FOURTH SECTION
 
 
 
 
 
 
 
CASE OF DAINELIENĖ v. LITHUANIA
 
(Application no. 23532/14)
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
16 October 2018
 
 
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Dainelienė v. Lithuania,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
 Faris Vehabović, President,
 Carlo Ranzoni,
 Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 25 September 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 23532/14) 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, Ms Dalia Regina Dainelienė (“the applicant”), on 18 March 2014. 2. The applicant was represented by Mr R. Mikulskas, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė-Širmenė. 3. On 13 September 2017 the complaint under Article 6 § 1 concerning the independence and impartiality of the Supreme Court was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1944 and lives in Vilnius. 5. On 17 April 2009 the applicant was officially notified that she was suspected of having organised the embezzlement of property of high value. On 7 May 2009 the applicant was charged with the relevant offences. She denied her guilt. 6. On 22 July 2011 the Vilnius Regional Court held that the legal classification of the charges against the applicant was incorrect, because the total value of the allegedly embezzled property was not high. The court reclassified the charges on the basis of a less serious offence, held that the prosecution had become time-barred and discontinued the proceedings. 7. The prosecutor appealed. On 27 October 2011 the Court of Appeal quashed the decision and remitted the case to the Vilnius Regional Court. 8. After re-examining the case, on 10 June 2013 the Vilnius Regional Court found the applicant guilty of the charges against her. She was given a fine of 12,000 Lithuanian litai (LTL) (approximately 3,475 euros (EUR)). She was also ordered to pay some of the damages claimed by a company, amounting to LTL 2,800 (approximately EUR 810). 9. The applicant lodged an appeal, but on 18 October 2013 the Court of Appeal dismissed it and upheld the lower court’s judgment in its entirety. 10. On 7 January 2014 the applicant submitted an appeal on points of law to the Supreme Court. On 17 February 2014 a selection panel of three judges refused to examine the appeal, on the basis that it did not comply with Article 368 § 2 and Article 369 of the Code of Criminal Procedure (hereinafter “the CCP”) (see paragraphs 15 and 16 below). The chair of the selection panel, Judge V.G., was the father of M.G., who had been the prosecutor in the case against the applicant before the first-instance and the appellate courts. 11. The Supreme Court consists of two divisions: Civil and Criminal. The Criminal Division has sixteen judges in it. II. RELEVANT DOMESTIC LAW
12. In accordance with Article 57 § 1 of the CCP, the following persons can ask for somebody to be removed from a case: a suspect, an accused, a convicted person, an acquitted person, a prosecutor, a victim, a private individual making an accusation, a civil claimant, a civil defendant, or representatives of any of the persons listed above. In accordance with Article 57 § 2 of the CCP, it is possible to ask for a pre-trial officer, a prosecutor, a pre-trial judge, a judge, a secretary, a translator, an expert or a specialist to be removed from a case. 13. In accordance with Article 58 § 1 (1) of the CCP, a judge cannot participate in proceedings if he or she is a close family member or relative of a prosecutor in those proceedings. 14. In accordance with Article 59 § 1 of the CCP, a judge must withdraw if the grounds listed in Article 58 of the CCP pertain to a case. 15. Article 368 § 2 of the CCP provides that an appeal on points of law must give the name of the court to which it has been submitted and specify the decision which is being appealed against. It must contain legal arguments demonstrating the existence of the grounds for cassation provided for in Article 369 of the CCP (see paragraph 16 below), include the appellant’s request, and be signed by him or her. 16. Article 369 § 1 of the CCP provides that final court judgments and decisions are examined in cassation proceedings if criminal law has been applied incorrectly or if there have been grave breaches of the CCP. Article 369 § 2 states that an incorrect application of criminal law means that the general provisions of the Criminal Code have not been applied correctly or there has been an incorrect legal classification of criminal charges. Article 369 § 3 states that grave breaches of the CCP are breaches of the requirements set out in the CCP which have restricted the rights of the accused or impeded a court from thoroughly and impartially examining a case and issuing a fair judgment or decision. 17. In accordance with Article 370 § 1 of the CCP, an appeal on points of law can be lodged within three months of the date a judgment or decision of a lower court becomes final. In accordance with Article 370 § 2 of the CCP, the time-limit can be renewed if there are important reasons for doing so. 18. Article 372 § 2 of the CCP provides that when an appeal on points of law has been submitted and it conforms to the formal requirements set out in the CCP, the President of the Supreme Court or the Chair of the Criminal Cases Division of the Supreme Court composes a panel of three judges to whom the appeal and the case file is transferred. Article 372 § 3 provides that the panel of three judges decides whether to accept the appeal for examination. It is admitted if at least one judge on the panel votes in favour. A judge who sits on that panel is not precluded from deciding the merits of the appeal in cassation proceedings. Article 372 § 5 of the CCP provides that the question of whether to accept an appeal on points of law for examination is decided in a written decision which is final and not open to appeal. Reasons must be provided for any decision refusing to examine an appeal. 19. Article 3741 § 1 of the CCP provides that when an appeal on points of law has been accepted for examination and it has been decided that it should be examined in a written procedure, the parties to the proceedings are informed, inter alia, of the date of the examination, the composition of the chamber and their right to request the removal of judges. The CCP does not contain any provisions on parties’ rights to be informed about the composition of the initial panel of three judges and/or to request their removal. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
