opencaselaw.ch

CCPR/C/121/D/2301/2013

X v. Lithuania

UNO-Menschenrechtsausschuss (CCPR) · 2017-11-09 · en UN

Decision on merits; Subjects: CIVIL AND POLITICAL RIGHTS, LITHUANIA; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]

Volltext (verifizierbarer Originaltext)

GE.22-11932(E)

Human Rights Committee

Views adopted by the Committee under article 5 (4) of the

Optional Protocol, concerning communication

No. 2301/2013*, **

Communication submitted by:

X (not represented by counsel)

Alleged victim:

The author

State party:

Lithuania

Date of communication:

18 March 2012 (initial submission)

Document references:

Decision taken pursuant to rule 92 of the

Committee’s rules of procedure, transmitted to

the State party on 11 November 2013 (not issued

in a document form)

Date of adoption of Views:

9 November 2017

Subject matter:

Arbitrary arrest and detention; fair trial – lack of

legal assistance; absence of impartial

investigation; forced confession; lack of

presumption of innocence; unlawful sentence

Procedural issues:

Exhaustion of domestic remedies; non-

substantiation of claims

Substantive issues:

Right to have a criminal conviction and sentence

reviewed by a higher tribunal according to law

Articles of the Covenant:

9 (1) and 14 (1), (2), (3) (b) and (g), and (5)

Articles of the Optional Protocol:

2 and 5 (2) (b)

1.1

The author of the communication is Mr. X, a national of Lithuania born in 1985. Since

his sentence was passed on 17 November 2004, the author has been serving a life sentence

in Lukiskes Prison for a premeditated double murder. He claims that the State party violated

his rights under articles 9 (1) and 14 (1), (2) and (3) (b) and (g) of the Covenant. The Optional

Protocol entered into force for the State party on 20 February 1992. 1 The author is not

represented by counsel.

* Adopted by the Committee at its 121st session (16 October–10 November 2017).

** The following members of the Committee participated in the examination of the communication:

Yadh Ben Achour, Ilze Brands Kehris, Sarah Cleveland, Olivier de Frouville, Christof Heyns, Yuji

Iwasawa, Ivana Jelic, Bamariam Koita, Marcia V.J. Kran, Mauro Politi, José Manuel Santos Pais,

Anja Seibert-Fohr, Yuval Shany and Margo Waterval.

1 The State party has not made a reservation under article 5, paragraph 2 (a), of the Optional Protocol to

the Covenant.

United Nations

CCPR/C/121/D/2301/2013

International Covenant on

Civil and Political Rights

Distr.: General

29 July 2022

Original: English

CCPR/C/121/D/2301/2013

2

1.2

On 12 June 2012, a letter was sent to the author, referring to rule 96 (c) of the

Committee’s rules of procedure and requesting him to explain, by 12 June 2013, the delay in

submitting his communication, more than three years after the decision of the European Court

of Human Rights on his case. On 17 May 2013, the author replied that he had continued to

pursue domestic remedies after the decision of the European Court, and that he therefore had

to wait until they were fully exhausted before taking his case to the Human Rights Committee.

Facts as submitted by the author

2.1

On or about 25 June 2003, two young women were brutally killed in their flat in

Siauliai. Their bodies were discovered on 29 June 2003.

2.2

On 3 July 2003, at 6.30 a.m., the author was taken to Siauliai Police Headquarters and

detained by the police on suspicion of having murdered the two women. At the time of

detention, he was 18 years of age and his family was allegedly not informed of his arrest or

detention, despite the requirement set out in article 128 of the Code of Criminal Procedure.

He reportedly had no real possibility to appoint a suitable attorney of his choice or to have

representation arranged by a family member. He also claims that from 6.15 to 9.15 a.m. his

detention was not recorded by the prosecutor and that he underwent an informal interrogation

during this period. At 9.15 a.m., he was taken to Siauliai District Prosecutor’s Office for

further interrogation, where he was informally questioned and beaten until 5 p.m. He submits

that he was subjected to physical and psychological pressure for 11 hours without a defence

attorney present.

2.3

The author claims that he was told that an attorney appointed by the State, Mr. A.,

would be assigned to him. However, the ex officio attorney appointed to him was reportedly

not present during the initial period of 11 hours of questioning, and was only present after

the author was informed that he was a suspect. The author also claims that his rights were not

fully explained to him and that he did not know about his rights or the ensuing criminal

process. He also claims that his attorney at the time participated passively during the

interrogation, provided inadequate legal aid, and that the attorney did not speak to the author

about the strategy for his defence. The author was then relocated to Radviliskis District Police

Headquarters and questioned by three or four police officers in the presence of a prosecutor,

Ms. B., from the Siauliai District Prosecutor’s Office. The author alleges that Ms. B.

intimidated him, showed him photographs of the victims, discussed murder scenarios and

prompted answers suggesting that a metal shank had been used as the murder weapon. At the

time, the medical expert’s report was not available, so the interrogation was carried out

without taking into account all the necessary information regarding the circumstances of the

case. The author claims he was told that if he confessed to the murders he would get eight

years in prison whereas, if he did not, he would be taken to the prison to be raped by other

prisoners and given a life sentence. He claims he was beaten with punches to the kidneys and

liver, kicked and strangled, and had his neck twisted during the questioning; however, the

forensic report from six days later stated that there was an absence of any evidence of physical

injury.

2.4

On the night of 3 July and into the early hours of 4 July 2003, the author, in the absence

of his attorney and in the presence of the prosecutor Ms. B., wrote a document entitled

“sincere confession”, acknowledging that he had murdered the two women and had stolen

two mobile phones belonging to one of them. The confession was an inculpatory admission

of the murder of the two victims on 25 June by beating them with a flat metal bar and using

a knife to slit their wrists and to stab one of the victims in the abdomen twice, as well as the

theft of two mobile phones taken from the crime scene. A defence attorney, who substituted

the one who previously represented the author, was only called in on the morning of 4 July

2003.2 At 6 a.m., without having had the opportunity to sleep, the author was taken back to

Siauliai District Prosecutor’s Office for official interrogation. He repeated his confession in

the presence of the substitute defence attorney at Siauliai District Prosecutor’s Office, and

2 The author does not specify if the substitution of defence attorney took place before or after he signed

his confession.

