SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 74357/01, 26764/02, 27434/02  
by Juozas KUOLELIS, Leonas BARTOŠEVIČIUS and 
Mykolas BUROKEVIČIUS  
against Lithuania

The European Court of Human Rights (Second Section), sitting  
on 5 January 2006 as a Chamber composed of:

Mr A.B. Baka, President
Mr J.-P. Costa, appointed to sit in respect of Lithuania
Mr I. Cabral Barreto
Mr R. Türmen
Mr K. Jungwiert
Mr M. Ugrekhelidze
Mr D. Popović, judges,

and Mrs S. Dollé, Section Registrar,

Having regard to the above applications lodged on 16 July 2001 (the first applicant) and 23 June 2002 (the second and third applicants),

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Mr Juozas Kuolelis, is a Lithuanian national, who was born in 1930. At present he is detained in Rasų prison in Vilnius. He is represented before the Court by Ms E. Šajaukaitė, a lawyer practising in Vilnius.

The second applicant, Mr Leonas Bartoševičius, is a Lithuanian national, who was born in 1928 and lives in Vilnius. He is represented before the Court by Mr A. Zamalaitis, a lawyer practising in Vilnius.

The third applicant, Mr Mykolas Burokevičius, is a Lithuanian national, who was born in 1927. At present he is detained in Rasų prison in Vilnius. He is represented before the Court by Ms V.-R. Lekavičienė, a lawyer practising in Vilnius.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Historical background

On 23 August 1939 Stalin’s Soviet Union signed a non-aggression treaty with Hitler’s Germany (the “Molotov-Ribbentrop Pact”). According to a secret additional protocol approved by the parties on 23 August and amended on 28 September 1939, the Baltic States had been attributed to the “sphere of interests” of the USSR in the event of a future “territorial and political rearrangement” of the territories of these then independent countries. Following an ultimatum to allow an unlimited number of Soviet troops to be stationed in the Baltic countries, on 15 June 1940 the Soviet army invaded Lithuania. The Government of Lithuania was removed from office, and a new government was formed under the direction of the Communist Party of the Soviet Union (hereafter “the CPSU”), the USSR’s only party. On 3 August 1940 the Soviet Union completed the annexation of Lithuania by adopting an act incorporating the country into the USSR, with Lithuania being named as part of the Soviet Union under the name “Soviet Socialist Republic of Lithuania” (“LSSR”). The Government of the LSSR was appointed and controlled by the Communist Party of Lithuania (“the CPL”), a regional branch of the CPSU.

In the late 1980s there was considerable social pressure in Lithuania, as in other east European countries, for the democratisation of political life. As a result of the newly-introduced freedom of expression on the territory of the Soviet Union, massive political movements were formed in Lithuania, alongside the other Baltic States, condemning the annexation of the country, asserting the need to construct a new society based inter alia on Lithuanian identity and values, and emphasising the need to restore State independence.

At the end of 1989, the CPL decided to split from the CPSU. The new CPL immediately declared its support for Lithuanian independence and for a multi-party political system. In the meantime, a minority of former CPL members created a new party, the CPL/CPSU (LKP/TSKP). According to its political programme, one of the goals of the CPL/CPSU was to maintain Lithuania as part of the USSR.

The first independent parliamentary elections under Soviet rule took place on the territory of Lithuania on 24 February 1990. No member of the CPL/CPSU was elected to the Supreme Council (Parliament).

On 11 March 1990 the newly-elected Supreme Council adopted a Declaration of Independence, declaring Lithuania’s incorporation into the USSR null and void. The Supreme Council also reinstated certain provisions of the Lithuanian Constitution of 1938, and adopted the Temporary Basic Law, setting out the constitutional principles of the Lithuanian State (see the ‘Relevant domestic law and practice’ part below). On the same date, the Supreme Council also approved the Government of the Republic of Lithuania.

In July 1990 the Supreme Council of the Republic of Lithuania adopted the so-called “moratorium” on the Declaration of Independence. After the moratorium, the then President of the Soviet Union, Mr M. Gorbachev, constituted a delegation to negotiate with the Government of the Republic of Lithuania. At the same time, the Lithuanian Government applied to the USSR Parliament, requesting that the incorporation act of 3 August 1940 be annulled, and that Lithuania’s name be deleted from the USSR Constitution.

On 10 January 1991 the USSR President Gorbachev publicly required the Supreme Council of the Republic of Lithuania to “reinstate immediately the legal force of the USSR and LSSR Constitutions in Lithuania.”

On 11 January 1991 the CPL/CPSU sent an ultimatum to the Government of Lithuania, ordering it to comply with the declaration of the USSR President. Failing that, the CPL/CPSU declared that it might create the “Lithuanian National Rescue Committee” (Lietuvos nacionalinio gelbėjimo komitetas), “which would take care of the matters of the future of the LSSR.”

