THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37193/97

by Nikolaj KREMPOVSKIJ

against Lithuania

The European Court of Human Rights (Third Section) sitting on 20 April 1999 as a Chamber composed of

Sir Nicolas Bratza, President,

Mr J.-P. Costa,

Mr L. Loucaides,

Mrs F. Tulkens,

Mr W. Fuhrmann,

Mr K. Jungwiert,

Mr K. Traja, Judges,

with Mrs S. Dollé, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 July 1997 by Nikolaj KREMPOVSKIJ against Lithuania and registered on 1 August 1997 under file no. 37193/97;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

 

THE FACTS

The applicant was a Lithuanian citizen of Ukrainian national origin, born in Ukraine in 1946.

He died in Vilnius on 12 December 1997. By a letter of 3 February 1998 his daughter expressed the wish to maintain the case before the Court.

The facts of the case, as submitted by the applicant, may be summarised as follows:

Before the declaration restoring Lithuania’s independence on 11 March 1990, the applicant worked as a lawyer in Vilnius. From April 1990 until August 1991 he was the Deputy Head of the so-called Lithuanian Soviet Prosecutor’s Office (hereinafter referred to as the “LSPO”), a division of the centralised Prosecutor’s Office of the USSR. Following the failure of a communist “coup d’état” in Moscow on 21 August 1991 and the immediate dismantling of the Soviet institutions, most of the LSPO’s activists fled Lithuania. The former Head of the LSPO, Mr P., moved to Russia. Yet the applicant stayed in Vilnius and acquired Lithuanian citizenship.

Until the Moscow coup of 21 August 1991 the LSPO had been located in a building in the centre of Vilnius. The prosecuting authority of the newly re-established state of Lithuania was also based in the same building. The applicant, as the Deputy Head of the LSPO, had been in charge of administration. The building had been protected by the interior forces of the USSR.

The applicant was suspected of preventing the prosecutors in the service of independent Lithuania from having access to their offices during the period from April 1990 to August 1991. On 9 September 1992 he was arrested, the arrest being confirmed by a prosecutor. On 21 September 1992 he was formally charged with sabotage and the obstruction of the operation of State institutions.

On 23 December 1992 the applicant was released from prison and remanded on bail.

On 7 September 1993 the pre-trial investigation was concluded and the criminal case was transmitted to the Supreme Court.

At the same time, the applicant submitted to the Supreme Court numerous applications and pleadings alleging various procedural irregularities committed by the prosecution while conducting the pre-trial investigation. In his pleadings of 16 December 1994 the applicant also asserted that the prosecutor’s arguments in support of his guilt were ill-founded, and that the case-file contained no valid evidence.

On 23 December 1994 the Supreme Court decided to order further investigation of the case. The above decision was subsequently quashed as, following amendments to domestic criminal procedure, on 16 March 1995 the Supreme Court transmitted the case for a completely new examination to the Vilnius Regional Court. During the trial, 29 witnesses were questioned, including a number of officers who worked for the prosecuting authority of independent Lithuania during 1990-1991.

 

 By a letter of 21 February 1996 a prosecutor requested the President of the Vilnius Regional Court to invalidate the applicant’s passport for the purposes of foreign travel. The prosecutor stated, on the basis of certain intelligence received, that the applicant intended to move to Belarus in order to avoid trial. Apparently the prosecutor’s request was granted.

On 2 December 1996 a chamber of judges of the Vilnius Regional Court held a final hearing of the case. The applicant was represented by an officially appointed lawyer, but also made an intervention defending himself in person. The first instance court convicted him. It replaced however the initial charges of sabotage and obstruction, finding the applicant guilty of restraining the freedom of movement of third persons. The Regional Court did not impose any sentence because of an amnesty law.

Both the prosecution and the applicant appealed against the above judgment.

On 22 January 1997 a chamber of the Court of Appeal held a hearing on the appeal on points of law. The court decided to relinquish jurisdiction in favour of the full court.

On 26 June 1997 the Court of Appeal held a full appeal hearing. The applicant was represented by his own defence counsel, but also made an intervention himself. He requested inter alia that the court call and question the former Head of the LSPO, Mr P., who lived near Moscow and worked as a Russian military prosecutor.

