SECOND SECTION
CASE OF
VENSKUTĖ v. LITHUANIA
(Application no.
10645/08)
JUDGMENT
STRASBOURG
11 December 2012
This judgment will become final in
the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Venskutė v. Lithuania,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
András Sajó,
Işıl Karakaş,
Nebojša Vučinić,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 20 November 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
10645/08) 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, Ms Marytė
Venskutė (“the applicant”), on 22 February 2008.
The applicant was represented by Mr S. Zabita, a
lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were
represented by their Agent, Ms E. Baltutytė.
The applicant alleged that she had been deprived
of her liberty in breach of Article 5 § 1 of the Convention. She also alleged
that her right to compensation for unlawful detention, as provided for by
Article 5 § 5, had been violated.
On 25 March 2011 the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1978 and lives in Vilnius.
A. Criminal investigation into insurance fraud and the
circumstances surrounding the applicant’s arrest
On 23 May 2005 the State Border Guard
Service (hereinafter “the SBGS” or “the Service”) informed a prosecutor that on
16 December 2004 an officer at the SBGS, G.B., acting together with the
applicant, who had been driving the car, and Š.S., had committed a crime of
fraud by simulating a car accident and later claiming payment from an insurance
company.
The same day the prosecutor asked the SBGS to
open a pre-trial investigation on suspicion of fraud, in accordance with
Article 167 of the Code of Criminal Procedure (hereinafter “the CCP”) (see
Relevant Domestic Law below).
Later that day the SBGS opened the pre-trial investigation on
the basis of Article 171 of the CCP.
On 25 May 2005, at about 10.30 a.m., two
men, who introduced themselves as officers of the Service, went to the
applicant’s workplace, the “Fortas” restaurant, in Vilnius city centre. From
then on, the applicant’s and the Government’s versions of events differ.
The applicant stated that the two officers had
asked her to accompany them and threatened to use restraining measures should
she not comply. She had not been allowed to contact anyone by telephone, except
for her supervisor. She had then been taken to the officers’ car and driven to
the Vilnius headquarters of the Service. On arrival her handbag had been searched,
her mobile telephone had been taken away and the officers had read her text messages.
The officers had not returned the telephone to the applicant until 8 July
2005. Immediately after the search, the officers had started interrogating the
applicant about the circumstances of the car accident of 16 December 2004.
She had been threatened with loss of reputation, placement in a detention
facility, conviction and loss of career opportunities, unless she gave them
information necessary for the insurance fraud investigation. The officers had refused
the applicant’s request for a lawyer. They had also dismissed her request that
a record be made of her questioning, saying that it was for them to decide
“what to write down and what not to”. Likewise, the officers refused to explain
to the applicant what her procedural status was at that moment.
The Government did not dispute that the SBGS
officers had gone to the applicant’s workplace at about 10.30 a.m. on
25 May 2005. However, the Government submitted that no force or threats
had been used against the applicant; she had merely been invited to accompany
the officers for questioning.
According to the report of the applicant’s
provisional arrest, she was arrested at 3 p.m. the same day. Even though the
arrest took place while the applicant was at the Vilnius headquarters of the
Service, the arrest report specifies that she had been arrested “at Vilnius
international airport” on suspicion of fraud. The report stated that it had
been necessary to arrest the applicant because she might flee from the investigators
or prosecutor, or commit further offences.
The officers also made a record of the personal search of the
applicant, which stated that the search had been conducted between 3.10 and 3.40
p.m. on 25 May 2005.
Later that day the applicant was taken to a police detention
facility; her sister had been informed of her arrest.
The same day at 3 p.m. the SBGS arrested Š.S.
and questioned him, as a suspect, about the circumstances surrounding the car
accident and the suspected insurance fraud.
On 26 May 2005 from 3.20 to 3.40 p.m. the SBGS
tried to question G.B., as a suspect, about the car accident and insurance
fraud, but G.B. refused to give any evidence.
After further questioning as a suspect on 2 June, G.B. testified
that the car had been driven by the applicant, but denied any involvement in
the insurance fraud.
As it transpires from the report of the
applicant’s interrogation, on 26 May 2005 from 4.15 to 5 p.m., the SBGS
investigator questioned the applicant about the insurance fraud. At that time her
procedural status was that of a suspect; her lawyer was present at the
questioning. The applicant refused to testify.
The same day at 6. p.m. the SBGS investigator decided
to release the applicant, because “there were no reasons to keep her under
arrest”. He noted that the applicant “had been arrested on 25 May on the basis
of Article 140 of the Code of Criminal Procedure”.
B. Investigation of the circumstances surrounding the
applicant’s arrest by the prosecutors, the Ombudsman and the SBGS
On 26 May 2005 the applicant’s lawyer complained
to the Vilnius Regional Prosecutor’s Office that the previous day his client
had been arrested by the SBGS officers in breach of Article 140 of the CCP. He
also maintained that she “had been questioned before being granted the status
of a suspect (nepareiškus jai įtarimo) and forced to testify”. The
lawyer contended that the pre-trial investigation had not been within the SBGS’s
competence and jurisdiction, as it was related to insurance fraud.
On 13 June 2005 the Vilnius Regional Prosecutor’s
Office replied that the pre-trial investigation had been opened in accordance
with the domestic law. The reply did not say that the decision could
be appealed against.
On 16 June 2005 the applicant wrote to the
Ombudsman, the Chief Inspector of the Ministry of the Interior, the Attorney
General and the Director of the SBGS. She stated that on 25 May at about
10.30 a.m., two officers of the SBGS had gone to her workplace at the “Fortas”
restaurant in Vilnius. She had been forced to leave with them, and had been taken
to the SBGS’s Vilnius headquarters and questioned about the car accident. The
applicant reiterated that the SBGS officers had refused to record her
questioning, had not explained her rights to her, and had not allowed her to
make telephone calls. No one had answered her question whether she could leave;
nor had they explained what her procedural status was at that time. She had
been threatened with conviction, placement in a detention facility, and the end
of her career unless she agreed to confirm the SBGS’s account of the car
accident. Relying on Article 5 of the Convention, the applicant argued that her
right to liberty had been breached. She maintained that the SBGS officers had
acted in an arbitrary fashion.