On 11-13 January 1991 the Soviet army conducted military operations against the Government of Lithuania. Soviet troops forcibly occupied the buildings of the Ministry of Defence, the Vilnius TV tower, the Lithuanian public TV and media headquarters, and the Vilnius train station. The Soviet troops also tried to take the seat of the Lithuanian Parliament and other authorities. Massive crowds made up of the local population came to the defence of the institutions of the Republic of Lithuania. Thirteen Lithuanian civilians were killed and several hundred injured as a result of the conflict involving the Soviet army during the night from 12 to 13 January 1991.

On 9 February 1991 a nation-wide plebiscite was organised in Lithuania, whereby the public was requested to reply whether they supported the following statement: “the Lithuanian State is an independent and democratic republic.” More than three quarters of those having taken part in the plebiscite answered the question in the affirmative. On 11 February 1991 the Supreme Council adopted a law whereby it stated that the notion that “the Lithuanian State is an independent and democratic republic” was a basic constitutional principle of the country.

On 19 August 1991 there was an attempted coup in Moscow. The  
self-proclaimed “National State of Emergency Committee” declared that  
Mr Gorbachev, the then President of the USSR, was suspended from his duties, declared itself the sole ruling authority and imposed a state of emergency “in certain regions of the USSR”. This coup ended in failure after two days.

In the immediate aftermath of the Moscow coup, in the course of August and September 1991, Lithuania and the other Baltic States gained diplomatic recognition as independent countries inter alia by the USSR, the European Union and the United States of America.

2. The investigation and trial

In the course of 1991 a total of nine criminal cases were instituted against various members or collaborators of the CPL/CPSU concerning their alleged attempts at the forceful overthrow of the democratically-elected authorities of Lithuania and a breach of the sovereignty of the State. The applicants, executives of the CPL/CPSU, were suspected of subversive activities. A number of these criminal cases were subsequently joined in one set of criminal proceedings involving the applicants and three other suspects. These proceedings became known in Lithuanian society as the “January the 13th case”, a reference to the tragic events of the night from  
12 to 13 January 1991.

The first applicant was arrested in the aftermath of the failed Moscow coup of August 1991. On 24 August 1991 he was released on bail, with the written obligation not to leave.

The third applicant was indicted as a suspect in a criminal case instituted on 22 August 1991. As he had escaped, a search for him was announced on 27 August 1991. The third applicant moved to Belarus. He alleges that on an unspecified date in 1994 he was kidnapped in Belarus by the Lithuanian authorities, and unlawfully moved to Lithuania. On 15 January 1994 the third applicant was detained on remand in Lithuania. He was held in custody until his subsequent conviction (see below).

On 28 June 1994 the first applicant was arrested and questioned. He was held in a detention centre until 1 July 1994.

The pre-trial investigation was concluded on 5 December 1994. From  
11 December 1994 until 15 April 1996 the first and the second applicants had access to the case-file. The third applicant had access to the case-file from 10 December 1994 until 31 May 1996.

In the course of the preliminary investigation, 3,344 witnesses and 1,349 victims were questioned. On 19 June 1996 the bill of indictment was confirmed with regard to six co-defendants, including the applicants. The case consisting of 332 volumes was sent to the Vilnius Regional Court for trial.

The trial started on 12 November 1996. From that date until 21 January 1997 the prosecutors read out the bill of indictment.

From 29 May to 2 June 1997 the trial was adjourned due to a deterioration in the third applicant’s health.

On 17 November and then on 1 December 1997 the trial could not proceed in the absence of certain witnesses.

From 5 to 10 February 1998, from 13 to 18 February 1998,  
from 19 February to 16 March 1998, and from 12 to 15 May 1998 the trial was adjourned in view of the poor health of the third applicant or other defendants.

On 1 June 1998 the trial was adjourned in view of the failure of one of the defence lawyers to appear.

From 19 to 27 October 1998, the court adjourned the trial at the request of the third applicant and his defence lawyers, in order to prepare their defence.

From 9 November 1998 to 7 May 1999, the parties were given an opportunity to reply to each other’s questions.

On 14 December 1998, 25 January 1999 and 19 April 1999, the trial was adjourned for a few days in view of the illness of the applicants’ legal representative.

From 7 May 1999 to 15 July 1999 the applicants made their final remarks before the trial court.

At the trial stage, 3,093 witnesses and 1,461 victims were questioned.

3. The applicants’ conviction of 23 August 1999

On 23 August 1999 the Vilnius Regional Court adopted a judgment in the case, consisting of 246 pages. The applicants and their official defence counsel were present at the hearing.

