ITEMID: 001-70841
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF BADER AND KANBOR v. SWEDEN
IMPORTANCE: 1
CONCLUSION: Violation of Art. 2;Violation of Art. 3
TEXT: 9. The applicants were born in 1972, 1973, 1998 and 1999 respectively and are currently in Sweden.
10. They arrived in Sweden on 25 August 2002 and applied to the Migration Board (Migrationsverket) for asylum on the following day. The first applicant submitted that he was of Kurdish origin, a Sunnite Muslim, and had lived with his family and worked in Beirut (Lebanon) since 1995. He claimed that in December 1999 he and three of his brothers had been arrested by the Syrian security police and imprisoned in Aleppo (Syria) for nine months because the police wanted information about another brother who had absconded while performing military service in 1998. He further alleged that he had been tortured and ill-treated in prison and had only been released after being hospitalised as a result of the ill-treatment. After his release, he returned to Beirut to stay with his family. Between 2001 and 2002 he was arrested four times by the security police, questioned about his brother's whereabouts and beaten. However, on each occasion, he was released after a few days. In 2002 the applicants moved to Aleppo, where they remained until they left Syria in August 2002.
The applicants stated that they had left Syria legally, flying from Damascus to Turkey and then on to Stockholm. They had travelled using their own passports but had destroyed them upon their arrival in Sweden.
11. On 27 June 2003 the Migration Board rejected the family's application for asylum and their request for residence permits and ordered their deportation to Syria. It noted, firstly, that the general situation of Kurds in Syria was not such as to satisfy the requirements for asylum since, inter alia, Kurds who were Syrian nationals had the same rights as all other citizens. Moreover, the majority of the population in Syria were Sunnite Muslims. The Migration Board then found that the applicants had not shown that they risked persecution if they were sent back to Syria. It observed that, except for the first occasion in 1999, the first applicant had been released shortly after each interrogation by the security police. Moreover, as the interrogations had concerned his brother and not himself, the Migration Board considered that he was not personally in need of protection. In this connection, it noted that the first applicant had not been able to explain why his brother had left the army or why the security police was so interested in him. The Migration Board also observed that the applicants had left Syria legally.
12. The applicants appealed to the Aliens Appeals Board (Utlänningsnämnden), relying on the same grounds as they had before the Migration Board and adding that Kurds were being persecuted and discriminated against in Syria. They also claimed that they had paid 6,000 United States dollars for false passports which they had subsequently discarded. Furthermore, the second applicant had been admitted to an emergency psychiatric clinic for three days in July 2003 owing to panic attacks.
13. On 16 September 2003 the Aliens Appeals Board dismissed the appeal on the same grounds as the Migration Board, stating that the new reasons advanced by the applicants did not alter the position. The deportation order was also upheld.
14. The applicants subsequently lodged a new application with the Aliens Appeals Board which was rejected on 27 November 2003.
15. Further, during the autumn of 2003, the District Court (tingsrätten) of Blekinge convicted the first applicant of threatening behaviour against his four-year-old daughter and a neighbour. It gave him a suspended sentence and made an order for his deportation from Sweden. However, he appealed to the Court of Appeal (hovrätten) of Skåne and Blekinge, which on 24 February 2004 upheld the conviction and the suspended sentence but quashed the deportation order as it did not consider that the offence in itself merited deportation.
16. On account of the District Court's decision on deportation, the police authorities had begun preparations to enforce it. In that connection, the Swedish embassy in Damascus ascertained that the applicants had left Damascus legally on 17 August 2002 using their own passports but had in fact travelled via Cyprus, not Turkey.
17. In January 2004 the family lodged a new application for asylum to the Aliens Appeals Board and requested a stay of execution of the deportation order. They referred to a judgment that had been delivered on 17 November 2003 by the Regional Court in Aleppo which stated that the first applicant had been convicted, in absentia, of complicity in a murder and sentenced to death pursuant to Article 535 § 1 of the Syrian Criminal Code.
18. On 9 January 2004 the Aliens Appeals Board granted a stay of execution of the deportation order against the applicants until further notice and requested them to submit an original of the judgment and other relevant documents in support of their application.
19. On 26 January 2004 the applicants submitted to the Aliens Appeals Board a certified copy of the judgment in which it was stated that the first applicant and his brother had, on several occasions, threatened their brother-in-law because they considered that he had ill-treated their sister and paid too small a dowry, thereby dishonouring their family. In November 1998 the first applicant's brother had shot the brother-in-law, after planning the murder with the first applicant, who had provided the weapon. The Syrian court, which noted that the two brothers had absconded, found them guilty of the charges and sentenced them to death. They were also ordered to pay 1,000,000 Syrian pounds to the victim's family and were deprived of their civil rights and all their assets were frozen. The first applicant was also charged with unlawfully possessing a military firearm, a charge which the Syrian court had instructed the military prosecutor to proceed with. Lastly, the court went on to state: “[T]his judgment has been delivered in the accused's absence. [It] can be reopened.” It would appear that the judgment has gained legal force.
20. The applicants also submitted some further documents concerning the proceedings in Syria, including a summons dated 10 August 2003 requiring the first applicant to present himself before the court within ten days, failing which he would forfeit his civil rights and the control of his assets. The first applicant claimed that he had not been involved in the murder as he had been in Beirut at the material time. He also explained that he had, in fact, spent nine months in custody in 1999-2000 on suspicion of complicity in the murder and had been released on bail on 9 September 2000. He insisted that he had not mentioned this before because it concerned the family's honour and his sister's humiliation. The applicant was represented by a lawyer in Syria whose contact details had been provided to the Aliens Appeals Board.
21. On 16 February 2004 the Aliens Appeals Board requested the Swedish embassy in Syria to verify whether the judgment was authentic and, if so, whether it was possible to appeal or to have the case reopened. They further enquired if a reprieve was possible and whether death sentences were normally carried out in Syria.
22. By a letter dated 14 March 2004, the Swedish embassy in Syria informed the Aliens Appeals Board that a local lawyer (förtroendeadvokat) they had engaged had confirmed that the judgment was authentic. He had also carried out research into the Syrian criminal law on sentences for murder and manslaughter, the results of which were attached to the embassy's letter.
