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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