On the same date the Court of Appeal amended the judgment of 2 December 1996, convicting the applicant of sabotage and the obstruction of the operation of State institutions. He was sentenced to 3 years’ imprisonment.

The applicant lodged a cassation appeal with the Supreme Court. He contested the fact-finding competence of both lower courts. He alleged inter alia that he had never received a copy of the first instance judgment in Russian, a language that he would understand, and that thus he had been unable to prepare a proper appeal. In his cassation appeal the applicant made no allegations as to the composition of the appellate court.

On 2 December 1997 a chamber of the Supreme Court heard the cassation appeal in the presence of the applicant and his defence counsel. At the hearing the applicant challenged the assessment of the witnesses’ evidence by the lower courts.

The Supreme Court found that the Court of Appeal had properly decided the case. It also dismissed as unsubstantiated the applicant’s allegations that the appellate court had breached any domestic procedural requirements to the applicant’s detriment. The Supreme Court noted that a copy of the first instance judgment in Russian was furnished to the applicant on 30 April 1997, whereas the term for submitting an appeal had expired on 16 December 1996. The Supreme Court found that this fact had constituted a breach of domestic criminal procedure. The cassation court also noted, however, that the above irregularity had been remedied by the appellate court which had granted the applicant an additional month to supplement his appeal.  The case had then been examined by the Court of Appeal based on the applicant’s revised appeal.

On 12 December 1997 the applicant died of a heart disease.

 

COMPLAINTS

1. Under Article 5 § 1 (c) of the Convention the applicant complained that his arrest and subsequent detention on remand had been unlawful, and that he had not been informed of the reasons therefor. He also complained about the conditions of his remand in custody.

2. Under Article 6 § 1 of the Convention he stated that he had received no copy of the first instance judgment in his native Russian language, and that he had thus been deprived of the right of effective access to the Court of Appeal.

3. Under the above provision the applicant also complained that a judge of the Court of Appeal had taken part in two hearings held by that court: the same judge had participated in the decision of the Court of Appeal to relinquish jurisdiction in favour of the full appellate court on 22 January 1997, and then in the full Court of Appeal’s decision of 26 June 1997. The applicant also alleged that one of the appellate judges who had participated on 26 June 1997 had in fact been a judge of the Civil Division of the Court of Appeal. The applicant asserted that the appellate court was thus not an “impartial tribunal”, in violation of Article 6 § 1 of the Convention.  

4. He further alleged that his case had not been examined within a reasonable time in breach of Article 6 § 1 of the Convention. The applicant contended that the criminal case had not been complex and that, thus, the delays in its examination could not be justified.

5. Under Article 6 § 2 of the Convention the applicant complained that the courts’ decisions had been based on “emotions and presumptions rather than on legal evidence”.

6. Under Article 6 §§ 3 (a) - (d) of the Convention the applicant alleged that at the stage of pre-trial investigation he had not been informed of the cause of the accusation against him, that he had had no time or facilities for the preparation of his defence, that he had not been able to defend himself through legal assistance of his own choosing, and that the courts had not examined all the witnesses that he wanted.  

7. Under Article 7 § 1 of the Convention he also complained that the version of Article 67 of the Criminal Code concerning sabotage, under which he had been convicted, had in fact postdated the time when the alleged criminal acts had been committed. He contended that he ought to have been tried under the old provision of Article 67. 

8. Finally, under Article 8 of the Convention the applicant asserted that information about his private life had been unlawfully collected without the required authorisation of the Prosecutor General. He referred in this respect to the prosecutor’s letter of 21 February 1996 in which it was asserted, on the basis of certain intelligence, that he had allegedly planned to avoid trial by moving to Belarus.  

THE LAW

1. The Court firstly notes the fact of the applicant’s death on 12 December 1997, and the wish of his daughter to pursue the application he initiated.

The Court recalls that where an applicant dies during the proceedings, the heirs or next of a kin of the applicant may in principle pursue the application on the applicant’s behalf provided that they are shown to have a legitimate interest to justify the continuation of the examination of the case (see e.g., Eur. Court. HR, Ahmet Sadık v. Greece judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, pp. 1651-1652, §§ 24-26).

