CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 novembre 2013

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display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block } .s9138CF0B { margin-top:36pt; margin-bottom:36pt; text-align:right } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }         SECOND SECTION             CASE OF KUDREVIČIUS AND OTHERS v. LITHUANIA     (Application no. 37553/05)       JUDGMENT                 STRASBOURG     26 November 2013     THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 15/10/2015   This judgment may be subject to editorial revision. In the case of Kudrevičius and Others v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Guido Raimondi, President,   Danutė Jočienė,   Dragoljub Popović,   András Sajó,   Işıl Karakaş,   Paulo Pinto de Albuquerque,   Helen Keller, judges, and Stanley Naismith, Section Registrar , Having deliberated in private on 22 October 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no.   37553/05) 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 five Lithuanian nationals, Mr   Arūnas Kudrevičius, Mr   Artūras Pilota, Mr   Kęstutis Miliauskas, Mr   Virginijus Mykolaitis and Mr   Bronius Markauskas (“the applicants”), on 8   October 2005. 2.     The applicants were represented by Mr.   K.   Stungys, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. 3.     The applicants alleged a breach of Article   6 of the Convention in that various procedural violations had occurred during the criminal proceedings against them. They further alleged a violation of Article 7 of the Convention, submitting that the law under which they had been convicted had not met the requirements of that provision. Lastly, relying on Articles   10 and   11 of the Convention, the applicants complained that their right to freedom of expression and their right to freedom of assembly had been violated by the criminal investigation into their actions and by their subsequent convictions. 4.     On 21   May 2008 Court decided to give notice to the Government of the applicants’ complaints under Articles   6, 7, 10 and   11 of the Convention. It was also decided to examine the merits of the application at the same time as its admissibility (former Article   29 §   3). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The first applicant, Mr   Arūnas Kudrevičius (hereinafter – A.K.), was born in 1970 and lives in Vaitkūnai village, Utenos region; the second applicant, Mr   Bronius Markauskas (hereinafter – B.M.), was born in 1960 and lives in Triušeliai village, Klaipėda region; the third applicant, Mr   Artūras Pilota (hereinafter – A.P.), was born in 1973 and lives in Ožkasviliai village, Marijampolė region; the fourth applicant, Mr   Kęstutis Miliauskas (hereinafter – K.M.), was born in 1959 and lives in Jungėnai village, Marijampolė region; and the fifth applicant, Mr   Virginijus Mykolaitis (hereinafter – V.M.), was born in 1961 and lives in Varakiškė village, Vilkaviškis region. 6.     In April 2003 a group of farmers held a demonstration in front of the Seimas (the Lithuanian Parliament) building to protest about the situation in the agricultural sector with regard to a fall in wholesale prices for various agricultural products and the lack of subsidies for producing those products, demanding that the State take action. 7.     On 16   May 2003 the Chamber of Agriculture ( Žemės ūkio rūmai ), an organisation established to represent the interests of farmers, met to discuss possible solutions to the issues. If no positive changes in legal regulation were forthcoming, the measures foreseen included addressing complaints to the administrative courts. In the meantime, it was decided to organise, in three different locations next to trunk roads in the State ( prie magistralinių kelių ), protests to draw attention to the problems in the agricultural sector. 8.     In May 2003 the Kalvarija municipality issued a permit to hold a peaceful assembly in Kalvarija town, “near the marketplace”. The Pasvalys municipality issued a permit to hold a demonstration “at the car park at the sixty-third kilometre of the Via Baltica highway and next to that highway”. The Klaipėda municipality issued a permit covering an “area in Divupiai village next to, but not closer than twenty-five metres from, the Vilnius-Klaipėda highway”. The permit specified that B.M. was one of the organisers of the gathering. He was informed that he had to observe the law and to adhere to any orders from the authorities and the police. 9.     The demonstrations started on 19   May 2003. The farmers gathered in the designated areas. 10.     On 21   May 2003 the farmers blocked and continued to demonstrate on the roads next to Dirvupiai village, on the Vilnius-Klaipėda highway, at the sixty-third kilometre of the Panevėžys-Pasvalys-Riga highway, and at the ninety-fourth kilometre of the Kaunas-Marijampolė-Suvalkai highway. 11.     On 22   May 2003 the farmers continued negotiations with the Government. The next day, following a successful outcome to those negotiations, the farmers stopped blocking the roads. 12.     