AS TO THE ADMISSIBILITY OF
by Vytautas KARALEVIČIUS
against Lithuania and Russia
The European Court of Human Rights (Third Section), sitting on 17 October 2000 as a Chamber composed of
Mr J.-P. Costa, President,
Mr W. Fuhrmann,
Mr P. Kūris,
Mrs F. Tulkens,
Mr K. Jungwiert,
Sir Nicolas Bratza, judges,
Mr A. Kovler, judge in respect of Russia,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 5 October 1998 and registered on 9 December 1999,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having deliberated, decides as follows:
The applicant is a Lithuanian national, born in 1952 and living in Šiauliai.
A. The circumstances of the caseNote
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was suspected of having committed various fraudulent offences between October 1992 and October 1993. In 1994 criminal proceedings on three counts of cheating, suppression of documents and false accounting were instituted against the applicant. As the applicant had absconded from the investigation, on 21 November 1994 the prosecutors declared him a wanted person.
On 24 September 1996 the applicant was arrested in Moscow on an extradition request by the Lithuanian authorities. He was extradited to Lithuania on 30 December 1996.
On 31 December 1996 the Šiauliai City District Court ordered the applicant’s detention on remand until 31 January 1997 on suspicion of suppressing documents. The court referred to the dangers of the applicant absconding and committing further offences. On 24 January 1997 the court extended the term to 31 March 1997, on 28 March to 31 May 1997 and on 30 May to 13 June 1997.
On 10 September 1998 the Šiauliai City District Court convicted the applicant of cheating and suppressing documents and acquitted him of false accounting. He was sentenced to five years’ imprisonment and his property was confiscated. The court ordered 615,264 Lithuanian litai (LTL) damages against him in favour of a bank.
On 2 March 1999 the Šiauliai Regional Court amended the first instance judgment insofar as it concerned the damages against the applicant, reducing the amount to 476,000 LTL.
Upon the applicant’s cassation appeal, on 29 June 1999 the Supreme Court quashed the above decisions and returned the case for a new first instance examination.
On 30 July 1999 the Šiauliai District Court ordered the applicant’s detention on remand until 1 September 1999 on suspicion of his having cheated and suppressed documents. The court referred to the danger of the applicant absconding. The District Court also noted that on 29 June 1999 the Supreme Court had not ruled on the applicant’s remand. On 31 August 1999 the term of the applicant’s detention was extended until 15 November 1999. On 30 December 1999 the Šiauliai District Court extended the term of the applicant’s remand in custody “until a court judgment in the case”.
On 6 March 2000 the Šiauliai District Court convicted the applicant of suppressing documents and acquitted him of cheating. The sentence of five years’ imprisonment was reduced by one third due to an amnesty law. The applicant was released in the courtroom as he was deemed to have already completed his sentence because of the time he had spent on remand. The court also ordered his release on bail, with home arrest, until the entry into force of the judgment.
On 4 May 2000 the Šiauliai Regional Court rejected the applicant’s appeal. On that date the conviction took effect for the purposes of domestic law and the bail constraints ceased.
It appears that the applicant’s cassation appeal is currently pending before the Supreme Court.
Conditions of detention
From 2 January 1997 until 9 April 1999 and from 30 July to 22 September 1999, the applicant was held at the Šiauliai Remand Prison (Šiaulių tardymo izoliatorius). From 22 to 28 September 1999 he was held at the Kaunas Central Police Department Remand Prison (Kauno vyriausiojo policijos komisariato areštinė). On 28 September 1999 he was again detained at the Šiauliai Remand Prison until his release on 6 March 2000.
The applicant gives the following account of the detention conditions at Šiauliai Remand Prison:
Living space for one prisoner amounted to 1.5 square metre. The applicant states that he lived and slept in a cell of about 20 square metres where from 10 to 15 inmates were held (“the cell”). There was an open toilet in the cell. It lacked ventilation and had a strong smell due to the inmates’ smoking and toilet use. The cell was very humid and cold, particularly during the winter. Prison bedding was in an awful and dirty condition. All washing had to be done by hand in a sink in the cell. There was a constant lack of hot and cold water. The applicant had access to a shower only once in 15 days. Food was prepared and served in awful conditions. Only 6 LTL per day were allocated for an inmate’s catering.
The applicant does not appear to have complained to the domestic authorities about the conditions of his detention at the Šiauliai Remand Prison.
The applicant complained to the Ombudsman about the conditions of detention at the Kaunas Central Police Department Remand Prison. On 3 August 2000 the Ombudsman found that the prison had no windows or outside yard in which the applicant could stroll. The Ombudsman concluded inter alia that the applicant’s rights under Article 3 of the Convention had been violated. However, he rejected the applicant’s allegations that there had been cockroaches and rats in the cell, or that the prison had lacked dishes for eating.
Censorship of the applicant’s correspondence to and from the Convention organs
The applicant alleges that his letters to the European Commission of Human Rights and the European Court of Human Rights of 12 and 13 October 1998, 28 March, 13 July, 26 August, 5, 8 and 17 November, 26 December 1999, 15 and 30 January, 2, 7, 9, 13, 21, 25 and 29 February, 2 and 5 March 2000 were censored by the administration of the Šiauliai Remand Prison.
The applicant also alleges that the letters addressed to him by the Registry of the European Court of Human Rights of 17 November 1998, 21 April, 9 and 10 August, 8 October, 14 December 1999, 17 January 2000, 1, 21 and 23 February, 3 and 9 March 2000 were opened up and read in his absence by the administration of the Šiauliai Remand Prison.
