CEDH · CASELAW;COMMUNICATEDCASES;ENG — 16 octobre 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s6DB91820 { text-align:center } .s8BB62139 { margin-right:auto; margin-left:auto; border-collapse:collapse } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s6B505E72 { margin:0pt; padding-left:0pt } .s8F670191 { font-family:Arial; font-size:12pt; list-style-position:inside } .s9538EC41 { height:0pt } .s73855E07 { width:31.7pt } .s68C78586 { width:87.8pt } .s31420093 { width:63.1pt } .sAE1750B8 { width:2.35pt } .s57313DFA { width:97.25pt } .s4C5EB9D8 { width:94.15pt }   Communicated on 16 October 2017   FOURTH SECTION Application no. 56998/16 Saulius VELEČKA against Lithuania and 3 other applications (see list appended) The applicants are Lithuanian nationals. The facts of the case, as submitted by the applicants, may be summarised as follows. A.     The circumstances of the case 1.     Application no. 56998/16 was lodged on 24   September 2016 by Mr   Saulius Velečka who was born on 25   December 1971 and is detained in Šiauliai Remand Prison. He is represented by Mr Kristupas Ašmys, a lawyer practising in Vilnius. On 22 January 2013 the applicant was arrested. He was questioned and officially notified that he was suspected of participating in and being the leader of a criminal organisation that had possessed and distributed large amounts of narcotic and psychotropic substances. It was suspected that criminal activities had been planned in Lithuania, Russia, Ukraine, Latvia, the United Kingdom, the Netherlands and Spain. The applicant was also suspected of having more than 18,825 euros (EUR) of property registered in the name of other persons, which could not have been acquired lawfully. On 23 January 2013 the Vilnius District Court authorised the applicant’s detention on remand for three months. The court considered that the testimony of witnesses in the case, identification reports, expert conclusions and other data were sufficient to hold that the applicant might have committed the crimes of which he was suspected. The court further found that it was possible that the applicant could try to abscond or commit new crimes because he was suspected of very serious, serious and medium severity offences which could lead to life imprisonment. He also had relations in European Union countries, Russia, Ukraine, and the United States and had organised crimes outside the territory of Lithuania. Moreover, he had already been found guilty of crimes in Lithuania and Germany. Lastly, the court noted that the pre-trial investigation was still ongoing and was very complex and the applicant’s detention was necessary to ensure his participation in the proceedings. The applicant’s detention on remand was repeatedly prolonged until 22   July 2016 and his appeals against it were dismissed. The domestic courts generally relied on the same grounds. They added that the applicant’s being married, having a family and a permanent place of residence were not circumstances that could guarantee that he would not abscond. They also held that the criminal case was extremely complicated, had over hundred volumes and thirteen accused, the crimes extended to the territories of other countries, some information had to be asked for from Russia, Belarus, Ukraine, the Netherlands and the United Kingdom, and additional pre-trial investigative actions had to be performed. At some point (on 15 November 2013 by the decision of the Court of Appeal), the grounds that the applicant might abscond were removed from the reasons to extend his detention on remand, but were later reinserted. It was later found that the applicant was also suspected of the attempted murder of A.P., the murder of V.S. and of robbing R.M., thus his continued detention was justified. The criminal case was sent for trial on 2   July 2014. On 22 July 2016 the Klaipėda Regional Court approved an application by the applicant for a different restrictive measure. It noted that the applicant had been detained for forty-two months. For objective reasons, only three hearings in the criminal case against the applicant had taken place and further hearings were scheduled for October-December 2016. A further extension of the applicant’s detention could therefore be assessed as a violation of Article 5 § 3 of the Convention. The court took into account the fact that EUR 30,000 had been paid as bail. It ordered his documents to be confiscated and placed him under close supervision by ordering him to wear an electronic ankle bracelet. It also prohibited him from leaving his home for six months and released him immediately. On 5 August 2016 the Court of Appeal, following an appeal by the prosecutor, quashed the lower court’s decision to release the applicant. The court held that although the applicant had a family, a place of residence, and sufficient income, he had been found guilty of an offence in the past, which was a negative character trait. Moreover, the nature and scale of the alleged criminal activities allowed for the conclusion that the applicant had relations abroad. There was therefore a risk that he might abscond and commit further crimes. Although the court acknowledged that the applicant had been detained for a very long time (more than three years and six months), it reiterated that the public interest outweighed the right to individual liberty. The scope of the case (thirteen accused and one-hundred and thirty-nine volumes of material) and the complexity of the investigation