In the judgment the Vilnius Regional Court mentioned the historical and political background to the case (see also above), underlining that the CPSU and CPL/CPSU had been opposed to the democratisation of public life in Lithuania, and had only sought to maintain the status quo of Soviet rule. During the period in question, from the Declaration of Independence of 11 March 1990 until the failed Moscow coup of August 1991, the CPSU had been a very powerful organisation in view of its control over the Soviet security, interior and military forces stationed on the territory of Lithuania and elsewhere. The CPSU had used the CPL/CPSU as a practical tool to support its policing and military capabilities in Lithuania, targeted at stripping the legitimate Government of Lithuania of its powers. The CPSU and CPL/CPSU, aware that their ideas were supported by only a small minority of the Lithuanian population, had made attempts violently to overthrow the democratic regime in Lithuania. The applicants, the then senior executives of the CPL/CPSU, were found personally to have taken decisions or engaged in acts attesting their involvement in the attempted coups. In particular, the following acts of the applicants were established by the trial court:

- The first applicant occupied the position of Secretary of the Central Committee of the CPL/CPSU; the second applicant was a member of the Central Committee of the CPL/CPSU and Director of the radio-station “Soviet Lithuania”, and the third applicant was First Secretary of the Central Committee of the CPL/CPSU.

- On 21 April 1990 the CPL/CPSU founded the “LSSR Citizens Committee” (LTSR piliečių komitetas), with the aim of stripping the Lithuanian Government of its powers, disobeying legislation passed by the Supreme Council, and reinstating the force of the USSR Constitution and other Soviet laws. The first and the third applicants were members of the presidium of the “LSSR Citizens Committee”.

- On 12 May 1990, on the initiative of the third applicant, the “LSSR Party Interior Committee” (LTSR VRM partinis komitetas) was founded for the purpose of creating independent police units under the authority of the CPL/CPSU.

- In the summer of 1990, on the initiative of the third applicant and other members of the CPL/CPSU, the so-called “Association of Free Businessmen” (Laisvųjų verslininkų asociacija) was created with the aim of co-ordinating the activities of the USSR economic structures based in Lithuania, as an alternative to the acting Government of Lithuania.

- In June 1990 the applicants established the radio-station “Soviet Lithuania” on the premises of a Vilnius university, forcibly occupied by Soviet troops.

- On 7 August 1990 the “LSSR Citizens Committee” established “Workers Vigilance Committees” (darbininkų draugovės), their publicly proclaimed goal being “to disobey unlawful forcible acts [aimed at] liquidating the socialist regime and unlawfully separating Lithuania from the USSR.”

- On 16 December 1990 the CPL/CPSU organised the “Congress of Democratic Forces of Lithuania” (Lietuvos demokratinių jėgų kongresas), the third applicant being its President.

- In early January 1991 the third applicant presented to his CPSU superiors in Moscow a plan of “USSR Presidential Rule” for Lithuania. The third applicant was also involved in organising various meetings and strikes in order to attain the execution of that plan. In the aftermath of that visit, on 10 January 1991 the then USSR President Gorbachev publicly required the Supreme Council of the Republic of Lithuania to “reinstate immediately the legal force of the USSR and LSSR Constitutions in Lithuania.”

- On 11 January 1991 the CPL/CPSU sent an ultimatum to the Government of Lithuania, ordering it to comply with the declaration of the USSR President. Failing that, the CPL/CPSU declared that it might create the “Lithuanian National Rescue Committee” (Lietuvos nacionalinio gelbėjimo komitetas), “which would take care of the matters of the future of the LSSR.”

- In addition to the ultimatum of 11 January 1991, the CPL/CPSU also made five other public declarations during the period of 11 to 19 January 1991, urging the forceful overthrow of the Government and other authorities of independent Lithuania. The first and the third applicants were responsible for preparing those declarations, while the second applicant was responsible for disseminating them in the media.

- During the Soviet Army’s invasion of the Lithuanian public media headquarters and other buildings in Vilnius on 11 to 13 January 1991  
(see above), the third applicant actively collaborated with the CPSU and the USSR authorities, inciting them to use military force against the unarmed civil population which had assembled to defend Lithuanian independence. The third applicant was therefore an accomplice of the officers of the Soviet Army, who murdered in an aggravated fashion thirteen Lithuanian civilians, severely injured sixteen persons, and caused medium or mild bodily harm to 724 persons. All the victims and the types of the injuries sustained during the confrontations of the night from 12 to 13 January 1991 were listed in detail in the judgment.

- One of the applicants’ co-defendants, JJ, was considered as the founder and the most active participant of the “Lithuanian National Rescue Committee”, which had been particularly active during the attempted coup of 11 to 13 January 1991. The first and the second applicants were established as having actively participated in the activities of the “Lithuanian National Rescue Committee” in disseminating various public declarations on its behalf through the radio-station “Soviet Lithuania”. Those declarations had urged the forceful overthrow of the legitimate Government of Lithuania.

- On 14 January 1991 the Supreme Council adopted a decision “on the so-called Lithuanian National Rescue Committee, in which it declared its creation and actions as “anti-constitutional, subversive and thus illegal.”

- Following the events of January 1991, the applicants continued to unlawfully occupy several buildings with the assistance of the Soviet Army, including the Lithuanian public TV and media headquarters in Vilnius.