23. The embassy provided the following information in their letter to the Aliens Appeals Board. According to the local lawyer it was probable (sannolikt) that the case would be retried in court once the accused were located and it would then be very likely (troligt) that new witnesses would be called and the entire case reheard. Further, the fact that a case was “honour related” was usually considered a mitigating factor leading to a lighter sentence. The embassy said that the lawyer had also stated that it was not unusual for the Syrian courts to impose the maximum sentence possible when an accused failed to appear for trial after being summoned to do so. It added that, according to their sources, it appeared that the accused had to be present in person in order to obtain a retrial. In this respect, the Syrian judicial system was marked by considerable (betydande) arbitrariness and the death sentence was carried out for serious crimes such as murder. However, every execution had to be approved by the President. The embassy had no reliable information about how frequently death sentences were enforced as they were normally carried out without any public scrutiny or accountability. However, the local lawyer had claimed that it was very rare for the death sentence to be imposed at all by the Syrian courts today.
24. On 4 March 2004, in response to the information provided by the embassy, the applicants initially noted that the first applicant was wanted in Syria under the judgment. They then observed that the local lawyer had only given his own opinion on the matter and on what he considered was likely to happen. However, there were no guarantees that the case would be reopened or that the outcome would be different. They also stated that it would now be very difficult for the first applicant to find any witnesses to testify on his behalf and that, since the murdered man's family was very wealthy, they would be able to bribe the prosecutor and witnesses and, for that matter, the judge. The first applicant alleged that the murdered man had not been his brother-in-law, contrary to what had been stated in the Syrian judgment (see paragraph 19 above), but that the man's family had relied on forged documents before the Syrian court, stating that the first applicant's sister had been married to him. Thus, the murder was considered to be of the most serious kind. Furthermore, the fact that the first applicant was of Kurdish origin would also expose him to discrimination by the court and possibly to a harsher sentence. The applicants argued that, in view of the fact that the Syrian legal system was arbitrary and corrupt, they had a well-founded fear that the first applicant would be executed if he were returned to Syria and that the family would thereby be destroyed.
25. On 7 April 2004 the Aliens Appeals Board, by two votes to one, rejected the applicants' request for asylum. The majority considered, on the basis of the local lawyer's research, that it had been established that, if the first applicant returned to Syria, the case against him would be reopened and he would receive a full retrial, at the end of which, if convicted, he would be given a sentence other than death, as the case was “honour related”. Under those circumstances, the majority found that the applicants did not have a well-founded fear and were thus not in need of protection.
26. The dissenting member of the Aliens Appeals Board considered that, having regard to all the facts of the case, the applicants did have a well-founded fear that the first applicant would be executed if returned to Syria and the family should therefore be granted residence permits in Sweden.
27. On 19 April 2004, following the Court's indication under Rule 39, the Migration Board granted a stay of execution of the deportation order until further notice. The stay is still in force.
28. The basic provisions concerning the right of aliens to enter and remain in Sweden are to be found in the Aliens Act (Utlänningslagen, 1989:529). An alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden (chapter 3, section 4 of the Act). The term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group, or religious or political opinion, and who is unable or, owing to such fear, unwilling to avail him- or herself of protection in that country. This applies irrespective of whether or not persecution is at the hands of the authorities of the country, if the authorities cannot be relied on to offer protection against persecution by private individuals (chapter 3, section 2). By “an alien otherwise in need of protection” (chapter 3, section 3) is meant, inter alia, a person who has left the country of his or her nationality because he or she has a well-founded fear of being sentenced to death or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment.
29. In addition, when it comes to enforcing a decision to refuse entry to or to deport an alien, regard must be had to the risk of torture and other inhuman or degrading treatment or punishment. According to a special provision on bars to enforcement (chapter 8, section 1), an alien must not be sent to a country where there are reasonable grounds (skälig anledning) for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment.
30. According to Article 535 of the Syrian Criminal Code, a person convicted of intentionally killing another person will be sentenced to capital punishment.
31. In its Concluding Observations on the third periodic report by Syria under Article 40 of the International Covenant on Civil and Political Rights (CCPR/CO/84/SYR, dated 9 August 2005), the United Nations Human Rights Committee expressed its concern about the nature and number of offences which carried the death penalty in Syria. It was further “deeply concerned at the de facto reinstitution of death sentences and executions in 2002” and noted that Syria had submitted insufficient information relating to the numbers of persons whose death sentences had been commuted, and the number of persons awaiting execution.
32. According to Amnesty International (Country Reports 2005: Syria), the Syrian authorities had, on 5 July 2004, announced that sixteen people had been executed in 2002 and eleven in 2003. Moreover, on 17 October 2004, it was reported that two persons had been executed in Aleppo, but no further details had been made public.
VIOLATED_ARTICLES: 2
3


ITEMID: 001-101564
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MATASARU AND SAVITCHI v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3 (procedural aspect)
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicants were both born in 1970 and live in Chişinău. They are married to each other.
6. The first applicant is the owner of an Internet café. On 22 October 2006 at around 6.10 p.m. he ejected a boy from the café because he had prevented another boy from using the Internet. The first applicant then went to another address and brought a plumber (C.) back in order to do some repair work at the café.
7. While he was away, two persons (C.A. and D.A.; C.A. was the Commander of the Special Forces police regiment “Scut”) came to the café and asked L.C., the café manager who was on duty on that day, about the first applicant's whereabouts.
8. L.C. told them that the first applicant would return shortly and they went outside. L.C. then called the second applicant, the first applicant's wife, and told her that two men had been looking for the first applicant. She asked L.C. to ask one of the men to come to the telephone. When L.C. went outside to do so, he saw the first applicant on the ground, unconscious. One of the men who had been looking for him earlier was giving him emergency assistance. He informed the second applicant of what he had just seen and then called an ambulance and the police.
9. On 25 October 2006 the first applicant lodged a complaint with the police, stating that when he had approached the Internet café he had seen two men and a boy near the entrance. The boy was the one whom he had ejected earlier from the café. One of the men asked the boy: “Is that him?”. Having received an affirmative response, the man punched the first applicant in the face. When the first applicant tried to resist, the second man hit him on the back of his head with a hard object, following which he lost consciousness. When he regained consciousness, he was on the ground and one of the attackers was giving him emergency medical assistance. That man told the persons who had gathered around that the first applicant had had an epileptic fit.
10. The first applicant was taken to hospital and was prescribed in-patient treatment. On 25 October 2006 he was examined by a doctor, who noted that he had a hematoma around his right eye and on his nose (5x3 and 2.5x3 cm), and one on the back of his head measuring 0.3x0.2 cm. The specialist also noted a neurologist's diagnosis dated 23 October 2006, according to which the first applicant had suffered a head trauma. The specialist finally established that, given the location of the various injuries suffered by the first applicant, it was “unlikely that they could have been caused by a fall”.