20. The applicant complained that her case before the Supreme Court had not been examined fairly by an impartial tribunal, having regard to the presence on the selection panel of a judge whose son had been a prosecutor in her case. She relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
A. Admissibility
1. The parties’ submissions
21. The Government submitted that the applicant had failed to exhaust effective domestic remedies. They suggested that the applicant should have eliminated the shortcomings in her appeal on points of law and submitted a new appeal on points of law which also pointed out the alleged breach of the impartiality requirement. If the applicant had missed the time-limit to submit her appeal on points of law, she should have asked the Supreme Court to renew it (see paragraph 17 above). The Government also explained that the selection panels for criminal cases were formed in advance by decisions of the Chair of the Criminal Cases Division of the Supreme Court. However, the panels were computer generated, and thus the composition was a merely technical act. While there was no obligation under domestic law to inform an appellant of the composition of the selection panel, this information was published every month on the website of the Supreme Court. The applicant could therefore have sought Judge V.G.’s removal prior to the decision of the selection panel being delivered if she had searched for the composition of the panel online. However, she had failed to do that. 22. The applicant argued that the resubmission of an appeal on points of law could not be considered an effective domestic remedy. Firstly, the domestic law did not provide that the partiality of judges of the selection panel of the Supreme Court was one of the grounds for an appeal on points of law. Secondly, it was the applicant’s view that a request to renew the time-limit to submit an appeal on points of law would not have had reasonable prospects of success. Thirdly, the applicant submitted that it was impossible to find examples in the domestic case-law regarding a person’s right to apply for the removal of a judge on a selection panel of the Supreme Court. Lastly, the applicant claimed that the appeal on points of law had been lodged on 7 January 2014. At that time, no information as to the composition of the selection panel of the Supreme Court had been available. According to the applicant, the selection panel for the period 2 January 2014-31 January 2014 had been formed by a decision of 2 January 2014. The selection panel for the period 3 February 2014-28 February 2014 had been formed by a decision of 3 February 2014, when her appeal on points of law had already been submitted. The applicant argued that when she had submitted her appeal on points of law, she had not been in a position to seek the removal of Judge V.G., as the composition of the selection panel of the Supreme Court had changed every month, and she could not reasonably have known that the judge was going to be on the panel. The presence of Judge V.G. had become clear only after she had received the decision to dismiss her appeal on points of law. 23. In reply, the Government submitted that although the decisions of the selection panels of the Supreme Court were not published on any websites and thus examples of similar situations were not available, this did not deny the prospect of success of such a possibility. 2. The Court’s assessment
24. The Court reiterates that the rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention requires applicants to firstly use the remedies provided by the national legal system, thus dispensing States from answering for their acts before the Court before they have had an opportunity to put matters right through their own legal system. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time, namely, that the remedy was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Zdravko Stanev v. Bulgaria, no. 32238/04, § 29, 6 November 2012 and the references therein). Article 35 must also be applied to reflect the practical realities of the applicant’s position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (ibid.). 25. The Court further reiterates that, where several remedies are available, the applicant is not required to pursue more than one (see Karakó v. Hungary, no. 39311/05, § 14, 28 April 2009). Likewise, an applicant cannot be expected to continually make applications to the same body when previous applications have failed (see NA. v. the United Kingdom, no. 25904/07, § 91, 17 July 2008; Zdravko Stanev, cited above, § 30; and Abdi v. the United Kingdom, no. 27770/08, § 50, 9 April 2013). 