By a decision of 21 July 2005, the Vilnius
Regional Prosecutor’s Office found no flaws or abuse of powers in the actions of
the SBGS officers and refused to open a pre-trial investigation into their
actions. The prosecutor noted that the applicant had been arrested on 25 May
2005 at “3 p.m.”, as stated in the provisional arrest report. The following
day she had been served with notice of suspicion of the crime of fraud and had
been questioned as a suspect from 4.15 to 5 p.m. Therefore the applicant’s allegation
that she had been questioned without a record being drawn up was false. Lastly,
the prosecutor held that it was only because of “a technical mistake” that the
report of the applicant’s arrest had specified her place of arrest as Vilnius Airport.
The decision stipulated that it could be appealed against to an
investigating judge. The applicant did not appeal against the decision.
On 25 May and 16 June 2005, the applicant
lodged complaints with the Parliamentary Ombudsman.
On 5 August 2005 the Ombudsman found the
applicant’s complaint valid. He noted that under Article 182 § 2 of the CCP
investigating officers had the possibility to call a person for questioning orally,
without notifying him about it in writing. This could be done, for example, by
a telephone call or via family members of the person invited. He stressed that the
provision simply referred to the “transfer of a message (informacijos
perdavimas)” that a person ought to come for questioning. However, in the
applicant’s case, on 25 May 2005 at about 10 or 11 a.m., the SBGS officers
had not merely conveyed a message to her, but had in fact taken her in [by
force, atvesdino] or even arrested her. On this point the Ombudsman also
referred to the written reply by the Head of the SBGS Vilnius Office to the
effect that the officers who went to the applicant’s workplace had demanded (buvo
pareikalauta) that she go with them so that she could not contact the other
suspects and thereby obstruct the investigation.
In the same written reply to the Ombudsman, the Head
of the SBGS Vilnius Office also said that once the applicant had been taken to
their headquarters, she had told the officers that she knew nothing about the
car accident; accordingly, she had not been questioned as a witness. For the
Ombudsman, however, the SBGS officers’ actions when trying to find out whether
the applicant knew anything about the crime they were investigating had been
nothing less than questioning. Such questioning had to be recorded in writing, in
accordance with Article 183 of the CCP. Given that no record of questioning had
been drawn up until 3 p.m., the Ombudsman considered that, until that time, the
applicant had been held at the SBGS headquarters without a reason, and thus
unlawfully.
The Ombudsman further noted that as of
3 p.m. the applicant had been arrested on suspicion of having committed
fraud and on the ground that she might attempt to abscond from the
investigation. No sufficiently strong evidence had been submitted to him to
justify the applicant’s arrest. Furthermore, the prosecutor in charge of the
investigation had not subsequently asked a court to sanction the applicant’s
detention. Lastly, for the Ombudsman, there was no reasonable explanation as to
why the fraud relating to the car accident should have been investigated by the
SBGS officers.
Whilst conceding that it was not within his
competence to assess the validity of the actions taken during the pre-trial
investigation, on the basis of above considerations the Ombudsman concluded
that the conduct of the SBGS investigators had had the sole aim of exerting
psychological pressure on the applicant.
The Ombudsman also considered that the actions
of the SBGS officers had given rise to a suspicion that they had committed a
crime. As a result, he notified the Office of the Prosecutor General about the
matter. The Minister of the Interior was also to be informed about the episode so
that such incidents could be avoided in future.
In their reply of 23 September 2005 to a complaint
lodged by the applicant on 16 June 2005, the SBGS noted that the applicant’s
allegations about abuse of power by its officers when arresting her had already
been dismissed by the prosecution. The officers who had taken part in the
applicant’s arrest and their superiors had nevertheless been urged to take into
consideration the Ombudsman’s conclusions and to ensure that similar incidents were
not repeated in future.
C. Outcome of the criminal proceedings for insurance
fraud
By a decision of 25 November 2005, criminal
proceedings against G.B. for insurance fraud were discontinued because of his
death. For the same reason, proceedings against G.B. in respect of other
charges pending against him (for forgery of an official document and smuggling
people over the State border) were also terminated.
By a ruling of 5 January 2006, the
pre-trial investigation into the charges of fraud by the applicant was
discontinued. The prosecutor noted that the applicant had been notified that
she was suspected of the crime on 26 May 2005. However, she had refused to
testify on those charges. Neither Š.S. nor G.B. had confirmed the applicant’s
involvement in the crime. As the applicant and G.B. had been friends, it could be
only assumed that she had known about the fraud. Yet, this mere assumption was
not sufficient evidence to prove her guilt.
On 11 July 2006 the Vilnius City First
District Court found that Š.S. had committed fraud by simulating a car accident
on 16 December 2004. However, the court relieved Š.S. of criminal liability as
he had fully acknowledged his guilt and settled with the insurance company.
D. Civil proceedings for damages on account of the
applicant’s arrest
The applicant instituted civil proceedings for
the damage sustained as a result of her allegedly unlawful arrest and
questioning. She argued that the SBGS officers had exceeded their powers,
because it was not within their competence to investigate crimes concerning road
accidents. The applicant maintained that by being arrested at her workplace she
had been humiliated in front of her colleagues and her reputation had been
tarnished. Her arrest had been made public in the newspapers and on television.
Her family and friends had learned about it, which had affected her relationship
with them. The applicant maintained that on 25 May 2005 she had been
interrogated at the SBGS Vilnius headquarters and forced to incriminate herself.