Pre-trial investigations against the applicants and a number of other persons, on suspicion of having caused a riot, were started. In July 2003 B.M., V.M., A.P. and K.M. were ordered not to leave their place of residence. That measure was lifted in October 2003. The police record of 22   May indicates that during the farmers’ demonstration on Kaunas-Marijampolė-Suvalkai highway “the farmers and the lorry drivers had a few arguments, but more serious conflicts were avoided”. 13.     As transpires from the documents submitted to the Court, later that month four companies that transport goods informed the police and Linava, the Lithuanian National Road Carriers’ Association, that they had sustained pecuniary damage in the sum of 25,235 Lithuanian litai (LTL) (approximately 7,300 euros (EUR)) due to the blockade of the roads during the farmers’ demonstrations. The companies stated that they would institute civil proceedings in respect of those claims. 14.     On 1   September 2003 the Pasvalys police issued a certificate stating that on 19-23   May 2003 the farmers had held a demonstration at the car park at the sixty-third kilometre of the Panevėžys-Pasvalys-Riga highway. On 21   May at around midday the farmers had gone on to the highway and had stopped the traffic. They had only allowed through passenger vehicles and vehicles that carried dangerous substances. Vehicles that carried goods and cars had been allowed to go through once in an hour and ten at a time on each side of the road. In order to ameliorate the situation, the police had attempted to let the traffic bypass the blockade through neighbouring villages. However, due to the poor condition of those neighbouring roads, not all lorries that carried goods had been able to drive on them and they had had to remain on the highway until the farmers had left it. Some lorries had become stuck in sand and special machinery had been necessary to pull them out. The police indicated that the farmers had unblocked the highway at 4   p.m. on 23   May   2003. 15.     The applicants submitted that on 1 October 2003 the police had imposed a fine of LTL 40 (approximately EUR 12) on farmer A.D. According to the applicants, it was established in the police record relating to the fine that on 21 May 2003 A.D. had taken the farmers to block the Kaunas-Marijampolė-Suvalkai highway in Kalvarija municipality; he had walked in the middle of the road, pushing a cart in front of him, thus obstructing the traffic. By such actions A.D. had breach paragraph 81 of the Road Traffic Rules and thus committed an administrative law violation, as provided for in Article 131 of the Code of Administrative Law Offences (see Relevant domestic law below). 16.     On 4   December 2003 an indictment was brought before the courts. B.M. and A.K. were accused of incitement to riot under Article   283 §   1 of the Criminal Code. The prosecutor noted that B.M. had taken part in the farmers’ meeting of 16   May 2003, at which the farmers had decided to hold demonstrations near major highways on 19   May and, should the Government not grant their requirements by 11   a.m. on 21   May, to blockade those highways. On 19   May B.M. had told the farmers to blockade the roads on 21   May. As a result, at 12.09   p.m. on that date around 500 farmers had gone on to the Vilnius-Klaipėda highway. The farmers had refused to obey police requests not to stand on the road. Consequently, traffic had been blocked until 1   p.m. on 23   May. Traffic jams had occurred on neighbouring roads and road transport in the region had become impossible. With regard to A.K., the prosecutor claimed that he had also incited the farmers to blockade the highway. As a result, at midday on 21   May around 250 people had gone on to the Panevėžys-Pasvalys-Riga highway, refusing police orders not to block the highway. The road had remained blocked until 10.58   a.m. on 23   May. The roads in the vicinity had become clogged. The normal functioning of the Saločiai-Grenctale border control post had been interrupted. 17.     V.M., K.M. and A.P. were accused of a serious breach of public order during the riot, under Article   283 §   1 of the Criminal Code. The prosecutor established that on 21   May 2003, at around 11.50   a.m., around 1500 people had gone on to the ninety-fourth kilometre of the Kaunas-Marijampolė-Suvalkai highway. At about 3-4   p.m. the aforementioned applicants had driven on to the highway with three tractors and had left the tractors on the asphalt carriageway. The three applicants had refused to obey police instructions not to breach public order and not to leave the tractors on the road. The tractors had remained on the road until 4.15   p.m. on 23   May   2003. As a result, the highway had been blocked from the eighty-fourth to the ninety-fourth kilometre. Due to the resulting increase of traffic on neighbouring roads, congestion had built up and car transport in the region had come to a halt. The normal functioning of the Kalvarija and Marijampolė State border control posts had been disrupted. 18.     