SECOND SECTION. CASE OF VARNAS v. LITHUANIA. (Application no /06) JUDGMENT STRASBOURG. 9 July 2013 FINAL 09/12/2013

Transcription

1 SECOND SECTION CASE OF VARNAS v. LITHUANIA (Application no /06) JUDGMENT STRASBOURG 9 July 2013 FINAL 09/12/2013 This judgment has become final under Article 44 2 of the Convention. It may be subject to editorial revision.

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3 VARNAS v. LITHUANIA JUDGMENT 1 In the case of Varnas v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President, Danutė Jočienė, Peer Lorenzen, Dragoljub Popović, Işıl Karakaş, Nebojša Vučinić, Paulo Pinto de Albuquerque, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 18 June 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no /06) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ( the Convention ) by a Lithuanian national, Mr Tomas Varnas ( the applicant ), on 17 October The Lithuanian Government ( the Government ) were represented by their Agent, Ms E. Baltutytė. 3. The applicant alleged that the length of his pre-trial detention had been unreasonable. He also complained that unjustified restrictions had been imposed on family visits while he had been held in detention on remand. 4. On 1 June 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in He is currently serving a prison sentence in Vilnius.

4 2 VARNAS v. LITHUANIA JUDGMENT A. The applicant s arrest, detention and conviction in the first criminal case 6. On 10 March 2004 the applicant was arrested on suspicion of belonging to a criminal association (nusikalstamas susivienijimas), led by a certain D.S., who had died during the pre-trial investigation. He was also suspected of having stolen three high value cars. On the same day the Vilnius City First District Court ordered the applicant s detention for three months. On 1 April 2004 the Vilnius Regional Court upheld the decision. The courts observed that the applicant was suspected of a very serious crime: belonging to a criminal association since The charges against him were based on concrete evidence, and there was a risk that if he were not detained he might continue his criminal activities. He also had a prior conviction for disorderly conduct (chuliganizmas), for which he had already served a sentence. Therefore, his participation in the pre-trial investigation could be guaranteed only if he were remanded in custody. The applicant remained in custody in the Lukiškės Remand Prison. 7. On 31 May 2004 the Vilnius City First District Court extended the applicant s detention by three months, upholding the above reasons and adding that the crimes with which the applicant was charged had been committed over a long period of time. The court also considered that if the applicant were released pending trial, he could obstruct the investigation, influence the victims and witnesses, and contact other suspects, who were being searched for at that time. On 1 July 2004 the Vilnius Regional Court dismissed an appeal lodged by the applicant. 8. On 6 September 2004 the Vilnius Regional Court extended the applicant s pre-trial detention. This time, the court observed that from 2002 to 2004 the applicant had been a member of a highly sophisticated criminal organisation and had taken part in the theft of seventeen high value cars in Lithuania. The cars had belonged to citizens of Lithuania, Germany, Latvia, Estonia, the Netherlands and Spain. The crimes had been committed in a business manner (versliškai), with a high level of conspiracy; each member of the criminal organisation had had a designated role. The criminal association had thereby caused serious loss to Lithuanian and foreign citizens. The court also noted that, in the meantime, many investigative measures expert examinations, questioning of witnesses had been carried out. Accordingly, there was no reason to consider that the pre-trial investigation had been delayed. On 9 December 2004 the Vilnius Regional Court upheld the decision for all the same reasons, but dismissed Vilnius City First District Court s argument about the risk of the applicant obstructing the investigation by influencing witnesses as abstract and not based on specific facts. On the other hand, the Regional Court noted that the criminal case was especially

