CIAPAS v. LITHUANIA

DIRECȚIUNEA TERZĂ PRIVIND ADMINISIBILITATEA cererii nr. 4902/02 de Rolandas ČIAPAS împotriva Lituania Curtea Europeană a Drepturilor Omului (A treia secțiune), care a stat la 24 noiembrie 2005 în calitate de Cameră compusă din: B.M. Zupančič Președintele Hedigan Bîrsan Zagrebelsky, dna Jaeger Myjer David Thór Björgvinsson, judecători și grefierul secțiunii Berger Având în vedere cererea depusă la 31 iulie 2001, având în vedere observațiile prezentate de guvernul contestat și observațiile prezentate în răspuns de solicitant, după deliberare, hotărăște după cum urmează: FACTELE Reclamantul, dl Rolandas Čiapas, este un cetățen lituanian care s-a născut în 1966 și trăiește în Panevėžys. Faptele cazului, astfel cum au fost prezentate de părți, pot fi rezumate după cum urmează.

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4902/02 by Rolandas ČIAPAS against Lithuania The European Court of Human Rights (Third Section), sitting on 24 November 2005 as a Chamber composed of: Mr B.M. Zupančič , President , Mr J. Hedigan , Mr C. Bîrsan , Mr V. Zagrebelsky, Mrs R. Jaeger , Mr E. Myjer , Mr David Thór Björgvinsson, judges , and Mr V. Berger , Section Registrar , Having regard to the above application lodged on 31 July 2001, 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 Rolandas Čiapas, is a Lithuanian national who was born in 1966 and lives in Panevėžys.

A. The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1. Court obligations imposed on the applicant The applicant has a number of previous convictions. The police also suspected him of belonging to a mafia-type criminal organisation. On 2 February 1999 the Panevėžys City District Court imposed on the applicant the following “court obligations” ( teismo įpareigojimai ) under the Organised Crime Prevention Act 1997: - to live in his permanent place of residence; - not to leave home from 8 p.m. to 7 a.m.; - not to drive a motor vehicle; - not to maintain relations with certain persons; - inform the police about his financial transactions.

The obligations were imposed for a period of five months. On 17 February 1999 the Panevėžys Regional Court dismissed the applicant’s appeal against the above decision. On 16 May 2000 the Panevėžys City District Court imposed on the applicant fresh “court obligations”: - to live in his permanent place of residence; - not to leave home from 10 p.m. to 7 a.m.; - not to drive a motor vehicle, except for work and family purposes; - not to maintain relations with certain persons and not to visit certain public places in Panevėžys; - inform the police about his financial transactions. The obligations were imposed for a period of four months. The applicant was informed in the decision of 16 May 2000 that non-observance of the court obligations would raise the issue of criminal responsibility under Article 212-1 of the Criminal Code . On 26 June 2000 the Panevėžys Regional Court dismissed the applicant’s appeal against the above decision.

On both occasions the police authorities published in the regional press the information about the court obligations imposed on the applicant. Together with the brief description of the obligations, the articles included contact numbers of the police to be called by persons who may have seen the applicant breaching the obligations. On an unspecified date criminal proceedings were opened against the applicant on suspicion that he had breached one of the court obligations imposed on 16 May 2000, namely not to drive a motor vehicle for purposes other than work and family life. On 3 July 2001 the applicant was convicted by the Panevėžys City District Court under Article 212-1 of the Criminal Code in view of the breach of the said obligation.

He was sentenced to 8 months’ imprisonment. However, on 27 September 2001 that conviction was annulled by the Panevėžys Regional Court because of the amended statutory conditions. In particular, it was found that from 11 July 2001 the Organised Crime Prevention Act had no longer provided for a ban to drive a motor vehicle among the list of the possible court obligations. 2. The applicant’s detention on remand and conviction in the context of other sets of criminal proceedings The applicant was arrested on 13 November 2000. On 16 November 2000 the Panevėžys City District Court ordered the applicant’s detention on remand in the context of another set of criminal proceedings, concerning alleged robbery and blackmail.

The court referred to the dangers of the applicant absconding and obstructing the investigation as warranting the detention. The detention was subsequently extended by the court on the same grounds on 29 December 2000, 31 January, 30 March, 16 May, 1 August, 1 October, 22 November and 14 December 2001, and 6 February 2002. On that date the remand was extended until 30 April 2002. On 22 April 2002 the Panevėžys City District Court convicted the applicant of robbery and blackmail. The final decision in this regard was taken by the Supreme Court on 24 December 2002. On 1 September 2003 the Panevėžys City District Court convicted the applicant of another episode of robbery and blackmail. The final decision in this respect was taken by the Supreme Court on 24 February 2004. It appears that a fresh set of criminal proceedings is again pending against the applicant.