Within the criminal proceedings, a logistics company brought a civil claim against A.K., as the person who had incited the farmers to block the Panevėžys-Pasvalys-Riga road, seeking damages of LTL   1,100 (approximately EUR   290) for the loss allegedly incurred by it due to the blockade of that road. 19.     On 16   August 2004 the Kaunas City District Court suspended the examination of the case in respect of K.M., V.M., B.M. and A.K., as they had failed to present themselves at the hearing. As it transpires from the documents submitted by the Government, A.K. and V.M. had been notified about the forthcoming hearing by summons. B.M. had also been informed about the hearing in advance. On that date the case was examined only with regard to A.P. The district court questioned eight witnesses. The applicants’ lawyer was present at the hearing and put questions to seven of them. On 17-20 August 2004 the Kaunas City District Court held hearings where several other witnesses testified about the demonstration at issue. The court examined the case only with regard to A.P., who was present at those hearings. It transpires from the judgments of the appellate and cassation courts (paragraphs 30 and 35 below) that all the applicants were present at certain hearings. 20.     On 29   September 2004 the Kaunas City District Court found the applicants guilty of having incited riots or having participated in them, under Article   283 §   1 of the Criminal Code. 21.     In convicting B.M., the district court relied on video recordings of the events, documentary evidence and the testimony of one witness. The court concluded that B.M. had organised a gathering with the aim of seriously violating public order, that is to say a riot. B.M. had been one of the leaders of the farmers’ meeting on 16   May 2003, at which the farmers had decided to attempt to achieve their goals by organising protests next to trunk roads. The court noted that the applicant had coordinated the actions of the farmers and as a consequence on 21   May 2003 around 500 people had gone to the Vilnius-Klaipėda road and had blocked it. As a result, car traffic had been blocked until 23   May 2003. The ensuing serious breach of public order had been deliberate and had to be qualified as rioting. The district court dismissed B.M.’s claim that he and other farmers had acted out of necessity because the roadblock had been their last opportunity to draw the Government’s attention to their problems. For the court, the farmers had had another alternative, namely bringing complaints before the administrative courts. The farmers had themselves mentioned that alternative during the meeting of 16   May 2003. The court further noted that a person who created a dangerous situation by his or her actions could only rely on the defence of necessity when a dangerous situation arose through negligence (Article   31 §   2 of the Criminal Code). However, the actions of B.M. had been deliberate and it was therefore appropriate to find him guilty of organising the riot. 22.     As concerns A.K., the Kaunas City District Court established, mainly on the basis of video recordings and documentary evidence, that A.K. had also organised a gathering with the aim of seriously breaching public order. A.K. had taken part in the farmers’ meeting of 16   May 2003 and had known about the decision to hold protests next to the roads. When a crowd of farmers had blocked the Panevėžys-Pasvalys-Riga road on 21   May   2003, public order had been seriously breached. Car traffic had stopped at that part of the road, causing inconvenience to drivers and goods carriers. The district court established that “during the blockade of 21   and 22   May, A.K. coordinated the actions of the crowd, that is to say he gave orders that some of the vehicles should be let through, incited [the farmers] to hold on and not to move away from the highway, was in contact with the participants in the protests in Kalvarija municipality and Klaipėda region, [and] was negotiating with the authorities by mobile phone in the name of the farmers”. The district court emphasised that the farmers who had gathered “obeyed the actions of A.K. and followed his orders”. For the court, the actions of A.K. were to be qualified as organising riots under Article   283 §   1 of the Criminal Code. On the basis of written evidence submitted by Linava, the district court also found that by having organised the blockade of the Panevėžys-Pasvalys-Riga road A.K. had seriously breached public order and had caused pecuniary damage to three carrier companies. As one of the carriers had submitted a civil claim in the sum of LTL   1,100, the district court deemed it proper to grant it. 23.     In finding V.M., K.M. and A.P. guilty of rioting, the Kaunas City District Court, on the basis of documentary evidence, audiovisual materials and two witnesses’ testimony (one of whom testified on 16 August 2004), established that on 21   May 2003 between 11.50   a.m. and 4.15   p.m. the three of them had driven tractors on to the Kaunas-Marijampolė-Suvalkai highway at its ninety-fourth kilometre. They had refused to obey lawful requirements by the police not to breach public order and not to park the tractors on the road ( ant važiuojamosios kelio dalies ) and had kept the tractors there until 4.15   p.m. on 22   May 2003. As a consequence, and because about 1,500 people had gathered on the road, the traffic had been blocked between the eighty-fourth and ninety-fourth kilometres of the Kaunas-Marijampolė-Suvalkai road, traffic jams had occurred and the normal functioning of the Kalvarija and Lazdijai border control offices had been disrupted. 