1. Under Article 3 of the Convention the applicant complains about the conditions of his detention in Russia from 24 September to 30 December 1996. The applicant further complains that his arrest and detention in Russia and his extradition from Russia to Lithuania were unlawful within the meaning of Article 5 of the Convention. Finally as regards Russia, the applicant complains under Article 10 of the Convention of a breach of freedom of expression, in the Russian authorities’ alleged failure to secure transmission of his numerous complaints against his detention from 24 September to 30 December 1996.
2. He further complains that the conditions of his detention in Lithuania, at Šiauliai and Kaunas remand prisons, amounted to a breach of Article 3 of the Convention.
3. Under this provision, the applicant also alleges various irregularities in connection with the lawfulness of several transfers in 1999 from the Šiauliai Remand Prison to other prisons in Vilnius and Kaunas.
4. The applicant further complains that his detention in Lithuania was unlawful within the meaning of Article 5 of the Convention. In particular, he claims that there were no grounds for his detention, and that it was not authorised in accordance with the procedure established by domestic law.
5. Under Articles 6 and 7 of the Convention the applicant complains that the criminal proceedings against him were too long and unfair.
6. Under Article 8 of the Convention the applicant complains about the censorship by the Lithuanian prison authorities of his letters to and from the Convention organs.
7. Under Article 8 of the Convention the applicant also complains about the alleged tapping of his and his family’s telephone conversations from 1994 to 1997.
8. He next complains that he was imprisoned for debt in breach of Article 1 of Protocol No. 4 to the Convention.
9. Under Article 2 of Protocol No. 4 to the Convention, the applicant complains that his home arrest by the judgment of 6 March 2000 unjustifiably interfered with his freedom of movement.
1. To the extent that the application is directed against Russia, the Court observes that the facts complained of relate to a period prior to 5 May 1998, which is the date on which the Convention came into force in respect of Russia. However, the Convention only governs facts subsequent to its entry into force in respect of each Contracting Party. It follows that this part of the application is outside the Court’s competence ratione temporis. It is therefore incompatible with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected, in accordance with Article 35 § 4 of the Convention.
2. The applicant’s complains under Article 3 of the Convention, which prohibits torture, inhuman or degrading treatment or punishment, about the domestic irregularities in connection with his transfer from one prison to another. However, the above provision of the Convention does not guarantee, as such, the right to be detained in a prison of one’s own choosing. Furthermore, there is no evidence that the fact of the applicant’s transfer from one prison to another in itself amounted to inhuman or degrading treatment.
Hence, this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
3. To the extent that the applicant complains under Articles 6 and 7 of the Convention that he was denied a fair trial and subjected to unlawful punishment, the Court notes that the case is pending before the Supreme Court. Accordingly, it would be premature to deal with such matters until the domestic courts have finally determined the criminal offences with which the applicant is charged and before which he can still pursue these Convention claims.
The Court concludes that
the 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
ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 thereof.
4. Under Article 8 of the Convention, which guarantees respect for private and family life, as well as correspondence, the applicant alleges that his and his family’s telephone conversations from 1994 to 1997 were tapped.
However, in accordance with Article 35 § 1 of the Convention, the Court may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the “final” domestic decision. In the absence of an adequate remedy against a particular act, which is alleged to be in breach of the Convention, the date when that act takes place is “final” for the purposes of the six months’ rule (see, Valašinas v. Lithuania, no. 44558/98, decision 14.3.2000).
The Court notes first that the applicant has brought no court proceedings in connection with the alleged violation of his rights under Article 8 of the Convention and has therefore not, as required by Article 35 § 1 of the Convention, exhausted domestic remedies.
Moreover, even assuming that the applicant had no legal remedies within the meaning of Article 35 § 1 in connection with the alleged tapping, the events complained of in this regard relate to a period between 1994 to 1997, i.e. more than six months before the application was introduced on 5 October 1998. Consequently, this part of the application has been submitted out of time.
It follows that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
5. The applicant next complains that he was imprisoned for debt in breach of Article 1 of Protocol No. 4 to the Convention, which provides as follows:
“No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation.”
However, the Court notes that the applicant was deprived of his liberty in the context of criminal proceedings for alleged fraudulent offences, not for any inability to fulfil a contract. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
6. Under Article 3 of the Convention the applicant complains about the conditions of his detention in Lithuania, at Šiauliai and Kaunas remand prisons. He further alleges that his detention was in breach of Article 5 of the Convention and that his correspondence with the Convention organs was unjustifiably censored by the prison administration, contrary to Article 8 of the Convention. The applicant claims that the criminal proceedings failed to observe the reasonable time requirement of Article 6 § 1 of the Convention and that his home arrest in March 2000 was in breach of Article 2 of Protocol No. 4, which guarantees the freedom of movement.
The Court finds that these complaints raise serious issues of fact and law, which require further examination. It proposes to communicate this part of the application to the Lithuanian Government and to adjourn it in the meantime.
For these reasons, the Court, unanimously,
DECIDES TO ADJOURN examination of part of the applicant’s complaints against Lithuania under Articles 3, 5, 6 and 8 of the Convention, as well as Article 2 of Protocol No. 4;
DECLARES INADMISSIBLE the remainder of the application.
S. Dollé J.-P. Costa
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