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Cite as: [2008] ECHR 1822
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SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
17414/05
by Tauras JAKELAITIS
against Lithuania
The
European Court of Human Rights (Second Section), sitting
on 16
December 2008 as a Chamber composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Işıl
Karakaş,
judges,
and Sally
Dollé, Section
Registrar,
Having regard to the above application lodged on 29 April 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Tauras Jakelaitis, is a Lithuanian national who was born in 1963 and lives in Alytus. The Lithuanian Government were represented by their Agent, Ms Elvyra Baltutytė.
A. The circumstances of the case
The applicant, the owner of a company, was suspected of various offences involving financial fraud.
On 12 April 1995 a search was conducted in the company's premises.
On 25 August 1995 a criminal case was instituted on account of faulty accounting at the company.
On 10 April 1996 another case was instituted because the company defaulted on a bank loan.
On 4 June 1996 the applicant was questioned as a suspect.
On 14 November 1996 another set of proceedings was instituted concerning alleged appropriation and embezzlement of the company's property.
On 27 November 1996 the three criminal cases were joined.
On 28 November 1996 the applicant was arrested, only to be released again on 30 November 1996.
In the period from 1997 to 2003 several decisions were taken committing the applicant for trial but subsequently returning the case to the investigators for further pre-trial measures to be carried out.
On 26 February 2003 the Alytus District Court found the applicant guilty of appropriation and embezzlement. He was sentenced to two years and six months' imprisonment.
Upon the applicant's appeal, on 2 March 2004 the Kaunas Regional Court reclassified the applicant's acts, sentencing him to a total of two years' imprisonment.
On 1 June 2004 the applicant lodged a cassation appeal, claiming that the lower courts had misinterpreted the evidence and the domestic law and that this had led to an unfair judgment in his case.
On 17 August 2004 the applicant signed an agreement with his lawyer to represent him during the proceedings in the Supreme Court.
On 13 September 2004 the Supreme Court sent notice of the forthcoming cassation hearing to the applicant's home address. However, at that time the applicant had already been imprisoned, and as a result he did not receive the notice.
On 12 October 2004 the Supreme Court rejected the cassation appeal. The applicant was not present at the hearing, but was represented by the lawyer of his choice. After the deliberations one of the judges publicly announced the operative part of the decision and its reasoning.
On 28 October 2004 the Supreme Court sent a copy of the decision of 12 October 2004 to the applicant's home address, even though at the time he was in prison.
On 12 April 2005 the applicant was released on licence.
B. Relevant domestic law
Article 19 of the Law on the Bar stipulates that an advocate has an obligation to discharge his duties honestly and fairly. Article 20 of the law provides that the professional civil liability of an advocate must be covered by compulsory insurance for the damage he could cause by illegal actions (or failure to act) in the course of his activities as an advocate.
The relevant articles of the Code of Criminal Procedure provide:
Article 48. Rights and duties of the representative
“2. The representative must:
1) make use of all the measures and means of representation provided by law, in order to establish all the circumstances exculpating the defendant or extenuating his responsibility and to provide the defendant with the necessary legal aid...”
Article 310. Delivery (įteikimas) of the copy of the judgment to the acquited or convicted person
“Not later than five days after the pronunciation of [the first-instance court's] judgment or, when only the introductory and operative parts are pronounced, no later than five days after the full judgment has been written, a certified copy of the judgment must be delivered (įteiktas) or sent (išsiųstas) to the acquitted or the convicted person.”
Article 324. The hearing of the case on appeal
“13. Not later than five days after the pronunciation of the decision or, when only the operative part of the decision is pronounced, no later than five days after signature thereof, a certified copy of the decision must be sent to the convicted person who was kept in detention and who filed an appeal or who is affected by the appellate decision. Other persons who filed an appeal may receive a certified copy of the appellate court's decision if they so request. ...”
Article 377. The hearing of the case on cassation
“9. Upon hearing the case the court shall retire to the deliberations room to adopt the decision. Having adopted the decision, the court shall return to the courtroom and the chairman of the chamber or any other judge shall pronounce the operative part of the decision and set forth its reasoning. The full chamber shall record and sign the decision within seven days from the date of making the decision or, on the agreement of the chairman of the court or the chairman of the Criminal Division of the court, within fourteen days from the date of adopting the decision.”
COMPLAINTS
THE LAW
“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal...”
1. The parties' submissions
The Government submitted that the application had been introduced in breach of the six-month rule established in Article 35 § 1 of the Convention. They maintained that at the hearing in the Supreme Court on 12 October 2004 the applicant had been represented by his lawyer, who had also represented the applicant at the first and appellate instances. According to the minutes of the hearing, after the deliberations the chairman of the chamber, in the presence of the applicant's lawyer, pronounced the reasoning of the decision as well as its operative part. Under the domestic law the applicant's representative had a duty to inform his client of the Supreme Court's decision. Therefore the fact that the applicant had not been present at the examination of his case by the cassation court, or that the Supreme Court's decision of 12 October 2004 had been sent to the applicant's home address were not relevant. As his lawyer had attended the hearing in the Supreme Court and therefore was fully aware of its decision, the applicant could not claim that he had not been able to find out about the final decision in the case until his release from prison on 12 April 2005. Consequently, the Government contended that the six months had begun to run on 12 October 2004, whereas the applicant had lodged the application with the Court only on 29 April 2005.