CCPR/C/121/D/2301/2013

3

then before a judge of Siauliai District Court.3 The author submits that no reasons were

provided for the substitution of his defence attorney, and that the substitute did not represent

him adequately: she did not give any legal advice, did not discuss the defence position, and

did not object to the actions taking place. She limited herself to making a formal request to

order house arrest for the author.

2.5

The author’s defence attorney was replaced again on at least two other occasions. The

statements made in the presence of his attorney and also in the presence of a judge in Siauliai

District Court were consistent with the original written confession, but were made after 33

hours of sleep deprivation and out of the fear, owing to the threats made by the police officers.

2.6

The same day, on 4 July 2003, the officers involved in the pretrial investigation

announced in a press conference that the killer had confessed to the murders, and that a metal

shank had been used as the murder weapon. This statement was made in the absence of the

conclusions of forensic specialists, and while the truthfulness of the confession had not been

verified with objectively ascertainable evidence. News reports perpetrating a bias against the

author, who was still a suspect rather than a convicted person, were published in all the major

newspapers in Lithuania and on the Internet. The officers involved also received

commendations for quickly solving the crime.

2.7

On 11 July 2003, the author retracted his confession. He claimed that his earlier

confession had been the result of psychological pressure, since he had allegedly been

threatened with life imprisonment, and due to sleep deprivation. He also claimed that in his

confession he had used information mentioned during the interrogation and hearsay to invent

a narrative of the events, but that he had not killed the women and did not know who had

killed them.

2.8

On 3 May 2004, Siauliai District Prosecutor’s Office transmitted an indictment to

Siauliai District Court, charging the author with double murder and theft. On 17 November

2004, Siauliai District Court found the author guilty as charged and sentenced him to life

imprisonment. It relied on various pieces of evidence, including the author’s fingerprints,

which had been found at the crime scene, and the fact that one of the phones belonging to

one of the murdered women had been found in the author’s flat and the other phone had been

sold by the author to a third person.

2.9

On 16 December 2004, the author appealed the verdict to the Court of Appeal. On 22

February 2006, the Court of Appeal did not change the classification of the crime by the first

instance court; however, it reduced the sentence to 20 years’ imprisonment, as, according to

the author, the life sentence had been found to be disproportionate to the gravity of the offence.

It heard, among other witnesses, the prosecutor who had been present when the author had

written his confession. She was questioned with regard to the circumstances that had led to

the author’s confession. She confirmed that she had told the author that, for such a murder,

one could be sentenced to life imprisonment, but she stated that no pressure had been applied

in order to obtain his confession.

2.10

Following the author’s cassation appeal of 5 July 2006, with a request for thorough

examination of the evidence, a board of three judges of the Supreme Court transferred the

case on 31 October 2006 to a board of seven judges of the Supreme Court for further

investigation. On 29 December 2006, the board revoked the judgment of the Court of Appeal,

reducing the author’s sentence to 20 years’ imprisonment, and upheld the original judgment

of Siauliai District Court sentencing the author to life imprisonment.4

2.11

In January 2007, at the request of the author’s mother, a medical expert, professor G.,

provided a forensic report regarding the injuries sustained by the victims. In the report, the

expert criticized, in particular, the fact that the ambient temperature had not been measured

at the crime scene, and that it was therefore impossible to determine the exact date of the

3 According to the judgment of the Supreme Court of 29 December 2006, the author did not complain

to the pretrial judge that he had been ill-treated the night before.

4 From the judgment on file, it transpires that the Supreme Court found a violation of the principle of

justice by the Court of Appeal, since it considered a reduced sentence of 20 years of imprisonment as

too light, without, however, thoroughly individualizing the sentence by evaluating any mitigating or

aggravating circumstances.

CCPR/C/121/D/2301/2013

4

victims’ death. It was further suggested that the lethal injuries had been inflicted by a hatchet,

whereas the author’s confession and the court judgments mentioned a flat metal shank.

Furthermore, according to the report, the victims had been killed by two persons, one right-

handed and the other left-handed, whereas the author’s confession and the court judgments

only referred to the author. The medical expert concluded that some relevant questions

remained unanswered. On the basis of that report, the author unsuccessfully applied to have

his case reopened on two occasions, claiming new evidence. On 7 March 2007, the author

filed a petition with the Prosecutor General to reopen his criminal case, but his petition was

declined on 11 April 2007.

2.12

Between 2007 and 2010, the author unsuccessfully appealed to the Prosecutor General

and Vilnius District Court to have his case re-examined. After Vilnius District Court

dismissed his appeal on 26 February 2010, the author filed a complaint with the Court of

Appeal on 5 March 2010, asking it to overrule the rulings of Vilnius District Court of 9 May

2007 and 26 February 2010, and the Prosecutor General’s procedural rulings of 11 April 2007

and 18 September 2008. On 24 March 2010, the Court of Appeal dismissed his complaint. It

held that the medical report’s findings were either irrelevant (with respect to the precise

murder weapon) or speculative (whether one person only could have inflicted the lethal

injuries). The author claims that the Code of Criminal Procedure did not provide for any

possibility to file further complaints and that no other domestic remedies were therefore

available.

2.13

On 21 October 2008, the European Court of Human Rights rejected the author’s

complaint of 20 June 2007 as inadmissible, since it did not correspond to the requirements of

articles 34 and 35 of the Convention for the Protection of Human Rights and Fundamental

Freedoms (European Convention on Human Rights). The European Court decided that the

application did not sufficiently substantiate the alleged violations of rights and freedoms

provided by the Convention or its protocols.