justified the applicant’s continued detention. The court noted that examination of the criminal case had not continued after the previous hearing on 29 February 2016 and that the break in proceedings was scheduled to last until 25   October 2016. However, a hearing due on 16 June 2016 had not taken place because two of the accused had not been present while the state of health of another two accused had caused another break. The court further observed that twenty-four hearings had taken place in 2015 and concluded that examination of the case had been intensive. The court ordered the applicant’s detention on remand for three months from the date of his arrest. After that, the applicant’s detention on remand was continuously extended for three months at a time and all his appeals were dismissed. The courts noted that the hearings in the criminal case were scheduled in advance and that the court trying the case had made every effort to examine it rapidly. However, the proceedings had become prolonged because of the need for expert opinions and the state of health of several of the accused. On 12 June 2017 the Court of Appeal dismissed an appeal by the applicant. The applicant relied on the practice of the Court, in particular the case of Lisovskij v. Lithuania (no. 36249/14, 2 May 2017). The court did not agree with the arguments of the applicant’s lawyer that examination of the criminal case had become protracted because of the ineffective organisation of the trial court’s work. The court held that the hearings had been scheduled in advance and that examination of the case had become protracted for objective reasons (some hearings had not taken place because of the state of health of the accused, requests from the accused and their lawyers, and the additional questioning of witnesses). Further hearings had been scheduled for 30   June 2017, and 3, 11 and 12 July 2017 and examination of the case was nearly finished. Finally, the court held that the Court’s judgment in Lisovskij (cited above) was not final and could be changed.   2.     Application no. 58761/16 was lodged on 29   September 2016 by Mr   Norbertas Tučkus who was born on 19   May 1975 and is detained in Šiauliai Remand Prison. On 22 January 2013 the applicant was arrested. He was questioned and officially notified that he was suspected of creating and participating in a criminal organisation that had possessed and distributed large amounts of narcotic and psychotropic substances. The applicant was also suspected of having more than EUR 18,825 of property that was registered in the name of other persons and that could not have been acquired lawfully. On 23 January 2013 the Vilnius District Court authorised the applicant’s detention on remand for three months. The court considered that the testimony of witnesses, identification reports, expert conclusions and other data were sufficient to hold that the applicant could have committed the crimes of which he was suspected. The court further found that it was possible that the applicant might try to abscond or commit new crimes because he was suspected of very serious, serious, and medium severity crimes which could lead to life imprisonment. He also had relations in foreign countries and had been convicted before. The fact of the applicant having children was not sufficient to establish that his ties to society minimised the risk of absconding. The applicant’s detention on remand was repeatedly prolonged until 22   July 2016 and his appeals against it were dismissed. The domestic courts relied on almost the same grounds. They added that the applicant had no job or legal income, which increased the risk of his absconding or committing further crimes. The criminal case was also extremely complex, consisting of over a hundred volumes, involving thirteen accused and crimes that extended to the territories of other countries. The criminal activities had not only been committed in Lithuania, but also in European Union countries, Ukraine, Belarus, and Russia, while requests for legal cooperation had been sent to Russia, Ukraine, the Netherlands, and the United Kingdom. The court also held that although the notification of his being a suspect had been served on the applicant on 21 March 2012, he had continued his criminal activities, thus there was a risk that he might commit new offences. Although the applicant’s lawyer stated that his detention on remand, which had lasted for three years, had started to turn into a criminal sentence, the court held that such a restrictive measure was justified in order to protect the public interest. The criminal case was sent for trial on 2   July 2014. On 22 July 2016 the Klaipėda Regional Court satisfied a request from the applicant to impose a different restrictive measure. It noted that the applicant had been detained for forty-two months. For objective reasons, only three hearings in the criminal case against the applicant had taken place. Further hearings were scheduled for October-December and a further extension of his detention could be assessed as a violation of Article 5 § 3 of the Convention. The court took into account the fact that EUR 30,000 had been paid as bail, ordered the applicant to surrender his documents and set close supervision for six months by prohibiting him from leaving his home. The applicant was released immediately. On 5 August 2016 the Court of Appeal, following an appeal by the prosecutor, quashed the lower court’s decision to release the applicant