No lawyer had been present, her rights had not been explained to her and she
had not been allowed to make a telephone call. She complained that her rights
under Article 5 of the Convention had been violated and claimed 4,350
Lithuanian litai (LTL) for pecuniary damage, LTL 100,000 for non-pecuniary
damage and LTL 2,000 for litigation costs.
At the Vilnius Regional Court hearing on
16 November 2006, the applicant’s employer, the manager of the Fortas
restaurant, testified that on 25 May he had received a telephone call from
her. The applicant had explained that she had been arrested because of a car
accident. He said that there were “such stereotypes in society that after someone
has been arrested, others regard them with considerable suspicion”. Two
waitresses who had been working with the applicant the day “when the applicant
was arrested” testified that “the applicant was taken away quickly”, the
officers “showed identification of some kind” and “demanded that the applicant
went with them”, one waitress had seen “how the officers took the applicant
with them”. The applicant’s colleagues also testified that the events had surprised
them, and, although for that day they had remained without a supervisor, “there
was no panic among the colleagues, but they asked each other what had happened.
Everyone was interested to know what had happened”. The applicant’s lawyer
maintained that his client had been taken from her workplace by force. He also
argued that such actions in front of the applicant’s colleagues had stained her
reputation. The applicant had left her job four months later.
On 30 November 2006 the Vilnius Regional
Court dismissed the applicant’s claims. It found that the applicant had been
suspected of having committed fraud and arrested for fear that she would flee
from justice or commit new crimes. The SBGS officers had jurisdiction in the
applicant’s case on the basis of the prosecutor’s decision of 23 May 2005.
The court also referred to the Court’s judgment in Labita v. Italy ([GC],
no. 26772/95, ECHR 2000-IV) to the effect that the fact that the applicant’s
case had not gone to trial at a later stage did not mean that her arrest during
the criminal investigation had been unlawful as such. The prosecutor’s decision
to discontinue the pre-trial investigation in respect of the applicant did not
mean that the investigative measures had been unlawful, since the pre-trial
investigation had been discontinued because of lack of evidence.
The first-instance court noted that reports of
the applicant’s arrest and questioning as a suspect had been made “after the
applicant’s arrest”, although the court did not specify the exact time when the
arrest had taken place. Moreover, as the applicant had conceded at the hearing,
“on the day of her arrest” she had been allowed to have a lawyer. Lastly, the
court noted that the applicant’s claims about her arbitrary arrest and
questioning had been dismissed by the prosecutor and the SBGS on 13 June
and 21 July 2005 respectively.
The applicant appealed, reiterating her
complaint about abuse of powers by the SBGS. In the applicant’s view, it was
not logical to have her arrested half a year after the car accident. The reason
given to justify her arrest and detention - that she might hide from the
investigators - had been even more preposterous given that there had been no
evidence that she intended to flee. She invoked Article 5 of the Convention.
At the Court of Appeal hearing of 8 May
2007 the applicant’s lawyer argued that his client had been arrested at her
workplace and detained for two days, partly in the SBGS’s Vilnius headquarters.
She had been pressured to give evidence against G.B. The SBGS officers had acted
outside their jurisdiction.
The representatives of the State, which was the defendant in
the civil proceedings for damages, maintained that the SBGS did have jurisdiction
to investigate the crime of insurance fraud. The applicant had been arrested
“on 25 May” and charged with fraud “on 26 May”. Above all, they stressed that the
applicant had been merely “invited” to accompany the SBGS officers when they had
arrived at her workplace. No incidents took place at the “Fortas” restaurant
and the applicant had accompanied the officers calmly.
By a ruling of 22 May 2007 the Court of
Appeal concurred with the lower court’s conclusion that the prosecutor’s
decision to discontinue criminal proceedings in respect of the applicant did
not mean that her arrest had been unlawful as such. Moreover, the proceedings
against the applicant had been discontinued because of lack of evidence and not
for reasons of rehabilitation. The appellate court noted that the applicant’s
complaints that the SBGS officers had abused their powers had been dismissed by
the prosecutor. That being so, the court nevertheless emphasised that it had
competence to hear the applicant’s civil claim for damages, even though she had
not appealed against the prosecutor’s decision to drop the criminal charges
against the officers. On this point it referred to the Supreme Court’s ruling
in civil case no. 3K-7-183/2006 (see paragraph 50 below).
The Court of Appeal also held that “on
25 May 2005 the applicant had been arrested at 3 p.m.” According to the
court, the applicant had not been arrested at her workplace; the officers had
merely “invited” her to go with them for questioning, in accordance with
Article 182 § 2 of the Code of Criminal Procedure. There was no evidence in the
case file that by inviting the applicant for questioning in the manner
regulated by the above provision, the SBGS officers had breached the law. For
the court, “the fact that before arresting her, notifying her of the charges
and questioning her as a suspect [all at 3 p.m.], the officers had discussed
with her the circumstances relating to a pre-trial investigation, without making
a record of that conversation, did not disclose any unlawfulness, because a conversation
[between the applicant and the officers] and questioning were two separate
notions”. Accordingly, the appellate court dismissed the applicant’s civil
claim, which she had based on Article 6.272 of the Civil Code and Article 5 of
the Convention.
The applicant lodged three appeals on points of
law, which, on 18 July and 13 and 24 August 2007, the Supreme Court
refused to examine as raising only questions of fact and thus giving no grounds
for cassation.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Article 20 of the Constitution of the Republic of Lithuania provides that the freedom of a human being is inviolable. No one
may be arbitrarily detained or arrested. No one may be deprived of his freedom,
except on grounds and according to procedures established by law. A person
detained in flagrante delicto must be brought before a court within 48
hours for the purpose of obtaining a decision, in the presence of the detainee,
on the validity of the detention. If the court does not decide that the
detainee should be arrested, he or she will be released immediately.