11. On 23 November 2006 the prosecutor's office decided not to initiate criminal proceedings against C.A. and D.A., “because the act was not prohibited by criminal law”. The prosecutor found that C.A. had offered the first applicant medical help and had not attacked him.
12C.A. and D.A. were contradicted by the statement by L.C., according to which they had been looking for the first applicant before the alleged attack. Moreover, other witnesses identified by the first applicant, including C.I., had not been heard.
13. On 25 January 2007 the prosecutor inquired with the local medical authorities about the first applicant's alleged medical condition. On 29 January 2007 the local territorial medical association replied that it did not have the first applicant's medical file and that it could not confirm whether the first applicant suffered from epilepsy.
14. On 30 January 2007 L.C. was questioned again and repeated his earlier statement, reiterating that C.A. and D.A. had been looking for the first applicant before the attack.
15. On 15 February 2007 the prosecutor decided not to initiate criminal proceedings against C.A. and D.A. The decision was almost identical to that of 23 November 2006, although it contained a summary of the statement made by L.C.
16. On 6 June 2007 the hierarchically superior prosecutor annulled that decision, finding it premature. The prosecutor in charge of the case was ordered to hear the second applicant and the ambulance doctor who had given the first applicant medical treatment.
17. On an unknown date the second applicant made a statement to the prosecutor and confirmed having received a call from L.C., informing her that two men had been looking for the first applicant.
18. On 10 September 2007 the prosecutor decided not to initiate criminal proceedings against C.A. and D.A. The decision was almost identical to the two previous decisions, although it mentioned that the ambulance doctor had been interviewed and had confirmed that he had diagnosed the first applicant's condition on 22 October 2006. However, he had not filled in the first applicant's medical file and did not know who had done so.
19. The first applicant complained about that decision to the hierarchically superior prosecutor. The latter rejected the complaint on 18 February 2008, finding it ill-founded.
20. The first applicant challenged that decision before the Centru District Court. On 15 April 2008 the investigating judge of the Centru District Court accepted the request and annulled the decisions of 10 September 2007 and 18 February 2008. The court found that the facts of the case had not been properly verified, as was obvious from the decisions themselves, which had failed to analyse the first applicant's statements and the medical report of 25 October 2006. Moreover, the prosecutor had not inquired as to whether the first applicant had had a history of epileptic attacks or had been seeing a psychiatrist, and whether the injuries suffered by the first applicant could have been the result of a fall.
21. On 30 May 2008 the prosecutor obtained a copy of the first applicant's medical file, which contained only data registered on or after 22 October 2006.
22. On 11 June 2008 the prosecutor decided not to initiate criminal proceedings against C.A. and D.A. The decision was almost identical to the three previous decisions, adding that the specialist who had filed the report of 25 October 2006 had stated that the injuries suffered by the first applicant could have been caused by a fall. In addition, the first applicant had refused to submit a medical certificate which attested that he had lost consciousness after a blow to the occipital area of his cranium.
23. On 9 July 2008 the first applicant challenged that decision in court. He referred to the fact that he had never suffered from epilepsy and that there was no statement by the medical expert in the file indicating that the injuries could have been caused by a fall. He also noted that C.A. was known for his violent behaviour, mentioning that on 10 May 2008 he had attacked the journalist Ghenadie Brega (see Brega v. Moldova, no. 52100/08, 20 April 2010).
24. The complaint was forwarded to the hierarchically superior prosecutor, who rejected it on 17 July 2008. The prosecutor found that the first applicant's allegations had not been confirmed by facts and that the statements of witnesses showed that he had not been hit by C.A. and D.A. but had been helped by them.
25. The first applicant challenged that decision in court. On 20 October 2008 the Centru District Court accepted the request and annulled the decisions of 11 June 2008 and The case was sent back for examination by the prosecutor.
26. On 25 November 2008 the Centru district prosecutor's office initiated criminal proceedings on the basis of the first applicant's complaint of 25 October 2006. However, he did not receive a copy of that decision, and saw it for the first time among the documents attached to the Government's observations.
27. On 2 February 2009 the first applicant asked the Prosecutor General to assign the case to another prosecutor in view of the perceived bias of the prosecutor dealing with the case. On 3 February 2009 the Deputy Prosecutor General assigned the case to the Chişinău Prosecutor's Office. The reason for this re-assignment was that “several tendentious circumstances appeared within the framework of the relevant criminal proceedings which could cause the investigation to be excessively lengthy”.
28. In late February 2009 both applicants were questioned, but were not shown the minutes of the interviews on the ground of protecting the confidentiality of the investigation.
29. On 29 June 2009, after communication of the present case to the respondent Government, the prosecutor formally named C.A. and D.A. as suspects in the case. The applicants found out about that decision from the Government's observations.
30. On 21 September 2009 the first applicant asked the prosecutor to inform him about the progress of the investigation. He was shown a recent medical report concerning the injuries caused to him in 2006, but he was refused permission to make a copy of that report for confidentiality reasons. The first applicant had not been informed before the second report had been ordered and he had therefore not been able to exercise any of his rights under Article 145 of the Code of Criminal Procedure (“the CCP”, see paragraph 61 below).
31. On 28 September 2009 the charges against C.A. and D.A. were dropped. According to the applicants, they received a copy of the decision when they received the Government's observations of 30 December 2009.
32. On 23 October 2009 the Chişinău Prosecutor's Office transferred the case back to the Centru district prosecutor's office, which had territorial competence to investigate it.
33. On 6 November 2009 the Centru district prosecutor's office suspended the investigation because the identity of the perpetrator(s) had not been established. On 15 December 2009 the first applicant complained to the Prosecutor General's Office about the suspension of the investigation. He also noted that he had not been informed about the suspension and had only found out about it on 8 December 2009 when he had called the prosecutor and then visited his office on 15 December 2009. The first applicant added that the charges against C.A. and D.A. had apparently been dropped but that he had not seen any decision in that respect. Moreover, on an unknown date and for unknown reasons the case had been re-assigned back to the Centru district prosecutor's office, again without his having been informed. In addition, no cross examination with the applicants' participation and that of C.A. and D.A. had ever been organised. No attempt had been made to find the boy who had been ejected from the internet café, despite L.C.'s witness statement confirming that the two persons whom he had seen with the first applicant had been accompanied by a boy. L.C. was never asked to identify C.A. and D.A. at an identity parade, even though he had given a complete description of the two persons who had been looking for the first applicant immediately before he was attacked.