from detention on identical reasons as those in the case of the applicant Mr   Saulius Velečka (see above). After that, the applicant’s detention on remand was repeatedly extended for periods of three months and all appeals by him were dismissed. The courts noted that hearings in the criminal case had been scheduled in advance and that the court had made every effort to examine the case rapidly, however, the proceedings had become prolonged owing to the drawing up of an expert’s opinion and the health of several of the accused. On 12 June 2017 the Court of Appeal rejected an appeal by the applicant. The court held that Lisovskij (cited above), referred to by the applicant, was not final and could still be changed. The court examining the criminal case had taken all the necessary measures to ensure that there was no unjustified delay in the proceedings. Hearings had taken place on 11, 12, 25   November 2014; 9 December 2014; 19, 20 January 2015; 24 February 2015; 16,   18,   30, 31 March 2015; 1, 13 April 2015; 3, 4, 5, 19 May 2015; 1,   2   June 2015; 13, 14 July 2015; 16, 19 October 2015; 10, 11   November 2015; 1,   2   December 2015; 29 February 2016; 16 June 2016, 25   October 2016; 29   November 2016; 17 February 2017; 17 March 2017; 3, 11   April 2017; 3,   16 May 2017 and were scheduled on 30 June 2017; 3,   11   and   12   July   2017. The court held that some of the hearings had been adjourned for objective reasons: on 16   March 2015 the victim, A.P., had failed to appear, and had subsequently been placed under arrest for one month in order to ensure his participation. On 2 April 2015 the court had ordered that seven witnesses be brought to the hearing while an adjournment had taken place on 14 and 15 April 2015 because of the state of health of one of the accused. On 3 June 2015 the court had ordered one witness to pay a fine and ordered the authorities to bring him to the hearing. A hearing due for 16 October 2015 had not taken place because the applicant was ill. During a hearing on 19 October 2015 one of the accused had been questioned but it had been found that he had experienced a head injury the month before. Another accused’s health was also questionable, thus an expert opinion had been ordered by the court on 20 October 2015. Another expert report had been ordered on 29 February 2016. The hearing set for 25 October 2016 was postponed because one of the accused had breached the requirements of his restrictive measure and had been arrested in Sweden while two other accused had had health issues. Other hearings had taken place in accordance with the schedule. On 1 August 2017 the Klaipėda Regional Court extended the applicant’s detention on remand for further three months from 5 August 2017, this decision was confirmed by the Court of Appeal on 30 August 2017. The courts relied on essentially the same grounds as before.   3.     Application no. 60072/16 was lodged on 4   October 2016 by Mr   Audrius   Petkauskas, who was born on 16   July 1974 and is detained in Šiauliai Remand Prison. He is represented by Mr Linas Belevičius, a lawyer practising in Vilnius. The applicant was arrested on 22 January 2013. He was questioned and officially notified that he was suspected of creating and participating in a criminal organisation that had possessed and distributed large amounts of narcotic and psychotropic substances. The applicant was also suspected of having more than EUR 18,825 of property registered in the name of other persons, which could not have been acquired lawfully. On 24 January 2013 the Vilnius District Court authorised the applicant’s detention on remand for three months. The court considered that the testimony of witnesses, identification records, expert conclusions and other data were sufficient to hold that it was possible that the applicant had committed the crimes of which he was suspected. The court further stated that the applicant might try to abscond or commit new crimes because he was suspected of very serious, serious and medium severity crimes which could lead to life imprisonment and had relations in foreign countries. The applicant’s having children was not sufficient to establish that his ties to society minimised the risk of absconding. The applicant’s detention on remand was prolonged on a repeated basis until 22   July 2016 and his appeals against the measure were dismissed. The domestic courts relied almost always on the same grounds. They added that the applicant did not have a job or legal income, which increased the risk of his absconding or committing further crimes, and that the criminal case was extremely complex, with over a hundred volumes and thirteen accused. The crimes had also extended to the territories of other countries as criminal acts had not only been committed in Lithuania, but also in European Union countries, Ukraine, Belarus, and Russia, while requests for legal cooperation had been sent to Russia, Ukraine, the Netherlands, and the United Kingdom. The Court of Appeal held at one point (in a decision on 13   August 2013) that the fact that the applicant might abscond had been determined incorrectly because he had not absconded after receiving notification that he was a suspect on 16 March 2012, but those grounds were later reintroduced. The criminal case was transferred to the court for examination on the merits on 2   July 2014. On 22 July 2016 the Klaipėda Regional Court approved an application by the applicant for a different restrictive measure. The