AS TO THE ADMISSIBILITY OF
Application no. 45012/98
by Valdas FALKAUSKAS and Virgilijus KAMANTAUSKAS
The European Court of Human Rights (Third Section) sitting on 2 March 1999 as a Chamber composed of
Sir Nicolas Bratza, President,
Mr J-P. Costa,
Mr L. Loucaides,
Mr P. Kūris,
Mr W. Fuhrmann,
Mrs H.S. Greve,
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 30 October 1998 by Valdas FALKAUSKAS and Virgilijus KAMANTAUSKAS against Lithuania and registered on 16 December 1998 under file no. 45012/98;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Decides as follows:
The first applicant, Mr Valdas Falkauskas, is a Lithuanian citizen, born in 1956. He is a lawyer, practising in Joniškis. The second applicant, Mr Virgilijus Kamantauskas, is a Lithuanian citizen, born in 1963. He lives in Joniškis area.
The facts of the case, as they have been submitted by the applicants, may be summarised as follows:
The second applicant was suspected of a number of thefts, and two criminal cases were instituted against him. The first applicant was appointed as the official counsel of the second applicant in those cases.
On 29 September 1998 a prosecutor of the Joniškis District Prosecutor’s Office requested the Joniškis District Court to order the second applicant’s arrest.
On the same day, at 2:50 p.m. a judge of the Joniškis District Court held a remand hearing to which the prosecutor, the first applicant and the second applicant were called. The first applicant submits that he was informed that he had to provide legal assistance to the second applicant at the hearing of the prosecution’s application some 10-15 minutes before the hearing started. The first applicant states that no time or facilities were provided to examine the contents of the prosecutor’s request or to have access to the case-file. Nor had he any time to discuss defence tactics with the second applicant. Instead, the judge, who appeared for the hearing without wearing her judge’s robe, restrained the first applicant from speaking with the second applicant. She mentioned that, if he were to do so, the Bar could be informed thereof and a disciplinary penalty could be imposed on the first applicant.
The first applicant submits that he was not afforded a right to question the second applicant during the hearing, which lasted 10 minutes. He only became aware of the facts of the case during the prosecution’s intervention at the hearing.
The judge questioned the second applicant about the offences alleged; the latter admitted that he had committed them. The first applicant then requested the court to dismiss the prosecution’s remand application. He stated that there were no grounds for the arrest as the second applicant had accepted his guilt and would not hinder the investigation.
Nonetheless the judge ordered the second applicant’s detention on remand until 29 December 1998. The first applicant asserts that the judge delivered her order without retiring in camera to reach a decision. In a transcript of the hearing of 29 September 1998 by the Registry of the District Court, it is written that the court was “retiring to deliberate”. The first applicant argues however that this was not true.
The first applicant also states that the judge’s decision was read in a courtroom without giving reasons for the second applicant’s arrest in violation of Article 99 § 1 of the Code of Criminal Procedure. The arrest order allegedly was not presented for the second applicant’s signature in breach of Article 104-4 of the Code.
On 30 September 1998 the first applicant filed an appeal against the decision of 29 September 1998, stating that the second applicant’s arrest could not be considered lawful in view of the procedural irregularities when it was ordered and the absence of any possibility to defend him. The first applicant also mentioned that the judge had not been impartial because of her relation with the complainant in the theft proceedings.
On 12 October 1998 the Šiauliai Regional Court heard the appeal in first applicant’s presence. It was dismissed on the grounds that the second applicant should be in custody because of his propensity to crime, his lack of employment and the fact that he was charged with five offences while still being on probational release. The appellate court also stated that “the alleged procedural irregularities do not alter the substance of the decision to remand [the second applicant] in custody”.
1. Under Article 5 § 1 of the Convention the applicants complain that the second applicant’s arrest was ordered in breach of domestic criminal procedure and that he was not subsequently released on bail, even though numerous procedural irregularities were found but ignored as “insubstantial” on appeal by the Šiauliai Regional Court. They submit that the second applicant’s arrest and his subsequent detention on remand were arbitrary, and that no detention ordered in conditions such as those of the hearing of 29 September 1998 can be regarded as “lawful” within the meaning of the above provision of the Convention.
2. Furthermore, under Article 5 § 4 of the Convention the applicants complain that the second applicant’s arrest was ordered and the appeal dismissed in the absence of any rights of defence because the first applicant, as the representative, had no opportunity to speak with the second applicant without interference by the prosecution, pursuant to Article 58 § 2 (3) of the Code of Criminal Procedure. Nor did the first applicant have access to the case-file or a right to consult other relevant documents to challenge effectively the lawfulness of the second applicant’s detention. This was in accordance with Article 58 § 2 (7) of the said Code, which did not permit full access of the defence to the case-file as the preliminary investigation had not been concluded. The applicants submit that thus they could not effectively challenge the second applicant’s arrest order, in breach of the above provision of the Convention.
3. For the above reasons the applicants also claim a breach of the defence rights laid down in Article 6 § 3 (b) and (c) of the Convention.
The applicants complain about the lawfulness of the second’s applicant’s arrest and the proceedings in review thereof. They invoke Article 5 §§ 1 and 4 and Article 6 § 3 (b) and (c) of the Convention.
The relevant part of Article 5 § 1 provides as follows:
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: …
c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... .”
Article 5 § 4 states:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
Article 6 § 3 (b) and (c) reads:
“Everyone charged with a criminal offence has the following minimum rights: …
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 … .”
1. As regards the first applicant.
The Court observes that the rights in question can only be invoked by a person who is “deprived of his liberty” or “charged with a criminal offence”. Therefore the first applicant, who is involved in the present case only as the second applicant’s defence counsel, cannot himself claim to be a victim of a violation of these provisions within the meaning of Article 34 of the Convention.
It follows that this part of the application, insofar as it has been brought by the first applicant in his own name, is incompatible ratione personae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 and 4 thereof.
2. As regards the second applicant’s complaints under Article 6 § 3.
The Court recalls that the guarantees of Article 6 § 3 are to be seen as part of the general notion of the right to a fair hearing ensured by Article 6 § 1 of the Convention. Moreover, the fairness of criminal proceedings must be examined on the basis of the proceedings as a whole. The Court notes that the trial in the present case has not started. Accordingly, it would be premature for the Court to deal with the second applicant’s complaints under Article 6 until the domestic courts have determined the criminal offences with which he is charged and before which he can still pursue these Convention claims.
In these circumstances, the Court concludes that the second applicant cannot at this stage claim to be a victim of a violation of the above provision. 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.
3. As regards the second applicant’s complaints under Article 5 §§ 1 and 4.
The Court finds that the second applicant’s complaints under these provisions raise serious issues of fact and law which require further examination. It proposes to communicate this aspect of the case to the respondent Government and to adjourn it in the meantime.
For these reasons, the Court, unanimously,
DECIDES TO ADJOURN the examination of the second applicant’s complaints under Article 5 §§ 1 and 4;
DECLARES INADMISSIBLE the remainder of the application.
S. Dollé N. Bratza
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