In the present case the applicant complained inter alia of the unlawfulness of his arrest and detention on remand and that the criminal proceedings against him were unfair in material respects. The Court considers that his daughter has a legitimate interest in pursuing the proceedings on his behalf.

2. The applicant complained that his arrest and the subsequent detention on remand had been in breach of Article 5 § 1 (c) of the Convention, which provides as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: …

c.  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so … .”

In this connection the Court notes that the applicant’s detention on remand lasted from 9 September 1992 until 23 December 1992. Thus the above complaint relates to the period prior to 20 June 1995, which is the date of the entry into force of the Convention with respect to Lithuania. However, the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with respect to that Party. Given that this part of the application is outside the competence ratione temporis of the Court, it is incompatible with the provisions of the Convention within the meaning of Article 35 § 3 and must therefore be rejected pursuant to Article 35 § 4 of the Convention.

3. The applicant complained that he had had no effective access to the Court of Appeal in breach of Article 6 § 1 of the Convention, which states, insofar as relevant, as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law … .”

The above complaint is limited to the allegation that the applicant allegedly received no Russian translation of the first instance judgment. However, the Court notes the decision of the Supreme Court of 2 December 1997 in which it found that the applicant had in fact received the translation with some delay. The Court finds no reason to question this finding by the Supreme Court and notes the extension of time given to the applicant by the Court of Appeal to revise his submissions. Consequently, the Court concludes that the applicant was not hindered in his effective access to the Court of Appeal.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

4. The applicant also contested the impartiality of the Court of Appeal under Article 6 § 1 of the Convention.

The Court recalls that, pursuant to Article 35 § 1 of the Convention, it may only deal with the matter after “all domestic remedies have been exhausted”. The above rule requires that an applicant, before complaining to the Court, should make normal use of accessible, effective and sufficient remedies capable of remedying the situation at issue. 

On the facts of the case, the Court notes that the applicant did not challenge the allegedly partial composition of the Court of Appeal at the stage of the appellate trial. Nor did he mention any such grievance in his cassation appeal. The Court finds no justification for the applicant’s silence on the point, given that he contested various other procedural and substantive aspects of the case before the Supreme Court.

It follows that the Court is not required to determine whether the facts submitted by the applicant in this part of the application disclose any appearance of a violation of Article 6 of the Convention, as the applicant failed to exhaust domestic remedies in this respect as required by Article 35 § 1 of the Convention. Therefore, this part of the application must be rejected pursuant to Article 35 § 4.

5. The applicant further alleged that the length of the criminal proceedings against him exceeded the “reasonable time” referred to in Article 6 § 1 of the Convention.

The first matter to be determined is the length of time in question. The Court recalls that in criminal matters, the “reasonable time” referred to in Article 6 § 1 begins to run as soon as a person is “charged”; this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened. Furthermore, “charge”, for the purposes of Article 6 § 1, may be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test whether the situation of the suspect has been substantially affected (see e.g., as a recent authority, Eur. Court HR, Hozee v. the Netherlands judgment of 22 May 1998, Reports 1998-III, p. 1100, § 43). The Court considers that the date of the applicant’s arrest on 9 September 1992 is the date from which there was a “charge” against him within the meaning of Article 6 § 1 of the Convention. 

The end point of the proceedings in issue was 2 December 1997, i.e. the date when the decision of the Supreme Court dismissing the applicant’s cassation appeal was adopted.

However, the Court may only take account of dates which fall within its competence ratione temporis, i.e. the period beginning on 20 June 1995, when the Convention entered into force with respect to Lithuania (see the Law part above; also see, Eur. Court HR, Foti and others v. Italy judgment of 10 December 1982, Series A no. 56, pp. 18-19, § 53). Nevertheless, in assessing the reasonableness of the time that elapsed after 20 June 1995, account must also be taken of the state of proceedings by that stage (ibid.).

Hence, the length of time to be reviewed for its compatibility with Article 6 § 1 exceeds two years and five months (20 June 1995 - 2 December 1997).