2.14

In his further submission of 15 May 2013, the author claims that he filed a complaint

with the Prosecutor General on 4 January 2013, requesting the commencement of a pretrial

investigation concerning the illegitimacy of his incarceration following the sentence, which

was rejected on 25 January 2013. On 5 March 2013, he appealed the prosecutor’s decision to

Vilnius City Court. His appeal was rejected on 15 March 2013. On 25 March 2013, he

appealed the negative decision to the superior court. The author submits that he has exhausted

all domestic remedies concerning the unreasonable and unlawful conviction for murders that

he did not commit.

Complaint

3.1

The author claims a violation of articles 9 (1) and 14 (3) (b) of the Covenant due to

his unlawful detention under domestic law because his mother was not informed of his arrest,

which she allegedly found out about from the press, and because his counsel was not present

during the night of 3 July into the early morning of 4 July 2003 when he wrote his confession.

In his further submission of 15 May 2013, he claims that he had been arrested for several

hours (from 6.30 a.m. to 9.15 a.m. on 3 July 2003) before the arrest record was drawn up.

Hence his detention during that time was not procedurally formalized, as the arrest record

indicated that it commenced only at 9.15 a.m. The author further claims that during that

period he was not informed of his right to a defence attorney, including the right to authorize

other persons, such as family members, to select a legal counsel on his behalf. Accordingly,

not all of his procedural rights were explained to him. He submits that his informal detention,

the lack of adequate time to prepare his defence at the initial stage of the pretrial investigation,

the lack of opportunity to talk to an attorney of his choice, and the fact that during his

confession he was not represented, violated his rights under articles 9 (1) and 14 (3) (b) of

the Covenant. Consequently, his imprisonment upon conviction should be considered

unlawful.5

5 Claims of a violation of article 14 (5) are not raised by the author, but can be inferred from the

arguments submitted.

CCPR/C/121/D/2301/2013

5

3.2

Relying on article 14 (1) of the Covenant, the author claims that his right to a fair trial

was violated to the extent that the national authorities dealing with his case were partial. He

claims a lack of fairness of his criminal trial, submitting that the courts should have

determined that the criminal charge against him was unfounded and based on evidence

obtained by unlawful means. In essence, the author complains of being sentenced for an

offence he did not commit, and about the domestic courts’ incorrect evaluation of existing

evidence and disregard of new evidence in the case.

3.3

The author further claims a violation of his rights under article 14 (2) of the Covenant,

as during the pretrial investigation a press conference was held on 5 July 2003 at which a

senior police officer, the Chief Prosecutor and the prosecutor dealing with his case made

public the author’s confession, in violation of the presumption of innocence.6

3.4

Moreover, he claims a violation of his rights under article 14 (3) (g) of the Covenant

on account of psychological and physical 7 pressure allegedly used against him by the

prosecutor, Ms. B., on the night of 3 July and the early morning of 4 July 2003, leading to

the extraction of an admission of guilt from him. In particular, he maintains that his

confession should not have been taken into account and that there was sufficient evidence

only for his conviction for theft, but not for murder.

3.5

Lastly, the author points to the urgency of his situation as he is being deprived of

liberty on the basis of an unlawful sentence and incarceration, despite the new evidence

presented by a forensic medical expert. He reiterates that the Supreme Court’s judgement is

not legally valid, and hence cannot be executed. He also claims that he faces harsh conditions

of imprisonment.

State party’s observations on admissibility

4.1

On 13 January 2014, the State party submitted its observations on admissibility and

requested the communication to be declared inadmissible under articles 2 and 5 (2) (b) of the

Optional Protocol.

4.2

The State party notes that the author’s application to the European Court of Human

Rights was declared inadmissible and found to be manifestly ill-founded.

4.3

With regard to claims under article 9 (1) of the Covenant, the State party submits that

the author did not exhaust domestic remedies in regard to his alleged unlawful arrest from

6.40 a.m. to 9.15 a.m. on 3 July 2003, either during the pretrial investigation or during court

proceedings,8 although he was at all times assisted by a defence attorney. He also did not

submit a civil claim for redress for damages for unlawful arrest under article 6.272 of the

Civil Code.

4.4

The State party contests the author’s allegation as to the unlawfulness of his life

incarceration by the court of cassation. It submits that the court of cassation may overrule the

judgment or decision of the appeal court and uphold the judgment or decision of the court of

first instance with or without modifications.9 In this regard, the Supreme Court noted that its

decision did not impose a sentence, but by changing the judgment of the Court of Appeal,

due to improper application of criminal law, it upheld the life sentence imposed upon the

author by the judgment of the court of first instance. Addressing the question of the stricter

sentence, the Supreme Court stated that, under the law of criminal procedure, when

examining a cassation case the court can impose a stricter sentence, when the appeal is filed

on this ground, if the unjust sentence is related to the improper application of criminal law;

6 It would appear from the case file that the author has failed to lodge an application for damages in the

civil courts pursuant to article 6.272 of the Lithuanian Civil Code (which provides for an action for

damages against the State for any unlawful actions of preliminary investigation officials, prosecutors,

judges or courts).

7 The author provides no details in this regard. It should also be emphasized that, according to a

medical report of 9 July 2003, mentioned in the judgment of the Supreme Court of 29 December

2006, no traces of injuries were found on the author’s body.

8 Code of Criminal Procedure, arts. 44 and 62–63.

9 Ibid., art. 382 (1) (4).

CCPR/C/121/D/2301/2013

6

however, it has no right to impose a stricter sentence than life imprisonment.10 Therefore, in

such cases there is no prohibition against a court of cassation deciding to uphold a sentence

of life imprisonment imposed by the court of first instance or the appeal court. Accordingly,

the State party considers that the allegations of the author in this regard should be declared

inadmissible as manifestly unsubstantiated.