3. Conditions of detention The applicant complains about the general conditions of his detention while on remand and after the convictions, including the space, sanitary and catering conditions in the prisons. He also alleges numerous instances of ill-treatment by the prison authorities by way of torture, the unlawful disciplinary reprimand, the refusal of medical assistance and family visits. While the applicant submitted in this connection a number of hierarchical complaints to the prison authorities and applications to the Ombudsman, he did not apply to the administrative courts. 4. Censorship of correspondence On 19 November 2001 a prosecutor adopted a decision to censor the applicant’s letters in accordance with Article 15 of the Detention on Remand Act.

In order to justify the decision, the prosecutor referred to the danger that the applicant might attempt to influence witnesses and victims of the criminal proceedings for robbery and blackmail. A further decision on the censorship was taken by a prosecutor on 7 February 2003 on the same grounds, in the context of another criminal case against the applicant concerning alleged blackmail. On 1 April 2003 the prosecutor decided to discontinue the censorship in that the investigation in the latter case had been concluded. The applicant complains that the administration of the Šiauliai remand prison and the prosecuting authorities censored all of his letters from the moment of his arrest on 13 November 2000, including his letters to and from the Strasbourg Court and the State authorities.

While the applicant submitted in this connection a number of hierarchical complaints to the prison authorities and the Ministry of Justice, he did not apply to the administrative courts. B. Relevant domestic law and practice Article 15 § 1 of the Detention on Remand Act specifies that letters addressed to and received by a person remanded in custody can be censored upon the decision by an investigator, prosecutor or court. Pursuant to Article 15 § 2 of the Acts, when such a decision has been taken, the law permits the censorship of all the letters, with the exception of the detained person’s correspondence with the official or court responsible for the criminal case, the Ombudsman, prosecutor, State or municipal authorities, the Minister of Justice, the European Court of Human Rights and other competent international authorities.

Rule 90 of the Remand Centres Rules as approved by the order of the Minister of Justice of 7 September 2001 provide that officers of the remand prisons are not allowed, upon their own initiative, to censor correspondence of the detainees without an appropriate decision under Article 15 of the Detention on Remand Act. The relevant domestic provisions concerning the lawfulness of detention on remand have been summarised in the Stašaitis v. Lithuania judgment (no. 47679/99, 21 March 2002, §§ 51-54).

The relevant domestic provisions concerning conditions of detention and the domestic remedies in this connection have been summarised in the Jankauskas v. Lithuania decision (no. 59304/00, 16 December 2003) and the Valašinas v. Lithuania judgment (no. 44558/98, 24 July 2001, §§ 92-97, ECHR-VIII 2001). COMPLAINTS 1. The applicant complained that the court obligations imposed on 2 February 1999 and 16 May 2000 had breached his right to respect for his private and family life, and his liberty of movement. He invoked Articles 6 and 8 of the Convention and Article 2 of Protocol No. 4 in this respect. Under Article 8 of the Convention the applicant also complained that the information about the court obligations had been published by the authorities in the press, in breach of the domestic as well as the Convention requirements.

He also alleged that the printing of this information had breached his presumption of innocence protected by Article 6. 2. Under Article 5 § 1 of the Convention the applicant complained that his detention on remand in the context of the two sets of criminal proceedings for robbery and blackmail had been unlawful. He further complained that his subsequent convictions in the context of these proceedings had been in breach of Article 6 of the Convention, his being actually innocent. 3. The applicant complained that the general and specific conditions of his detention on remand and his imprisonment after the convictions had been incompatible with Article 3 of the Convention. 4. He also complained under Article 8 of the Convention that all his correspondence had been censored while at the Šiauliai remand prison.

THE LAW 1. The applicant complained about the court obligations imposed on 2 February 1999 and 16 May 2000, and about his conviction of 3 July 2001. He alleged a violation of Articles 6 and 8 of the Convention and Article 2 of Protocol No. 4. Article 6 of the Convention provides, insofar as relevant, as follows: “1. In the determination of ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law… 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law… ” Article 8 of the Convention states: “1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 2 of Protocol No. 4 reads: “1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own.

3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.” The Government stated that the applicant could no longer be considered as a victim of a violation of the Convention within the meaning of Article 34 thereof in that his final conviction for the failure to observe a curfew obligation had been annulled in view of the change in the legislation.