The Court will assess the reasonableness of the length of the proceedings in the light of the circumstances of the case and having regard to the criteria laid down in its constant case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see e.g., as a recent authority, Eur. Court HR, Portington v. Greece judgment of 23 September 1998, to be published in Reports, § 21).

As regards the complexity of the case, the Court notes that the applicant was charged with sabotage and the obstruction of the operation of the State authorities, offences against the security of State. In the course of the proceedings, the courts had to establish the facts by examining 29 witnesses, including a number of prosecutors and the applicant’s former colleagues. The examination of the case might have been restricted by the fact that some of the relevant witnesses had fled Lithuania and the authorities were ultimately unable to secure their attendance at the proceedings. The legal assessment of the applicant’s guilt also proved to be difficult as the charge of sabotage was replaced by the first instance court, but then reinstated by the appellate instance. Notwithstanding the above considerations, the Court does not consider that the criminal case was of particular complexity.

As regards the conduct of the applicant, there is nothing to suggest that any delays were attributable to him.

As to the conduct of the authorities, the Court notes that the case was before the first instance court as of 16 March 1995. By that time the preliminary investigation had been concluded on 7 September 1993 and, under the domestic procedure applicable at the material time, the Supreme Court had already taken some procedural decisions in the case. It took slightly more than one year and five months (from 20 June 1995 to 2 December 1996) for the Regional Court to conclude the examination of the case at first instance. Although, the delay of one year and five months could reflect a certain tardiness of the authorities, it was not itself unreasonably long for the examination of the case at first instance. With respect to the duration of the appellate process (slightly less than 7 months - from 2 December 1996 to 26 June 1997) and the examination of the case at cassation level (slightly more than 5 months - from 26 June 1997 to 2 December 1997), the Court considers that such periods in themselves were reasonable for the purposes of Article 6 § 1 of the Convention.

Against the above background, and given in particular the total length of the period to be considered of 2 years and 5 months before three court instances, the Court does not find that the proceedings at issue exceeded the “reasonable time” referred to in Article 6 § 1 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must therefore be rejected pursuant to Article 35 § 4.

6. The applicant also complained that the domestic courts had breached the presumption of innocence in violation of Article 6 § 2 of the Convention, which provides as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Court observes that the above complaint is confined to the allegation that the decisions of the domestic courts establishing his guilt had been allegedly based solely on “emotions and presumptions rather than on legal evidence”. However, the Court notes that the applicant’s case was examined by three levels of jurisdiction, which established the facts and adopted reasoned decisions in support of their conclusions as to the applicant’s guilt. The Court is unable to detect any indication of a breach of Article 6 § 2 in the instant case.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must therefore be rejected pursuant to Article 35 § 4.

7. The applicant complained that his rights guaranteed in Article 6 §§ 3 (a) - (d) of the Convention were breached.

Article 6 § 3 reads, insofar as relevant, as follows:

 “Everyone charged with a criminal offence has the following minimum rights:

a.  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

b.  to have adequate time and facilities for the preparation of his defence;

c.  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

d.  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him … .”

The Court notes first, as far as the above complaints relate to the applicant’s arrest and the subsequent detention on remand which ended on 23 December 1992, and the pre-trial investigation of the case which continued until 7 September 1993, that it lacks competence ratione temporis to deal with these complaints as they relate to the period prior to 20 June 1995, which is the date of the entry into force of the Convention with respect to Lithuania.

The Court observes that the guarantees enshrined in Article 6 § 3 are not an aim in themselves but must be interpreted in the light of the general principle of fairness laid down in Article 6 § 1 of the Convention. The question whether a trial is in conformity with the requirements of Article 6 § 3 must therefore be considered on the basis of an examination of the proceedings as a whole and not one isolated aspect or stage. The Court will therefore consider the above complaints in the light of the proceedings taken as a whole after 20 June 1995.

The Court notes that, following the conclusion of the pre-trial investigation, the applicant and his lawyer were able to submit various applications and pleadings contesting the arguments presented by the prosecution in support of his alleged guilt. The Court observes that thus the applicant was in fact aware of the nature and cause of the accusation against him as required by Article 6 § 3 (a) of the Convention.