- On 17 March 1991 the CPL/CPSU unsuccessfully tried to organise a referendum on Lithuania’s stay within the USSR, the third applicant being particularly active in organising the referendum.

- The applicants continued their subversive activities within the CPL/CPSU up until the failed Moscow coup of August 1991.

- The CPL/CPSU was thus recognised as an anti-State organisation within the meaning of Article 70 of the Criminal Code as then in force (see also below). Similarly, the “LSSR Citizens Committee”, the “LSSR Party Interior Committee”, the “Association of Free Businessmen”, the  
radio-station “Soviet Lithuania”, the “Workers Vigilance Committees”, the “Congress of Democratic Forces of Lithuania” and the “Lithuanian National Rescue Committee” were also recognised as such organisations, the CPL/CPSU having set up or controlled all of them.

- As regards the first applicant, the court concluded that, in his capacity as Secretary of the Central Committee of the CPL/CPSU, he had publicly urged the forceful overthrow of the lawful government of Lithuania and the abolition of the sovereignty of the Lithuanian State between the declaration of independence on 11 March 1990 and the failed coup in Moscow in August 1991. It was also found that the first applicant had obstructed the functioning of the democratically created institutions of independent Lithuania, and had participated in the activities of the anti-State organisations mentioned above.

The first applicant was convicted of offences under Articles 68 (publicly urging the forceful overthrow of the sovereignty of the State) and 70 (creation of and participation in the activities of anti-State organisations) of the then Criminal Code. He was sentenced to six years’ imprisonment.

As regards the second applicant, the court concluded that, in his capacity as a member of the Central Committee of the CPL/CPSU and Director of the radio-station “Soviet Lithuania”, he had participated in the activities of anti-State organisations between 11 March 1990 and August 1991. He had been responsible for broadcasting various transmissions, urging inter alia the forceful overthrow of the lawful government of Lithuania and the abolition of the sovereignty of the Lithuanian State.

The second applicant was convicted of an offence under the then Article 70 of the Criminal Code. He was acquitted of sabotage (Article 67 of the Criminal Code as then in force). He was sentenced to three years’ imprisonment.

As regards the third applicant, the trial court concluded that, in his capacity as First Secretary of the Central Committee of the CPL/CPSU, he had participated in the activities of anti-State organisations, and had obstructed the functioning of the institutions of independent Lithuania between 11 March 1990 and August 1991. He had also publicly urged the forcible overthrow of the lawful government of Lithuania and the abolition of the sovereignty of the Lithuanian State. It was further found that he had urged that Soviet troops be used against the unarmed civilian population during the events of 12 and 13 January 1991, thus being responsible for the deaths of and injuries to the victims of those events.

The third applicant was convicted of offences under Articles 68 and 70. He was also convicted of complicity in aggravated murder and causing various types of bodily harm during the events of 12 and 13 January 1991 (Articles 105, 111, 112, 116 in conjunction with Article 18 of the Criminal Code as then in force). He was acquitted of sabotage and sentenced to 12 years’ imprisonment.

Three other co-defendants were convicted with the applicants.

4. Proceedings on appeal and cassation

On 20 February 2001 the Court of Appeal amended the applicants’ conviction under Article 70 of the then Criminal Code insofar as it related to their activities in the CPL/CPSU and its subsidiary organisations between 11 March and 10 November 1990. The Court of Appeal found that, prior to the legislative amendment of 10 November 1990, Article 70 of the Criminal Code dealt with activities in anti-Soviet organisations, and could not be applied by analogy to activities in anti-Lithuanian organisations. In view of the legislative amendment, criminal responsibility was thereafter clearly established by Article 70 for actions directed against the sovereignty of the Lithuanian State (see the ‘Relevant domestic law and practice’ part below). The court therefore held that the domestic criminal law did not provide for criminal responsibility on the ground of the applicants’ membership in the CPL/CPSU until 10 November 1990, and that they could only be convicted for their activities within that party and the other anti-State organisations after that date.

The appellate court also quashed the third applicant’s conviction insofar as it related to complicity in causing medium and mild bodily harm (Articles 112 and 116 of the then Criminal Code in conjunction with Article 18) in view of the expiry of the statutory time-limit for bringing criminal proceedings in respect of those offences. His conviction remained insofar as it related to his being an accomplice in aggravated murder and causing serious bodily harm (Articles 105 and 111 of the then Criminal Code in conjunction with Article 18).

The first and the third applicants’ convictions under Article 68 § 3 of the Code and their sentences remained unchanged. The second applicant’s sentence was reduced to one year and six months’ imprisonment.

On 28 December 2001 the Supreme Court dismissed the applicants’ cassation appeals. That decision was final.

On an unspecified date the second applicant was released from prison after having served his sentence. The first applicant’s attempts to obtain release on licence were to no avail.