5 VARNAS v. LITHUANIA JUDGMENT 3 complex, and that since the last decision to prolong the detention, further investigative actions had been carried out. 9. Once the pre-trial investigation in the first criminal case was concluded in February 2005, the final notice of suspicion encompassed participation in a criminal association, committing or attempting to commit thefts of high value property (some twenty counts), destruction of property, acquiring high value property by criminal means and the theft of documents. 10. On 9 March 2005 the Vilnius Regional Court extended the detention on remand for another three months. On 30 March 2005 the Court of Appeal dismissed an appeal lodged by the applicant, on the ground that he might try to hinder the investigation and influence witnesses. The appellate court observed that, although the case had been forwarded to the trial court for examination, the applicant might try to influence the witnesses who had yet to testify in court. The court also took into account the seriousness of the accusations against the applicant and his prior conviction. 11. On 31 May 2005 the Vilnius Regional Court sanctioned another three months of detention on the grounds that the applicant was accused of very serious crimes and that he had a prior conviction. The court also emphasised that the case had just been transferred to the trial court and the evidence had not yet been examined in a courtroom. Likewise, all the coaccused had not yet been questioned and most of the victims had not yet testified. Accordingly, there was a risk that the applicant, if released from detention, might influence those persons. On 22 June 2005 the Court of Appeal upheld that decision, noting that Article 242 of the Code of Criminal Procedure obliged the court to examine evidence that is, to question the accused, the victims and witnesses in the courtroom irrespective of whether they had been questioned during the pre-trial investigation. Taking into account that those actions had not yet been carried out and the applicant s and his co-accused s tactics of denying their involvement in the crimes, there was a risk that the co-accused might attempt to influence other participants in the proceedings if they were released from detention. Furthermore, the applicant had been charged with belonging to a criminal association and committing nearly twenty serious crimes. Given the scale and duration of the criminal activity, and the applicant s active role in it, it was reasonable to believe that there were sound reasons for holding him in custody pending trial. 12. On 9 September 2005 the Vilnius Regional Court again sanctioned the extension of the detention for three months. 13. The applicant appealed, arguing that the accusations against him had not been proved in the courtroom and thus there were no grounds to hold that he had committed any crimes. Such a conclusion by the courts that had sanctioned his detention was in breach of his right to presumption of innocence. Neither was there any concrete proof that he could exert

6 4 VARNAS v. LITHUANIA JUDGMENT influence on other parties to the criminal proceedings if released. Lastly, the applicant maintained that he had already been detained for eighteen months. For ten of those months he had been denied any contact with his wife and family. Although at the time of appeal, his wife could visit him for one and a half hours a month under the supervision of a guard, because of the applicant s status as a person charged with a crime (as opposed to a convicted person), conjugal visits were not allowed. Thus his status had placed him in a significantly worse situation than that of a convicted criminal. The applicant argued that long-term visits were physiologically necessary for both him and his wife, and that the lack thereof amounted to torture and was a method of extracting a confession. 14. On 26 September 2005 the Court of Appeal held that the reasons for detention indicated in the earlier decisions continued to exist. The appellate court observed that, although it was true that the detention had been lengthy and had already lasted more than eighteen months, the maximum statutory limit of eighteen months was only applicable to detention during pre-trial investigations. This case had been forwarded to the trial court for examination; the law did not provide for any limitation on the length of detention once a case was being examined by the trial court. As to the applicant s argument about breach of the presumption of innocence, the courts findings that the applicant had been implicated in the criminal acts were not the conclusion as to his guilt, but merely statements that there was sufficient evidence that he had committed the crimes for the purpose of deciding whether he should be held in detention. The question of his criminal liability was to be decided later, when the trial court adopted an accusatory or exculpatory judgment. Lastly, given the seriousness of the charges against the applicant, the public interest prevailed against his right to presumption of innocence and his other rights. It followed that the applicant s argument that he had been discriminated against compared with a convicted person as regards the right to receive conjugal visits was unfounded. 15. On 5 December 2005 the Vilnius Regional Court extended the detention by another three months, upholding the argument that the applicant had been charged with very serious and systematically committed crimes. By that time, most of the suspects and witnesses had already been questioned in court, but since it was not the case for the applicant and his co-accused, the reason to continue the pre-trial detention remained. On 22 December 2005 the Court of Appeal dismissed an appeal lodged by the applicant, also observing that the case was extremely complex. 16. On 27 February 2006 the Vilnius Regional Court extended the detention for another three months, observing that the essential reasons for maintaining the applicant in detention had not changed. In addition, there had been a break in the proceedings because a photographic expert report had been ordered and the results were not due until the beginning of March.