The Government further observed that according to the Code of Criminal procedure the decisions of courts of first and appellate instances must be served on a person. However no such obligation exists regarding the decisions of the Supreme Court. The Government also contended that as in the present case the applicant in essence complained about the length of criminal proceedings, it was not essential for him to know all the reasons of the Supreme Court's decision and thus to have its full text in writing. From the above considerations the Government concluded that the applicant had failed to submit his application to the Court within the prescribed six-month period.
The applicant contested the Government's submissions. He maintained that his arrest before the Supreme Court's hearing had disrupted his contact with the outside world and therefore communication with his lawyer had been impossible. Moreover, the applicant's representative had no information where his client had been imprisoned, nor could he have obtained such data. To search for his client would have meant additional costs on which the applicant and his attorney had not agreed beforehand. The applicant did not contest the Government's argument that the decision of the Supreme Court of 12 October 2004 had taken effect the next day. However, he argued that the six-month period had started running only on 13 April 2005, that is the day after he was released from prison, when he was able to acquaint himself with the Supreme Court's decision of 12 October 2004. Therefore he concluded that the prescribed six-month time-limit to lodge the application with the Court had not been missed.
2. The Court's assessment
The Court reiterates at the outset that, according to Article 35 § 1 of the Convention, it may only deal with an individual application lodged with it within a period of six months from the date on which the final decision was taken. The Court further recalls that the six-month period runs from the date on which the applicant's lawyer became aware of the decision completing the exhaustion of the domestic remedies, notwithstanding the fact that the applicant only became aware of the decision later (see Martinus Godefridus Aarts v. the Netherlands, no. 14056/88, Commission decision of 28 May 1991, Decisions and Reports (DR) 70, p. 208, at pp. 212 and 213, and the following decisions of the Court: Keskin and Others v. Turkey (dec.), no. 36091/97, 7 September 1999; Bölükbaş and Others v. Turkey (dec.), no. 37793/97, 12 October 1999; and Pejic v. Croatia (dec.), no. 66894/01, 19 December 2002).
In the instant case the Court observes that the decision of the Supreme Court was adopted on 12 October 2004. Even assuming that the applicant became aware of that decision on 13 April 2005 as he alleged, this date cannot be taken as the starting date for the running of the six-month time-limit. It appears from the documents presented to the Court that the lawyer, who had been chosen by the applicant himself and who had represented him in the cassation proceedings, took part in the hearing at the Supreme Court on 12 October 2004. After the deliberations one of the judges announced that the applicant's cassation appeal had been dismissed and explained the operative part of the decision as well as its reasoning. In these circumstances the Court considers that the applicant's lawyer was aware of the content of the above-mentioned decision already on 12 October 2004. It was the lawyer's duty to inform his client that the Supreme Court had adopted a decision and to apprise him of the reasoning and the operative part of that decision.
The Court refers to its decision that where an applicant is entitled to be served ex officio with a written copy of the final domestic decision the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written judgment (see Worm v. Austria, 29 August 1997, § 33, Reports of Judgments and Decisions 1997 V). Where, as in the present case, the domestic law does not provide for service of the decision (see the Relevant domestic law, above), the Court considers it appropriate to take the date the decision was finalised as the starting-point, that being when the parties were definitely able to find out its content (see Papachelas v. Greece [GC], no. 31423/96, § 30, ECHR 1999 II).
According to the domestic law the Supreme Court's decision had to be finalised within 7 or, in exceptional circumstances, 14 days after it had been pronounced. The Court notes that the applicant has not alleged that the Supreme Court failed to finalise its decision within the time-limit prescribed by law. Nor has the applicant complained that his lawyer was not able to receive a copy of the aforementioned decision within the prescribed time-limit. Moreover, no information concerning exceptional circumstances for finalising the Supreme Court's decision within a 14-day period has been submitted to the Court. Therefore the Court relies on the usual domestic practice of having the Supreme Court's decision finalised within seven days of its adoption. Consequently, the latest date by which the applicant's lawyer would have been able to acquaint himself with the final text of the decision at issue was 19 October 2004. Even assuming that some special circumstances did exist and therefore it took the Supreme Court 14 days to finalise its decision, the latest date by which the applicant's lawyer would have been able to obtain a written copy thereof was 26 October 2004.
The Court also recalls that the applicant or his lawyer must show due diligence in obtaining a copy of the decision deposited with the court's registry (see Mıtlık Ölmez and Yıldız Ölmez v. Turkey (dec.), no. 39464/98, decision of 1 February 2005). Moreover, if the applicant considered that his lawyer had failed to fulfil his duties diligently, under the domestic law he could have instituted proceedings for recovery of damages from his lawyer. However, no information exists in the case-file to suggest that the applicant took such measures. Therefore the Court considers that the applicant was content with the manner in which his representative fulfilled his duties at the cassation level. The Court also considers that if the applicant was not in contact with his lawyer and was therefore unable to obtain from him a full text of the Supreme Court's decision, this was due to the applicant's own negligence. Accordingly, irrespective of when the applicant himself became aware of the decision, the six-month time limit has to be calculated at the latest from 26 October 2004, whereas the applicant lodged his application with the Court on 29 April 2005, that is, after 6 months and 2 days.
Taking into consideration the particular circumstances of the case, the Court concludes that the application was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously,
Declares the application inadmissible.
Sally
Dollé Françoise Tulkens
Registrar President