court found that for objective reasons only three hearings in the criminal case against the applicant had taken place, further hearings were not scheduled until October-December, and a further extension of the applicant’s detention could be assessed as a violation of Article 5 § 3 of the Convention. The court took into account the fact that EUR 30,000 had been paid as bail, ordered the taking of the applicant’s documents and close supervision for six months by prohibiting the applicant from leaving his home. The applicant was released immediately. On 5 August 2016 the Court of Appeal, following an appeal by the prosecutor, quashed the lower court’s decision to release the applicant from detention on reasons essentially identical to those in the case of Mr   Saulius   Velečka (see above). The court ordered the applicant’s detention on remand for three months from the date of his arrest. After that, the applicant’s detention on remand was extended on repeated occasions for a further three months and all his appeals were dismissed. The courts noted that hearings in the criminal case had been scheduled in advance and that the court examining the criminal case had made every effort to proceed rapidly but the trial had become prolonged owing to the gathering of expert opinions and the health of several of the accused. On 12 June 2017 the Court of Appeal rejected an appeal by the applicant. It held that the Court’s judgment in Lisovskij , referred to by the applicant, was not final and that the factual circumstances of that case were different. The court examining the criminal case had taken all the necessary measures to ensure that there was no unjustified delay in the proceedings. Hearings had taken place on 11, 12, 25 November 2014; 9 December 2014; 19,   20   January 2015; 24 February 2015; 16, 18, 30, 31 March 2015; 1,   13   April 2015; 3, 4, 5, 19 May 2015; 1, 2 June 2015; 13, 14 July 2015; 16, 19 October 2015; 10, 11 November 2015; 1, 2 December 2015; 29   February 2016; 16 June 2016, 25 October 2016; 29 November 2016; 17   February 2017; 17 March 2017; 3, 11 April 2017; 3, 16 May 2017 and were scheduled on 30 June 2017; 3, 11 and 12 July 2017.   4.     Application no. 72001/16 was lodged on 25   November 2016 by Mr   Tadas Petrošius who was born on 30   June 1981 and is detained in Šiauliai Remand Prison. He is represented by Mr Linas Belevičius, a lawyer practising in Vilnius. The applicant was arrested on 22 January 2013. He was questioned and officially notified that he was suspected of creating and participating in a criminal organisation that had possessed and distributed large amounts of narcotic and psychotropic substances. The applicant was also suspected of having more than EUR 18,825 of property registered in the name of other persons, which could not have been acquired lawfully. On 23 January 2013 the Vilnius District Court authorised the applicant’s detention on remand for two months from 22 January 2013. The court considered that the testimony of witnesses, identification reports, expert conclusions and other data were sufficient to hold that the applicant might have committed the crimes of which he was suspected. The court further stated that the applicant might try to abscond or commit new crimes because he was suspected of very serious, serious and medium severity crimes which could lead to long-term imprisonment, had relations in foreign countries, had been convicted before, was not married and did not have a legal source of income. The applicant had a family, a five-month-old child, a permanent place of residence and had been diagnosed with Hepatitis C, but those circumstances did not mean that he could not be detained. The applicant’s detention on remand was prolonged repeatedly until 22   July 2016 for three months each time and his appeals were dismissed. The domestic courts relied almost always on the same grounds. They added that the applicant did not have a job or legal income, which increased the risk of his absconding or committing further crimes; the criminal case was extremely complex, with over a hundred volumes, thirteen accused, and crimes that extended to the territories of other countries as the criminal acts had been committed not only in Lithuania, but also in European Union countries, Ukraine, Belarus, and Russia. Requests on legal cooperation had also been sent to Russia, Ukraine, the Netherlands, and the United Kingdom. On 20 February 2014 the Court of Appeal rejected an appeal by the applicant. According to information submitted by the prosecutor, the applicant had attempted to murder one of the suspects and the court held he might impede the proceedings if he was released. On 10 October 2014 the Klaipėda Regional Court extended the applicant’s detention on remand for a further three months from 22 October 2014. The court also dismissed an application by the applicant to be allowed visits by third parties who were not his close relatives. The court also stated that the applicant could call his partner and sister and was allowed to receive a visit from his partner. On 22 July 2016 the Klaipėda Regional Court decided to release the applicant on bail. For objective reasons only three hearings in the criminal case against the applicant had taken place, further hearings were not scheduled until October-December, and a further extension of his detention could be assessed as a violation of Article 5 § 3 of the Convention. The court took into account the fact that EUR 30,000 had been