24.     The five applicants were each given a sixty-day custodial sentence ( baudžiamasis areštas ). The district court also noted that all the applicants had positive characteristics and there were no circumstances aggravating their guilt. Accordingly, there was reason to believe that the aim of the punishment could be achieved without actually depriving them of their liberty. Consequently, the court suspended their sentences for one year. The applicants were ordered not to leave their places of residence for more than seven days without the authorities’ prior agreement. This measure was to last for one year, whilst execution of the sentence was suspended. The Kaunas City District Court also acquitted, for lack of evidence, two other individuals charged with organising the riots. 25.     The applicants lodged an appeal with the Kaunas Regional Court. They noted, inter alia , that another farmer, A.D., had been punished under administrative law for an identical violation. All five applicants took part in a hearing before that court and asked that they be acquitted. 26.     On 14   January 2005 the Kaunas Regional Court found that the trial court had thoroughly and impartially assessed all the circumstances of the case. The appellate court observed that the crime of rioting placed in danger public order, society’s safety, human health, dignity and the inviolability of property. The objective aspect of the crime was organising gathered people for a common goal – namely, to breach public order – and to carry out that decision which, in the instant case, had been to organise the roadblocks. To constitute a crime, the actions also had to be committed on purpose, that is to say, the persons charged had to understand the unlawfulness of their actions. In relation to B.M. and A.K., the appellate court observed that during the demonstrations the two applicants had told others that it had been decided to block the roads. It had been established that B.M. and A.K. had understood that the roadblocks would be illegal and that they had been warned about their liability as organisers. Even so, they had kept coordinating the farmers’ actions and had insisted that farmers would maintain the roadblocks. As a direct result of the actions of B.M. and A.K., on 21   May 2003 a crowd had gone on to a highway and had blocked it, thereby stopping the traffic and breaching the constitutional rights and liberties of others to move freely and without restriction, causing damage to goods carriers and thus seriously breaching public order. 27.     The appellate court also shared the trial court’s conclusion as to the reasonableness of convicting V.M., K.M. and A.P. The court noted that by driving tractors on to the road, thus causing traffic congestion and disturbing the work of the State border control service, and by refusing to obey lawful requests by the police not to park their tractors on the road, the three applicants had seriously breached public order. The fact that after the roads had been blocked the police and the drivers had negotiated with the farmers with the result that some of the drivers had been let through did not diminish the danger of the offence and its unlawfulness. The appellate court also emphasised that the blockade of a major highway ( magistralinis kelias ) had had dangerous consequences and could not be considered to have been a mere administrative law offence such as a traffic violation. As to the applicants’ argument that their offences were identical to that for which another farmer, A.D., had been given a merely administrative punishment for a traffic violation, the Kaunas Regional Court only briefly indicated that it was not an administrative court and thus could not comment on the administrative violation. 28.     Whilst noting that the applicants had the right to freedom of expression under Article   10 of the Convention, the Kaunas Regional Court nevertheless observed that that right was not without restrictions, should the interests of public order and prevention of crime be at stake. Analogous limitations to freedom of expression were listed in Article   25 of the Lithuanian Constitution. On this issue, the court emphasised that the behaviour of B.M. and A.K., in guiding the actions of the other individuals involved in the protest, could not be regarded as a non-punishable expression of their opinion, because they had breached public order by their actions, for which criminal liability was foreseen. As to the applicants’ complaint that the offence had lost its element of public danger, the court stated that the criminal offence had not lost that element merely because the Government had refused to raise wholesale prices or because the Government had allegedly failed to take necessary action. 