CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 septembre 2018

.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 } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .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 } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA36B60A1 { font-family:Arial; font-style:italic }   Communicated on 17 September 2018   FOURTH SECTION Application no. 61264/17 Regina LEONIENĖ against Lithuania lodged on 17 August 2017 STATEMENT OF FACTS The applicant, Ms Regina Leonienė, is a Lithuanian national, who was born in 1948 and lives in Šiauliai. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. In 2010, 2012 and 2013 pre-trial investigations were opened against the applicant for fraud, fraudulent management of accounts, abuse of office, forgery of a document or possession of that document, credit fraud, failure to perform official duties and use of a credit, loan or targeted support not in accordance with its purpose or the established procedure. In 2013 the applicant was served with a notice on suspicion of fraud, use of a credit, loan or targeted support not in accordance with its purpose or the established procedure, fraudulent management of accounts and abuse of office. In 2014 a bill of indictment was drawn up and the applicant’s case was transferred to a court. On 7 November 2016 the applicant was driving to a hearing which was due to take place at 9:30 a.m. The distance to the hearing was 140   kilometres and the applicant’s car broke down on the way. The applicant’s lawyer informed the court about the accident. The Kretinga District Court held that it was not the first time the applicant had failed to come to a hearing. She had not participated before due to her illness, failure of other parties to appear, a fire in the premises of her company and severe weather conditions. Although the applicant’s lawyer submitted that on 7   November 2016 the weather conditions were complicated, the court observed that the other parties had managed to arrive. The court was of the view that the applicant did not take the criminal proceedings seriously and that she was systematically obstructing the proceedings. The court thus decided to order the applicant’s detention on remand for three months. The starting date of the detention on remand was to be calculated from the date of the actual arrest. The applicant arrived at the court on 7 November 2016 at 2:51   p.m. and provided the court with the documents proving that her car had broken down. It appears that she asked to have the decision of her detention on remand annulled. On 9 November 2016 the Kretinga District Court approved the applicant’s detention on remand. Even though the applicant had medical problems (diabetes) and the prosecutor also thought that the applicant’s arrest was not necessary since she had failed to appear at a hearing due to the technical problems of her car, the court decided that there were grounds to order the applicant’s detention on remand. The court held that the applicant interfered with the proceedings, she had failed to appear at the hearings on several occasions and the more lenient measure would not achieve the same objectives as detention on remand. The applicant appealed against that decision. On 22 November 2016 the Klaipėda Regional Court rejected the applicant’s complaint. The court held that there was some doubt as to the alleged technical problems with the applicant’s car as she had stated that she had been driving from Šiauliai, but the car was transported from Plungė to Šiauliai and then back to Plungė. The applicant’s places of residence were in Šiauliai and Rietavas. Also, the document provided by the applicant did not indicate any reparation work made on the car. The applicant’s argument that no hearings were planned in 2017 and thus the term of the detention on remand did not serve the purpose of ensuring uninterrupted examination of the case was dismissed because the court held that it did not mean that hearings would not be scheduled in the near future. The applicant had mental health issues and was being treated in a psychiatric hospital since November 2016. The term of the treatment was estimated at two months. The hospital recommended that the applicant should not participate in the hearings during her treatment period. On 2 February 2017 the treatment was prolonged. On 14 December 2016 the applicant asked to have the detention on remand annulled and to have a less restrictive measure applied because all the procedural actions had already been taken in the case and only final speeches had to be pronounced. On 28 December 2016 the Kretinga District Court rejected the applicant’s request repeating the reasons stated in the previous decisions. The applicant again asked to replace the detention on remand with a less restrictive measure. On 18 January 2017 the Kretinga District Court repeated the same reasons stated in the previous decisions and rejected the applicant’s request. On 25 January 2017 the Kretinga District Court decided to order an expertise on the applicant’s psychiatric health. The applicant appealed against the decision of the Kretinga District Court of 18 January 2017, and on 30 January 2017 the Klaipėda Regional Court decided to leave the appeal unexamined because a decision to refuse to annul the detention on remand could not be appealed against. On 2 February 2017 the Kretinga District Court asked the police why the decision to arrest the applicant was not being executed. On 7 February 2017 the applicant asked the court to postpone her detention on remand until she had fully recovered from her illness. On 8 February 2017 the applicant was arrested. On 13 February 2017 the Kretinga District Court refused to accept the applicant’s request of 7 February 2017 to postpone her detention on remand