4.5

The State party also rejects the author’s allegations under article 14 (1) of the

Covenant that the court hearings in his case were partial and arbitrary because they dismissed

his statements about the unlawful way his confession was obtained and did not properly

investigate the circumstances of the case. Additionally, the author alleged that since the

national authorities had refused to reopen a criminal case based on what he considered as

new evidence, his right for the case to be examined under conditions of equality was violated.

The author’s complaints of the first instance court’s partiality when assessing evidence were

thoroughly examined by the Court of Appeal, and they were rejected. The author failed to

provide any evidence of a violation of the law or partiality, and did not avail himself of the

opportunity to submit motions to remove any of the judges hearing his case, notwithstanding

the fact that this right was explained to him in the court of first instance. Since the courts of

the State party are in a better position to evaluate the facts and evidence in each specific case,

the author’s allegations of unfairness of the trial under article 14 (1) should be declared

inadmissible due to non-substantiation.

4.6

As regards the author’s request of 9 March 2007 for the Prosecutor General to reopen

the case due to new evidence on the basis of the report of the private medical expert, professor

G., of 15 January 2007, that evidence was thoroughly examined by the Prosecutor General’s

Office and two instances of the national courts, which concluded that no new evidence had

been submitted. In that connection, the State party submits that it was reasonably held that

the crime was committed by the author. As regards the alleged discrepancies between the

findings of the forensic medical experts and the private consultant’s conclusions in regard to

the recorded injuries of the victims, it submits that the question of the weapon that inflicted

these injuries is not of determinant importance as the injuries identified are defined as

“cuttings”, and the charge brought against the convict would therefore remain the same. Since

the finding of a private medical expert is only one consideration in establishing the probable

circumstances of the crime, this part of the communication too should be declared

inadmissible as insufficiently substantiated.

4.7

The State party submits that the author did not previously raise the alleged violation

of the right to presumption of innocence, due to a press conference on 5 July 2003 where it

was allegedly stated that the author had confessed having committed the murders and the

subsequent related press coverage during the pretrial investigation and the court

proceedings. 11 The national authorities were therefore precluded from addressing those

allegations, which could constitute grounds to overrule the decisions of the court of first

instance as well as the Court of Appeal.12 The State party therefore considers that the author’s

claims under article 14 (2) of the Covenant should be declared inadmissible on the basis of

article 5 (2) of the Optional Protocol and also for lack of substantiation, since nothing in the

case suggests that the right to presumption of innocence was actually violated and that such

a violation would have influenced his conviction.

4.8

With regard to the alleged violation of article 14 (3) (b) of the Covenant, the State

party submits that the right to a defence attorney, including one of the author’s choice, was

explained to him on 3 July 2003, as reflected in the arrest record. In that record, it notes that

the author signed an agreement to be defended by a State-assigned defence lawyer, thereby

demonstrating that he was aware of his right to legal representation of his own choice from

the first moment of his arrest. On 10 July 2003, the author again exercised his right to have

a defence lawyer of his choice and nothing prevented him from doing so throughout the

procedure. As the Supreme Court stated, the law on criminal procedure does not provide the

person arrested or the suspect with a right to meet their relatives to discuss the question of

choosing a defence lawyer. However, as it may be seen from the correspondence and

10 Article 376 (3) of the Code of Criminal Procedure.

11 Constitution, art. 31, and Code of Criminal Procedure, art. 44.

12 Code of the Criminal Procedure, arts. 320 (3) and 369 (1)–(2).

CCPR/C/121/D/2301/2013

7

telephone conversations with his mother during the pretrial investigation, the question of

defence, including the choice of a defence lawyer, was discussed in detail. The law does not

require the defence attorney to be present when the suspect (or accused) writes a confession

on his own initiative during official questioning. The State party notes that the author was an

adult when the criminal act was committed; hence he did not need any additional guarantees

when exercising his right to defence. He was accompanied by a defence lawyer during all the

procedural stages of the pretrial investigation. There is no evidence in the case file that the

pretrial investigation officers or the court have precluded the author’s lawyers from

exercising their functions, as set out in the law on criminal procedure, or that the author has

submitted any kind of complaint alleging incompetent representation. The State party further

submits that it is neither in the purview of the pretrial investigation officers nor the courts to

assess the quality of the legal aid provided, except in the cases when it is obvious that the

defence is incompetent.

4.9

The State party also notes that the arrest record shows that the author’s mother was

informed about the author’s detention by telephone on 3 July 2003. It holds that the author

was not precluded from consulting his mother on the choice of a lawyer or from authorizing

her to procure a defence lawyer of their choice, as his mother was present during the house

search.

4.10

As regards the alleged violation of the author’s right to defence caused by the fact that

he was not represented at the time when he was writing his confession, the State party’s

courts found such claims to be unsubstantiated. The Supreme Court noted that the author had

not been officially questioned when he wrote his confession. During the procedures

conducted on 4 July 2003, including additional questioning at the Prosecutor’s Office and at

the crime scene, and during the hearing before the pretrial judge with regard to the detention

on remand, the author was always represented.13 Instead of complaining to a defence lawyer

or to the authorities before which he appeared that he was forced to write a confession, the

author confirmed the details of the crime described therein. The State party submits that the

author’s claims under article 14 (3) (b) should be declared inadmissible for lack of

substantiation.

4.11

The State party considers that the author’s claims under article 14 (3) (g) of the

Covenant are unsubstantiated and should be declared inadmissible because the author was

not able to provide sufficient evidence that physical or psychological violence was used

against him during his confession. The State party refers to the Committee’s jurisprudence,

claiming that the author’s allegations were examined in detail by the district court, the Court

of Appeal and the Supreme Court, which assessed the author’s complaints, but did not find

any evidence of a forced confession. The State party relies on the forensic medical report of

9 July 2003, commissioned during the pretrial investigation, in which the author was found

to have no bodily injuries. It also submits that the author did not raise any allegations of

forced confession either during the additional questioning or when the pretrial judge ruled on

the author’s detention on remand on 4 July 2003, in the presence of his defence attorney.