34. On 15 January 2010 the first applicant was informed that the decision of 6 November 2009 had been quashed and the investigation had been reopened.
35. On 22 January 2010 the first applicant repeated his request, noting that he had received no response to his complaint concerning the dropping of charges against C.A. and D.A. or to that concerning the transfer of the case back to the Centru district prosecutor's office. On 2 March 2010 the Prosecutor General's Office informed him that no unlawful act had been apparent in the dropping of the charges or in transferring the case to the Centru district prosecutor's office.
36. The investigation is pending before the Centru district prosecutor's office.
37. On 29 January 2008 the applicants organised a protest march in the centre of Chişinău, which had been authorised by the Chişinău municipality. The aim of the protest was to draw public attention to the first applicant's ill-treatment and the prosecution's inertia in investigating the case. Only the applicants participated in the protest, holding banners with inscriptions such as: “Prosecutors, you should respect the law and human rights!”, “The Moldovan prosecutor's office protects police criminals!”, “NO to corruption in the Moldovan prosecutor's office!”, “NO to bandits in the law-enforcement agencies!” and “The prosecutor's office covers up the crimes of police officer [C.A.]!”.
38. The applicants protested in front of the Centru police station, then in front of the Prosecutor General's Office. The applicants were approached by plain-clothed officers, who were shown the authorisation for the march and who accompanied the applicants until they reached the Ministry of Internal Affairs. The applicants stood across the road from the Ministry and protested by displaying banners and blowing a whistle. At 10.15 a.m. the plain-clothed officers asked the applicants to follow them to the police station because the applicants had insulted them.
39. The protest and the arrest were filmed by reporters. The video footage shows the applicants next to a building with no officer in the vicinity until the time of the arrest. The plain-clothed officers who arrested the applicants were asked by the applicants and the reporters about the reasons for the arrest. They answered that the applicants' identities needed to be verified and that they had “insulted the law-enforcement authority” through the messages on the banners. They did not specify which banner was considered insulting, other than to ask: “Bandits, is that not insulting?” It appears from the video materials that the applicants were not asked to provide identification documents.
40. According to the applicants, they were released immediately after a short period in detention in front of the police station on the morning of 29 January 2008. It appears from the video materials submitted by the parties that one plain-clothed officer explained that “[the applicants] were not arrested but only brought in for identification. The protest has been authorised, so they are free to continue it”. They were subsequently rearrested in front of the Prosecutor General's Office at 10.15 a.m. and detained until 5 p.m.
41. On the same day the applicants were charged with having committed several administrative offences, provided for under Article 174 § 1 of the Code of Administrative Offences (“the CCA”) (refusal to abide by the lawful orders of a police officer), Article 174/1 §§ 2-4 of the CCA (violation of the order on holding assemblies), Article 174/5 § 1 of the CCA (resisting a police officer), and Article 174/6 § 1 of the CCA (insulting a police officer). On the same day, a judge of the Centru District Court decided to postpone the hearing, ordering the applicants' release at 5 p.m.
42. On 21 April 2008 the Centru District Court dismissed all the charges against the applicants, except for the charge of insulting a police officer on account of the inscription “The prosecutor's office covers up the crimes of police officer [C.A.]!”. The applicants were found guilty of having committed the administrative offence provided for under Article 174/6 § 1 of the CCA (see below).
43. The applicants appealed, arguing that the statement on the banner concerning the prosecution's failure to properly investigate their alleged ill-treatment by C.A. had been based on facts. The aim of the message had not been to disseminate insults but rather to provoke an effective investigation by the prosecutor's office. Moreover, the applicants had not seen C.A. on 29 January 2008. Therefore, even if the banner could be seen as insulting to C.A., it could not be said that they had intentionally insulted him while he was carrying out his duty to maintain public order.
44. On 7 August 2008 the Chişinău Court of Appeal quashed the decision of 21 April 2008, finding that the lower court had not analysed the applicants'The case was sent for a retrial.
45. On 13 November 2008 the Centru District Court found the applicants guilty of the administrative offences provided for under Articles 174 § 1, 174/1 §§ 2-4, 174/5 § 1, and 174/6 § 1 of the CCA.
46. On 10 February 2009 the Chişinău Court of Appeal quashed the decision of 13 November 2008 and discontinued the proceedings against the applicants. The court found that the lower court had not indicated the evidence on which it had based its decision and that the arresting police officers who had witnessed the events were unsure whether the applicants had resisted or insulted them.
47. On 18 December 2008, national police day, the first applicant intended to protest in the centre of Chişinău against the prosecution's failure to properly investigate his ill-treatment by C.A. He had previously obtained the Chişinău mayor's permission to bring domestic animals to the protest.
48. On 18 December 2008 at 9.15 a.m. the first applicant parked his minibus in front of his garage. Inside were a mule, dressed in uniform and bearing the inscription “miliţioner” (officer of Soviet-time militia), and a pig, dressed in black and bearing the inscription “porcuror” (a play on the words “pig” and “prosecutor”, roughly translated as “pigsecutor”).
49. At 9.30 a.m. a car belonging to the Special Forces police regiment “Scut” with four men inside arrived at the garage. Ten minutes later a traffic police car arrived. Minutes later an operative group of the Ministry of Internal Affairs arrived, followed by the Centru sector deputy head of the police station, some plain-clothed police officers, a criminal investigator and a specialist. The media arrived at the garage shortly afterwards.
50. The Special Forces officers who had arrived first prevented the applicant from leaving the garage area with his minibus by blocking the exit with their own car and later took his car keys and papers, while the criminal investigator sealed off the area with yellow tape. The first applicant took his animals out of the minibus in order to go on foot to the protest area. At 10.30 a.m. his minibus was driven away by the traffic police, without answering the protests of the second applicant and questions put by the media.
51. At 11.30 a.m. the deputy head of the Centru police station ordered the applicant's arrest because he had urinated in a public place. The first applicant declared that he had not done so.
52. It is apparent from the video footage aired on several TV channels in Chişinău that the first applicant asked repeatedly for witnesses of the alleged act to be identified, and the second applicant asked to be shown the place where the alleged wrongdoing had taken place. They received no reply. One journalist commented “After several hours during which more than 20 police officers present had been looking for a reason to make the protester show respect, they finally found a pretext for his arrest: that he had urinated in a public place”.