because the domestic law did not provide for a possibility to postpone the execution of a restrictive measure. The applicant then asked the court to ensure her treatment but on 17   February 2017 the Kretinga District Court refused to accept that request because the domestic law did not have any provisions regarding the medical treatment of the accused. The applicant then asked to postpone the hearing of the case and to impose a less restrictive measure than the detention on remand. On 28   February 2017 the Kretinga District Court refused to postpone the hearing because even though there was a document dated 6 February 2017 from the hospital that it was not recommended that the applicant participate in the proceedings, it was issued before the applicant’s actual arrest. The applicant was brought before the court on 28 February 2017 and there was no information that the applicant could not participate in the hearings because of her health issues. There was also a document in the case provided by the applicant’s lawyer on 1 February 2017 where it was indicated that the applicant’s treatment in the hospital had finished on 1   February 2017. The court also refused to impose a less restrictive measure on the applicant as it could interfere with the normal course of proceedings. The applicant asked to have her detention on remand annulled or to have it changed to another restrictive measure. On 20 March 2017 the Kretinga District Court refused the applicant’s request relying on essentially the same reasons as before. The applicant asked again to have her detention on remand annulled or to have it changed to another restrictive measure. On 3 April 2017 the Kretinga District Court refused the request. It held that deterioration of the health of the accused was not among the grounds established in domestic law to impose a less restrictive measure. On 3 May 2017 the Kretinga District Court examined the issue of the applicant’s detention on remand. It held that the examination of evidence in the criminal proceedings had not finished and that the applicant had yet to pronounce her testimony; the lawyers kept submitting new or repeated requests regarding the examination of evidence. The court held that there was enough information to presume that the applicant had committed the offence. Even though she had a legal source of income and a permanent place of residence, her behaviour during the proceedings was enough to believe that the condition of the detention on remand was still pertinent. The court thus decided to extend the term of the applicant’s detention on remand for a further three months. The applicant appealed. On 18 May 2017 the Klaipėda Regional Court partially satisfied the appeal. The court established that the criminal case was received at the Kretinga District Court on 22 April 2014 and was transferred for examination on 22 May 2014. The examination was protracted due to the failure of the accused and her lawyers to appear without any good reason. The applicant herself had failed to appear on 27   March 2015, 27   April 2015, 11 May 2015, 26 March 2016, 19 and 25   April 2016. On 6   May 2016 the court ordered an expertise in order to establish whether the applicant could not participate in the hearings on 19   and 25   April 2016 because of her illness. On 26 May 2016 the expert’s conclusion stated that the applicant could fake her illness, thus on 14   June 2016 the court gave her a fine. The hearing on 13 September 2016 was discontinued because of the fire in the applicant’s company; however, the applicant did not provide any documents proving that the fire had actually happened. On 23 September 2016 the applicant had failed to appear because one of her lawyers informed the court that he could not participate in the hearing that day and the applicant, therefore, considered that it was not necessary for her to participate either. On 26   September 2016 the court gave the applicant a fine for failure to participate in the hearing of 23 September 2016. Finally, when the applicant failed to appear on 7   November 2016, the court decided to impose detention on remand. Having regard to these circumstances, the Klaipėda Regional Court observed that the applicant had failed to properly implement her duty to participate in the hearings and that the detention on remand was imposed lawfully. However, the court considered that a more lenient restrictive measure could help to achieve the same objective. The court then went on to list the grounds for detention on remand established in the Court’s practice: the risk of absconding; of interfering with the proceedings; of committing new crimes; of interfering with public order. The court held that it was necessary to consider the gravity of the offence, the personality of the applicant, the gravity of the penalty and the principle of proportionality. The court further held that in its decision to extend the term of the applicant’s detention on remand the district court had failed to indicate the grounds listed for this in domestic law. It was obvious from the reasoning, however, that the detention on remand was prolonged because there was a risk that the applicant would interfere with the proceedings. The court noted that detention on remand could only be imposed if it was not possible to achieve the objectives listed in domestic law by other less restrictive measures. When the first-instance court decided to extend the term of the applicant’s detention on remand, it did not consider imposing one or several less restrictive measures on the applicant. The Klaipėda Regional Court stated that since the applicant’s arrest, the examination of the case had not moved forward due to some breaks in the proceedings because of other parties having failed to appear, and not only because of the applicant’s actions. The court thus decided that the extension of the term of the applicant’s detention on remand was disproportionate to the aim pursued. The applicant was of a certain age, had health issues, a permanent place of residence, family, her own private company and had not been convicted before. The court decided to set bail at 5,000   euros (EUR) in order to ensure that the applicant appeared before the courts. On 24 May 2017 the results of a psychiatric expertise, ordered on 25   January 2017, were delivered and it was recommended that the applicant be monitored in hospital. B.     