26. In the present case, the Court observes that the “remedy” alluded to by the Government is not in fact an appeal to a higher court, but rather an application to the same court, that is to say the Supreme Court. As indicated above, Article 35 § 1 of the Convention generally does not require applicants to make further applications to a court or other body which has already rejected a previous application (see paragraph 25 above). In the circumstances of the applicant’s case, the Court finds that she could not reasonably be expected to continue submitting appeals on points of law to the same court or to ask the Supreme Court to renew the time-limit for submitting an appeal on points of law. The Court further notes that the Government have not submitted any examples of cases in which the resubmission of appeals on points of law had constituted an effective remedy in circumstances similar to those of the applicant. 27. The Court also observes that the applicant was not in a position to seek the removal of Judge V.G. prior to the delivery of the Supreme Court’s decision, as that court deliberated by means of a written procedure and the applicant was not aware of the composition of the selection panel. It is true that, as emphasised by the Government (see paragraph 21 above), the composition of the selection panels is published on the Supreme Court’s website every month. However, it is not clear whether the applicant was aware of when her appeal on points of law would be examined. In any event, it was to the Supreme Court to provide clear instructions about where and when to find the information concerning the composition of the selection panel. 28. Consequently, the Court rejects the Government’s submission that the applicant has failed to exhaust domestic remedies. 29. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. The parties’ submissions
(a)  The applicant
30. The applicant submitted that Judge V.G. had been personally interested in the outcome of the case and, as the president of the selection panel, had influenced the other members of the panel. Nevertheless, she thought that her case should be considered from the perspective of the objective impartiality test. It was the applicant’s view that Judge V.G. should have withdrawn from the selection panel because his son had been the prosecutor in the case against her. In this connection, the applicant referred to Articles 58 and 59 of the CPP (see paragraphs 13 and 14 above). 31. The applicant also claimed that domestic law did not provide for the removal of a judge on a selection panel at the stage when a decision was made as to whether to admit an appeal on points of law. A request for removal could only be submitted after a cassation appeal had been admitted (see paragraph 19 above). (b)  The Government
32. The Government submitted that the impartiality of a judge had to be determined in accordance with subjective and objective tests. The Government stated that there was no evidence in the present case that Judge V.G. had had a personal interest in dismissing the applicant’s appeal on points of law, and were of the opinion that the case at issue had to be examined from the perspective of the objective impartiality test. 33. With regard to the objective impartiality test, the Government submitted that the applicant’s fear as to the judge’s lack of impartiality could not be held to be objectively justified. The Government stated that although the nature of the personal links between Judge V.G. and his son, the prosecutor, was important, it was not decisive. The Government argued that it was important to have national procedures for ensuring impartiality and the rules regulating the removal of judges. In that connection, the Government stated that the domestic law provided for the removal of a judge who was related by blood to a prosecutor in the same proceedings (see paragraphs 13 and 14 above). If the judge failed to withdraw, a suspect, accused, convicted person or their representatives had a right to submit a request for his or her removal (see paragraph 12 above). 34. The Government explained that when forming a panel, the chair only verified whether an appeal on points of law met the formal requirements of domestic law. The Government thus claimed that when the selection panel in the applicant’s case had been formed, the chair could not have known who the prosecutor in her case was, especially because even an appeal on points of law itself did not indicate the name of the prosecutor. In the Government’s view, the fact that Judge V.G. had been included in the selection panel deciding the applicant’s appeal on points of law had been an “accidental clerical oversight”, and could have happened in a country as small as Lithuania. 35. The Government submitted that, in the present case, all three judges on the selection panel had voted against accepting the applicant’s appeal on points of law (see paragraph 18 above). As Judge V.G. had sat on the panel, it was impossible to determine his actual influence on the other judges, and thus the applicant’s doubts as to the judge’s impartiality were not justified. 2. The Court’s assessment
(a)  General principles
36. The Court reiterates that impartiality normally denotes the absence of prejudice or bias, and that its existence or otherwise can be tested in various ways. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 of the Convention must be determined according to a subjective test, where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, for example, Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005-XIII; Micallef v. Malta [GC], no. 17056/06, § 93, ECHR 2009; Morice v. France [GC], no. 29369/10, § 73, ECHR 2015; and Kamenos v. Cyprus, no. 147/07, § 96, 31 October 2017). 37. As to the subjective test, the principle that a tribunal must be presumed to be free of personal prejudice or partiality is long-established in the case-law of the Court. The personal impartiality of a judge must be presumed until there is proof to the contrary. As regards the type of proof required, in previous cases the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill will for personal reasons (see Morice, cited above, § 74). 38. As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (ibid., § 76). 39. The objective test mostly concerns hierarchical or other links between the judge and other protagonists in the proceedings (ibid., § 77, and Mitrov v. the former Yugoslav Republic of Macedonia, no. 45959/09, § 52, 2 June 2016 and the references therein). 40. In this connection, even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done”. What is at stake is the confidence which the courts in a democratic society must inspire in the public. Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (see Morice, cited above, § 78, and the references therein). (b)  Application of those principles to the present case