B.      Relevant domestic law and practice

1. Constitutional provisions on the status of the Republic of Lithuania

Declaration of independence of 11 March 1990

“In expressing the will of the People, the Supreme Council of the Republic of Lithuania decides and declares that the execution of the sovereign powers of the Lithuanian State, taken away by an alien force in 1940, is hereby restored, and that from now on Lithuania is again an independent State.

The Independence Act of the Lithuanian Council of 16 February 1918 and the resolution [by Parliament] of 15 May 1920 on the restoration of the democratic State of Lithuania have never lost their legal effect, and lay the constitutional foundation for the State of Lithuania.

The territory of the State of Lithuania is whole and indivisible, no constitution of another State being effective on it.

The State of Lithuania underlines its fidelity to the generally recognised principles of international law, recognises the inviolability of frontiers as it has been formulated in the Final Act of the Helsinki Conference on Security and Co-operation in Europe of 1975, and guarantees human, civic and minority rights.

The Supreme Council of the Republic of Lithuania ... hereby begins to realise full State sovereignty.”

On 11 March 1990 the Supreme Council also reinstated certain provisions of the Lithuanian Constitution of 1938, discontinuing the effect of the USSR Constitution of 1977 and the LSSR Constitution of 1978.

On the same date the Supreme Council also adopted the Provisional Basic Law (Laikinasis pagrindinis įstatymas), setting out the constitutional principles of the newly restored State of Lithuania. In particular, the Provisional Basic Law referred to Lithuania as a sovereign democratic republic, the power being vested in the people and exercised by the Parliament, Government and the courts. In the law approving the Provisional Basic Law, the Supreme Council indicated that all the “previously effective laws” continued to be in force as long as they were not contrary to the Provisional Basic Law.

On 11 and 13 March 1990 the Supreme Council also decided that all the authorities of the USSR and the LSSR and public institutions on the territory of Lithuania fell under the jurisdiction of the Republic of Lithuania. By these provisions, as well as by the Government Act of 22 March 1990, the Government of the Republic of Lithuania was empowered to exercise full control over all institutions on the territory of the country.

In July 1990 the Supreme Council adopted a moratorium on the execution of the Declaration of Independence.

In view of the response given by the majority of the Lithuanian population in a nation-wide plebiscite, on 11 February 1991 the Supreme Council adopted a law, stating that the notion that the “Lithuanian State is an independent and democratic republic” was a basic constitutional principle of the State (see also above).

2. Legislative provisions concerning the CPL/CPSU and its subsidiary organisations

On 14 January 1991 the Supreme Council adopted a decision “on the  
so-called Lithuanian National Rescue Committee”, in which it declared its creation and actions as “anti-constitutional, subversive and thus illegal.”

On 22 August 1991 the Supreme Council adopted a decision, banning the activities of the CPL/CPSU.

3. Substantive criminal law

The applicants were convicted under the Criminal Code which had been adopted by the Supreme Council of the LSSR on 26 June 1961, and which continued to apply on the territory of Lithuania, with numerous amendments, until the entry into force of a new Criminal Code on 1 May 2003.

On the basis of the Provisional Basic Law of 11 March 1990, the provisions of the Criminal Code 1961 were deemed to apply following the re-establishment of Lithuania’s independence as long as those provisions were compatible with the Provisional Basic Law (see also above).

Article 18 of the Criminal Code 1961 dealt with issues of complicity.

Article 68 of the Code punished the acts of publicly urging a breach of the sovereignty and territorial integrity of the State, and the forceful overthrow of State authorities. By a legislative amendment of 4 October 1990, which became effective on 10 November 1990, Article 68 of the Criminal Code was rephrased, specifying that the criminal acts under this provision must be directed against the sovereignty of the Republic of Lithuania. Paragraph 3 of the Article punished these acts if committed at the request of a foreign State or organisation.

Article 70 prohibited the creation of and participation in the activities of anti-State organisations and anti-Soviet propaganda. Following the statutory amendment of 10 November 1990, Article 70 of the Criminal Code was rephrased as prohibiting activities in organisations seeking to subvert the constitutional order of the Republic of Lithuania and restrict the sovereign powers of the Lithuanian State.

Article 105 punished acts of aggravated murder.

Article 111 punished acts of causing serious bodily harm.

COMPLAINTS

1. Under Articles 2, 3, 5, 6 and 8 of the Convention, the first applicant complained about his bail prior to conviction, the alleged seizure and confiscation of his various property items, and his detention from 28 June 1994 until 1 July 1994. The first applicant alleged that his detention after his conviction had been unlawful, that the conditions thereof had been degrading, and that he had been unlawfully denied a pension and employment while in prison. He also complained that he had been unable to obtain conditional release, alleging various procedural irregularities in the context of the proceedings concerning his request for release on licence.

2. Under Articles 3, 5 and 13 of the Convention, the third applicant complained about his alleged kidnapping in Belarus in 1994, the unlawfulness of the ensuing remand in custody in Lithuania, the conditions of detention and the absence of an effective domestic remedy in this respect.