Instead of raising claims about the alleged violence used against him with any of his defence

lawyers or the authorities directly, the author confirmed his confession. The telephone

conversations between the author and his mother, referred to by the Supreme Court, suggest

that the author’s mother urged him to say that he was beaten up by the police officers during

his confession. The State party notes that, following a visit by his mother on 7 July 2003, the

author changed his testimony on 11 July 2003 and claimed that violence had been used to

compel him to testify on. Since 11 July 2003, the author has continued to deny that he

committed the murders.

4.12

The courts also accepted that the author’s detailed description of the murder contained

in his confession of 4 July 2013 confirmed the objectivity of the author’s confession. Video

material taken in this regard showed that the author confessed of his own free will, without

any pressure from the police. The State party further refers to the judgment of Siauliai District

Court, in which it was noted that the injuries of the murder victims were such that it would

have been impossible for anyone but the murderer to be so precise about them as the author

had been. Moreover, in his confession, the number and location of the injuries indicated by

13 As indicated in the record of the additional interrogation of 4 July 2003.

CCPR/C/121/D/2301/2013

8

the author were confirmed by the report of the forensic medical experts. Those facts

contradicted the prisoner’s allegations that his confession had been forced. The author

testified to the sequence of his acts, the location of the bodies of the victims, and how and

what injuries had been inflicted. In the opinion of the panel of judges, only the person who

murdered the girls could have been so precise in indicating the circumstances of the murder.

4.13

Having examined the author’s allegations with regard to articles 9 (1) and 14 (1), (2)

and (3) (b) and (g) of the Covenant, the State party holds that the communication should be

declared inadmissible under articles 2 and 5 (2) (b) of the Optional Protocol.

Author’s comments on the State party’s observations on admissibility

5.1

On 1 March 2014, the author reiterated most of his previous allegations.

5.2

In addition, he submits that the decision of the European Court of Human Rights has

no relevance for the admissibility of his communication, as the European Court did not

indicate the reasons for finding his application inadmissible.14

5.3

He points out that the State party agreed that he was indeed detained and interrogated

from 6.40 to 9.15 a.m. on 3 July 2003, in the absence of a defence attorney, reiterating also

his previous arguments regarding the lack of legitimacy of the sentence of life imprisonment

upheld by the Supreme Court.

5.4

Regarding the failure to exhaust domestic remedies with respect to article 14 (1), the

author submits that because at the first instance the judge’s arguments were provided in the

final decision, he has challenged the partiality of the courts in his appeals to superior courts.

He holds that he has provided specific examples of denial of justice and the partiality of the

national courts, in particular as regards his request for the reopening of his criminal case due

to new evidence. He alleges that the courts had a deliberate intention to supress or distort

aspects of the case material and the national laws, pointing out that the State party does not

refute his arguments.

5.5

Regarding the presumption of innocence and the non-exhaustion of domestic

remedies in this regard, the author claims that he did not think that raising those issues at the

national level could have any importance for the judicial examination of his case. He stresses

that this violation prevented the crime from being investigated fairly and influenced his

conviction. He urges the Committee to find his claim under article 14 (2) of the Covenant

admissible as the violation of presumption of innocence is a substantial violation of the rules

of criminal procedure.

5.6

The author reaffirms that the State party did not contest his claims that he was not

properly informed of his right to authorize other persons to procure a defence attorney for

him, in violation of article 14 (3) (b) of the Covenant. He adds that under domestic legislation

he has the right to discuss his defence with his family members. It follows that his first

testimonies were given in violation of his defence rights and that the violation of these rights

during the early stages of the pretrial investigation led to his unreasonable conviction. The

author denies that his mother was informed of his detention.

5.7

He also claims that the terms “official” or “unofficial interrogation” do not exist in

national legislation. A person cannot be interrogated unofficially, but either lawfully or

unlawfully. The State party’s argument that the national legislation only requires the presence

of a defence lawyer during “official questioning” cannot lead to the conclusion that his

overnight interrogation was merely “unofficial” and that his right to defence was not violated.

He asserts that his forced confession occurred during his unlawful interrogation and cannot

be considered as a separate event. He considers that the position of the State party constitutes

a denial of justice. He reiterates that such an action was unlawful and amounted to a clear

violation of the law on criminal procedure.

14 Initially, the European Court of Human Rights indicated that the complaint was inadmissible under

articles 34 and 35 of the European Convention on Human Rights. When the author requested a

clarification of the express reasons, the Court responded that the complaint was manifestly

unfounded.

CCPR/C/121/D/2301/2013

9

5.8

As regards the allegations of his overnight interrogation, the author claims that the

medical examination mentioned by the State party to deny the use of violence against him

occurred only on 9 July 2003 – a week after the event. He submits that the fact that he talked

to his mother on 7 July 2003 cannot be used as evidence that she urged him to change his

testimony. The author affirms that meeting with his mother and the prospect of having an

attorney of his choice encouraged him to come forward about the unlawful means used by

the Police against him. Finally, he denies having provided an accurate description of the

crime, alleging that he merely indicated what he had been told or seen in pictures shown to

him by the Police or at the crime scene during the theft.15

State party’s observations on the merits

6.1

On 15 July 2014, the State party reiterated its previous observations, submitting that

the author’s allegations of a violation of articles 9 (1) and 14 (1), (2) and (3) (b) and (g) of

the Covenant should be declared inadmissible pursuant to articles 2, 3 and 5 (2) (b) of the

Optional Protocol. It further submits that some of the allegations were submitted to the

Committee before all the related available and effective domestic remedies had been

exhausted.