29.     The Kaunas Regional Court also dismissed the applicants’ complaints that they had not had a fair trial, in that the video recordings proving their guilt had been forged. The appellate court observed that when the video recordings had been shown as evidence before the court of first instance, the applicants had not alleged that they had been falsified, although they had each been asked if the events shown in the recording were true. The applicants had not answered in the negative, but had agreed with the recorded material. The mere fact that the film had been recorded with interruptions did not mean that it was illegitimate evidence. Although the applicants had alleged that one of the tapes had been falsified, the judgment had not been based on that particular tape. The trial court’s refusal to question some witnesses had been reasoned, the evidence in the case had been legitimate and not falsified and no other procedural violations were found. 30.     The court also observed that although K.M., V.M., B.M. and A.K. had failed to attend the first hearing at the trial court on 16   August 2004, the court had suspended the examination of the case with regard to those applicants. It noted that all the applicants were present at some point when the case was examined by trial court and therefore could exercise their procedural rights unhindered. Witnesses had not been questioned in the absence of the applicants concerned. Thus, the rights of the applicants had not been infringed at any point. 31.     The Kaunas Regional Court also dismissed a complaint by B.M. that immunity from criminal liability should apply to him because of his status as a parliamentary candidate. The appellate court noted that the crime at issue had been committed in May 2003, whilst the Central Electoral Commission had registered B.M. as a candidate in the Parliamentary elections only in September 2004. Thus, B.M. did not have immunity under domestic law with regard to that particular crime. 32.     Lastly, the appellate court upheld the trial court’s decision not to summon the Speaker of Parliament, the Prime Minister and other members of the Government and Parliament for questioning. The court deemed that these people could only have given evidence on economic matters which had no relation to the case. The aforementioned politicians had not participated in the gathering or seen the violations of public order and therefore could not have given any evidence as to the circumstances of the offence charged. 33.     On 4   October 2005 the Supreme Court, composed of an enlarged chamber of seven judges (see paragraph 47 below), dismissed an appeal on points of law brought by the applicants. In providing an explanation of the substance of the crime of rioting, as established in Article   283 §   1 of the Criminal Code, the Supreme Court referred to the classification of the said offence as an offence against public order, which was the object of the crime ( nusikaltimo objektas ). In establishing the scope of the offence, the aforementioned provision stipulated the following features of the crime: the organisation of a gathering with the aim of causing public violence, damaging property or breaching public order in other ways, or the commission of those actions during a gathering. For the Supreme Court, a riot was to be characterised as a situation when a gathering of people deliberately seriously breached public order, caused public violence, or damaged property. The subjective aspect of the crime was that of the deliberate nature of the action ( kaltė pasireiškia tiesiogine tyčia ). The guilty person had to (i) be aware that he or she was performing an action that was listed as an offence in Article   283 §   1 of the Criminal Code and (ii) wish to so act. 34.     Turning to the situation of the applicants in the instant case, the Supreme Court found that the lower courts had been correct in qualifying the applicants’ actions as falling under Article   283 §   1 of the Criminal Code. In particular, the court of first instance had properly established all the prerequisites for the application of Article   283 §   1, namely that there had been a crowd and that public order had been breached by blocking the roads, stopping traffic and disturbing the work of the State border control service. The applicants had been sentenced for their crimes under a law which had been valid at the time at which the crimes had been committed and their sentences had been imposed in accordance with the provisions of the Criminal Code. It followed that the applicants’ convictions had been in accordance with the law and not in breach of Article   7 §   1 of the European Convention on Human Rights. 35.     