In an opinion of 24 January 1995, the Constitutional Court held that Article 5 of the Convention was in compliance with Article 20
of the Lithuanian Constitution.
Article 31 of the Constitution provides that a
person suspected of committing a crime will be guaranteed, from the moment of his
or her detention or first questioning, the right to defend himself and the
right to a lawyer.
Article 182 of the
Criminal Code provides for criminal liability for fraud. The offence is
punishable by community service, a fine, restriction of liberty, arrest, or
imprisonment for a term of up to three years. A pre-trial investigation of the
crime of fraud may be started only on the basis of a complaint by a victim or
by a prosecutor’s order (Article 167 of the Code of Criminal Procedure).
The Code of Criminal Procedure provides that a witness
is any person who has knowledge about circumstances relevant to a criminal case
(Article 78). A witness has the right to have an audio or video recording made of
his testimony. He has the right to read the record of his testimony, make
corrections and write his own testimony (Article 81 §§ 2 and 4). Anyone called as a witness must testify before the pre-trial
investigation officer, failing which he may be fined or arrested (Articles 83
and 167).
A prosecutor or an investigator may provisionally
arrest a person caught in flagrante delicto. Provisional arrest is also possible
if there is a reasonable assumption that the person may obstruct the course of justice
by influencing other suspects or commit further offences. Provisional arrest
may last up to forty-eight hours without the authorisation of a judge (Articles
122 and 140).
The Code of Criminal Procedure also provides
that any investigative measure, such as the questioning of a witness or
suspect, must be recorded. The measure may be documented by audio or video
recording or by other means. The record must be drawn up while the investigative
measure is being taken (tyrimo veiksmo metu) or immediately thereafter.
The record must state the place and time of the measure and the persons
present. The investigating officer and all those present must sign the record.
If the person in respect of whom the measure was taken refuses to sign the
record, this must also be noted in the record (Article 179 of the Code).
Concerning the way in which a person may be
called for questioning, the Code of Criminal Procedure reads as follows:
Article 182. Summons for questioning
“1. A person shall be called for questioning by
summons. The summons shall indicate: the person to be summoned and for what
purpose, the place and to whom he is being summoned, the date and time when he
has to appear, and the consequences of failure to appear, as provided for in Article
163 of the Code.
2. A person may also be summoned for questioning by
telephone or in any other way. In such cases, coercive procedural measures
provided for in Article 163 of this Code may not be taken for failure to appear.”
The Code then defines the rules for questioning
witnesses and suspects. Article 183 of the Code provides that before
questioning a witness, an investigator must explain his rights to him under
Articles 81 and 83 of the Code, as well as liability for false testimony. The
witness confirms that he has understood by signing the record. The investigator
then asks the witness to tell everything he knows about the case. Lastly, the witness’s
testimony is recorded in accordance with Article 179 of the Code (see above).
Before questioning a suspect, an investigator must tell him what
crime he is suspected of and explain his rights to him (Article 187). The
suspect is then asked whether he confesses and is offered the opportunity to
testify about the circumstances of the crime. As in the case of witnesses, his
questioning is recorded in accordance with the requirements of Article 179 of
the Code.
The Law on the State Border Guard Service provides
that when exercising the pre-trial investigation functions assigned to it, the Service
operates in the entire territory of the State (Article 2 § 6). Upon receiving
information that a crime may have taken place, a prosecutor decides which
pre-trial investigation institution is competent to carry out a particular
investigation, and assigns the case to it. Afterwards, the designated institution
may take all the investigative measures provided for by the Code of Criminal
Procedure (Articles 171 and 172 of that Code).
As regards civil liability for damages, Article
6.272 § 1 of the Civil Code provides that damage caused as a result of unlawful
arrest as a measure of oppression, from unlawful detention, or the application
of unlawful procedural measures of enforcement, will be compensated fully by
the State, irrespective of whether the officials involved in the preliminary
investigation or prosecution were at fault. Article 6.272 § 3 stipulates that
in addition to compensation for pecuniary damage, the aggrieved person is
entitled to compensation for non-pecuniary damage.
On 7 June 2006 the Supreme Court ruled that
Article 6.272 § 1 was a directly applicable legal norm. A court of civil
jurisdiction could rely on it irrespective of whether the procedural measures which
had allegedly caused damage to the plaintiff had been challenged in other
[criminal] proceedings. Furthermore, even if in criminal proceedings it had
been established that the measures taken by the pre-trial investigators had
been lawful, a civil court was free to find that those measures had caused
damage to the claimant if all the circumstances examined in the civil
proceedings so proved (ruling in civil case no. 3K-7-183/2006).
Concerning civil liability and redress, the
Supreme Court, in a decision of 21 December 2007 in civil case
no. 3K-3-506, held as follows:
“When deciding the question of redress within the meaning of
Article 6.272 of the Civil Code, ... the parties must prove all the
circumstances by which they justify their claims, except where the claims are
based on circumstances that [do not have to be proven]. These circumstances are
listed in Article 182 of the Code of Civil Procedure. The Supreme Court has
held that facts established by the decisions of the pre-trial investigation
institutions (prosecutors), contrary to those established by a court judgment
or decision, are not binding (prejudiciniai) within the meaning of
Article 182 §§ 2 and 3 of the Code of Civil Procedure ... Therefore,
according to the statutory regulations and the case-law of the courts, the
court deciding questions concerning the redress provided for by Article 6.272
of the Civil Code, where the claim for redress has been lodged regarding a remand
measure unlawfully imposed by a pre-trial investigation officer, may justify
its findings with any factual data, on the basis of which it shall establish
the circumstances substantiating the claims of the parties and other
circumstances relevant for the resolution of the case...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The applicant complained that on 25 May
2005 she had been arbitrarily deprived of her liberty, in breach of Article 5 § 1 of the Convention, which reads, in so far as
relevant, 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:
(...)