7 VARNAS v. LITHUANIA JUDGMENT 5 For that reason, the next court hearing had been scheduled for 17 March. The applicant s arguments that by depriving him of long-term visits the investigators had been seeking to extract his confession were not founded, because the applicant had testified only when he had so wished he had been silent during pre-trial investigation, but had chosen to testify only in court, and only after the witnesses had testified. Lastly, there was a risk that the applicant, if released pending trial, would go into hiding to avoid a possible heavy sentence. On 15 March 2006 the Court of Appeal upheld the decision. 17. In June 2006 the applicant lodged another appeal against his detention. He argued that conditions in the Lukiškės Remand Prison, where he had already been detained for twenty-seven months, were atrocious. The cells were overcrowded, lacked proper ventilation and were full of smoke. The inmates could leave the cell for only one hour a day. They ate, slept, washed and used the toilet in the same cell. The applicant reiterated his argument that being deprived of long-term visits and thus physical contact with his wife for the entire twenty-seven months had had a mental and physical impact on his well-being. Such a measure was inhuman, degrading and in breach of Article 3 of the Convention. Lastly, the applicant argued that his pre-trial detention amounted to a violation of Article 5 of the Convention. He considered that at that stage of the criminal proceedings, a milder remand measure could have been imposed on him. 18. While acknowledging that the applicant had already been detained for a long time, on 9 June 2006 the Vilnius Regional Court extended his detention on the grounds that the crimes were particularly serious and the applicant risked a heavy sentence, so might go into hiding if released. It also noted that the criminal case was particularly complex there were seven coaccused, some twenty criminal episodes, and more than eighty people to be questioned. The court also noted that the applicant s complaint about inappropriate conditions of detention did not affect the validity of holding him in custody. The court decision stipulated that it could be appealed against to the Court of Appeal. The applicant states that he did not appeal against this decision because he was convicted ten days later. 19. By a judgment of 19 June 2006, the Vilnius Regional Court found the applicant guilty of belonging to a criminal association, numerous counts of theft of high value property by participating in an organised group, destruction of property and theft of documents. The applicant was sentenced to twelve years of deprivation of liberty, the sentence to be served in a correctional home (pataisos namuose, see paragraphs below). The time that the applicant had spent in pre-trial detention from 10 March 2004 was subsumed by the sentence. The court also ordered the continued detention of the applicant until the judgment came into force or he started serving his sentence.

8 6 VARNAS v. LITHUANIA JUDGMENT Six of the applicant s co-accused were also convicted. Their sentences ranged from a fine to twelve years imprisonment, depending on their roles in the criminal association and the crimes they had committed. 20. The applicant, one of the co-accused and the prosecutor lodged appeals against their convictions. 21. On 1 September 2006 prior to the coming into force of the trial court s judgment following a request by the applicant, pursuant to Article 315 of the Code of Criminal Procedure (see paragraph 70 below), he was transferred to the Kybartai Correctional Home to start serving his prison sentence. 22. On 15 October 2008 the Court of Appeal acquitted the applicant in respect of the charge of belonging to a criminal association, but upheld the conviction as regards the remaining charges. The applicant s conviction was amended to six years imprisonment. 23. By a ruling of 26 May 2009, the Supreme Court referred the case for re-examination, having found that the appellate court had not taken into account all the circumstances of the case and the existing case-law, and thus had not properly reasoned its conclusion as to the applicant s belonging to a criminal association. 24. By a ruling of 24 April 2012 the Court of Appeal upheld the Vilnius Regional Court s verdict of 19 June 2006, with minor amendments. B. The applicant s detention and conviction in the second criminal case 25. While the applicant was still serving his sentence in the first criminal case in the Kybartai Correctional Home, the prosecutors of the Vilnius region were carrying out a pre-trial investigation in another criminal case which also concerned two counts of theft of high value cars, in 2001 and 2002, committed by an organised group. There were six persons in that group: the applicant, four persons other than those who were charged in the first set of criminal proceedings, and their leader, the same D.S. as the one charged in the first set of criminal proceedings (see paragraph 6 above). Having questioned and charged the applicant, on 15 June 2007 the prosecutor asked the court to have the applicant transferred from the Kybartai Correctional Home to the Lukiškes Remand Prison for a period of two months, so that they could finish the pre-trial investigation and the applicant could read the voluminous pre-trial investigation materials. 26. On the same day, pursuant to a detention order issued by the Vilnius City First District Court, the applicant was moved back to the Lukiškės Remand Prison. The court s grounds for holding the applicant in pre-trial detention in the second set of criminal proceedings were the abundance of evidence implicating him in the car thefts, the high level of complicity of the criminal group, and the possibility of a heavy sentence on top of his conviction of 19 June 2006 for similar crimes. The court therefore