The Supreme Court also stated that the applicants had not been sentenced for expressing their opinion or imparting ideas, actions which were protected by the guarantees of Article   10 §   1 of the Convention, but for actions by which they had seriously breached public order. As to the requirements of a fair trial, the Supreme Court noted that while part of the examination of the case at the trial stage had been carried out without some of the applicants being present, they had failed to submit any legitimate reasons for their absence, and thus the courts had had the right to examine the case without them. There was no indication that the trial court would have deliberately obstructed any of the applicants from taking part in the hearing. Moreover, the trial court had to ensure that the case would be decided within a reasonable time. Most importantly, the convictions had been based solely on the evidence examined at the hearings at which all applicants had been present. The applicants’ lawyer, who had defended the interests of all the co-accused, had also had every opportunity to question every witness in the case, thus having assured the applicants’ right to have witnesses against them examined under Article 6 § 3 of the Convention. The question of the immunity of the parliamentary candidate had also been correctly settled. The parliamentary candidate had immunity only for actions performed during the electoral campaign, whereas a member of Parliament had immunity irrespective of the date on which he or she had committed a crime. Referring to the Court’s case-law to the effect that the accused does not have the right to request that every witness be called to testify, the Supreme Court also upheld the trial court’s reasoning not to summon members of the Parliament and the Government for questioning. 36.     Lastly, the Supreme Court shared the appellate court’s view that the applicants could not be considered as having acted out of necessity. The fall in milk purchase prices and other problems with subsidies for agriculture had not constituted a clear or present danger to someone’s property, because the property in question had not yet materialised. The court held that the law protects existing property. The State had not deprived the applicants of their property, and their dissatisfaction with the Government’s agricultural policy had not justified the acts for which the five applicants had been convicted. For the Supreme Court, the materials in the case file did not allow the conclusion that the applicants’ conviction under Article   283 §   1 of the Criminal Code had been in breach of Article   23 of the Lithuanian Constitution or Article   1 of the Protocol No.   1 to the European Convention on Human Rights, because the property in question had not yet materialised. 37.     By court rulings of 17, 18, 20, 21   October and 7   November 2005, the courts discharged the five applicants from their suspended sentences. II.     RELEVANT DOMESTIC LAW 38.     Article   23 of the Constitution of the Republic of Lithuania states that property is inviolable. 39.     Article   25 of the Constitution reads as follows: Article 25 “[A natural person] shall have the right to have his own convictions and to freely express them. [A natural person] must not be hindered from seeking, receiving and imparting information and ideas. Freedom to express convictions, to receive and impart information may not be limited otherwise than by law, if this is necessary to protect the health, honour and dignity, private life, and morals of a [natural person], or to defend the constitutional order. Freedom to express convictions and to impart information shall be incompatible with criminal actions – incitement of national, racial, religious, or social hatred, violence and discrimination, [or] slander and disinformation. (...)” 40.     On 25 October 2000 the Criminal Code was published in the Official Gazette ( Valstybės žinios ). Article   283 §   1 of the Criminal Code establishes criminal liability for rioting, which is categorised as a public order offence, and provides: Article 283.     Riot “1.     A person who has organised or provoked a gathering of persons to commit public acts of violence, damage property or seriously breach public order in other ways, or a person who, during a riot, has committed acts of violence, damaged property or seriously breached public order in other ways, may be sentenced to a custodial sentence ( baudžiamasis areštas ) or imprisonment for up to five years.” 41.     Article   75 §§   1 and 2 of the Criminal Code stipulate that if a person is sentenced to imprisonment for a term not exceeding three years for the commission of one or several minor or less serious premeditated crimes, a court may suspend the sentence imposed for a period ranging from one to three years. The sentence may be suspended when the court rules that there is a sufficient basis for believing that the purpose of the penalty will be achieved without the sentence actually being served. When suspending execution of the sentence, the court may order the convicted person not to leave his place of residence for a period of longer than seven days, without prior agreement of the authority which supervises execution of the judgment. Pursuant to Article   97 of the Criminal Code, individuals convicted of a crime and whose conviction has become effective are considered as people with a previous conviction. Any person given a suspended sentence is considered as having a previous conviction during the period of suspension of the sentence. 