Relevant domestic law Article 20 of the Constitution of the Republic of Lithuania reads as follows: Article 20 “Human liberty shall be inviolable. No one may be arbitrarily apprehended or detained. No one may be deprived of his liberty otherwise than on the grounds and according to the procedures established by law. A person apprehended in flagrante delicto must, within forty-eight hours, be brought before a court for the purpose of deciding, in the presence of this person, on the validity of the apprehension. If the court does not adopt a decision to detain the person, the apprehended person shall be released immediately.” Article 11 § 1 of the Code of Criminal Procedure (hereinafter ‑ “the CCP”) provides that restrictive measures can only be imposed if it is impossible to achieve the aims of the process by any other means. The application of a restrictive measure has to be discontinued when the need for it ceases to exist. Article 119 of the CCP provides that restrictive measures can be applied in order to ensure that the suspect, the accused or the convicted person participates in the proceedings, to prevent interference with the pre-trial investigation or with the examination of the case before the court, or with the execution of the sentence, and to prevent the commission of further criminal acts. Article 121 § 4 provides that when deciding whether it is necessary to order a restrictive measure or when choosing a particular measure, the pre-trial investigation officer, prosecutor, judge or court must take into account the seriousness of the charges against the suspect, the suspect’s personality, whether he or she has a permanent place of residence and a job or other legal means of subsistence, the suspect’s age, state of health, family status and other circumstances which may be relevant when ordering a restrictive measure. Article 122 § 1 (2) of the CCP permits detention on remand when there is a well-founded belief that a suspect may interfere with the investigation. Article 122 § 7 of the CCP provides that detention on remand may be ordered only when more lenient remand measures would be insufficient to achieve the objectives listed in Article 119 of the CCP. Article 125 § 2 (4) of the CCP provides that the decision to order a restrictive measure has to contain the aim to be achieved with a restrictive measure, and, if detention on remand is ordered – conditions of such detention on remand, one or several grounds listed in Article 122 of the CCP and reasons to impose such measure as well as factual circumstances and reasons, why it was not possible to order less restrictive measures in order to achieve the objectives listed in Article 119 of the CCP. Article 242 1 § 1 of the CCP provides that the court has to put all the efforts to examine a criminal case expeditiously and has to aim for examination of the case with as less breaks as possible. Article 247 of the CCP provides that if an accused fails to appear at a hearing, a break in the proceedings can be made or the examination of the case can be postponed, except if a case is examined before the court of first instance, where the participation of the accused is compulsory. The court has a right to bring in the accused who has failed to appear as well as to impose a restrictive measure or to change it into a more restrictive measure. COMPLAINTS 1.     The applicant complains under Article 3 of the Convention about the failure of the authorities to ensure the proper medical assistance corresponding to her state of health and the failure to ensure the continuity of the treatment during her detention on remand. 2.     The applicant also complains under Articles 5 § 1, 5 § 3 and 5 § 4 that her detention on remand was arbitrary, the decisions on her detention on remand lacked proper reasoning, were formal and did not even consider imposing less restrictive measures and that the term of her detention on remand was ungrounded. QUESTIONS TO THE PARTIES 1.     Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention? In particular, was the detention itself compatible with the applicants’ state of health? Was the applicant provided with adequate medical treatment in detention given her mental state (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000 ‑ XI; Davtyan v.   Armenia , no. 29736/06, §§ 78-81, 31 March 2015; and Yunusova and Yunusov v. Azerbaijan , no. 59620/14, § 138, 2 June 2016)?   2.     Was the applicant deprived of her liberty in violation of Article 5 §   1 of the Convention? In particular, was the applicant’s arrest effected on a reasonable suspicion of her having committed a criminal offence or was it reasonably considered necessary to prevent her committing an offence or fleeing after having done so, within the meaning of paragraph 1 (c) of this provision? (see Bandur v. Hungary , no. 50130/12, §§ 47-48, 5 July 2016; Şahin Alpay v. Turkey , no. 16538/17, §§ 103-05, 20 March 2018; and Mammadli v. Azerbaijan , no. 47145/14, §§ 48-53, 19 April 2018)?   3.     In ordering the applicant’s detention, to what extent did the authorities take into account the applicant’s personal circumstances, such as her health, age, family status, etc.? Did the authorities consider ordering less restrictive measures than detention?