9 VARNAS v. LITHUANIA JUDGMENT 7 considered that the applicant, if released, might obstruct the investigation by hiding from the investigators or the court, or commit further crimes. The court also emphasised that pre-trial detention was being imposed on the applicant in that second criminal case, irrespective of the fact that he was serving a custodial sentence for offences in the first criminal case. 27. The applicant appealed, arguing that he had been placed in pre-trial detention as early as 10 March 2004 and that the length of his detention had been out of proportion. However, by a ruling of 5 July 2007 the Vilnius Regional Court dismissed the appeal, upholding the lower court s reasoning and pointing out that in the second criminal case the applicant had been remanded in custody only as of 15 June On 3 July 2007 the applicant asked the court to terminate the pretrial investigation, arguing that it had been excessively long. He had been questioned as early as 10 March 2004, and the pre-trial investigation had been continuing ever since. 29. On 17 July 2007 the Vilnius City First District Court dismissed the applicant s request, finding that he had attempted to mislead the court by claiming that he had first been questioned as a suspect in this criminal case on 10 March He had in fact been questioned in a different criminal case, for which he had been convicted and was serving a custodial sentence. In the second criminal case the applicant had been questioned for the first time only on 15 June 2007, but had refused to reply. The court also held that there had been no delays in the pre-trial investigation. Lastly, the court observed that pursuant to Article of the Code of Criminal Procedure, a suspect could challenge the length of the pre-trial investigation if the investigation had not been terminated within six months, which was not yet the case for the applicant. The applicant s appeal was dismissed on 25 July On 14 August 2007 the Vilnius Regional Court extended the applicant s pre-trial detention for a further three months on the grounds that there was sufficient evidence against him and he had a prior conviction for hooliganism. The court likewise observed that on 19 June 2006 the applicant had been convicted of numerous serious crimes committed by a criminal association, for which heavy deprivation of liberty sanctions applied. For the court, taking into account that the latter judgment had not yet come into force, it was reasonable to believe that the risk of a heavy prison sentence would give the applicant an incentive to hide from the court to avoid criminal liability. Thus the applicant s pre-trial detention was in order to guarantee his participation in the proceedings. On 30 August 2007 the Court of Appeal dismissed an appeal lodged by the applicant, upholding the lower court s reasons and emphasising that the applicant was suspected of belonging to a criminal association, which was one of the most dangerous forms of criminal complicity.

10 8 VARNAS v. LITHUANIA JUDGMENT 31. On 13 November 2007 the Vilnius Regional Court extended the applicant s detention by another three months on the same grounds as before, reiterating that his twelve-year custodial sentence for the first set of criminal offences could give him a strong incentive to flee from justice if released pending his conviction of 19 June On 13 December 2007 the Court of Appeal upheld that decision. 32. Following a decision by the Vilnius Regional Court of 12 February 2008, the applicant s pre-trial detention was not extended further. Having heard the applicant, his lawyer and the prosecutor, the court held that the applicant s conviction in the first set of criminal proceedings and, in particular, the fact that in those proceedings he had also been detained pending appeal, was sufficient guarantee that he would not flee from justice in the second set of criminal proceedings. The Government state that immediately after this decision the applicant was transferred back to the Kybartai Correctional Home to continue serving his sentence. 33. Following a judgment by the Vilnius Regional Court of 29 September 2008, the applicant was convicted on two counts of theft of high value property, committed by an organised group. He was sentenced to five years imprisonment. 34. On 23 February 2009 the conviction, with minor corrections, was upheld by the Court of Appeal. On 20 October 2009 the Supreme Court dismissed an appeal on points of law lodged by the applicant. 35. The Government submitted that on 22 May 2009 the applicant had been transferred from the Kybartai Correctional Home to the Vilnius Second Correctional Home (Vilniaus antrieji pataisos namai), where he is currently serving his sentence. C. Visits 36. On 28 March 2006 the applicant wrote to the administration of the Lukiškės Remand Prison requesting a conjugal visit. He noted that during the pre-trial investigation, he had already been detained for more than two years, during which time he had had no physical contact with his wife. The applicant was quite open and wrote that because of the lack of sexual contact he was being tortured physically and mentally, and was in a state of constant stress. The same day, the remand prison administration told the applicant that detainees who had not been convicted had no right to conjugal visits. 37. The applicant s wife repeated her husband s request on 4 April In a letter of 14 April 2004, the prison administration informed her that pursuant to Article 16 of the Law on Pre-trial Detention (Kardomojo kalinimo istatymas) and the Internal Regulations for Pre-trial Detention Facilities (Kardomojo kalinimo vietų vidaus tvarkos taisyklės) (see