As regards the alleged interference with the applicant’s defence rights in breach of Article 6 §§ 3 (b) and (c) of the Convention, the Court notes that the applicant only complains in this connection that he could not have the assistance of official counsel of his own choosing at the stage of the pre-trial investigation. However, the applicant has not substantiated in any way that the officially appointed representative at the pre-trial investigation failed to perform his functions satisfactorily. Moreover, at the appellate trial, when the case was reheard in full, the applicant was represented by counsel of his choice. The applicant has not shown that any possible defects at the first stage were not thereby subsequently rectified by the applicant’s second lawyer. In these circumstances, the Court does not find any indication that the applicant’s defence rights laid down in Article 6 §§ 3 (b) and (c) were breached in the instant case.

As regards the applicant’s allegation that the courts did not examine all the witnesses of his choice in violation of Article 6 § 3 (d) of the Convention, the Court recalls that the above provision does not give the defence an absolute right to question any witnesses it wishes to call (see e.g., Eur. Court HR, Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, p. 32, § 33). Furthermore, the admissibility of evidence is primarily a matter for regulation by national law and, as a general rule, it is for the domestic courts to assess the evidence before them. The Court’s task is to determine whether the proceedings considered as a whole - including the way in which evidence was taken - were fair (see e.g., Eur. Court HR, Kostovski v. the Netherlands judgment of 20 November 1989, Series A no. 166, p. 19, § 39).

On the facts of the case, the Court notes that 29 witnesses were questioned in the course of the trial. It must be noted that, in his subsequent appeals against the conviction, the applicant contested the courts’ assessment of evidence, including the statements made by certain witnesses. He did not suggest however that he was unable to examine the witnesses in question, or that the failure to call any particular witness would have had a decisive impact on the courts’ conclusions as to his guilt. The Court observes that many of the participants in the events of 1990-1991, including the former Head of the LSPO Mr P., were beyond the reach of Lithuanian authorities as they lived in other countries and could not reasonably be expected to testify at the applicant’s trial in Lithuania when faced with similar charges themselves. Thus the Court does not consider that the possible failure by the courts to invite a particular witness was of such a nature or degree as render the trial unfair as a whole. Nor is it established that the manner in which the witnesses’ evidence was taken was contrary to the requirements of Article 6 § 3 (d) of the Convention.

Given the above considerations, the Court concludes that the isolated aspects alleged by the applicant neither constitute breaches of the requirements of Article 6 §§ 3 (a) to (d) of the Convention, nor have an impact on the fairness of the proceedings as a whole.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must therefore be rejected pursuant to Article 35 § 4.

8. Under Article 7 § 1 of the Convention the applicant also complained that the version of the domestic substantive provision under which he had been convicted had in fact postdated the time when the alleged criminal acts had been committed.

Article 7 § 1 of the Convention states:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

The Court notes that the applicant did not contest that, at the time when the offence alleged was committed, sabotage and the obstruction of the operation of the State authorities constituted crimes under national law, as envisaged by Article 7 § 1 of the Convention.

It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must therefore be rejected pursuant to Article 35 § 4.

9. Finally, the applicant asserted that the information about his purported plans to flee to Belarus had been unlawfully obtained by the prosecution, i.e. without the proper authorisation of the Prosecutor General. He stated that thereby the right to respect for his private life under Article 8 of the Convention had been breached to his detriment.

Article 8 provides as follows:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

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.”

However, the Court is not required to determine whether the facts submitted in this part of the application disclose any appearance of a violation of Article 8, as the applicant failed to institute appropriate court proceedings against the prosecution, alleging unlawful activities by the officers concerned in collecting certain intelligence about him. Nor did he raise in any form his grievances in this respect before the courts determining the criminal charge against him.

The applicant thus failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. Therefore, this part of the application must be rejected pursuant to Article 35 § 4 thereof.

For these reasons, the Court, unanimously

DECLARES THE APPLICATION INADMISSIBLE.

S. Dollé N. Bratza

Registrar President

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- - 37193/97