6.2

The State party argues that the author did not provide any evidence that could lead to

the conclusion that his detention between 6.40 and 9.15 a.m. on 3 July 2003 – after the

authorized search of his home16 during which the items sought had been found17 – was

unlawful under article 9 (1) of the Covenant. It reiterates that the author failed to submit any

complaints in this regard before domestic courts; the national authorities were thus precluded

from addressing the author’s allegations of unlawful arrest. The author was on hand when

officers searched his home at 6.40 a.m.; the only evidence that he was arrested is the arrest

record, stating that the arrest took place at 9.15 a.m., when the author was notified that he

was being held on suspicion of two counts of premeditated murder. There is no evidence that

any coercive measures were applied to the author between 6.40 to 9.15 a.m. in order to bring

him to Siauliai District Prosecutor’s Office. On 3 July 2003, the author was not questioned

for eight hours, but only for an hour and a half. On 4 July 2003, he was brought before the

pretrial judge and was detained on remand. The State party therefore considers that these

parts of the author’s allegations are unsubstantiated, as he was not deprived of his liberty

from 6.40 to 9.15 a.m.

6.3

Concerning the life sentence, the State party recalls that the panel of seven judges of

the court of cassation held that the decision to change the judgment of the court of appeal

was not an imposition of a penalty by the court of cassation, but was a holding with regard

to the improper application of domestic criminal law by the Court of Appeal, which led to

the reinstatement of the judgment of the court of first instance. Thus, the panel of judges

adopted the decision without exceeding its authority for examining the cassation case. The

State party concludes that the author’s allegations of unlawful incarceration are entirely

unsubstantiated, and that the author’s rights under article 9 (1) of the Covenant were not

violated.

6.4

Concerning the author’s claims of a violation of article 14 (1) of the Covenant due to

the partiality of the courts, since they did not accept the author’s allegations about the

unlawful way his confession was obtained, the State party submits that the courts, including

the Supreme Court, objectively assessed all the facts and evidence, and rejected the author’s

claims for lack of substantiation. The State party claims that an unfavourable decision

towards the author does not indicate any unfairness or partiality of the court, and that he did

not submit any motions to remove any of the judges, although he had been informed about

the right to submit such a motion by the court of first instance. The court of first instance

stated that there were no grounds for the criminal case to be reopened as there was no other

15 On 1 May 2014, the Committee decided to examine the admissibility of the communication together

with its merits.

16 The search was performed from 6 to 6.40 a.m. in the context of the pretrial investigation, which was

initiated on 29 June 2003.

17 The author had been selling items stolen from the murdered girls, while his mother disposed of

several items too.

CCPR/C/121/D/2301/2013

10

new evidence that could not have been known or which would prove that the author was not

guilty (see paras. 4.5–4.6 above). Hence, the author’s rights under article 14 (1) of the

Covenant were not violated.

6.5

As to the author’s allegations that his right to presumption of innocence was violated,

the State party notes that no evidence was provided that the public statements of the

authorities in charge of the author’s case could have influenced his conviction.18 It notes that

the newspapers referred to by the author are not State-owned media, thus the public

authorities could hardly be reproached for their reporting. As regards the certificates of

commendation issued to the investigating officers, those were awarded by the Mayor of

Siauliai to express gratitude for their prompt investigation of crimes. The commendations did

not imply anything as to the author’s guilt and did not even refer to the author in particular,

but to pretrial investigations in general, covering many other investigations related to many

other persons, not only the author. The State party claims that, since neither the reports in the

mass media nor the commendations issued to the investigating officers implied any

instruction to the law enforcement officers on how to investigate or solve the case, the

author’s right to be presumed innocent under article 14 (2) of the Covenant was not violated.

6.6

The State party further argues that, as the author’s mother accompanied him to Siauliai

District Prosecutor’s Office, she could have presumed for herself the legal situation of the

author, especially because she was a jurist. In any case, the author’s mother was notified

about his arrest on 3 July 2003, as noted in the arrest record. Even though the author was

granted the right to call his mother about his arrest, he instead called his girlfriend. On 10

July 2003, the author elected to be defended by a lawyer of his choice. The change in defence

lawyers at the preliminary stage of the investigation does not imply that the author’s right to

a defence was violated before that, as attested to by the national courts. As indicated in the

previous observations of the State party, the author’s allegations in this regard were

thoroughly examined by the three instances of the national courts and no violations were

found. The State party adds that, while the State’s duty to guarantee a competent legal counsel

is a limited one,19 the author was assigned qualified defence attorneys. In particular, the State

party notes that the author decided to plead guilty without consulting the prosecutor or any

of the attorneys he had already been assigned at that stage of the criminal procedure about

his intentions to confess.

6.7

The State party claims that the alleged failure to guarantee representation during the

confession was raised in court and was found to be unsubstantiated. The Supreme Court noted,

however, that the law on criminal procedure required the defence lawyer to be present during

the official questioning but not when a suspect (accused) was writing a confession on his own

initiative. Contrary to his own statements, the author himself requested that the prosecutor be

asked to come to his place of custody to talk to him. He was not questioned on that night, but

he chose to confess his guilt. In view thereof, and reiterating the arguments submitted in its

previous observations, the State party considers that the author’s rights under article 14 (3)

(b) and (g) of the Covenant were not violated.

6.8

As regards the author’s claim of an alleged violation of article 14 (3) (g) of the

Covenant due to the unlawful manner in which his confession of guilt was extracted, using

psychological and physical violence, the State party submits that this claim was examined

and rejected by all three instances of the national courts. The State party reiterates the findings

of the forensic medical experts of 9 July 2003, attesting to the absence of any bodily injuries

to the author. It should be reiterated that the author did not raise such issues on 4 July 2003

with his defence lawyers or the authorities directly, but instead confirmed what he had

previously confessed. Moreover, the precise account of the details of the crime by the author

undermines the credibility of his allegations as to the circumstances in which he submitted

his confession. The State party concludes that there is no evidence in the case file to prove

that any physical or psychological violence was used against the author when writing the

18 The State party argues, pointing in this regard to the letter of Siauliai District Prosecutor’s Office of

14 November 2003 to the author’s mother, that neither the prosecutors nor the press representative of

the Prosecutor’s Office provided the mass media with information concerning the pretrial

investigation.

