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Cite as: [2012] ECHR 47

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SECOND SECTION

CASE OF BUTKEVIČIUS v. LITHUANIA

(Application no. 23369/06)

JUDGMENT

STRASBOURG

17 January 2012

This judgment is final but it may be subject to editorial revision.

In the case of Butkevičius v. Lithuania,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Dragoljub Popović, President,
Danutė Jočienė,
Paulo Pinto de Albuquerque, judges,
and Françoise Elens-Passos, Deputy Section Registrar,

Having deliberated in private on 13 December 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 23369/06) 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 Jonas Butkevičius (“the applicant”), on 27 May 2006.

The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė.

On 25 June 2008 the President of the Second Section decided to give notice to the Government of the applicant’s complaint under Article 6 § 1 of the Convention. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 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

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1936 and lives in the town of Karmėlava, Kaunas region.

On 4 February 1994 the applicant loaned 6,000 Lithuanian litai
(LTL, approximately 1,740 euros (EUR)) to a private enterprise. Given that in the following months the enterprise failed to fulfil its obligations under the agreement, the applicant sued it.

A. Civil proceedings regarding the recovery of the debt

On 15 June 1994 the Kaunas City District Court granted the claim and awarded the applicant the amount of the loan plus interest, amounting to LTL 8,400 (approximately EUR 2,435). The court decision was sent to the bailiff for execution. However, on 17 December 1996 the bailiff returned the execution order to the applicant, stating that there was no property against which the execution of the decision could be carried out.

B. Criminal proceedings

On 28 November 1994 a pre-trial investigation was opened.

On 13 March 1995 the applicant was recognized as a victim and civil claimant in that criminal case.

On 2 May 1996 and 3 June 1996 criminal charges were brought against two persons, a director of the enterprise and its shareholder, on suspicion of a fraud and violation of the laws regulating monetary operations.

On 20 January 1997 the Kaunas City District Court examined the case and returned it for further investigation. The court established that various procedural requirements had been violated.

On 16 June 1999 the bill of indictment was issued again.

On 31 May 2001 the Kaunas City District Court convicted the accused and granted the applicant’s civil claim in the sum of LTL 8,400.

On 15 November 2001 the Kaunas Regional Court remitted the case, stating that the lower court had not examined the case thoroughly, had made a number of procedural errors and had not reasoned its decision sufficiently.

On 12 January 2004 the Kaunas City District Court re-examined the case and again convicted the accused and granted the applicant’s civil claim in the sum of LTL 8,400.

On 9 June 2004 the Kaunas Regional Court ordered a further expert report as the lower court had failed to put all the relevant questions to the experts.

On 13 April 2005 the Kaunas Regional Court annulled the decision of the first-instance court and terminated the case against the accused due to the expiration of the statutory time-limit. Subsequently the civil claim by the applicant was left unexamined.

On 11 October 2005 the Supreme Court dismissed a cassation appeal lodged by the applicant, who was present at the hearing. The court stated, nonetheless, that the applicant had a right to bring a separate civil claim and concluded that, although the statutory time-limit for such a claim had expired, the delay was partially attributable to the State itself, thus the time-limit for the claim had to be restored.

The Court has no information that the applicant had ever lodged such separate civil claim against the successor of the enterprise or other persons.

C. Civil proceedings for damages against the State

The applicant lodged a separate civil claim for damages alleging the unreasonable length of the criminal proceedings that was caused by the domestic courts. He invoked Article 6.272 § 1 of the Civil Code and claimed the sum of LTL 151,212 (approximately EUR 43,800), comprising the debt of the enterprise plus interest for the whole period, taking into account inflation, and an award for non-pecuniary damage as well as cost for legal expenses.

On 10 May 2005 the Kaunas Regional Court dismissed that claim, having established no illegal actions by the State institutions. On 11 October 2005 the Court of Appeal upheld the decision of the lower court. On 4 January 2006 the Supreme Court refused to entertain the cassation appeal lodged by the applicant as raising no important legal issues.