3. Under Article 6 of the Convention, the applicants complained that the criminal case against them had been fabricated, and that they had been convicted purely for their political convictions as communists. They alleged that the courts reached wrong factual and legal conclusions as the applicants had in fact been innocent. The courts had not been independent and impartial, in that the judges had been prejudiced against them. Furthermore, their defence rights had been violated in that they had not been able to choose an official lawyer, call certain witnesses of their choosing, and have certain exculpating evidence admitted on their behalf. Finally, the applicants alleged that the criminal proceedings against them had been unreasonably long.

4. Under Article 7 of the Convention, the applicants complained that they had been convicted for activities against the Lithuanian State committed in 1990 and 1991, although during that period Lithuania had not in fact been an independent country. In the applicants’ view, they had been convicted for acts which at the time could not have been foreseeable as criminal offences under domestic or international law. Until the unsuccessful coup in Moscow in August 1991, Lithuania had not been recognised as an independent State by the Soviet Union or most foreign countries; it had no territory or currency, and all Lithuanian nationals had been citizens of the Soviet Union. In the applicants’ view, their activities as members of the CPL/CPSU had been perfectly lawful. Lithuania had only become independent following the failed coup in August 1991, notably after the recognition by the Soviet Union of Lithuania’s independence on 6 September 1991. Prior to that, any Lithuanian “laws” on the basis of the Declaration of Independence  
of 11 March 1990 could not have been considered as a sufficient basis, within the meaning of Article 7 of the Convention, to justify the applicants’ conviction.

5. Under Articles 9, 10, 11 and 14 of the Convention, the applicants complained that they had been unfairly convicted for the expression of their political beliefs as communists, their legitimate work as journalists, the lawful exercise of their right to participate in the activities of the CPL/CPSU and its subsidiary organisations, and their support for the idea of Lithuania’s continuing membership of the USSR during politically turbulent times in 1990-1991. The likelihood of their acts being eventually considered as criminal had not been foreseeable at the material time. The applicants further complained that the CPL/CPSU had been unjustly banned.

THE LAW

1. The first applicant complained about his bail prior to his conviction, the alleged seizure and confiscation of various items of his property, his detention from 28 June 1994 until 1 July 1994, the alleged unlawfulness of his detention after conviction, the conditions of his imprisonment, and the allegedly unlawful deprivation of his right to receive his pension and obtain employment while in prison. He further complained about his inability to obtain conditional release. He also alleged an absence of any adequate domestic remedy for his complaints. He relied on Articles 2 (the right to life), 3 (the prohibition on torture), 5 (the right to liberty and security of person), 6 (the right to a fair hearing by a tribunal) and 8 (the right to respect for private life) of the Convention.

The Court also considers that Article 1 of Protocol No. 1, which secures the right to enjoy one’s possessions, is also relevant to his complaints.

To the extent that the first applicant has complained about events relating to the period prior to 20 June 1995, that is the date of the entry into force of the Convention with regard to Lithuania, the Court notes that it has no competence ratione temporis within the meaning of Article 35 § 3 of the Convention to examine them.

To the extent that the first applicant has complained about the alleged seizure and confiscation of his property, the unlawful deprivation of his pension and employment rights, and his current prison conditions, the Court observes that the first applicant brought no separate court proceedings in this respect (see, in particular, in relation to the possibility to apply to the administrative courts to complain about detention conditions, Jankauskas v. Lithuania (dec.), no. 59304/00, 16.12.2003). It follows that he has failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention.

To the extent that the first applicant has complained about his bail, the Court notes that the “final” decision, within the meaning of Article 35 § 1 of the Convention, regarding the first applicant’s remand conditions was taken upon his conviction on 23 August 1999, whereas the application was introduced only on 16 July 2001, that is more than six months later. It follows that this part of the application was submitted out of time, and must be rejected under Article 35 §§ 1 and 4 of the Convention (see, mutatis mutandis, Daktaras v. Lithuania (dec.), no. 42095/98, 11.1.2000).

To the extent that the first applicant has complained under Article 5 of the Convention about his detention after conviction, he has failed to show that his imprisonment is incompatible with Article 5 § 1 (a) of the Convention, given that he is currently imprisoned on the basis of a judgment by the competent courts, whereby a sentence of imprisonment was imposed on him. It follows that this aspect of the case is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected pursuant to Article 35 § 4 of the Convention.

To the extent that the first applicant has complained about his inability to obtain early conditional release, the Court recalls that the Convention does not guarantee, as such, the right to amnesty, parole or release on licence. A sentence of imprisonment after conviction by a competent court, which the offender must serve, is justified at the outset by the original trial and appeal proceedings. In particular, Article 6 is not applicable to proceedings of the kind requested by the first applicant, as they do not involve the determination of “a criminal charge” (see Ganusauskas v. Lithuania (dec), no. 47922/99, 7.9.1999). It follows that this aspect of the case is incompatible ratione materiae with the Convention and must be rejected pursuant to Article 35 §§ 3 and 4.