paid as bail, ordered his documents to be confiscated and applied close supervision for six months by prohibiting him from leaving his home. The applicant was released immediately. On 5 August 2016 the Court of Appeal, following an appeal by the prosecutor, quashed the lower court’s decision to release the applicant on essentially the same grounds as in the case of Mr Saulius Velečka. The court ordered the applicant’s detention on remand for three months from the date of his arrest. After that, the applicant’s detention on remand was repeatedly extended for a further three months each time and all his appeals were dismissed. The courts noted that hearings in the criminal case were scheduled in advance and that the trial court had made every effort to examine the case rapidly. However, proceedings had become prolonged owing to the need for expert reports and because of health issues related to several of the accused. On 12 June 2017 the Court of Appeal rejected an appeal by the applicant. The court analysed the special diligence criteria established in Lisovskij (cited above), which was referred to by the applicant’s lawyer. The court held that while very long periods of detention did not automatically violate Article 5 § 3, exceptional circumstances were usually required to justify them. In the case at hand, those special circumstances were the applicant’s dangerousness, the nature and extent of the criminal offences, the fact that the offences had been committed by a criminal organisation that had firearms and that they had an international element. The court examining the criminal case had taken all the necessary measures to ensure that there had been no unjustified delays in the criminal proceedings. Although no hearings had taken place from 2 December 2015 to 29 November 2016, there had been objective reasons: it had been announced during the hearing on 20 October 2015 that no hearing would take place on 19 January 2016 because one of the judges had a hearing in another case; on 2 December 2015 the court had announced that there would be a break until 29   February   2016 because there was to be a psychiatric examination of two of the accused on 19 January 2016; an additional expert report was commissioned for the same two accused on 29 February 2016 and there was a further adjournment (the results of the expert report were received on 8   June 2016 and 17 June 2016); the hearing on 16 June 2016 did not take place because one of the accused was sick and another had been arrested in Sweden; and there was no hearing on 25 November 2016 because three of the accused had failed to appear (one of them had been arrested in Sweden and his transfer to Lithuania was to take place on 13 January 2017). Further hearings had been scheduled for 30 June 2017, while the questioning of two   witnesses and closing speeches had been scheduled for 3,   11   and   12   July   2017. The court concluded that the examination of the criminal case had not been unreasonably protracted. B.     Relevant domestic law and practice For relevant domestic law regarding detention on remand and the conduct of criminal proceedings, see Lisovskij v. Lithuania (no. 36249/14, §§   45-54, 2 May 2017). For relevant domestic law regarding family visits in prison, see Čiapas v.   Lithuania (no. 62564/13, §§ 9-16, 4 July 2017). COMPLAINTS The applicants complain under Article 5 § 3 of the Convention that the length of their detention on remand was excessive. They also complain under Article 8 § 1 of the Convention about not being able to receive conjugal visits from their spouses or partners. The applicants also complain under Article 13 that they did not have an effective remedy for their Article 8 § 1 complaint. QUESTIONS TO THE PARTIES 1.     Was the length of the applicants’ detention on remand in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention (see Jėčius v. Lithuania , no. 34578/97, § 93, ECHR 2000 ‑ IX; Balčiūnas v.   Lithuania , no.   17095/02, §§ 77-80, 20 July 2010, and Lisovskij v.   Lithuania no.   36249/14, §§ 65-68, 2 May 2017)?   In this context, were the competent domestic authorities’ actions sufficiently prompt in the conduct of the criminal proceedings against the applicants during the period of their detention on remand (see Labita v. Italy [GC], no. 26772/95, §   153, ECHR 2000 ‑ IV; Arutyunyan v. Russia , no.   48977/09, § 109, 10   January 2012; Dervishi v. Croatia , no. 67341/10, §§   139-144, 25   September   2012, Gábor Nagy v.   Hungary (no. 2) , no.   73999/14, §§ 77-79, 11 April 2017; Podeschi v. San Marino , no.   66357/14, §§ 136 and 154, 13 April 2017; Lisovskij , cited above, §§   68,   78-80; and Mindadze and Nemsitsveridze v.   Georgia , no. 21571/05, §   125, 1   June 2017)?   2.     Has there been an interference with the applicants’ right to respect for their family life, within the meaning of Article 8 § 1 of the Convention? Was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention?   3.     Did the applicants have an effective remedy for their Article 8 § 1 complaint, as required by Article 13 of the Convention?     APPENDIX No. Application no. Lodged on Applicant Date of birth Place of residence Represented by   56998/16 24/09/2016 Saulius VELEČKA 25/12/1971 Siauliai   Kristupas AŠMYS   58761/16 29/09/2016 Norbertas TUČKUS 19/05/1975 Siauliai       60072/16 04/10/2016 Audrius PETKAUSKAS 16/07/1974 Siauliai   Linas BELEVIČIUS   72001/16 25/11/2016 Tadas PETROŠIUS 30/06/1981 Siauliai   Linas BELEVIČIUS