Furthermore, the applicant had not exhausted domestic remedies in regard to his complaint about the publication of the court obligations in the press. In any event, there had been no breach of the Convention or its protocols in this part of the application. The applicant disagreed, stating that the court obligations and their publication in the media had violated the above Convention provisions.

To the extent that the applicant has complained under Articles 6 and 8 of the Convention and Article 2 of Protocol No. 4 about the fact that he had imposed upon him the court obligations on 2 February 1999 and 16 May 2000, the Court notes that the “final” domestic decisions within the meaning of Article 35 § 1 of the Convention were taken in regard to the validity of these restrictions, respectively, on 17 February 1999 and 26 June 2000. However, the application was introduced more than a year later, on 31 July 2001. Therefore, these complaints have been submitted out of time (Article 35 § 1 of the Convention).

To the extent that the applicant has complained under the above provisions that on 3 July 2001 he was convicted for his failure to comply with one of the court obligations imposed on 16 May 2000, namely the ban to drive a motor vehicle, the Court notes that the applicant’s conviction was subsequently quashed on 27 September 2001 in view of the amendment to the Organised Crime Prevention Act of 11 July 2001, no longer providing for a prohibition to drive a motor vehicle. Furthermore, the applicant has not denied that the sentence of imprisonment ordered by the court on 3 July 2001 was not executed and the conviction did not become enforceable in view of the impugned statutory amendment and the resultant quashing of the conviction.

It would appear therefore that the applicant has no victim status to complain in this respect under Article 34 of the Convention. In any event, even assuming that the statutory amendment of 11 July 2001 and the annulment of the conviction on 27 September 2001 did not deny the applicant the victim status, it is noted that the applicant was prosecuted and convicted on 3 July 2001 for his failure to comply with a valid obligation ordered by a court, the unlawful nature of the applicant’s actions in this respect being clearly foreseeable from the valid judicial decision of 16 May 2000, and his actions being clearly punishable for such a breach in accordance with the substantive criminal law applicable at the material time (Article 212-1 of the Criminal Code).

The applicant’s conviction in this respect could thus be compared, for example, with a punishment for a violation of the statutory obligation such as a breach of the court-ordered conditions for release on licence. Even if the applicant’s conviction of 3 July 2001 could be considered to have constituted an interference with his right to respect for his private life and his liberty of movement, the applicant has submitted no evidence to call into question the domestic lawfulness, the legitimacy of the aims, or the proportionality of the interference from the point of view of the second paragraph of Article 8 of the Convention or the third and fourth paragraphs of Article 2 of Protocol No. 4. Nor has the applicant presented any evidence of an unfairness of the proceedings leading to the conviction of 3 July 2001 from the point of view of Article 6 of the Convention.

Finally, the Court notes that the conviction of 3 July 2001 was quashed on 27 September 2001 not because of any arbitrariness in the domestic procedure or a mistake made by the trial court in finding the facts or interpreting the relevant domestic law, but as a result of the change in the applicable statute. It follows therefore that the applicant’s complaints in this connection should in any event be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It follows that the applicant’s complaints about the conviction of 3 July 2001 should be rejected under Articles 34 and 35 §§ 3 and 4 of the Convention.

To the extent that the applicant has alleged a breach of Articles 6 and 8 of the Convention in connection with the publishing of the information about the court obligations of 2 February 1999 and 16 May 2000, the Court notes that the applicant did not bring a separate legal action in this respect, nor indeed did he raise any complaints of such nature in the context of the criminal proceedings leading to the conviction of 3 July 2001. It follows that the applicant has not exhausted domestic remedies in this part of the application, contrary to the requirements of Article 35 § 1 of the Convention. 2. The applicant complained about the lawfulness of his detention on remand and his subsequent convictions in the context of two sets of criminal proceedings for robbery and blackmail.

He alleged a violation of Articles 5 and 6 of the Convention in this respect. Article 5 states, insofar 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: ... (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; ...” The Government submitted that the applicant had not exhausted domestic remedies, and that his complaints about his detention on remand had in any event been unsubstantiated.

Furthermore, there had been no indication of a violation of Article 6 of the Convention. The applicant disagreed with the Government’s arguments, claiming that his detention on remand and his convictions had been arbitrary and unlawful. To the extent that the applicant has complained under Article 5 § 1 of the Convention, the Court recalls that this provision requires that any period of detention be compatible with domestic law and not arbitrary (see Jėčius v. Lithuania , no. 34578/97, 31 July 2000, § 56, ECHR 2000-IX). It is undisputed that the courts were competent to decide the question of the applicant’s detention by taking an appropriate decision in this connection (Articles 10, 104 and 106 of the Code of Criminal Procedure as then in force), and that the whole period of the applicant’s remand in custody was covered by the valid orders (see the ‘Facts’ part above).