53. On 18 December 2008 the first applicant was charged with having committed the administrative offences provided for under Article 164 § 1 of the CCA (hooliganism), Article 174 § 1 of the CCA (refusal to abide by the lawful orders of a police officer), Article 174/5 § 1 of the CCA (resisting a police officer), and Article 174/6 § 1 of the CCA (insulting a police officer). The report concerning the events of the day noted that on 18 December 2008 at approximately 11.10 a.m. the operative group of the Centru police station was on route in response to a call for assistance when it discovered the first applicant's minibus and two animals next to it, dressed in uniform and bearing the names “miliţian” and “porcuror”. The operative group stopped to find out what was going on, but the first applicant “reacted negatively” to their presence and made direct comparisons between the animals and the police officers, thus insulting them. He then went behind the police car and openly urinated. Having been asked to stop, he refused and resisted the officers when they forced him into the police car and brought him to the police station.
54. On 22 December 2008 the Centru District Court found the first applicant guilty of having committed the administrative offences provided for under Articles 164 § 1, 174 § 1 and 174/5 § 1 of the CCA.
55. The first applicant appealed, noting the absence of any evidence that he had committed any wrongdoing. Moreover, the reports filed by the police officers mentioned that the first applicant had already been asked to follow them to the police station, before the alleged offence had taken place. It was therefore unclear what the reason for the limitation of his liberty before the alleged wrongdoing had been. Since he had not committed any act that warranted his being brought to the police station, the police officers' request to follow them had been unlawful. Therefore, his refusal to abide by that request, and his resistance to unlawful orders, could not be considered a violation of the law. The first applicant added that the hearing had never been officially opened and had taken place in the absence of witnesses and his lawyer. He had not been had been interrupted and the judge had declared that he was guilty of having committed three administrative offences and was fined 200 Moldovan lei (approximately 14 euros (EUR) at the time).
56's lawyer, failing to note that absence in the minutes of the hearing.
57. On 11 May 2009 the Centru District Court discontinued the administrative proceedings against the first applicant, finding that there was not sufficient evidence in the file to prove that he had committed any offence and that the police officers who had reported on the offence allegedly committed by the first applicant had refused to appear in court. The court added that the reports, which were the only evidence in the file, were insufficient to establish that an offence had been committed. The court found that “the actions of the police officers were not well-founded and lawful, [as] they did not have a ground on which to bring [the first applicant] by force to the police station.”
58. On 24 July 2009 the Chişinău Court of Appeal dismissed the appeal lodged by the Centru Police Commissariat as out of time. That judgment was final.
59. Law no. 26 of 22 February 2008, in force since 22 April 2008, provides that no authorisation is needed for holding a peaceful demonstration with less than fifty participants.
60. The relevant provisions of Law no. 1545 on compensation for damage caused by the illegal acts of the criminal investigation organs, prosecution and courts have been set out in Sarban v. Moldova, no. 3456/05, § 54, 4 October 2005.
61. The relevant part of Article 145 of the Code of Criminal Procedure reads as follows:
“Article 145. Actions preceding an expert report
(1) The investigating authority or the court, when ordering an expert report, shall summon the parties and the expert, if the latter has been assigned by the investigating authority or the court.
(2) On the date set in the summons, the parties and the expert shall be informed of the object of examination and of the questions which the expert will have to answer, and it shall be explained [to the parties] that they have the right to make remarks concerning those questions or to ask for them to be amended or added to. At the same time, the parties shall be informed of their right to select an expert of their choice to participate in the expert report.”
62. The applicants referred to reports by the Moldovan Centre for Human Rights (the Ombudsman's office) for 2007 and 2008, which had found that various provisions of administrative law had been frequently abused by the police by unlawfully detaining individuals. They also noted that members of the Hyde Park non-governmental organisation had been arrested at least 11 times during 2006-2009, while the first applicant had been arrested six times during the same period.
63. The applicants submitted copies of five judgments adopted by the Supreme Court of Justice concerning unlawful administrative detention or prosecution. These judgments allegedly constituted that court's entire case-law on that issue during 2009. The awards made in those cases varied between the equivalent of EUR 62 and EUR 206.
64. The applicants referred to a number of court actions lodged under Law no. 1545, cited above, the examination of which had lasted for approximately two years or was still pending before the domestic courts. In many of these cases the courts postponed numerous hearings due to the failure of the defending State authorities' representatives to appear before the courts. Moreover, enforcement of final judgments against the State was a long-standing problem in Moldova, as established in numerous cases decided by the Court.
VIOLATED_ARTICLES: 3


ITEMID: 001-115177
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF VENSKUTĖ v. LITHUANIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);No violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen
TEXT: 5. The applicant was born in 1978 and lives in Vilnius.
6. On 23 May 2005 the State Border Guard Service (hereinafter “the SBGS” or “the Service”) informed a prosecutor that on 16 December 2004 an officer at the SBGS, G.B., acting together with the applicant, who had been driving the car, and Š.S., had committed a crime of fraud by simulating a car accident and later claiming payment from an insurance company.
7. The same day the prosecutor asked the SBGS to open a pre-trial investigation on suspicion of fraud, in accordance with Article 167 of the Code of Criminal Procedure (hereinafter “the CCP”) (see Relevant Domestic Law below).
Later that day the SBGS opened the pre-trial investigation on the basis of Article 171 of the CCP.
8. On 25 May 2005, at about 10.30 a.m., two men, who introduced themselves as officers of the Service, went to the applicant’s workplace, the “Fortas” restaurant, in Vilnius city centre. From then on, the applicant’s and the Government’s versions of events differ.
9. The applicant stated that the two officers had asked her to accompany them and threatened to use restraining measures should she not comply. She had not been allowed to contact anyone by telephone, except for her supervisor. She had then been taken to the officers’ car and driven to the Vilnius headquarters of the Service. On arrival her handbag had been searched, her mobile telephone had been taken away and the officers had read her text messages. The officers had not returned the telephone to the applicant until 8 July 2005. Immediately after the search, the officers had started interrogating the applicant about the circumstances of the car accident of 16 December 2004. She had been threatened with loss of reputation, placement in a detention facility, conviction and loss of career opportunities, unless she gave them information necessary for the insurance fraud investigation. The officers had refused the applicant’s request for a lawyer. They had also dismissed her request that a record be made of her questioning, saying that it was for them to decide “what to write down and what not to”. Likewise, the officers refused to explain to the applicant what her procedural status was at that moment.
10. The Government did not dispute that the SBGS officers had gone to the applicant’s workplace at about 10.30 a.m. on 25 May 2005. However, the Government submitted that no force or threats had been used against the applicant; she had merely been invited to accompany the officers for questioning.