11 VARNAS v. LITHUANIA JUDGMENT 9 paragraphs below) a detainee could receive visits from his relatives or other persons for up to two hours, provided that the prosecutor or court so permitted. The visits were to be held in a designated room in the detention facility, under the officers constant supervision. Only persons whom a court had sentenced to deprivation of liberty in a correctional home (pataisos namuose) had a right to conjugal visits. Accordingly, the Lukiškės Remand Prison administration dismissed the request. 38. On 7 April 2006 the applicant challenged the above decision before the administrative courts. He emphasised that he had been held at the Lukiškės Remand Prison for more than two years without his wife being able to see him for a conjugal visit. The applicant maintained that the lack of conjugal visits for such a long time amounted to physical and mental torture, prohibited by Article 3 of the Convention, and was contributing to the destruction of his marriage and the deterioration of his family life. He also claimed that he had been punished without conviction, because the situation he was in could be compared to a criminal punishment. 39. In support of her husband s cause, the applicant s wife also wrote to the court, stating that the absence of conjugal visits for more than two years had caused her psychological and physical torture, was damaging her body and mind and destroying her marriage and her family s well-being. She asked the court to order the Lukiškės Remand Prison administration to grant the applicant conjugal visits, which were necessary for her physical and psychological survival. 40. The applicant maintained his complaint at a hearing before the Vilnius Regional Administrative Court. He asked the court to annul the Lukiškės Remand Prison administration s decision, irrespective of the fact that on 19 June 2006 he had already been convicted by a judgment which had not yet entered into force. The applicant also asked the court to disregard the fact that one month earlier he had asked to be transferred to a correctional home before the accusatory judgment came into force. On those last two points, the applicant noted that he did not know when he would be transferred to a correctional home from the Lukiškės Remand Prison. He also did not rule out the possibility that he might be returned to that remand prison in the future. 41. On 11 September 2006 the Vilnius Regional Administrative Court dismissed the applicant s complaint. The court observed that only convicted detainees had a right to conjugal visits; when the applicant had submitted his request for a conjugal visit to the Lukiškės Remand Prison, he had not been convicted, therefore he had no such right. The court also found that the refusal to grant a conjugal visit could not amount to torture, because torture or cruel behaviour necessitated active actions. The Lukiškės Remand Prison administration had merely followed the letter of the law.