The applicant’s detention on remand was thus compatible with domestic law for the purpose of Article 5 § 1 of the Convention. Nor there is any evidence that the detention was arbitrary, given that the applicant had been suspected of committing various serious offences in the context of two concurrent sets of criminal proceedings, the courts having indicated the fear of his absconding and influencing witnesses as warranting the continuing remand (see, mutatis mutandis, Stašaitis v. Lithuania (dec.), no. 47679/99, 28 November 2000). The applicant’s complaints under Article 5 § 1 are thus manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

To the extent that the applicant has complained under Article 6 of the Convention about his subsequent convictions for robbery and blackmail on, respectively, 22 April 2002 and 1 September 2003, the Court recalls that it is not its task to review alleged errors of fact and law committed by the domestic judicial authorities and that, as a general rule, it is for the national courts to assess the evidence before them and to apply domestic law. The Court’s task is to ascertain whether the proceedings as a whole were fair. The key element in this respect is that the applicant was afforded ample opportunities, personally or through his defence counsel, to state his case and to challenge the evidence that he considered false before the courts at three levels of jurisdiction.

There is no evidence of a lack of subjective or objective impartiality of the courts, nor is there an indication of any procedural disadvantage of the applicant vis-à-vis the prosecution during the trial. There is thus no appearance of a violation of the principles of the equality of arms or a breach of the applicant’s defence rights (see Karalevičius v. Lithuania (dec.), no. 53254/99, 6 June 2002). Accordingly, it has not been shown that the trial was unfair. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. 3. The applicant also complained about the general and specific detention conditions. He alleged in this respect a breach of Article 3 of the Convention, which prohibits torture, inhuman or degrading treatment.

However, by failing to submit these complaints to the administrative courts, the applicant did not exhaust domestic remedies in this part of the application, contrary to the requirements of Article 35 § 1 of the Convention (see Jankauskas cited above). 4. The applicant also complained about the censorship of all of his correspondence while at the Šiauliai remand prison. The Government submitted that the applicant had not exhausted domestic remedies in that he had not complained in this respect to the domestic courts. In any event, the censorship of the applicant’s letters had related only to his correspondence with private persons, the censorship being allowed by the valid decisions of a prosecutor in accordance with the applicable domestic law.

The decisions had been taken in order to protect the witnesses and victims in a number of sets of criminal proceedings against the applicant, and as such the censorship had been justified by the second paragraph of Article 8 of the Convention. The applicant disagreed with the Government’s arguments, stating that the undiscriminating censorship of all his correspondence had breached Article 8 of the Convention. To the extent that the applicant has complained about the censorship of his correspondence at the Šiauliai remand prison during the period from his arrest on 13 November 2000 until 19 November 2001, that is the date when a prosecutor took a decision to authorise censorship of his letters under Article 15 of the Detention on Remand Act, the Court observes that no censorship had been allowed at the remand prison by the applicable domestic law (Rule 90 of the Remand Centres Rules) until the moment when the decision of 19 November 2001 was taken.

It was thus open to the applicant to complain in this respect to the administrative courts. However, he did not do so. It follows that this part of the application should be rejected for non-exhaustion of domestic remedies (Article 35 § 1 of the Convention). Furthermore, to the extent that the applicant has complained about the censorship of his correspondence with the Strasbourg Court and the State authorities, the Court observes that Article 15 § 2 of the Detention on Remand Act did not allow such censorship even on the basis of the decisions of the competent authorities taken under 15 § 1 of that statute. It was thus also open to the applicant to complain in this respect to the administrative courts.

By failing to do so, the applicant did not exhaust domestic remedies as required by Article 35 § 1 of the Convention. To the extent that the applicant has complained about the censorship of his correspondence with private persons during the period from 19 November 2001 until 1 April 2003, it is undisputed that during the impugned period the censorship had been authorised in accordance with the decisions taken under Article 15 of the Detention on Remand Act and Rule 90 of the Remand Centres Rules. This part of the application cannot therefore be rejected for non-exhaustion of domestic remedies. In view of the parties’ submissions regarding the censorship of the applicant’s correspondence with private persons from 19 November 2001 until 1 April 2003, the Court finds that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits.

It cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant’s complaint under Article 8 of the Convention about the censorship of his correspondence with private persons from 19 November 2001 until 1 April 2003; Declares inadmissible the remainder of the application. Vincent Berger Boštjan M. Zupančič Registrar President