(b) the lawful arrest
or detention of a person for non-compliance with the lawful order of a court or
in order to secure the fulfilment of any obligation 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; ...”
A. The parties’ submissions
1. The applicant
The applicant argued that the SBGS officers had
arbitrarily deprived her of her liberty. She maintained that on 25 May
2005 at about 10.30 a.m., two officers had arrived at Fortas restaurant, where
she was working as a supervisor, and had asked her to go with them. Although
the domestic courts had found that the applicant had not been detained in her
workplace and that the officers had merely asked her to accompany them for a simple
conversation, the assessment of the officers’ actions did not correspond to the
reality and should be viewed critically. As determined by the Ombudsman, the actions
of the SBGS officers could not be regarded as an invitation for an interview
because they did not comply with Article 182 § 2 of the Code of Criminal
Procedure. That provision indeed provided that a person could be summoned orally.
However, it did not restrict his or her decision whether to attend; the legal
consequences of such measures were listed in Article 182 § 1. In the instant
case it was clear that the applicant had not had any freedom of choice or the
right to refuse the SBGS officers’ order. Moreover, she had been obliged to accompany
them in their car, without the opportunity to use a mobile telephone or contact
a lawyer. Nor had the applicant been allowed to complete her shift, even though
she had asked the officers to wait until midday when another employee could have
replaced her. The applicant maintained that she had been threatened with the “use
of special measures”, should she not agree to go with the officers.
Accordingly, it was not viable to state that she had been “invited” for
questioning.
The applicant accordingly considered that she had
actually been detained at her workplace as of 10.30 a.m. on 25 May 2005. For
the following five hours, she had not been allowed to make a telephone call,
her mobile telephone and other possessions having been taken away from her. According
to the search record, the mobile telephone had been taken from her at between 3.15
and 3.40 p.m. However, had that been true, she could have called her lawyer
earlier; she had not done so because she had been unable to act freely. For the
applicant, it was also critical to note that she had had no means or possibility
of recording the officers’ unlawful actions when they had been questioning her
regarding the car accident investigation. On this point she also observed that
in accordance with Article 21 § 4 of the Code of Criminal Procedure, a suspect had
the right to a lawyer from the “moment” of his or her arrest or interrogation.
In her case, the SBGS officers had questioned her for a whole five hours,
without any record being drawn up and denying her a lawyer.
The applicant also submitted that the report of
her provisional arrest had been falsified: the officers’ statement that she had
been arrested at Vilnius International Airport had been made with the sole aim
of obtaining jurisdiction to arrest her. This should not have been considered
as a merely technical error, although the domestic courts had appeared to
consider it as such. The officers should have been punished for falsification, but
had been excused following the finding that they had made a “technical
mistake”.
The applicant also disputed the contention that
it had been appropriate to hold her under provisional detention on the basis of
Article 140 of the Code of Criminal Procedure. In her case there were no
such grounds, because she had not been caught in flagrante delicto
and had had no intention of absconding.
The applicant was also dissatisfied that all the
complaints that she had lodged with the prosecutors had been without result.
Lastly, she argued that by being arrested at her
workplace and in the presence of all her colleagues she had been discredited. She
maintained that since the events of 25 May 2005 she had felt unsafe in Lithuania, and had therefore suffered serious non-pecuniary damage.
2. The Government
The Government submitted, firstly, that the complaint
was inadmissible for failure to duly exhaust the domestic remedies. As regards the
lawfulness of her arrest, the applicant had failed to address the competent
authorities on a number of occasions, although she had been assisted by a
lawyer at all times. The institution she had applied to was the Ombudsman,
whose conclusions were merely of a recommendatory nature. As the Ombudsman himself
had conceded, he did not have the competence to assess the lawfulness and
reasonableness of procedural measures taken by the investigating officers.
The applicant’s complaints had then been
examined by the prosecutors, who had dismissed them on 13 June and 21 July
2005. The applicant had failed to appeal against those decisions to higher
prosecutors and the criminal courts.
Alternatively, the Government maintained that
the applicant’s complaint was not founded. Their argument was as follows.
First, it was essential to note that the
applicant had been provisionally arrested in the context of a pre-trial
investigation into insurance fraud, committed by a group of persons. It had
been important to question all three persons - the applicant, Š.S. and G.B. -
at the same time so that they could not talk to each other and corroborate each
other’s versions. There had been a reasonable suspicion that the applicant had
been involved in that crime. When deciding to question the applicant, the
authorities had also taken into account that she and G.B. had been in close
contact. The pre-trial investigation had eventually been discontinued because
of G.B.’s death. As to the applicant, the investigation had been discontinued
because of lack of evidence, which the Government considered to be a
non-rehabilitating ground.
Furthermore, contrary to the Ombudsman’s conclusions,
the domestic courts had found that the SBGS officers had had the authority to
carry out the pre-trial investigation in the applicant’s case. The SBGS’s powers
derived from Articles 165, 171 and 172 of the Code of Criminal Procedure and
Article 2 of the Law on State Border Guard Service. On that basis the officers
of the Service had had full authority to take all the necessary investigative
measures, including any coercive measures necessary for the speedy
investigation of the crime, in the entire territory of the State.
Next, it was necessary to identify the moment
from which the applicant could have been considered as deprived of her liberty.
On this point the Government maintained that the applicant had not been
arrested at her workplace. Rather, she had been “invited” by the SBGS officers
to accompany them for questioning, although the Government did not specify
whether as a witness or as a suspect. The domestic courts had reached the same
conclusion and, moreover, had not established that the applicant had refused to
accompany the officers. Also, contrary to the applicant’s allegation, it had
not been established that the officers had threatened her when inviting her for
questioning. The civil courts had also dismissed that accusation as
unsubstantiated. Hence, a clear distinction had to be made between the
invitation for questioning at the applicant’s workplace and the moment of her true
arrest. Accordingly, in the Government’s view, the applicant had been provisionally
arrested at 3 p.m. on 25 May 2005 and only from that moment had she been deprived
of her liberty. Furthermore, it had not been proven that the officers had taken
any procedural measures - until the moment of the applicant’s arrest at 3 p.m.