19 Teesdale v. Trinidad and Tobago (CCPR/C/74/D/677/1996), para. 9.7.

CCPR/C/121/D/2301/2013

11

confession. Consequently, it considers that the author’s rights under article 14 (3) (g) were

not violated.

Author’s comments on the State party’s observations on the merits

7.1

On 2 October 2014, the author submitted comments on the State party’s observations

on the merits of 15 July 2014, reiterating his initial claims, questioning the evaluation of facts

and evidence, and claiming that the State party had consistently misled the Committee by

distorting the factual information of his criminal case.

7.2

The author submits that although he was informed during the pretrial investigation

about his right to choose a private defence attorney or to be defended by a State-assigned one,

he was not informed about his right to authorize other persons to procure a defence attorney

for him, in violation of article 14 (3) (b) of the Covenant. He also claims that the right to

acquire a private defence attorney was not fully explained to him, and that this amounted to

a violation of article 14 (3) (d) of the Covenant. Consequently, he was not able to acquire his

own defence attorney for the first two days of his detention, from 3 to 4 July 2003. He claims

that the State-assigned lawyer did not ensure effective representation as he simply listened to

the author’s confession without being proactive. The author submits that this attitude enabled

the pretrial investigation officers to proceed while his right to defence was violated, including

through the use of torture and other inhuman treatment.

7.3

The author also claims that the arrest record according to which his relatives were

informed about his detention has been fabricated, and that he was not legally represented

during the interrogation that lasted from 9 p.m. on 3 July 2013 to 4 a.m. on 4 July 2003. At

the end of the first day (by midnight) of his arrest, he had refused to confess to committing

the murder, which was not duly reflected in the English translation of the arrest record

submitted by the State party. The author also denies that the overnight visit of the pretrial

investigation officers happened on his initiative.

Issues and proceedings before the Committee

Consideration of admissibility

8.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 97 of its rules of procedure, whether the communication is

admissible under the Optional Protocol.

8.2

The Committee has ascertained, as required under article 5 (2) (a) of the Optional

Protocol, that the same matter is not being examined under another procedure of international

investigation or settlement.

8.3

As regards the author’s claim under article 9 (1) of the Covenant that his detention

from 6.40 a.m. to 9.15 a.m. was not procedurally formalized, that he was not informed of his

right to a defence lawyer, including the right to authorize other persons to procure legal

counsel for him, and that his imprisonment upon conviction should consequently be

considered unlawful, the Committee notes the State party’s argument that the author failed

to raise the issue of the alleged unlawful nature of his arrest during the pretrial investigation

or at court proceedings. He did not submit a civil claim for redress either. The Committee

notes that the author has not provided any information to the contrary and therefore considers

this part of the communication as inadmissible for non-exhaustion of available domestic

remedies, pursuant to article 5 (2) (b) of the Optional Protocol.

8.4

The Committee notes the author’s claim under article 14 (1) of the Covenant that his

right to a fair trial was violated because the national authorities dealing with his case were

partial, as they dismissed the author’s allegations about the unlawful way in which his

confession was obtained, they did not properly investigate the circumstances of the case, and

they refused to reopen the criminal case based on new evidence. In this regard, the Committee

also notes the State party’s assertions that nothing in the case file implies that the judges

harboured any preconceptions or bias about this matter, that the author’s claims in this regard

were rejected by the three instances of the judicial procedure for lack of evidence, and that

the author did not submit a motion to remove any judges on any court hearing his case. It

further notes the author’s allegations that the forensic expertise related to the injuries of the

CCPR/C/121/D/2301/2013

12

victims and the murder weapon should have been considered as new evidence, which should

have led to the reopening of his case. However, it notes the State party’s submission that the

information provided in the report was known since the beginning of the proceedings, and

that it was duly considered by the local authorities, which came to the conclusion that it did

not exculpate the author. In light of these facts, the Committee considers the author’s

allegations of the unfairness of the trial to be inadmissible for non-substantiation, under

article 2 of the Optional Protocol.

8.5

Concerning the author’s allegations under article 14 (2) of the Covenant that his right

to be presumed innocent was violated by virtue of the publicity given to the case, the

Committee notes the State party’s argument that such publicity was not of a nature that could

influence professional prosecutors and judges. It also notes that the author did not raise the

alleged violation before the domestic authorities. Consequently, this part of the

communication is inadmissible under articles 3 and 5 (2) (b) of the Optional Protocol.

8.6

The Committee notes the author’s allegations under article 14 (3) (b) of the Covenant

that his right to defence at the initial stage of the pretrial investigation was violated, as not all

the procedural rights of defence were explained to him. In this respect, the Committee notes

the State party’s response that the right to have a defence attorney of his choice was explained

to the author on 3 July 2003, as evidenced in the arrest record, which shows the author’s

agreement to be defended by a State-assigned attorney. The author further exercised this right

when he replaced the State-assigned attorney by an attorney of his choice on 10 July 2003.

The Committee also notes the State party’s position that nothing precluded the author from

having an attorney of his choice from the first moment of his temporary arrest, that the author

was an adult at the time of the offence, that he did not submit any complaints for allegedly

incompetent legal representation, that his mother was informed about his arrest by telephone

and that the law does not require the attorney to be present when the suspect is writing a

confession. The Committee therefore declares the author’s claims in this regard inadmissible

for lack of substantiation under article 2 of the Optional Protocol.

8.7

Regarding the author’s allegations under article 14 (3) (g) of the Covenant that he was

forced to write a confession, the Committee notes the State party’s argument that such claims

have been duly assessed by the national courts at three instances but were not supported by

the case material on file, including by the forensic medical report of 9 July 2003. The

Committee also notes the State party’s claim that the author made his confession of his own

free will. The Committee observes that the information provided by the author does not

enable the Committee to reach a different finding. It therefore considers this part of the

communication as inadmissible for lack of substantiation, under article 2 of the Optional

Protocol.