II. RELEVANT DOMESTIC LAW AND PRACTICE

Article 6.272 § 1 of the Civil Code allows a civil claim for pecuniary and non-pecuniary damage arising from the unlawful actions of investigating authorities or courts in the context of a criminal case. The provision envisages compensation for an unlawful conviction, an unlawful arrest or detention, the application of unlawful procedural measures of enforcement, or an unlawful administrative penalty. According to recent domestic case-law, this provision may also allow claims for damages arising from the excessive length of criminal proceedings (see Šulcas v. Lithuania, no. 35624/04, § 52, 5 January 2010).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicant complained that the length of criminal proceedings in which he was a civil claimant had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention. The Article reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

A. Admissibility

1. The parties’ submissions

The Government argued that the applicant’s civil rights had already been determined by the Kaunas City District Court upon adopting the decision of 15 June 1994, thus the criminal proceedings in which the applicant was a civil claimant did not concern the determination of his civil rights, and the application was incompatible ratione materiae.

The Government then maintained that the applicant failed to exhaust domestic remedies available to him. First, the applicant had not contested the bailiff’s actions in relation to the execution of the Kaunas City District Court decision of 15 June 1994. Second, the applicant had not launched another claim as suggested in the decision of the Supreme Court of 11 October 2005. Finally, the Government argued that the applicant failed to exhaust domestic remedies, because he had failed to submit “a proper” cassation appeal in the proceedings for damages for lengthy criminal proceedings.

The applicant contested the Government’s arguments.

2. The Court’s assessment

The Court observes that the national courts had included the applicant in the criminal proceedings with the status of a civil claimant, thus providing for his civil rights to be determined within the criminal proceedings in question. Accordingly, the criminal proceedings concerned the applicant’s civil rights and the complaint is not incompatible ratione materiae with the provisions of the Convention.

The Court also finds that it is of no significance in the present case whether the applicant had launched any complaints in relation to the execution of the Kaunas City District Court decision of 15 June 1994, as such complaint would not constitute a redress for the length of the criminal proceedings, to which the applicant was a party.

As concerns the possibility for the applicant to launch another civil claim for recovery of the debt and interest, the Court observes that even if such action could be considered an effective remedy for recovering of the debt, it has no relevance for the issue at stake, that is - redress for the length of the proceedings.

The Court observes that the applicant had claimed damages for the excessive length of proceedings under Article 6.272 § 1 of the Civil Code. As to his cassation appeal in this regard, the Court notes that the Supreme Court refused to accept the applicant’s cassation appeal for examination, on the basis that it contained no grounds for cassation. It is clear that it is solely for the Supreme Court to decide the questions of domestic law, particularly whether the case was important for uniform interpretation of Lithuanian law. What matters for the Court is whether in those cassation appeals the applicant, “at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law”, has raised the complaint which he subsequently made to Strasbourg Court (see Lietuvos Nacionalinis Radijas ir Televizija and Tapinas ir partneriai v. Lithuania, no. 27930/05, 6 July 2010; Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999 I). The Court observes that in the present case this requirement has been met.

Accordingly, the Court holds that the applicant had exhausted all domestic remedies available to him.

The Court notes that this complaint is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

The Government argued that although the criminal proceedings were comparatively lengthy, the “reasonable time” requirement was not breached in the present case as the proceedings were extremely complex. In particular, the criminal case consisted of 37 volumes, and included more than 500 victims and civil claimants. Numerous actions had to be taken by the investigation authorities, and a number of expert examinations were conducted. Additional expert examination at the later stage in the proceedings was also necessary for just solution of the case. Moreover, the defendants in the criminal case contributed substantially to the length of the proceedings.

The Government also submitted that the legal system was in transitional period, and there was no established legal practice concerning the application of relevant laws, which further complicated the proceedings.

The applicant contested the Government’s arguments. He argued that the proceedings were unreasonably delayed mainly due to unsatisfactory pre-trial investigation and various procedural violations by the domestic courts.