- that would have placed the applicant in a procedurally vulnerable position.
As to the legal grounds for depriving the applicant
of her liberty, she had been provisionally arrested (sulaikyta) pursuant
to Article 140 of the CCP which, in turn, referred to Article 122 of the CCP. In
that the Government appeared to argue that the applicant’s arrest had been based
on the likelihood of her absconding or obstructing justice in the criminal case
for insurance fraud. Furthermore, under the domestic law, the detention could
last no longer than 48 hours, and this rule had been observed in the instant
case, given that the applicant had been released from provisional arrest at 6
p.m. on 26 May, once the last and main suspect in the fraud case, G.B., had
been questioned.
Whilst acknowledging the discrepancy as regards
the place of the applicant’s provisional arrest indicated in the arrest report,
the Government submitted that that had been a technical mistake. The civil
courts had reached the same conclusion. Furthermore, had the officers talked to
the applicant without drawing up a record, the information thus obtained could
not have been used against her in judicial proceedings and would have been excluded
from the evidence. Therefore, and referring to Mooren v. Germany ([GC],
no. 11364/03, § 84, 9 July 2009),
the Government were certain that the applicant’s provisional arrest had not rendered
the underlying detention unlawful within the meaning of Article 5 § 1 of the
Convention.
In the light of the foregoing arguments the
Government maintained that the applicant’s deprivation of liberty had been in
accordance with the procedure prescribed by law and there were no indications
of alleged arbitrariness on the part of the SBGS officers.
B. The Court’s assessment
1. Admissibility
The Court first turns to the Government’s
argument that the applicant failed to properly exhaust the available domestic
remedies, as she did not appeal against the prosecutor’s decisions of 13 June
and 21 July 2005 dismissing her complaints that the SBGS officers had
abused their authority and unlawfully deprived her of her liberty. Whilst
sharing the Government’s observation as to the facts, it notes, nevertheless,
that the applicant made full use of the remedy provided by the civil law
procedure.
For the Court, in the circumstances of the
instant case, it appears that both avenues - the criminal law one and the civil
law one - could, in principle, if pursued successfully, have led to a decision
determining that the SBGS officers had exceeded their powers during the events
of 25 May 2005. Above all, the Court notes the appellate court’s conclusion to
the effect that the applicant’s failure to appeal against the prosecutor’s
decision did not bar her from lodging a civil complaint so that the alleged
misconduct of the investigating officers could be assessed in the framework of
civil litigation (see paragraph 36 above). In this context the Court also lends
considerable weight to the case-law of the Lithuanian Supreme Court, which held
that the decisions of investigating officers in criminal proceedings, unlike
those of a court, were not binding upon the courts of civil jurisdiction
adjudicating a claim for damages (see paragraph 51 above). Lastly, given that
in her application to the Court the applicant argued, inter alia, that
her reputation had been tarnished by her arrest at her workplace, and
complained under Article 5 § 5 that she had not received pecuniary compensation
for her suffering, the Court sees no ground to hold that, in the light of the facts pertinent to the present case, there
was a particular reason for the applicant to pursue, till the end, a criminal law
remedy in addition to a civil law one, the effectiveness of which, all the more
so, has not been disputed by the Government (see paragraph 84 below).
. Accordingly,
the Court finds that the applicant has exhausted the domestic remedies. The
Court further notes that the complaint under Article 5 § 1 of the
Convention is not inadmissible on any other grounds. It must therefore be
declared admissible.
2. Merits
(a) Whether there was a deprivation of liberty
. According
to the Court’s case-law, in order to determine whether there has been a
deprivation of liberty, the starting-point must be the specific situation of
the individual concerned, and account must be taken of a whole range of factors
arising in a particular case, such as the type, duration, effects and manner of
implementation of the measure in question (see Guzzardi v. Italy, 6 November 1980, § 92, Series A no. 39). The Court must
look beyond the appearances and concentrate on the realities of the situation
complained of (see Van Droogenbroeck v. Belgium, 24 June 1982, § 38,
Series A no. 50).
. The
right to liberty is too important in a “democratic society”, within the meaning
of the Convention, for a person to lose the benefit of the protection of the
Convention for the single reason that he gives himself up to be taken into
detention. Detention may violate Article 5 even though the person concerned has
agreed to it (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A no. 12; Osypenko
v. Ukraine, no. 4634/04,
§ 48, 9
November 2010).
. In
the present case it is disputed by the parties whether at about 10.30 a.m. on
25 May 2005 the applicant accompanied the SBGS officers to their Vilnius headquarters of her own free will or as a result of mental coercion by the officers.
In this context the Court notes that during the civil proceedings the applicant’s
colleagues at the “Fortas” restaurant testified that “the applicant was
arrested”, “the applicant was taken away quickly”, the officers “showed
identification of some kind” and “demanded that the applicant went with them”, and
“the officers took the applicant with them”. Even though
in their decisions the civil courts did not mention that evidence, the Court
finds that it gives certain credibility to the applicant’s argument that there
was an element of coercion which affected the applicant’s liberty and that she
was arrested already at her workplace. Furthermore, the fact remains that from
the moment the applicant was taken to the SBGS’s premises, the investigators
questioned her about the insurance fraud. This element was acknowledged by the Head
of the SBGS Vilnius Office (see paragraph 22 above). It
has not been contended by the Government, and it would be unrealistic to assume,
that during that period of her questioning and until her “official” arrest at 3
p.m. the applicant was free to leave the SBGS’s Vilnius headquarters at will,
particularly bearing in mind that the Service officers apparently believed that
she had been G.B.’s accomplice and were carrying out investigative measures in
the criminal proceedings that had been instituted against her two days before
her questioning (see Osypenko, cited above,
§ 49).