2. The third applicant complained about his alleged kidnapping in Belarus in 1994, the unlawfulness of the ensuing detention on remand in Lithuania, the conditions of that detention and the absence of an effective domestic remedy in this respect. He invoked Articles 3, 5 and 13 (the right to an effective remedy) of the Convention.

To the extent that the third applicant has complained about his alleged kidnapping and transfer to Lithuania, the Court notes that these complaints relate to a period prior to 20 June 1995, that is the date of the entry into force of the Convention with regard to Lithuania. The Court considers that it has no competence ratione temporis within the meaning of Article 35 § 3 of the Convention to examine these complaints.

To the extent that the third applicant has complained about the unlawfulness and conditions of his remand in custody, the Court notes that the six-month time limit under Article 35 § 1 of the Convention for raising these matters before the Court started running from the moment of his conviction on 23 August 1999, whereas the application was introduced only on 23 June 2002, that is more than six months later. It follows that this part of the application was submitted out of time, and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention (see, mutatis mutandis, Daktaras v. Lithuania (dec.), no. 42095/98, 11.1.2000).

3. The applicants complained that their trial was unfair and unreasonably long, in breach of Article 6 of the Convention, which states, insofar as relevant, as follows:

“1.  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. ...

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

3.  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;

(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; ...”

In relation to the applicants’ complaint about the length of the proceedings, the Government stated that the period to be taken into consideration started with the first applicant’s arrest on 28 June 1994. In regard to the second applicant that period had started on 15 November 1994 (the moment of his being charged), and with respect to third applicant  
on 15 January 1994 (the moment of his arrest being ordered). In any event, the Court was unable to look at the period before the Convention’s entry into force vis-à-vis Lithuania (20 June 1995). The Government underlined the complexity of the criminal proceedings at issue as a decisive element in assessing the reasonableness of their length. The case against the six  
co-defendants had consisted of 332 volumes. At the preliminary investigation stage 3,344 witnesses and 1,349 victims had been questioned, and 1,190 expert examinations had been carried out. At the trial stage, 3,093 witnesses and 1,461 victims had been examined. In addition, the applicants’ access to the case file had lasted almost 18 months. The proceedings had not been adjourned at the request of the authorities during the investigation or trial. The trial had been adjourned a number of times in view of the applicants’ requests by reference to their health. There had been no significant delay which may be attributed to the authorities. The length of the criminal proceedings had thus not been excessive.

The applicants disagreed, stating that the criminal investigation into their alleged criminal activities had been instituted in 1991, and that the Government had not presented a plausible reason to justify the fact that the final determination of the case had taken more than 10 years.

Having regard to the parties’ observations on the length of the proceedings, the Court considers that this part of the application raises complex questions of fact and law under Article 6 § 1 of the Convention, the determination of which should depend on an examination of the merits. It cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

To the extent that the applicants have alleged other breaches of Article 6 of the Convention, the Court recalls that it is not its task under this provision to review alleged errors of fact and law committed by the domestic judicial authorities and that, as a general rule, it is for the national courts to assess the evidence before them and to apply domestic law. The Court’s task is to ascertain whether the proceedings as a whole were fair. The key element in this respect is that the applicants were afforded ample opportunities before the courts at three levels of jurisdiction, personally or through their defence counsel, to state their case and challenge the evidence that they considered false. The Court finds no appearance of a breach of the presumption of innocence. Furthermore, there is no evidence of a lack of subjective or objective impartiality of the courts; nor is there any indication of any procedural disadvantage to the applicants vis-à-vis the prosecution during the trial. There is thus no appearance of a violation of the principle of equality of arms or a breach of the applicants’ defence rights (see Karalevičius v. Lithuania (dec.), no. 53254/99, 6.6.2002). Accordingly, it has not been shown that the trial was unfair. It follows that this aspect of the case is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4 of the Convention.

4. The applicants alleged a violation of Article 7, which states as follows:

“1.  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.

2.  This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

The Government submitted that the Lithuanian State had existed as a subject of international law during the period of Soviet annexation from 1940 to 1990. The independence declaration of 11 March 1990 had not created a new State but only restored the execution by the Lithuanian Government of its sovereign powers, which had been unlawfully restricted by the Soviet occupying force from 1940 to 1990. At the same time, the free and democratic nature of the elections of 24 February 1990 had been undisputed, thereby conferring full legitimacy on the Supreme Council and other institutions of the Republic of Lithuania set up as a result of those elections. The applicants had thus been fully aware that their activities against the sovereignty of the Republic of Lithuania and its democratically elected institutions could have been punishable under the substantive criminal law of that State. Furthermore, in view of the amendment to Article 70 the Criminal Code of 10 November 1990, the applicants’ activities within the CPL/CPSU and its subsidiary organisations could have been clearly foreseen as prohibited activities. Finally, the third applicant had been convicted of complicity in aggravated murder and causing bodily harm, these offences being clearly prohibited by the domestic criminal law as well as the generally recognised legal norms of civilised nations. In sum, there had been no breach of Article 7.

