(Applications nos. 66004/01 and 36996/02)
16 November 2006
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 Vaivada v. Lithuania,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Mr B.M. Zupančič,
Mr J. Hedigan, appointed to sit in respect of Lithuania,
Mr C. Bîrsan,
Mr V. Zagrebelsky,
Mr E. Myjer,
Mr David Thór Björgvinsson,
Mrs I. Ziemele, judges,
and Mr V. Berger, Section Registrar,
Having deliberated in private on 24 October 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. Relevant domestic law and practice
Article 104 (in force from 21 June 1996) reads:
“Detention on remand shall be used only ... in cases where a statutory penalty of at least one year's imprisonment is envisaged.
The grounds for detention on remand shall be the reasoned suspicion that the accused will:
(1) abscond from the investigation and trial;
(2) obstruct the determination of the truth in the case [influence other parties or destroy evidence];
(3) commit new offences ... whilst suspected of having committed crimes provided in Articles ...  [cheating,] 275 [embezzlement] of the Criminal Code ...”
Article 104-1 (in force from 21 June 1996 to 24 June 1998) reads:
“... [T]he arrested person shall be brought before a judge within not more than 48 hours ... The judge must hear the person as to the grounds of the arrest. The prosecutor and counsel for the arrested person may take part in the inquiry. After having questioned the arrested person, the judge may maintain the arrest order by designating the term of detention, or may vary or revoke the remand measure. ...
After the case has been transmitted to the court ... [it] can order, vary or revoke the detention on remand.”
Pursuant to the amended Article 104-1 (in force from 24 June 1998 until 1 May 2003), the prosecutor and defence counsel must take part in the first judicial inquiry of the arrested person, unless the judge decides otherwise. The amended provision also permits the court to extend the detention on remand before its expiry.
Article 106 § 3 (in force from 21 June 1996 to 24 June 1998) reads:
“For the purpose of extending the term of detention on remand [at the stage of pre-trail investigation a judge] must convene a hearing to which defence counsel and the prosecutor and, if necessary, the detained person shall be called.”
The Code in force since 24 June 1998 makes obligatory the attendance of the detainee at the remand hearings.
Article 109-1 (in force from 21 June 1996 to 24 June 1998) reads:
“An arrested person or his counsel shall have the right during the pre-trial investigation to lodge [with an appellate court] an appeal against the detention on remand ... . With a view to examining the appeal, there may be convened a hearing, to which the arrested person and his counsel or only counsel shall be called. The presence of a prosecutor is obligatory at such a hearing.
The decision taken by [the appellate judge] is final and cannot be the subject of a cassation appeal.
A further appeal shall be determined when examining the extension of the term of the detention on remand.”
Pursuant to the amended Article 109-1 (in force from 24 June 1998 to 1 May 2003), an appeal may be submitted to a higher court, which would hold a hearing against a decision ordering or extending the term of detention both at the stage of pre-trial investigation and trial, in the presence of the detainee and his counsel, or only his counsel.
Article 226 § 6 (in force until 24 June 1998) reads:
“The period when the accused and his counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention. Where there are several accused persons, the period during which all the accused and their counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention.”
Since 24 June 1998 this period is no longer relevant for remand decisions.
Article 372 § 4 (in force until 1 January 1999) reads:
“Decisions of courts ... ordering, varying or revoking a remand measure ... cannot be the subject of appeal ...”
to the general provision of Article 399, a first instance decision
was not effective pending the time-limit for an appeal against that
decision or during the appeal proceedings. Only those decisions
against which no appeal was possible, including remand decisions
under the former Article 372 § 4, became effective and were
executed on the date when they were taken. Pursuant to the amended
Article 104-3 § 3 (version in force from
21 December 1999 until 1 May 2003), all decisions of detention on remand become effective and are executed on the date when they are taken, regardless of the fact that an appeal is possible against any such decision under the amended Article 109-1 (as in force from 24 June 1998 to 1 May 2003, see above).
Other relevant provisions of the Code of Criminal Procedure which was in force until 1 May 2003:
Article 52 § 2 (3) and (8) and Article 58 § 2 (8) and (10) provide, respectively, that the accused and their counsel have the right to “submit requests” and to “appeal against acts and decisions of an interrogator, investigator, prosecutor and court.”
Article 249 § 1 reads:
“A judge individually or a court in a directions hearing, in deciding whether to commit the accused for trial, shall determine ...
(11) whether the remand measure has been selected appropriately.”
Article 250 § 1 reads:
“After having decided, that there is a sufficient basis to commit the accused for trial, a judge individually or a court in a directions hearing shall determine the questions ...
(2) of the remand measure in respect of the accused ... .”
Article 267 § 1 reads:
“The defendant has the right to ... 3) submit requests; ...
(11) appeal against the judgment and decisions of a court.”
Article 277 reads:
“In the course of the trial, a court may decide to order, vary or revoke a remand measure in respect of the defendant.”
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
“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:
(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;
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English, and notified in writing on 16 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič