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SECOND
SECTION
CASE OF ZABULĖNAS v. LITHUANIA
(Application
no. 44438/04)
JUDGMENT
STRASBOURG
18
January 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Zabulėnas v. Lithuania,
The
European Court of Human Rights (Second Section), sitting as a
Committee composed of:
Nona Tsotsoria, President,
Danutė
Jočienė,
Guido Raimondi, judges,
and
Françoise Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 14 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 44438/04) against the
Republic of Lithuania lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Lithuanian national, Mr
Vitalijus Zabulėnas
(“the applicant”), on 30
November 2004.
- The
Lithuanian Government (“the Government”) were represented
by their Agent, Ms E. Baltutytė.
- On
11 September 2006 the
President of the Second Section decided to
communicate the application to the Government. In accordance
with Protocol No. 14, the application was assigned to a Committee of
three Judges. The Government objected to the examination of the
application by a Committee. After having considered the Government's
objection, the Court rejected it.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1965 and lives in Kaunas. He was an accountant
of a holding company.
- In
1994 the applicant became a suspect in a criminal case of fraud.
- By
investigator's decisions of 29 October 1994, 1 February and
15 May 1996 the applicant's property was seized.
- On
28 August 1996 the applicant was charged with unlawful financial
activities, fraud, and breaching the currency and securities
regulations. Four other persons were charged as his accomplices. It
was suspected that the co-accused had misappropriated large sums of
money which had been deposited by private persons and companies. More
than hundred victims were identified.
On
the same day the investigators ordered the applicant not to leave his
place of residence.
- On
15 October 1998 the Kaunas City District Court convicted the
applicant, sentencing him to four years' imprisonment. The applicant
was arrested in open court.
- On
22 March 1999 the Kaunas Regional Court amended the judgment,
acquitting the applicant of some charges and reducing the sentence to
two years' imprisonment.
- On
30 September 1999 the Supreme Court quashed the lower courts'
judgments due to various procedural irregularities. It was
established that the applicant had not been given access to the case
file, and that the reasoning in the judgments was too vague. The case
was returned for fresh examination. The applicant's detention was
replaced by an obligation to stay in his place of residence.
- On
25 October 1999 the Kaunas City District Court returned the case for
an additional pre-trial investigation. On an unspecified date, the
case was transmitted to the court for trial.
- On
5 January 2004 the Kaunas City District Court again decided to remit
the case for additional investigatory measures.
- On
25 March 2004 the Kaunas Regional Court quashed the decision,
ordering the first instance court to proceed to trial.
- On
22 June 2004 the Supreme Court upheld the appellate decision.
- On
3 December 2004 the Kaunas City District Court terminated the
criminal proceedings because the statutory time-limit for prosecution
had lapsed. The civil claims against the applicant and the co-accused
were left unexamined. The court also lifted the seizure of the
applicant's property.
- The
applicant appealed against the decision to terminate the proceedings
on procedural basis, arguing that he should have been acquitted. By a
final ruling of 10 November 2005 the Vilnius Regional Court
refused to examine the appeal as the applicant had missed the
time-limit for lodging it.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
- The
Government submitted that the applicant had failed to exhaust
domestic remedies by claiming redress for the length of the criminal
proceedings.
- The
applicant contested the Government's submission.
- The
Court refers to its earlier case law, where it already established
that at the time when the present application was lodged by the
applicant no effective remedy for obtaining a redress for the length
of the proceedings existed in Lithuania (see, most recently, Šulcas
v. Lithuania, no. 35624/04, §§ 60 and 62, 5 January
2010, and Norkūnas v. Lithuania, no.
302/05,
§§ 29-30, 20 January 2009). Having
examined all the materials submitted to it, the Court considers that
the Government have not put forward any fact or convincing argument
capable of persuading it to reach a different conclusion in the
present case. Consequently, the Government's objection as to
non-exhaustion of domestic remedies must be
dismissed.
- The
Court also considers that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The Court notes that whilst in connection with the
criminal proceedings against the applicant his property had already
been seized in October 1994, the period to be taken into
consideration began only on 20 June 1995, when the Convention
entered into force in respect of Lithuania. Given that the
proceedings ended by the Vilnius Regional Court's decision of
10 November 2005, within the Court's jurisdiction ratione
temporis they therefore lasted ten years and nearly five months.