8.8

The Committee considers that the author’s assertion that the court of cassation could

not lawfully uphold the sentence of life imprisonment imposed by the court of first instance

is prima facie substantiated for purposes of admissibility. It further considers that this part of

the communication raises in effect a violation of article 14 (5),20 read alone and in conjunction

with article 9 (1), of the Covenant, since the nullification of the Court of Appeal decision in

regard to sentencing might have left the sentence imposed by the court of first instance

without substantive review on appeal. The Committee finds this part of the author’s claim to

be admissible and turns to its consideration on the merits.

Consideration of the merits

9.1

The Committee has considered the present communication in light of all the

information made available to it by the parties, as provided in article 5 (1) of the Optional

Protocol.

9.2

The Committee notes the author’s claim of a violation of article 14 (5), read alone and

in conjunction with article 9 (1) of the Covenant, questioning the lawfulness of the imposition

20 Claims of a violation of article 14 (5) are not expressly raised by the author, but can be inferred from

the arguments submitted.

CCPR/C/121/D/2301/2013

13

on him of a sentence of life incarceration by the court of cassation. In the author’s view, the

court of cassation unlawfully imposed a stricter sentence without a valid legal ground.

9.3

The Committee recalls that the right to have one’s conviction and sentence reviewed

by a higher tribunal established under article 14 (5) imposes on the State party a duty to

review substantively, both on the basis of the sufficiency of the evidence and of the law, the

conviction and sentence, such that the procedure allows for due consideration of the nature

of the case.21

9.4

The Committee notes the State party’s claims that the court of cassation may, inter

alia, overrule the judgment or decision of the court of appeal, uphold the judgement or

decision of the court of first instance, with or without modifications, and impose a stricter

sentence. Concerning the life sentence, the State party recalls that the panel of seven judges

of the court of cassation held that its decision did not impose a sentence on the author, but

simply led to the nullification of the improper sentencing decision by the court of appeal and

the reinstitution of the life sentence imposed by the court of first instance. The Committee

further notes the State party’s argument that there is no prohibition against the adoption by

the court of cassation of a decision to uphold a life imprisonment sentence imposed by the

court of first instance or the court of appeal.22 While recalling that the Committee is not a

“fourth instance” court competent to re-evaluate findings of fact or to review the application

of domestic legislation,23 the Committee considers it to be free to assess the observance of

the right to a fair trial in the context of the present criminal case including, in particular, the

author’s right to have his conviction and sentence reviewed by a higher tribunal according to

law in compliance with article 14 (5) of the Covenant.

9.5

In that connection, the Committee observes that, on 22 February 2006, the Court of

Appeal considered the sentence of life imprisonment for the author as too strict, since the

sentence had not been properly individualized to the circumstances of the author by the court

of first instance, as no aggravating or mitigating circumstances of the crime committed by

the author were established.24 The Court of Appeal did not consider the sentence to be fair

and found a violation of the author’s right to a fair and just trial. The Committee further

observes that the court of cassation, at the request of the Prosecutor General, then found a

violation of the principle of justice by the Court of Appeal, as it had considered only

mitigating factors and had not assessed whether there were any aggravating circumstances,

and decided to quash the sentencing part of the verdict of the Court of Appeal, thus reinstating

the sentence of life imprisonment handed down to the author by the court of first instance.

The court of cassation specifically admitted that domestic criminal procedure law prohibited

it from changing an improper sentence issued by a lower court to life imprisonment. However,

it found no restrictions that would prohibit the court of cassation from reinstating the sentence

of life imprisonment handed down to the author by the court of first instance.

9.6

The Committee recalls that the notion “according to law” in article 14 (5) is not

intended to leave the very existence of the right of review to the discretion of the States parties.

In the present case, the Committee notes the State party’s assertion that the first instance court

judgment was subject to appeal, and that the cassation court confirmed the first instance

judgment as to the conviction and sentence; hence the State party argues that it complied with

the standards of adequate review by a higher tribunal according to law. The Committee also

notes that, according to the State party, the court of cassation adequately assessed the

individual circumstances of the crime committed, including the personality of the perpetrator,

and that the court of cassation found an improper application of the criminal law by the Court

of Appeal. The court of cassation also held that the Court of Appeal did not seek to strike a

21 Human Rights Committee, general comment No. 32 (2007), para. 48.

22 See article 376 of the Lithuanian Code of Criminal Procedure: “When examining the case in cassation

proceedings … the court may apply a lighter or stricter sentence. … The court can impose a stricter

sentence if an unjust sentence is related to improper application of criminal law. The court can impose

a stricter sentence when the appeal is filed on this ground once the decision of the Court of Appeal

has entered into force (art. 369); however, it has no right to impose a stricter sentence than life

imprisonment.”

23 Human Rights Committee, Van Meurs v. the Netherlands, communication 215/86, para. 7.1.

24 The Court of Appeal noted that this was the author’s first conviction, that he had committed the crime

when he was 18 years old and that he had had positive reports from his school.

CCPR/C/121/D/2301/2013

14

balance between the interests of the accused and those of the victims. The Committee takes

note of the State party’s argument, based on the legal assessment by the court of cassation,

that the latter is not barred from reinstating a life imprisonment sentence adopted by the court

of first instance. In view thereof, and while taking into account that the author disagrees with

the decision of the court of cassation to uphold the sentence of life imprisonment handed

down by the court of first instance, without substantiating why the sentence imposed on him

was not subject to an adequate review in accordance with the law, the Committee cannot

conclude that the author’s rights under article 14 (5), read alone and in conjunction with

article 9 (1), of the Covenant have been violated.

10.

The Committee, acting under article 5 (4) of the Optional Protocol to the Covenant, is

of the view that the review of the author’s sentence by the court of cassation has not amounted

to a violation of his rights under article 14 (5), read alone and in conjunction with article 9

(1), of the Covenant.