. Lastly,
the Court recalls that Article 5 § 1 of the Convention may also apply to
deprivation of liberty of a very short duration (see, for instance, Guenat v. Switzerland, no.
24722/94, Commission decision of 10 April 1995, Decisions and Reports (DR)
81, p. 134; and, more recently, Creangă v. Romania [GC], no. 29226/03, § 93, 23
February 2012). It also considers that the
applicants’ involuntary stay at the SBGS’s premises had not been dictated by
the strict necessity to accomplish certain formalities (see, in contrast, Foka
v. Turkey, no. 28940/95, § 75, 24 June 2008), and
that the SBGS officers had acted far from “humanitarian considerations” (see Guenat).
In these circumstances, the Court
concludes that between 10.30 a.m. and 3 p.m. on 25 May when the Service
investigators drew up the report of her provisional arrest, she was de facto
deprived of her liberty within the meaning of Article 5 § 1.
(b) Compliance with Article 5 § 1 of the Convention
. The
Court reiterates that Article 5 of the Convention enshrines a fundamental
right, namely the protection of the individual against arbitrary interference
by the State with his or her right to liberty. In proclaiming the “right to
liberty”, paragraph 1 of Article 5 contemplates the physical liberty of the
person; its aim is to ensure that no one is deprived of that liberty in an
arbitrary fashion. The Court also points out that paragraph 1 of Article 5
makes it clear that the guarantees it contains apply to “everyone”. Sub-paragraphs (a)
to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on
which persons may be deprived of their liberty, and no deprivation of liberty
will be lawful unless it falls within one of those grounds. Where the
“lawfulness” of detention is at issue, including the question whether “a
procedure prescribed by law” has been followed, the Convention refers
essentially to national law and lays down the obligation to conform to the
substantive and procedural rules of national law. Compliance with national law
is not, however, sufficient: Article 5 § 1 requires in addition
that any deprivation of liberty should be in keeping with the purpose of
protecting the individual from arbitrariness. It is a fundamental principle
that no detention which is arbitrary can be compatible with Article 5 § 1 and
the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of
conformity with national law, so that a deprivation of liberty may be lawful in
terms of domestic law but still arbitrary and thus contrary to the Convention
(see Creangă, cited above, § 84).
The Government appeared to argue that the
applicant’s arrest had been necessary for the effectiveness of the pre-trial
investigation because she had been a suspect in an insurance fraud case. The
SBGS officers had had full jurisdiction to investigate that crime. The applicant’s
arrest thus could be justified under sub-paragraph (c) of
Article 5 § 1 of the Convention.
On the facts of the case the Court observes that
on 23 May 2005 the prosecutor did indeed order the Vilnius city SBGS officers
to open a pre-trial investigation on the basis that one of their colleagues
was suspected of having committed a crime of fraud. It also notes that under Articles
167, 171 and 172 of the Code of Criminal Procedure, and Article 2 § 6 of the
Law on State Border Guard Service, the SBGS officers are allowed to conduct
pre-trial investigations. The Court thus finds that the officers had the competence
to take investigative measures in respect of the applicant.
The Court notes that the parties dispute the
applicant’s status until 3 p.m. of that day, when the record of her
provisional arrest was drawn up. The applicant contended that she had been
treated as a suspect, while the Government appeared to maintain that the
applicant had merely had a conversation with the investigators and thus did not
yet have the status of suspect.
Be that as it may, the Court cannot overlook the
fact that, in pursuance of Article 179 of the Code of Criminal Procedure, an
investigating officer is under an obligation to draw up a report of the questioning
of a suspect or a witness, either from the moment of questioning or immediately
afterwards. The Court has already found that during the time at issue the
applicant was questioned by the investigators, yet no record of her questioning
was drawn up. Accordingly, the applicant did not have her rights explained to
her, in accordance with Articles 183 and 187 of the CCP (paragraph 47 above),
either as a witness or as a suspect. In this context the Court notes that a
record of the applicant’s questioning as a suspect was not drawn up until the
following day at 4.15 p.m. (see paragraph 14 above). The Court finds this
particularly troubling, given that the investigating officers appear to have
relied on tactics where someone was first brought to their premises to testify as
a witness or even in an unspecified capacity, while in reality they considered
that person to be a suspect. Such approach may deprive the alleged suspect of
the procedural guarantees that follow from the requirements of fair trial (see,
mutatis mutandis, Salduz v. Turkey [GC], no. 36391/02, § 54, ECHR
2008). That being so, the Court finds that the SBGS officers’ intention was to
threaten the applicant in order to extract information from her about the crime
they were investigating.
Lastly, the Court has had occasion to hold that the absence of an arrest record must in itself be considered a
most serious failing, as it has been the Court’s constant view that unrecorded
detention of an individual is a complete negation of the fundamentally
important guarantees contained in Article 5 of the Convention and discloses a
most grave violation of that provision. The absence of a record of such details
as the date, time and location of detention, the name of the detainee, the
reasons for the detention and the name of the person effecting it must be seen
as incompatible with the requirement of lawfulness and with the very purpose of
Article 5 of the Convention (see Fedotov v. Russia, no. 5140/02,
§ 78, 25 October 2005; Menesheva v. Russia,
no. 59261/00, § 87, ECHR 2006-III; and Belousov
v. Russia, no. 1748/02, § 72, 2 October 2008).