12 10 VARNAS v. LITHUANIA JUDGMENT 42. It appears that the applicant did not appeal against the decision. By then he was already serving his sentence in the Kybartai Correctional Home, where he could receive conjugal visits. 43. On 27 August 2007, when the applicant had again been placed in the Lukiškės Remand Prison in connection with the second set of criminal proceedings, he again requested a conjugal visit. 44. On 11 September 2007 the remand prison administration informed the applicant that he did not have the right to conjugal visits because he was again being detained on suspicion of having committed offences which were still under investigation and his status was that of a remand prisoner. 45. On 23 October 2007 the applicant lodged a complaint with the Vilnius Regional Administrative Court, submitting that on 1 September 2006 he had been transferred to the Kybartai Correctional Home to serve his sentence, where he had received conjugal visits. Nevertheless, on 15 June 2007 he had been returned to the Lukiškės Remand Prison to be detained pending investigation. Observing that the Lukiškės Remand Prison had refused his request on the basis of the Law on Pre-trial Detention, the applicant argued that the aim of pre-trial detention measures should be not to punish or correct a person, but to guarantee that the proceedings run smoothly. He reiterated his argument about his entitlement to the presumption of innocence and argued that as a convicted person, he had been entitled to conjugal visits under the Code on the Execution of Sentences. For the applicant, the provisions of the Law on Pretrial Detention barring detainees from receiving conjugal visits were in breach of Article 3 of the Convention. On the merits of his complaint, the applicant added that the absence of physical contact with his wife had been causing him physical and mental suffering. He also considered that in a caring society (sąmoningoje visuomenėje) physical contact (a sexual relationship lytiniai santykiai) was as normal an element of life as sleeping and eating. 46. In December 2007 the applicant asked the Vilnius Regional Court to return him to the Kybartai Correctional Home. However, on 18 December 2007 the court turned down the request on the ground that pending the outcome of the second set of criminal proceedings, the applicant s legal status was that of a pre-trial detainee and, in accordance with the Law on Pre-trial Detention, detainees had to be held in a pre-trial detention facility. Accordingly, it was not possible to transfer the applicant from the Lukiškės Remand Prison to the Kybartai Correctional Home. 47. By a decision of 17 January 2008 the Vilnius Regional Court ordered the Lukiškės Remand Prison administration to re-examine the applicant s request. The court held that by treating the applicant only as a detainee and thus disregarding his conviction, the prison administration had interpreted the domestic law too narrowly and had ignored the applicant s dual status. The court also noted that under point of the Internal

13 VARNAS v. LITHUANIA JUDGMENT 11 Regulations for Pre-trial Detention Facilities convicts who, like the applicant, had been transferred to a pre-trial detention facility from a prison pending pre-trial investigation in another case could receive conjugal visits. However, according to rule 125, if the detention facility had no specific premises for such visits, a long-term visit could be exchanged for two shortterm visits. The Lukiškės Remand Prison administration was thus ordered to explain why point of the regulations did not apply to the applicant and to answer the question whether there were facilities for conjugal visits at that institution. 48. The applicant appealed, emphasising his dual status, being discriminated against and reiterating his urge for conjugal visits, which, at that time, appeared to be a question of life or death. He objected strongly to the application of rule 125, insisting that it was his right to choose whether to exchange a long-term (conjugal) visit for two short-term visits. The applicant also mentioned that at the Kybartai Correctional Home he had been assigned to the medium security level (see paragraph 60 below) and thus could receive one short and one long visit once every three months. The applicant s wife asked the court to grant her husband s request. The Lukiškės Remand Prison administration maintained that the applicant s status as a detainee was more serious than that of a convicted person. Accordingly, he had no right to a conjugal visit. It also submitted that the remand establishment in any case had no premises for conjugal visits. 49. On 21 November 2008 the Supreme Administrative Court reversed the lower court s decision and dismissed the applicant s complaint. The court observed that the applicant had been transferred to the Lukiškės Remand Prison as a suspect in the second criminal case in which his pretrial detention had been ordered, and thus the Law on Pre-trial Detention was applicable to him. As to his dual status, the court held: A person who has been sentenced to deprivation of liberty, but in respect of whom the accusatory judgment has not yet entered into force, and (or) a convicted person in respect of whom pre-trial detention has been ordered [in another case] while they were serving a liberty deprivation sentence, have the same procedural status as those in pre-trial detention. Were it otherwise, a person who had committed no crime and had not been convicted, but had been placed in pre-trial detention, would be in a significantly worse situation than a person who had already been sentenced to deprivation of liberty and in respect of whom pre-trial detention had been ordered in another criminal case. In the instant case, the chamber finds it important that [the applicant], as a suspect in [the second] criminal case, has been placed in pre-trial detention and, for precisely that reason, he is held in the Lukiškės Remand Prison. On that ground, the entire set of pre-trial detention rules is applied to the applicant. Those regulations restrict some of his rights and freedoms with the aim of achieving a timely and unobstructed investigation of the criminal case by eliminating any possibility to convey information to other persons, which could obstruct the objective investigation of the case. Accordingly, the fact that the applicant has been convicted in another criminal case has no bearing on the resolution of this case.