42.     Article   31 of the Criminal Code defines the concept of necessity ( būtinasis reikalingumas ). It states that a person shall not be held liable under the criminal law for an act committed in an attempt to avert an immediate danger which threatens him, other persons or their rights, or public or State interests, where this danger could not have been averted by other means and where the damage caused is less than the damage which it is intended to avert. Nonetheless, a person who creates a dangerous situation by his actions may only rely upon the defence of necessity when the dangerous situation arose through negligence ( dėl neatsargumo ). 43.     Article   124 1 of the Code of Administrative Law Offences at the relevant time provided for administrative liability for a breach of traffic rules by drivers. The provision stipulated that a breach of the rules on how and when a driver could stop and park on highways carried a fine from LTL   100 to LTL   150 (approximately EUR   30-45). Article   131 of the Code provided for administrative liability for non-observance by pedestrians of traffic signals, crossing of a carriageway or walking on it. The offence was punishable by a fine of LTL   30-50 (approximately EUR   8-15). 44.     The Road Traffic Rules provided that pedestrians must walk on the sidewalk and, if there is none, on the right side of the road in a single line (point 81 of the Rules). 45.     Article 62 (2) of the Constitution of the Republic of Lithuania states that a member of the Parliament may not be held criminally liable without the consent of the Parliament. Article   49   (1) of the Law on Parliamentary Elections provides that without the consent of the Central Electoral Commission, during an election campaign as well as until the first meeting of a newly-elected Parliament, a parliamentary candidate may not be charged with a crime or arrested and his or her freedom may not be restricted in any other way. 46.     Article   248 §   2 of the Code of Criminal Procedure stipulates that when there are many accused in the criminal case, the court may allow one or several accused or their counsels not to take part in the examination of the evidence that is not related to that or those accused. 47.     The Law on Courts at the material time provided that the Supreme Court forms uniform judicial practice in interpreting and applying laws and other legislation. To that end the Supreme Court publishes the decisions of the plenary court as well as the most important decisions of its three or seven judges’ chambers in the “Courts’ practice” bulletin. The Supreme Court also analyses courts’ practice when they apply the laws and gives recommendations to be followed. Depending on the complexity of the case, the Supreme Court decides cases in chambers of three or seven judges or in plenary session (Articles   23, 27 and 36). III.     RELEVANT EUROPEAN UNION LAW AND PRACTICE 48.     In Eugen Schmidberger, Internationale Transporte und Planzüge v.   Republik Österreich , Case C-112/00 [2003], ECR I-05659 the European Court of Justice found that the fact that the Austrian authorities did not ban a demonstration by protesters which resulted in the complete closure of a single major transit route between Austria and Germany for almost thirty hours was not incompatible with Articles 28 and 29 of the Treaty Establishing the European Community, read together with Article 10 of that Treaty, provided that that restriction of trade in goods between Member States was justified by the legitimate interest in the protection of fundamental rights, in that case the protesters’ freedom of expression and freedom of assembly, which applied both to the Community and the Member States. Even though it was true that the national authorities enjoyed a wide margin of discretion in that regard, it was for the European Court of Justice to determine whether the restrictions placed upon intra-Community trade were proportionate in the light of the legitimate objective pursued, namely, in Schmidberger , the protection of fundamental rights. It was acknowledged that whilst a demonstration on a public highway usually entailed inconvenience for non-participants, in particular as regards free movement, that inconvenience could in principle be tolerated provided that the objective pursued is the public and lawful demonstration of an opinion. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION 49.     The applicants complained that they had not had a fair trial in the determination of the criminal charges against them. They relied on Article   6 §§   1 and   3   (d) of the Convention, the relevant parts of which read as follows: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law ... 3.     Everyone charged with a criminal offence has the following minimum rights: ... (d)     to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” A.     The rights to participate in the court hearing and to question witnesses 50.     