In the instant case the Court has already concluded that as of 10.30 a.m. on 25
May 2005 the applicant was under the control of the Service officers. Whilst
acknowledging that the record of her provisional arrest was drawn up some four hours
later, the Court nonetheless observes that that document indicated the
applicant’s arrest time as 3 p.m. The lack of a proper record of the applicant’s
arrest is therefore sufficient for the Court to hold that her confinement for
that time was in breach of Article 179 of the CCP (paragraph 45 above), which
provides that each investigative action must be documented, and contrary to the
requirements implicit in Article 5 of the Convention for the proper recording
of deprivations of liberty (see, mutatis mutandis, Anguelova
v. Bulgaria, no. 38361/97, § 157, ECHR 2002-IV; Menesheva, cited above, §§ 87-89; and Belousov, cited
above, § 73). Given the SBGS officers’ intentional omission
to apply the relevant legislation correctly, the Court also finds that
the applicant’s detention until 3 p.m. was “arbitrary” (see
Mooren, cited above, §
78).
. In
the light of foregoing considerations, the Court holds that here has been a
violation of Article 5 § 1 of the Convention on account of the applicant being
deprived of her liberty from 10.30 a.m. to 3 p.m. on 25 May 2005.
II. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE
CONVENTION
The applicant also complained that the dismissal
of her civil action for damages for her unlawful arrest was in breach of Article
5 § 5 of the Convention, which reads as follows:
“Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an enforceable right
to compensation.”
A. The parties’ submissions
The applicant argued that her arrest at her
workplace in front of her colleagues had humiliated her and tarnished her
reputation. She alleged that the SBGS officers who had arbitrarily detained her
had harassed and intimidated her, and she had lost her sense of security. However,
the civil courts had refused to hold the SBGS officers accountable for their
unlawful actions and to award the applicant compensation.
The Government submitted that the applicant had
an effective and enforceable right to compensation for allegedly unlawful
detention. She had exercised that right successfully by lodging a civil claim
for damages with the domestic courts on the basis of Article 6.272 of the Civil
Code. The civil claim had been examined without arbitrariness and dismissed as
unfounded. It followed that the requirements of Article 5 § 5 of the Convention
had been met in the instant case.
B. The Court’s assessment
The Court reiterates that
Article 5 § 5 guarantees an enforceable right to compensation to those who have
been the victims of arrest or detention in contravention of the other
provisions of Article 5 (see Steel and Others v. the United Kingdom,
23 September 1998, § 81, Reports of Judgments and Decisions 1998-VII).
. In
the present case the Court has found a violation of Article 5 § 1, in
conjunction with which the present complaint is to be examined. It follows that
Article 5 § 5 of the Convention is applicable. The Court must therefore
establish whether Lithuanian law afforded the applicant an enforceable right to
compensation for the breach of Article 5 § 1 of the Convention in her case.
The Court notes that the issue
of compensation for unlawful arrest is regulated in Lithuania by Article 6.272
of the Civil Code, which provides that the State will compensate a person for pecuniary
and non-pecuniary damage he or she has sustained as a result of the unlawful
actions of investigating officers. As the Supreme Court held in case no. 3K-7-183/2006,
a court of civil jurisdiction could apply that legal provision irrespective of
whether the procedural actions which had allegedly caused damage to the
plaintiff had been challenged in criminal proceedings. Furthermore, even if in
criminal proceedings it had been established that the actions of the pre-trial
investigators were lawful, a civil court was free to find that those actions had
caused damage to the claimant if all the circumstances examined in the civil
proceedings so proved (see paragraph 50 above). Likewise, the Court draws
attention to ruling no. 3K-3-506 by the Lithuanian Supreme Court, in
which it held that the decisions of the investigative officers and prosecutors did
not have a prejudicial value when assessing whether particular actions by the
investigating authorities had been lawful (see paragraph 51 above). The Court
notes that in the instant case the applicant’s civil claim for pecuniary and
non-pecuniary damages was dismissed as unfounded. Yet the Court is reluctant to
find that this fact, in itself, is sufficiently conclusive to hold that no legal procedure was envisaged for bringing proceedings in order
to seek compensation for the deprivation of liberty found by the Strasbourg
Court to be in breach of one of the other paragraphs of Article 5 (see, for the
opposite conclusion, Klishyn v. Ukraine, no. 30671/04, §§ 97 and 98, 23 February 2012).
. Against
this background, the Court finds that the applicant had an enforceable right to
compensation for her unlawful detention, as required by Article 5 § 5 of
the Convention. There has, therefore, been no violation of that provision.
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 350 Lithuanian litai (LTL;
approximately 100 euros (EUR)) in respect of pecuniary damage, for clothes
spoiled during her detention. She admitted, however, that she had no documents
to support the claim. She also claimed LTL 345,000 (approximately EUR 100,000)
in respect of non-pecuniary damage.
The Government disputed the claims as
unsubstantiated and excessive.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, it awards the applicant EUR 7,500 in
respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed LTL 4,000 (EUR 1,160)
and LTL 2,000 (EUR 580) for the legal costs and expenses incurred before the
domestic courts in criminal and civil proceedings respectively, and LTL 5,000 (EUR 1,150)
for those incurred before the Court. Lastly, she submitted a copy of a bank
transfer in the sum of LTL 720 (EUR 210) for translation costs in connection
with the Court proceedings.
The Government argued that the expenses incurred
for the applicant’s legal representation in the criminal proceedings were
irrelevant to the instant case before the Court. They also submitted that the
remaining claims had not been properly substantiated.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court rejects the claim
for costs and expenses in the domestic proceedings before the domestic courts
of criminal jurisdiction. However, the Court considers it reasonable to award
the sum of EUR 2,000 for the costs and expenses in the proceedings before the
domestic courts of civil jurisdiction and before the Court.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares the application admissible;
2. Holds that there has been a violation of
Article 5 § 1 of the Convention;
3. Holds that there has been no violation of
Article 5 § 5 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into Lithuanian litas at the rate
applicable at the date of settlement:
(i) EUR 7,500 (seven thousand five hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax
that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement, simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s claim
for just satisfaction.
Done in English, and notified in writing on 11 December
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