14 12 VARNAS v. LITHUANIA JUDGMENT 50. The court also noted that any measure applied to a person held in custody could restrict his constitutional rights, and that the restriction on conjugal visits did not amount to torture, inhuman or degrading treatment. Neither was the measure in breach of the applicant s right to respect for his family life. Lastly, even though in accordance with point 124 of the Internal Regulations for Pre-trial Detention Facilities, convicts who, like the applicant, had been transferred to a pre-trial detention facility from a prison pending pre-trial investigation in another case could receive conjugal visits, this right could be substituted by short visits if the remand institution did not have facilities for a conjugal visit. The argument that the Lukiškės Remand Prison did not have specific premises for conjugal visits had not been overruled. Therefore, even assuming that the applicant had a right to a conjugal visit, such visits were impossible from a practical point of view. 51. It transpires from the record of the Lukiškės Remand Prison that during the applicant s detention pending investigation in the first criminal case, from 10 March 2004 until his conviction on 19 June 2006, he received thirty-two short-term visits from his wife and parents (of which seventeen visits from his wife). He also received five short-term visits from his wife and parents before being transferred to the Kybartai Correctional Home, namely between 19 June and 1 September The Lukiškės Remand Prison record also shows that from 1 September 2006, when the applicant was transferred to the Kybartai Correctional Home to serve his prison sentence, to 15 June 2007, when he was detained as a suspect in the second criminal case, the applicant received seven long-term visits from his wife and six short-term visits from his wife and a friend. 53. During the applicant s pre-trial detention in the second criminal case, namely from 15 June 2007 to 12 February 2008, he received four short-term visits from his wife. 54. Following the decision by the Vilnius Regional Court of 12 February 2008, whereby the applicant s detention in the second criminal case was not extended and he was transferred back to the Kybartai Correctional Home, and until 22 May 2009, when he was transferred to the Vilnius Second Correction Home, the applicant received twelve long-term visits from his wife and seven short-term visits from his wife and friends. Once in the Vilnius Second Correctional Home, until 28 September 2010, the day the Government submitted their observations on the admissibility and merits of the case, the applicant s wife had paid him thirteen long-term visits, and his friends and wife had paid him two short visits. D. Conditions of detention 55. In May 2006 the applicant submitted complaints to the authorities about the conditions of his detention in Lukiškės Remand Prison.

15 VARNAS v. LITHUANIA JUDGMENT On 16 June 2006, having verified the facts, the Emergency Situations Centre at the Ministry of Health acknowledged that the cells at the remand facility were overcrowded. The health care specialists noted that at the time of their inspection the applicant was being held with three other persons in a cell measuring 7.94 square meters, although they did not specify for how long that had been going on. His cell was clean, but needed some painting and floor repairs. The ventilation met applicable standards. It transpires from the documents in the case-file before the Court that the applicant did not institute administrative court proceedings as regards the conditions of his detention in the Lukiškės Remand Prison. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Legal provisions for pre-trial detention 57. The Code of Criminal Procedure (hereinafter the CCP) provides that the purpose of holding a suspect, an accused or a convict in remand is to secure his or her presence during the proceedings, and ensure that the pretrial investigation, judicial hearing and execution of the judgment may be carried out unhindered, as well as to prevent him or her from committing further criminal acts (Article 119). The grounds for ordering pre-trial detention are a reasonable assumption that a suspect might: 1) abscond or go into hiding from the investigators or court; 2) obstruct the course of the proceedings; 3) commit new crimes (Article 122). Article 2 of the Law on Pre-trial Detention (Kardomojo kalinimo įstatymas) lists the reasons for pre-trial detention that are analogous to those mentioned in Article 119 of the CCP. 58. Under Article 16 of the Law on Pre-trial Detention, the administration of the relevant remand institution may allow detainees visits of up to two hours by family members or other persons, but permission has to be sanctioned by the investigation officer or the court. Visits must comply with the procedure established by the Internal Regulations for Pretrial Detention Facilities (Kardomojo kalinimo vietų vidaus tvarkos taisyklės), which read as follows: XV. DETAINEES VISITS FROM FAMILY MEMBERS AND OTHER PERSONS ORDER 123. As established by Article 16 of the Law on Pre-Trial Detention of the Republic of Lithuania, the remand prison administration shall allow untried prisoners visits from relatives or other persons only with the consent of the officer investigating the case or the court that has jurisdiction in the case. The same rules shall be applied to convicts who have been transferred from correctional institutions owing to