11. According to the report of the applicant’s provisional arrest, she was arrested at 3 p.m. the same day. Even though the arrest took place while the applicant was at the Vilnius headquarters of the Service, the arrest report specifies that she had been arrested “at Vilnius international airport” on suspicion of fraud. The report stated that it had been necessary to arrest the applicant because she might flee from the investigators or prosecutor, or commit further offences.
The officers also made a record of the personal search of the applicant, which stated that the search had been conducted between 3.10 and 3.40 p.m. on 25 May 2005.
Later that day the applicant was taken to a police detention facility; her sister had been informed of her arrest.
12. The same day at 3 p.m. the SBGS arrested Š.S. and questioned him, as a suspect, about the circumstances surrounding the car accident and the suspected insurance fraud.
13. On 26 May 2005 from 3.20 to 3.40 p.m. the SBGS tried to question G.B., as a suspect, about the car accident and insurance fraud, but G.B. refused to give any evidence.
After further questioning as a suspect on 2 June, G.B. testified that the car had been driven by the applicant, but denied any involvement in the insurance fraud.
14. As it transpires from the report of the applicant’s interrogation, on 26 May 2005 from 4.15 to 5 p.m., the SBGS investigator questioned the applicant about the insurance fraud. At that time her procedural status was that of a suspect; her lawyer was present at the questioning. The applicant refused to testify.
15. The same day at 6. p.m. the SBGS investigator decided to release the applicant, because “there were no reasons to keep her under arrest”. He noted that the applicant “had been arrested on 25 May on the basis of Article 140 of the Code of Criminal Procedure”.
16. On 26 May 2005 the applicant’s lawyer complained to the Vilnius Regional Prosecutor’s Office that the previous day his client had been arrested by the SBGS officers in breach of Article 140 of the CCP. He also maintained that she “had been questioned before being granted the status of a suspect (nepareiškus jai įtarimo) and forced to testify”. The lawyer contended that the pre-trial investigation had not been within the SBGS’s competence and jurisdiction, as it was related to insurance fraud.
17. On 13 June 2005 the Vilnius Regional Prosecutor’s Office replied that the pre-trial investigation had been opened in accordance with the domestic law. The reply did not say that the decision could be appealed against.
18. On 16 June 2005 the applicant wrote to the Ombudsman, the Chief Inspector of the Ministry of the Interior, the Attorney General and the Director of the SBGS. She stated that on 25 May at about 10.30 a.m., two officers of the SBGS had gone to her workplace at the “Fortas” restaurant in Vilnius. She had been forced to leave with them, and had been taken to the SBGS’s Vilnius headquarters and questioned about the car accident. The applicant reiterated that the SBGS officers had refused to record her questioning, had not explained her rights to her, and had not allowed her to make telephone calls. No one had answered her question whether she could leave; nor had they explained what her procedural status was at that time. She had been threatened with conviction, placement in a detention facility, and the end of her career unless she agreed to confirm the SBGS’s account of the car accident. Relying on Article 5 of the Convention, the applicant argued that her right to liberty had been breached. She maintained that the SBGS officers had acted in an arbitrary fashion.
19. By a decision of 21 July 2005, the Vilnius Regional Prosecutor’s Office found no flaws or abuse of powers in the actions of the SBGS officers and refused to open a pre-trial investigation into their actions. The prosecutor noted that the applicant had been arrested on 25 May 2005 at “3 p.m.”, as stated in the provisional arrest report. The following day she had been served with notice of suspicion of the crime of fraud and had been questioned as a suspect from 4.15 to 5 p.m. Therefore the applicant’s allegation that she had been questioned without a record being drawn up was false. Lastly, the prosecutor held that it was only because of “a technical mistake” that the report of the applicant’s arrest had specified her place of arrest as Vilnius Airport.
The decision stipulated that it could be appealed against to an investigating judge. The applicant did not appeal against the decision.
20. On 25 May and 16 June 2005, the applicant lodged complaints with the Parliamentary Ombudsman.
21. On 5 August 2005 the Ombudsman found the applicant’s complaint valid. He noted that under Article 182 § 2 of the CCP investigating officers had the possibility to call a person for questioning orally, without notifying him about it in writing. This could be done, for example, by a telephone call or via family members of the person invited. He stressed that the provision simply referred to the “transfer of a message (informacijos perdavimas)” that a person ought to come for questioning. However, in the applicant’s case, on 25 May 2005 at about 10 or 11 a.m., the SBGS officers had not merely conveyed a message to her, but had in fact taken her in [by force, atvesdino] or even arrested her. On this point the Ombudsman also referred to the written reply by the Head of the SBGS Vilnius Office to the effect that the officers who went to the applicant’s workplace had demanded (buvo pareikalauta) that she go with them so that she could not contact the other suspects and thereby obstruct the investigation.
22. In the same written reply to the Ombudsman, the Head of the SBGS Vilnius Office also said that once the applicant had been taken to their headquarters, she had told the officers that she knew nothing about the car accident; accordingly, she had not been questioned as a witness. For the Ombudsman, however, the SBGS officers’ actions when trying to find out whether the applicant knew anything about the crime they were investigating had been nothing less than questioning. Such questioning had to be recorded in writing, in accordance with Article 183 of the CCP. Given that no record of questioning had been drawn up until 3 p.m., the Ombudsman considered that, until that time, the applicant had been held at the SBGS headquarters without a reason, and thus unlawfully.
23. The Ombudsman further noted that as of 3 p.m. the applicant had been arrested on suspicion of having committed fraud and on the ground that she might attempt to abscond from the investigation. No sufficiently strong evidence had been submitted to him to justify the applicant’s arrest. Furthermore, the prosecutor in charge of the investigation had not subsequently asked a court to sanction the applicant’s detention. Lastly, for the Ombudsman, there was no reasonable explanation as to why the fraud relating to the car accident should have been investigated by the SBGS officers.
24. Whilst conceding that it was not within his competence to assess the validity of the actions taken during the pre-trial investigation, on the basis of above considerations the Ombudsman concluded that the conduct of the SBGS investigators had had the sole aim of exerting psychological pressure on the applicant.
25. The Ombudsman also considered that the actions of the SBGS officers had given rise to a suspicion that they had committed a crime. As a result, he notified the Office of the Prosecutor General about the matter. The Minister of the Interior was also to be informed about the episode so that such incidents could be avoided in future.