The applicant's case has been adjudicated at three levels of
jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67,
ECHR 1999-II)
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case
(see Šulcas and Norkūnas, cited
above).
- Turning
to the facts of the present case, the Court considers that the
proceedings may be deemed complex, owing inter alia to the
number of the accused and the nature of the alleged offences, i.e.
the financial impropriety allegedly committed by the applicant.
Neither can the Court overlook the fact that the proceedings had been
prolonged by nearly one year due to the applicant's wish to be fully
exculpated of criminal charges (see paragraphs 15 and 16 above).
However, the Court also notes some omissions in handling the case by
the domestic authorities. In particular, the case was remitted for
retrial by the cassation court, then returned for additional
investigation by the trial court twice and subsequently discontinued
because the statutory time-limit had lapsed. Having regard to
all these elements, the Court considers that in the instant case the
length of the proceedings was excessive and failed to meet the
“reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 5 § 1 that his detention
was unlawful, and under Article 5 § 4 that he had no possibility
to challenge it. He further complained under Article 3 of the
Convention that the conditions of detention in the prison where he
had been placed for one month, following the judgment of 15 October
1998, had been inadequate. The Court observes, however, that the
applicant was detained until 30 September 1999. The Court
further notes that these complaints were first submitted to this
Court on 30 November 2004, that is more than five years after the
detention. Accordingly, by virtue of Article 35 §§ 1
and 4 of the Convention, the Court is not required to examine this
part of the application as it was lodged out of time.
- The applicant further complained under Articles 6 §§
1 and 3 of the Convention that the criminal proceedings were unfair
in that he had not been properly informed about the charges against
him, that his defence rights had been violated, and that the
proceedings were not adversarial. Yet, the present proceedings were
discontinued as time-barred and the applicant had not been convicted.
Therefore, the applicant cannot claim to be a victim of the alleged
violations. It follows that this complaint is incompatible ratione
personae with the provisions of the Convention within the meaning
of Article 35 § 3 and must be rejected in accordance
with Article 35 § 4.
- In
connection to the criminal proceedings against him and with regard to
the above complaints, the applicant also invoked Article 13 of the
Convention and Article 1 of Protocol No. 4. The Court observes,
however, that the applicant's pleas had been examined at three levels
of jurisdiction. As a result, his complaint under Article 13 of the
Convention must be dismissed as manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the Convention. As regards his
complaint under Article 1 of Protocol No. 4, the Court notes
that for a certain period of time the applicant indeed was deprived
of his liberty. Nonetheless, the deprivation was based on the
criminal charges against the applicant and not upon his inability to
fulfil his contractual obligations. Accordingly, this part of the
application must be dismissed as incompatible ratione materiae,
pursuant to Article 35 §§ 3 and 4 of the Convention.
- On
24 January 2007 the applicant also submitted to the Court additional
complaint under Article 7 of the Convention in connection to the
criminal proceedings. However, the final domestic decision on this
point was given on 10 November 2005, that is, more than six
months before this complaint was submitted. By virtue of Article
35 §§ 1 and 4 of the Convention, the Court is not
required to examine this part of the application as it was lodged out
of time.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 43,200 Lithuanian litas
(“LTL”;
approximately 12,510 euros (“EUR”)) in respect of
pecuniary damage and LTL 952,300 (approximately EUR 275,790) for
non-pecuniary damage.
- The
Government contested these claims.
- The
Court is of the view that there is no causal link between the
violation found under Article 6 and the alleged pecuniary
damage
(see, Simonavičius v. Lithuania,
no. 37415/02, § 51, 27 June 2006). Consequently,
it finds no reason to award the applicant any sum under this head.
- However,
the Court considers that the applicant has suffered certain
non-pecuniary damage as a result of the excessive length of the
criminal proceedings, which is not sufficiently compensated by the
finding of a violation (loc. cit., § 52). Making its assessment
on an equitable basis, the Court awards the applicant EUR 3,400 in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed LTL 4,500 (approximately EUR 1,304) for
the costs and expenses incurred before the domestic courts.
- The
Government contested these claims as unjustified and unsubstantiated
by any documents.
- In
the absence of supporting documentation, the Court rejects the
applicant's claim.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
3. Holds
(a)
that the respondent State is to pay the applicant, within three
months, EUR 3,400 (three thousand four hundred euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage, to be
converted into Lithuanian litas at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 18 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Nona Tsotsoria Deputy
Registrar President