The applicants reiterated that they had been convicted for activities against the Lithuanian State committed in 1990 and 1991, although during that period Lithuania had not been an independent State. In the applicants’ view, they had been convicted for acts which at the time could not have been foreseeable as criminal offences under domestic or international law. According to the applicants, until the unsuccessful coup in Moscow in August 1991, Lithuania had not been recognised as an independent State by the Soviet Union or most foreign countries, it had had no territory or currency, and all Lithuanian nationals had been citizens of the Soviet Union. In the applicants’ view, their activities as members of the CPL/CPSU had been perfectly lawful. Lithuania had only become independent following the failed coup in August 1991, notably after the recognition by the Soviet Union of Lithuania’s independence on 6 September 1991. Prior to that, any Lithuanian “laws” on the basis of the unilateral Declaration of Independence of 11 March 1990 could not have been considered as a sufficient basis within the meaning of Article 7 of the Convention to justify the applicants’ conviction, given in particular the “moratorium” on the Declaration of Independence imposed by the Supreme Council of the Republic of Lithuania in July 1990.

Having regard to the parties’ observations, the Court considers that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. It cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

5. The applicants also alleged that their conviction amounted to a violation of Articles 9 (freedom of conscience), 10 (freedom of expression), 11 (freedom of association) and 14 (the prohibition on discrimination) of the Convention.

The respondent Government stated that these complaints were outside the Court’s competence ratione temporis in that they related to the applicants’ activities in 1990-1991. Furthermore, the applicants had not exhausted domestic remedies in that they had not raised the same complaints before the domestic courts with specific reference to Articles 9, 10, 11 and 14 of the Convention. In any event, there had been no interference with the applicants’ rights under the above provisions, in that the impugned criminal proceedings had related not to the CPL/CPSU as such, but to the applicants’ specific activities within that party. Anyway, by reference to the findings of the domestic courts, the Government stated that the CPL/CPSU had been opposed to any democratisation of public life, and that it had only sought to maintain the status quo of Soviet rule. The CPL/CPSU had been responsible for the attempts at the violent overthrow of the democratic regime of independent Lithuania. The applicants had been duly found guilty of having personally taken decisions or engaged in subversive acts clearly prohibited by the applicable criminal law. Any interference with the applicants’ rights under Articles 9, 10 or 11 of the Convention would have thus been justified by the exceptions allowed by the second paragraphs thereof. Finally, there had been no discrimination against the applicants.

The applicants disagreed, claiming that the courts’ assessment of the facts and law had been wrong, that the CPL/CPSU had in fact been a party upholding the principles of democracy, and that their activities within the CPL/CPSU and its subsidiary organisations could not have been foreseen to amount to criminal offences at the material time. The applicants stated that they had thus been unjustly punished in the exercise of their beliefs as communists, their legitimate work as journalists, their right of association with other individuals, and their support for the idea of Lithuania’s continuing membership of the USSR during the politically turbulent times of 1990-1991.

To the extent that the applicants have complained about the ban of the CPL/CPSU, the Court observes that the final decision on the dissolution of this party was adopted by the Supreme Council on 22 August 1991. Since there were no further effective domestic remedies to be exhausted in this regard, this part of the application is incompatible ratione temporis with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, given that the Convention entered into force with regard to Lithuania on 20 June 1995.

To the extent that the object of the Court’s examination in this part of the application is the evaluation of the applicants’ conviction from the point of view Articles 9, 10, 11 and 14 of the Convention, the Court has competence ratione temporis, within the meaning of Article 35 § 3 of the Convention, to examine this part of the application, in that the applicants were convicted on 23 August 1999, that is after the entry into force of the Convention with respect to Lithuania. It is true that the applicants did not mention specifically Articles 9, 10, 11 or 14 of the Convention during the impugned domestic proceedings. However, it is undisputed that they did raise the substance of their Convention complaints while defending themselves against the criminal charges. Therefore, this aspect of the case cannot be rejected for non-exhaustion of domestic remedies.

In view of the parties’ observations, the Court considers that this part of the application raises complex questions of fact and law under Articles 9, 10, 11 and 14 of the Convention, the determination of which should depend on an examination of the merits. It cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Decides to join the applications;

Declares admissible, without prejudging the merits, the applicants complaints about the length of criminal proceedings under Article 6 § 1 of the Convention, and their complaints about their convictions under Articles 7, 9, 10, 11 and 14 of the Convention;

Declares inadmissible the remainder of the applications.

S. Dollé A.B. Baka 
 Registrar President

KUOLELIS AND OTHERS v. LITHUANIA DECISION


KUOLELIS AND OTHERS v. LITHUANIA DECISION