26. In their reply of 23 September 2005 to a complaint lodged by the applicant on 16 June 2005, the SBGS noted that the applicant’s allegations about abuse of power by its officers when arresting her had already been dismissed by the prosecution. The officers who had taken part in the applicant’s arrest and their superiors had nevertheless been urged to take into consideration the Ombudsman’s conclusions and to ensure that similar incidents were not repeated in future.
27. By a decision of 25 November 2005, criminal proceedings against G.B. for insurance fraud were discontinued because of his death. For the same reason, proceedings against G.B. in respect of other charges pending against him (for forgery of an official document and smuggling people over the State border) were also terminated.
28. By a ruling of 5 January 2006, the pre-trial investigation into the charges of fraud by the applicant was discontinued. The prosecutor noted that the applicant had been notified that she was suspected of the crime on 26 May 2005. However, she had refused to testify on those charges. Neither Š.S. nor G.B. had confirmed the applicant’s involvement in the crime. As the applicant and G.B. had been friends, it could be only assumed that she had known about the fraud. Yet, this mere assumption was not sufficient evidence to prove her guilt.
29. On 11 July 2006 the Vilnius City First District Court found that Š.S. had committed fraud by simulating a car accident on 16 December 2004. However, the court relieved Š.S. of criminal liability as he had fully acknowledged his guilt and settled with the insurance company.
30. The applicant instituted civil proceedings for the damage sustained as a result of her allegedly unlawful arrest and questioning. She argued that the SBGS officers had exceeded their powers, because it was not within their competence to investigate crimes concerning road accidents. The applicant maintained that by being arrested at her workplace she had been humiliated in front of her colleagues and her reputation had been tarnished. Her arrest had been made public in the newspapers and on television. Her family and friends had learned about it, which had affected her relationship with them. The applicant maintained that on 25 May 2005 she had been interrogated at the SBGS Vilnius headquarters and forced to incriminate herself. No lawyer had been present, her rights had not been explained to her and she had not been allowed to make a telephone call. She complained that her rights under Article 5 of the Convention had been violated and claimed 4,350 Lithuanian litai (LTL) for pecuniary damage, LTL 100,000 for non-pecuniary damage and LTL 2,000 for litigation costs.
31. At the Vilnius Regional Court hearing on 16 November 2006, the applicant’s employer, the manager of the Fortas restaurant, testified that on 25 May he had received a telephone call from her. The applicant had explained that she had been arrested because of a car accident. He said that there were “such stereotypes in society that after someone has been arrested, others regard them with considerable suspicion”. Two waitresses who had been working with the applicant the day “when the applicant was arrested” testified that “the applicant was taken away quickly”, the officers “showed identification of some kind” and “demanded that the applicant went with them”, one waitress had seen “how the officers took the applicant with them”. The applicant’s colleagues also testified that the events had surprised them, and, although for that day they had remained without a supervisor, “there was no panic among the colleagues, but they asked each other what had happened. Everyone was interested to know what had happened”. The applicant’s lawyer maintained that his client had been taken from her workplace by force. He also argued that such actions in front of the applicant’s colleagues had stained her reputation. The applicant had left her job four months later.
32. On 30 November 2006 the Vilnius Regional Court dismissed the applicant’s claims. It found that the applicant had been suspected of having committed fraud and arrested for fear that she would flee from justice or commit new crimes. The SBGS officers had jurisdiction in the applicant’s case on the basis of the prosecutor’s decision of 23 May 2005. The court also referred to the Court’s judgment in Labita v. Italy ([GC], no. 26772/95, ECHR 2000-IV) to the effect that the fact that the applicant’s case had not gone to trial at a later stage did not mean that her arrest during the criminal investigation had been unlawful as such. The prosecutor’s decision to discontinue the pre-trial investigation in respect of the applicant did not mean that the investigative measures had been unlawful, since the pre-trial investigation had been discontinued because of lack of evidence.
33. The first-instance court noted that reports of the applicant’s arrest and questioning as a suspect had been made “after the applicant’s arrest”, although the court did not specify the exact time when the arrest had taken place. Moreover, as the applicant had conceded at the hearing, “on the day of her arrest” she had been allowed to have a lawyer. Lastly, the court noted that the applicant’s claims about her arbitrary arrest and questioning had been dismissed by the prosecutor and the SBGS on 13 June and 21 July 2005 respectively.
34. The applicant appealed, reiterating her complaint about abuse of powers by the SBGS. In the applicant’s view, it was not logical to have her arrested half a year after the car accident. The reason given to justify her arrest and detention – that she might hide from the investigators – had been even more preposterous given that there had been no evidence that she intended to flee. She invoked Article 5 of the Convention.
35. At the Court of Appeal hearing of 8 May 2007 the applicant’s lawyer argued that his client had been arrested at her workplace and detained for two days, partly in the SBGS’s Vilnius headquarters. She had been pressured to give evidence against G.B. The SBGS officers had acted outside their jurisdiction.
The representatives of the State, which was the defendant in the civil proceedings for damages, maintained that the SBGS did have jurisdiction to investigate the crime of insurance fraud. The applicant had been arrested “on 25 May” and charged with fraud “on 26 May”. Above all, they stressed that the applicant had been merely “invited” to accompany the SBGS officers when they had arrived at her workplace. No incidents took place at the “Fortas” restaurant and the applicant had accompanied the officers calmly.
36. By a ruling of 22 May 2007 the Court of Appeal concurred with the lower court’s conclusion that the prosecutor’s decision to discontinue criminal proceedings in respect of the applicant did not mean that her arrest had been unlawful as such. Moreover, the proceedings against the applicant had been discontinued because of lack of evidence and not for reasons of rehabilitation. The appellate court noted that the applicant’s complaints that the SBGS officers had abused their powers had been dismissed by the prosecutor. That being so, the court nevertheless emphasised that it had competence to hear the applicant’s civil claim for damages, even though she had not appealed against the prosecutor’s decision to drop the criminal charges against the officers. On this point it referred to the Supreme Court’s ruling in civil case no. 3K-7-183/2006 (see paragraph 50 below).
37. The Court of Appeal also held that “on 25 May 2005 the applicant had been arrested at 3 p.m.” According to the court, the applicant had not been arrested at her workplace; the officers had merely “invited” her to go with them for questioning, in accordance with Article 182 § 2 of the Code of Criminal Procedure. There was no evidence in the case file that by inviting the applicant for questioning in the manner regulated by the above provision, the SBGS officers had breached the law. For the court, “the fact that before arresting her, notifying her of the charges and questioning her as a suspect [all at 3 p.m.], the officers had discussed with her the circumstances relating to a pre-trial investigation, without making a record of that conversation, did not disclose any unlawfulness, because a conversation [between the applicant and the officers] and questioning were two separate notions”. Accordingly, the appellate court dismissed the applicant’s civil claim, which she had based on Article 6.272 of the Civil Code and Article 5 of the Convention.