2. The Court’s assessment

As regards the period to be taken into consideration, the Court first observes that the applicant was recognized as a civil claimant in the case on 13 March 1995. The Convention entered into force in respect of Lithuania on 20 June 1995. The proceedings ended on 11 October 2005, when the Supreme Court took its decision. The length of the proceedings to be taken into account therefore is ten years and almost four months 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 and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see, among many authorities, Frydlender, cited above; Pachman and Mates v. the Czech Republic, no. 14881/02, § 34, 4 April 2006; Csősz v. Hungary, no. 34418/04, § 29, 29 January 2008; Norkūnas v. Lithuania, no. 302/05, § 41, 20 January 2009).

Turning to the case at hand, the Court notes that the proceedings involved many parties and were therefore of a certain complexity. However, the Court cannot fail to observe that extensive delays in the proceedings were occasioned by mistakes or inertia on the part of the domestic authorities. In particular, the case was returned on three occasions for additional investigative measures, expert examination and because of procedural errors (see paragraphs 10, 13 and 15 above). Finally, by the decision of 11 October 2005 the Supreme Court itself acknowledged that the State had contributed to the length of the proceedings.

Having regard to all the material submitted to it and to its case-law on the subject, 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 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

The applicant further complained under Article 6 § 1 of the Convention about the partiality of the judges. In particular the applicant alleged that two judges of the Kaunas Regional Court took part in both appellate proceedings in the same criminal case. He also complained that the same judge sat in the criminal case at the appellate instance and cassation instance.

Lastly, the applicant complained about the fact that the statutory time-limit had elapsed thus depriving him of recovering his debt.

The Court recalls that, pursuant to Article 35 § 1 of the Convention, it may only deal with the matter after “all domestic remedies have been exhausted”. The above rule requires that an applicant, before complaining to the Court, should make normal use of accessible, effective and sufficient remedies capable of remedying the situation at issue (see, for example, Grasser v. Germany (dec.), no. 66491/01, 16 September 2004). On the facts of the case, the Court notes that the applicant failed to make use of his procedural right to challenge the judges of the Kaunas Regional Court. He also did not bring up this complaint in his cassation appeal. The Court further observes that the applicant also did not use his procedural right to request the removal of the judge from the panel of the Supreme Court sitting in the criminal case, although he was present at the hearing of 11 October 2005, and was aware of the composition of the panel.

The Court also notes that it can not be called upon to speculate whether termination of the present criminal proceedings deprived the applicant from any possibilities to recover the debt in question, especially in the view of the fact that the applicant had not launched the civil claim as suggested by the Supreme Court in its decision of 11 October 2005 (see paragraph 18 above).

It follows that the Court is not required to determine whether the facts submitted by the applicant in this part of the application disclose any appearance of a violations of Article 6 § 1 of the Convention, as the applicant failed to exhaust domestic remedies in this respect as required by Article 35 § 1 of the Convention. Therefore, this part of the application must be rejected pursuant to Article 35 § 4.

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 LTL 149,212 (approximately EUR 43,200) in respect of pecuniary and non-pecuniary damage.

The Government contested these 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. However, deciding on an equitable basis, it awards the applicant EUR 4,800 in respect of non-pecuniary damage.

B. Costs and expenses

The applicant also claimed LTL 2,000 (approximately EUR 580) for the costs and expenses incurred before the domestic courts but noted that he did not preserve any documents justifying them.

The Government contested the claim on the basis that the applicant failed to submit any supporting documents.

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 were reasonable as to quantum. Furthermore, under Rule 60 § 2 of the Rules of Court, itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part (see, for example, Borisov v. Lithuania, no. 9958/04, § 130, 14 June 2011). In the instant case and in the absence of any supporting documentation, the Court makes no award for costs and expenses.

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;

Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 4,800 (four thousand eight 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 claims for just satisfaction.

Done in English, and notified in writing on 17 January 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos Dragoljub Popović
Deputy Registrar President