The applicants alleged that during their trial a number of procedural violations had occurred. In particular, they submitted that the courts had violated their right to make submissions, given that four of them had not taken part in the hearings on 16-20   August 2004 at the Kaunas City District Court. 51.     The applicants further argued that even though K.M., V.M., B.M and A.K. had not been present at the aforementioned hearings, the trial court had suspended the examination of the case with regard to them, but it had nonetheless questioned witnesses about the blockade of the roads, and those witnesses had not been questioned again later. The applicants were also dissatisfied that their requests to question certain witnesses who were politicians had been denied. 52.     Lastly, B.M. complained that the domestic courts had not asked the Central Electoral Commission to lift the immunity they had been entitled to as parliamentary candidates, thus breaching the provisions of the Law on Parliamentary Elections. 53.     The Government contested the applicants’ claims. 54.     On the basis of the materials submitted to it, the Court notes that A.K., B.M., V.M. and K.M. were indeed absent from the trial court’s hearings on 16-20   August 2004. It observes, however, that there is no information to the effect that those applicants had been improperly summoned to the court. Neither can the Court overlook the Supreme Court’s conclusion that those four applicants had not informed the trial court of the reasons for their absence. The Court further recalls that the trial court took the decision to adjourn the examination of the case in respect of the absent applicants and, in order of preserve the applicants’ right to trial within a reasonable time, to continue the examination of the case only as regards A.P. (see paragraph   35 above). Furthermore, there is nothing to indicate that the domestic courts were biased or created any obstacles to the applicants directly taking part in the hearing. 55.     The Court next turns to the applicants’ complaint that they could not examine witnesses who had testified at the hearings of 16-20   August 2004. To this end, the Court observes that the defence counsel, who represented all five applicants before the domestic courts, was present at the hearing of 16   August 2004. As the transcript of the hearing reads, the counsel cross-examined seven out of eight witnesses who testified on that day. Neither have the applicants argued that their counsel was not present at the hearings of 17-20 August 2004, when some other witnesses were questioned. Most importantly, the Court finds it decisive that, as it transpires from the trial court’s judgment, the guilt of the four applicants was determined on the basis of documentary evidence and video recordings of the demonstrations, and not on the basis of the witnesses who had testified during the hearings in question (see, by contrast, Lucà v. Italy , no.   33354/96, § 43, ECHR 2001 ‑ II). This latter point has been confirmed by both the appellate and cassation courts, who unequivocally stated that when finding the applicants guilty the trial court relied only on the statements of witnesses who testified at the hearings where all applicants had been present (see paragraphs   30 and   35 above). 56.     The applicants also criticised the domestic courts for not having summoned high-ranking State politicians to testify in the criminal proceedings at issue. In this context the Court recalls that the admissibility of evidence is primarily governed by the rules of domestic law. As a general rule, it is for the national courts to assess the evidence before them, as well as the relevance of the evidence which defendants seek to adduce (see, among other authorities, Barberà, Messegué and Jabardo v.   Spain , 6   December 1988, §   68, Series   A no.   146). More specifically, Article   6 §   3   (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses, in the “autonomous” sense given to that word in the Convention system (see Asch v.   Austria , 26   April 1991, §   25, Series   A no.   203). It “does not require the attendance and examination of every witness on the accused’s behalf: its essential aim, as is indicated by the words “under the same conditions”, is a full “equality of arms” in the matter” (see, among other authorities, Engel and Others v.   the Netherlands , 8   June 1976, §   91, Series   A no.   22, and Bricmont v.   Belgium , 7   July 1989, §   89, Series   A no.   158). As concerns the applicants in the instant case, the Court considers that their complaints were thoroughly addressed and dismissed by both the appellate and the cassation courts. It sees no valid reason to depart from their conclusions that the testimony of the politicians who had not taken part in the gathering or seen the violations of public order was not pertinent to the charges against the five applicants (see paragraphs   32 and   35 above). The Court also sees no cause to depart from the national courts’ findings, based on their direct knowledge of domestic law, as regards B.M.’s contention that immunity from crim