38. The applicant lodged three appeals on points of law, which, on 18 July and 13 and 24 August 2007, the Supreme Court refused to examine as raising only questions of fact and thus giving no grounds for cassation.
39. Article 20 of the Constitution of the Republic of Lithuania provides that the freedom of a human being is inviolable. No one may be arbitrarily detained or arrested. No one may be deprived of his freedom, except on grounds and according to procedures established by law. A person detained in flagrante delicto must be brought before a court within 48 hours for the purpose of obtaining a decision, in the presence of the detainee, on the validity of the detention. If the court does not decide that the detainee should be arrested, he or she will be released immediately.
40. In an opinion of 24 January 1995, the Constitutional Court held that Article 5 of the Convention was in compliance with Article 20 of the Lithuanian Constitution.
41. Article 31 of the Constitution provides that a person suspected of committing a crime will be guaranteed, from the moment of his or her detention or first questioning, the right to defend himself and the right to a lawyer.
42. Article 182 of the Criminal Code provides for criminal liability for fraud. The offence is punishable by community service, a fine, restriction of liberty, arrest, or imprisonment for a term of up to three years. A pre-trial investigation of the crime of fraud may be started only on the basis of a complaint by a victim or by a prosecutor’s order (Article 167 of the Code of Criminal Procedure).
43. The Code of Criminal Procedure provides that a witness is any person who has knowledge about circumstances relevant to a criminal case (Article 78). A witness has the right to have an audio or video recording made of his testimony. He has the right to read the record of his testimony, make corrections and write his own testimony (Article 81 §§ 2 and 4). Anyone called as a witness must testify before the pre-trial investigation officer, failing which he may be fined or arrested (Articles 83 and 167).
44. A prosecutor or an investigator may provisionally arrest a person caught in flagrante delicto. Provisional arrest is also possible if there is a reasonable assumption that the person may obstruct the course of justice by influencing other suspects or commit further offences. Provisional arrest may last up to forty-eight hours without the authorisation of a judge (Articles 122 and 140).
45. The Code of Criminal Procedure also provides that any investigative measure, such as the questioning of a witness or suspect, must be recorded. The measure may be documented by audio or video recording or by other means. The record must be drawn up while the investigative measure is being taken (tyrimo veiksmo metu) or immediately thereafter. The record must state the place and time of the measure and the persons present. The investigating officer and all those present must sign the record. If the person in respect of whom the measure was taken refuses to sign the record, this must also be noted in the record (Article 179 of the Code).
46. Concerning the way in which a person may be called for questioning, the Code of Criminal Procedure reads as follows:
“1. A person shall be called for questioning by summons. The summons shall indicate: the person to be summoned and for what purpose, the place and to whom he is being summoned, the date and time when he has to appear, and the consequences of failure to appear, as provided for in Article 163 of the Code.
2. A person may also be summoned for questioning by telephone or in any other way. In such cases, coercive procedural measures provided for in Article 163 of this Code may not be taken for failure to appear.”
47. The Code then defines the rules for questioning witnesses and suspects. Article 183 of the Code provides that before questioning a witness, an investigator must explain his rights to him under Articles 81 and 83 of the Code, as well as liability for false testimony. The witness confirms that he has understood by signing the record. The investigator then asks the witness to tell everything he knows about the case. Lastly, the witness’s testimony is recorded in accordance with Article 179 of the Code (see above).
Before questioning a suspect, an investigator must tell him what crime he is suspected of and explain his rights to him (Article 187). The suspect is then asked whether he confesses and is offered the opportunity to testify about the circumstances of the crime. As in the case of witnesses, his questioning is recorded in accordance with the requirements of Article 179 of the Code.
48. The Law on the State Border Guard Service provides that when exercising the pre-trial investigation functions assigned to it, the Service operates in the entire territory of the State (Article 2 § 6). Upon receiving information that a crime may have taken place, a prosecutor decides which pre-trial investigation institution is competent to carry out a particular investigation, and assigns the case to it. Afterwards, the designated institution may take all the investigative measures provided for by the Code of Criminal Procedure (Articles 171 and 172 of that Code).
49. As regards civil liability for damages, Article 6.272 § 1 of the Civil Code provides that damage caused as a result of unlawful arrest as a measure of oppression, from unlawful detention, or the application of unlawful procedural measures of enforcement, will be compensated fully by the State, irrespective of whether the officials involved in the preliminary investigation or prosecution were at fault. Article 6.272 § 3 stipulates that in addition to compensation for pecuniary damage, the aggrieved person is entitled to compensation for non-pecuniary damage.
50. On 7 June 2006 the Supreme Court ruled that Article 6.272 § 1 was a directly applicable legal norm. A court of civil jurisdiction could rely on it irrespective of whether the procedural measures which had allegedly caused damage to the plaintiff had been challenged in other [criminal] proceedings. Furthermore, even if in criminal proceedings it had been established that the measures taken by the pre-trial investigators had been lawful, a civil court was free to find that those measures had caused damage to the claimant if all the circumstances examined in the civil proceedings so proved (ruling in civil case no. 3K-7-183/2006).
51. Concerning civil liability and redress, the Supreme Court, in a decision of 21 December 2007 in civil case no. 3K-3-506, held as follows:
“When deciding the question of redress within the meaning of Article 6.272 of the Civil Code, ... the parties must prove all the circumstances by which they justify their claims, except where the claims are based on circumstances that [do not have to be proven]. These circumstances are listed in Article 182 of the Code of Civil Procedure. The Supreme Court has held that facts established by the decisions of the pre-trial investigation institutions (prosecutors), contrary to those established by a court judgment or decision, are not binding (prejudiciniai) within the meaning of Article 182 §§ 2 and 3 of the Code of Civil Procedure ... Therefore, according to the statutory regulations and the case-law of the courts, the court deciding questions concerning the redress provided for by Article 6.272 of the Civil Code, where the claim for redress has been lodged regarding a remand measure unlawfully imposed by a pre-trial investigation officer, may justify its findings with any factual data, on the basis of which it shall establish the circumstances substantiating the claims of the parties and other circumstances relevant for the resolution of the case...”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-5