41. Under the subjective test, the Court reiterates that the personal impartiality of a judge must be presumed until there is proof to the contrary (see paragraph 37 above). In the present case, the Court considers that no evidence has been produced as regards personal bias on the part of Judge V.G. 42. The case must therefore be examined from the perspective of the objective impartiality test. More specifically, the Court must address the question of whether the applicant’s doubts, stemming from the specific circumstances, may be regarded as objectively justified in the circumstances of the case. 43. The Court considers that it is understandable that doubts arose in the applicant’s mind as to the impartiality of Judge V.G., given that his son, M.G., was a prosecutor in the applicant’s case. The Court takes note of the Government’s argument that Lithuania is a small country and that it could happen that protagonists in proceedings are related to judges by blood or other ties (see, in fine, paragraph 34 above; see also, mutatis mutandis, Dorozhko and Pozharskiy v. Estonia, nos. 14659/04 and 16855/04, § 53, 24 April 2008). However, in proceedings originating in an individual application, the Court has to confine itself, as far as possible, to an examination of the concrete case before it (ibid.). Moreover, the Court reiterates that the Contracting States are under an obligation to organise their legal systems so as to ensure compliance with the requirements of Article 6 § 1, impartiality being unquestionably one of the foremost of those requirements. The Court’s task is to determine whether the Contracting States have achieved the result called for by the Convention, not to indicate the particular means to be utilised (see Ramljak v. Croatia, no. 5856/13, § 30, 27 June 2017). 44. The Court considers the following factors to be of importance in assessing the question of whether there was a lack of objective impartiality on the part of Judge V.G. 45. As to the link between Judge V.G. and the prosecutor M.G., the Court notes that they are father and son. The Court considers that in a situation like the present one, firstly, a system allowing to ensure that the judge would not receive a case where his son was involved as prosecutor should exist and, secondly, if the judge nevertheless did receive such a case, he should have verified whether or not his son was involved in the criminal proceedings. However, nothing in the case file shows that such a system existed or that Judge V.G. informed anyone of those circumstances. Moreover, the Court notes that there is no requirement under domestic law to indicate the name of the prosecutor in the appeal on points of law (see paragraph 15 above). 46. As to the involvement of M.G. in the proceedings at issue, the Court notes that he brought the charges against the applicant, and thus played a major part in the proceedings. 47. The Court considers that the fact that such a close relative as the son of a judge adjudicating a criminal case at the final stage of the proceedings had been a prosecutor in the applicant’s case compromised the Supreme Court’s impartiality and laid it open to doubt. 48. Given the importance of appearances, the Court also notes that it is impossible to ascertain the exact influence of Judge V.G. on the issue of whether to accept the applicant’s appeal on points of law. However, it can be observed that Judge V.G. presided over the three-judge selection panel of the Supreme Court, that the applicant therefore had grounds to believe that he had an important role in delivering the decision dismissing her appeal on points of law, and that the impartiality of the Supreme Court could have been open to genuine doubt (see, mutatis mutandis, Ramljak, cited above, § 39, and Morice, cited above, § 89). The Court also notes that the Supreme Court has sixteen judges in its Criminal Division (see paragraph 11 above), and therefore there is no indication that there would have been any practical difficulties in finding a substitute for Judge V.G. among the other judges (see, mutatis mutandis, Ramljak, cited above, § 39). 49. Lastly, the Court notes that the defect in question was not remedied in any way. There was no higher court to appeal to, the Supreme Court being the court of last resort (compare and contrast Ramljak, cited above, § 33). In that connection, the Court reiterates that, in its case-law, it has emphasised the crucial role of cassation proceedings, which form a special stage of the criminal proceedings with potentially decisive consequences for the accused (see paragraph 16 above), as in the present case. Had the case been quashed, it could have been remitted to a lower court for a fresh examination of both the facts and the law (see Morice, cited above, § 88). 50. The foregoing considerations are sufficient to enable the Court to conclude that the composition of the three-judge selection panel of the Supreme Court was not such as to guarantee its impartiality, and that it failed to meet the Convention standard under the objective test. 51.

Article of the Convention at issue: Article 6
Outcome: violation