogous rule (paragraph 74 above, point 91).
Similarly, the 2006 European Prison Rules, which were
adopted shortly before the applicant had requested a conjugal visit (paragraph
36 above), provide that unless there is a specific prohibition for a
specified period by the judicial authority in an individual case, untried
prisoners are to receive visits and be allowed to communicate with family
members in the same way as convicted prisoners (see paragraph 76 above, point 99).
This approach appears to be supported by the CPT in its report on visit to Lithuania,
which considered that any restriction on a remand prisoner’s right to receive
visits should be based on the requirements of the investigation or security
considerations, be applied for a limited period and be the least severe
possible (see paragraph 77 above). Lithuanian legislation, however,
restricts remand prisoner’s visiting rights in a general manner and to a
greater extent than those of convicted persons placed in a correctional home,
as in the applicant’s case. In this regard the Court has already had occasion
to hold that, inasmuch as it concerns particular restrictions
on a detained person’s visiting rights, the aim of protecting the legitimate interests of an investigation may
also be attained by other means which do not affect all detained persons
regardless of whether they are actually required, such as the setting up of
different categories of detention, or particular restrictions as may be
required by the circumstances of an individual case (see Laduna, cited
above, § 66).
As to the reasonableness of the justification of
difference in treatment between remand detainees and convicted prisoners, the
Court acknowledges that the applicant in the instant case had been charged with
belonging to a criminal association and to an organised group involved in
multiple car thefts. However, it also finds that the
security considerations relating to any criminal family links were absent in
the instant case (see Messina v. Italy (no. 2), no. 25498/94, §§ 65-67, ECHR 2000-X). Namely, the
applicant’s wife was neither a witness nor a co-accused in the criminal cases
against her husband, which removed the risk of collusion or other forms of
obstructing the process of collecting evidence (see, in contrast, mutatis
mutandis, Silickienė v. Lithuania, no. 20496/02, §§ 28 and 29, 10 April 2012).
Nor has the Court any information to the effect that the applicant’s wife was
involved in criminal activities. Accordingly, the Court is not persuaded that there was a particular reason to prevent the applicant from
having conjugal visits with his wife (see, by contrast, Kučera
v. Slovakia, no. 48666/99, § 130, 17 July 2007; Bagiński v. Poland,
no. 37444/97, § 92 et seq., 11 October 2005; and Klamecki v.
Poland (no. 2), no. 31583/96, § 135, 3 April 2003). Above all, the Court notes that in justifying the
prohibition on the applicant having conjugal visits when placed in pre-trial detention,
the Government, like the Lithuanian administrative courts, in essence relied on
the legal norms as such, without any reference as to why those prohibitions had
been necessary and justified in the applicant’s specific situation.
. Lastly,
whilst giving certain weight to the Government’s argument that during his pre-trial
detention the applicant had not lost contact with his wife in view of the
number of short-term visits she paid him in the Lukiškės
Remand Prison, the Court cannot lose sight
of the fact that especially limited physical contact
appears to have been available during those short-term visits, given that the
visitor and the inmate were separated by wire netting, except for a 20 cm gap
so that the visitor could pass food to the inmate. The Court also considers
that such limited physical interaction was further compounded by the fact that
the detainee and the visitor were under the constant observation of a guard
(see paragraph 58, points 131 and 138 above). As to the lack of direct
contact with visitors, the Court observes that in a previous case it held that
a person detained pending trial who had been physically separated from his
visitors throughout his detention for three and a half years was, in the
absence of any demonstrated need such as security considerations, not justified
as regards the effective enjoyment of the right to one’s private and family
life (see, Moiseyev, cited above, §§ 258-59, and, mutatis
mutandis, Laduna, cited above, § 53). The Court therefore considers
that the particularly long period of the applicant’s pre-trial detention (two years
at the moment when the applicant had first asked for a conjugal visit) reduced his
family life to a degree that could not be justified by the inherent limitations
involved in detention. In this context the Court also notes that the
Lukiškės Remand Prison authorities’ refusal to grant the applicant a
conjugal visit had been based not only on theoretical security considerations,
but equally on the lack of appropriate facilities (see paragraphs 48 and 50
above), a reason which cannot withstand the Court’s scrutiny (see paragraph 72
above, point 4). It therefore finds that by having
restricted the applicant from receiving conjugal visits when detained on remand
the authorities failed to provide a reasonable and objective justification for
the difference in treatment and thus acted in a discriminatory manner.
. There
has therefore been a violation of Article 14 in conjunction with Article 8 of
the Convention.
. The
Court also considers that since it has found a breach of Article 14 of the
Convention taken in conjunction with Article 8, it is not necessary to examine
whether there has been a violation of Article 8 alone.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained that the
conditions of his pre-trial detention at the Lukiškės Remand Prison
had been deplorable. The Court notes, however, that the applicant had not
raised this issue with the Lithuanian administrative courts, which it has
already acknowledged to be an effective remedy for complaints raising Article 3
issues on account of conditions of detention (see Jankauskas v. Lithuania (dec.), no.
59304/00, 16 December 2003, and Jelcovas v. Lithuania, no. 16913/04, § 76, 19 July 2011). As a result, the Court is prevented by the exhaustion rule
under Article 35 § 1 from examining these parts of the applicant’s complaints,
in so far as they have not been submitted to the domestic courts.
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 300,000 Lithuanian litas (LTL)
(approximately 86,886 euros (EUR)) in respect of non-pecuniary damage.
The Government contested the above claim as
unreasoned and excessive.
The Court, making an assessment on an equitable
basis, considers it appropriate to grant EUR 6,000 to the applicant in respect
of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed LTL 1,000 for the
costs and expenses incurred before the Court, without supporting his claim with
any documentation.
The Government contested the claim as
unsubstantiated.
In the absence of any
supporting documentation, the Court makes no award for costs and expenses.
C. Default interest
The Court considers it appropriate that the
default interest rate 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. Joins
to the merits the Government’s argument concerning
exhaustion of domestic remedies in respect of the complaint about discrimination
and interference with respect for family life and dismisses
it;
2. Declares admissible the applicant’s complaints under Articles 8 and 14 of the
Convention concerning his different treatment in pre-trial detention, and
the remainder of the application inadmissible;
3. Holds that there has been a violation of
Article 14 of the Convention in conjunction with Article 8;
4. Holds that it is not necessary to examine
whether there has been a violation of Article 8 of the Convention taken alone;
5. 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 6,000 (six thousand 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;
6. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 9 July 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