16 14 VARNAS v. LITHUANIA JUDGMENT prosecution in another case if a remand measure - detention - has been ordered. The length of the visit as provided by law shall be up to two hours (...) the number of short-term visits, which last up to four hours, and long-term visits, which last up to forty-eight hours, is limited to persons sentenced to deprivation of liberty and: [...] who have been... transferred to such facilities from a correctional institution (iš pataisos darbų įstaigų) in order that investigations may be carried out in criminal cases or while criminal cases are pending in court (atlikti tardymo veiksmų baudžiamosiose bylose arba dėl bylų nagrinėjimo teisme); Provided that the pre-trial detention institution has no facility for long-term visits, the convicts listed in point 124 of the Internal Regulations shall receive two short-term visits instead. In order that [those convicts] may maintain a social connection with their family or relatives, the director of the remand prison may grant them supplementary visits... [...] 129. Anyone who visits a detainee shall apply for a visit in writing... to the Reception Office... of the remand prison. He or she shall hand the request to an employee of the Office together with the written consent of the officer investigating the case or the court that has jurisdiction in the case. [...] The Office employee, if satisfied that the visit may be granted, shall inform the director of the remand prison or his deputy, who shall indicate the duration of the visit on the written request for a visit. If he refuses to give permission for a visit, the reasons for refusal shall be indicated. [...] The consent of the officer investigating the case or the court that has jurisdiction in the case to grant permission for a visit is valid for only one visit. Only two adults at a time may visit a detainee or convict; they may be accompanied by the minor children of the detainee or convict. [...] 131. A hall shall be equipped for the short-term visits of detainees and convicts by their relatives or other persons in the premises of the remand prison. A table measuring not less than 120 cm in width and not more than 70 cm high shall be installed in the hall. One end of the table shall stand against the wall of the hall. The table shall be fitted with a wooden partition from the tabletop to the ground. Wire netting shall be installed along the length of the table from the ceiling to within 20 cm of the tabletop. Visitors may pass food to the detainees or convicts through the space between the table and the wire netting On the side of the table where the detainees and convicts must sit, cabins measuring not more than 80 cm by 1 metre shall be installed. All the cabins shall be separated from the ground to the ceiling by partitions On the side of the table where the visitors must sit, a sufficient number of chairs or stools shall be placed. Cabins shall not be installed on that side of the table....

17 VARNAS v. LITHUANIA JUDGMENT A table for the officers supervising the visits shall be placed at the end of the visit table. The officers shall have an alarm connection to the control room The officers supervising the visit shall constantly observe the visitors, detainees and convicts. During the visit the visitors, detainees and convicts are not allowed to give each other notes and other objects (except for food). B. Legal provisions for the service of liberty deprivation sentences 59. Once an adult has been sentenced to deprivation of liberty, he or she is transferred to one of three types of correctional facilities: a correctional home (pataisos namai), a prison (kalėjimas), or an open colony (atviroji kolonija) to serve the sentence (Article 62 of the Code on the Execution of Sentences (Bausmių vykdymo kodeksas), hereinafter the CES). 60. According to Articles 71 to 76 and 94 of the CES, once a convict has been placed in a correctional home (pataisos namuose), in the applicant s case Kybartai Correctional Home, he or she has a right to short-term (up to four hours) and long-term (up to forty-eight hours, including conjugal) visits. The frequency at which convicted inmates can receive visitors is determined according to the inmate s security level. Those assigned to the lowest security level are allowed one short-term visit by their friends and/or relatives and one long-term visit by a spouse at least once every two months. Convicted inmates assigned to medium-security level, are allowed one short-term visit and one long-term visit once every three months. Lastly, inmates assigned to the highest security level are not allowed any visits, but may make one telephone call every two months. Short visits take place in the presence of a guard, but the guard does not listen to the conversation between the visitor and the inmate. Long-term visits take place in designated premises within the correctional institution. 61. Persons who have committed very serious crimes serve their sentence in prisons (kalėjimuose). Those assigned to medium security category can receive up to one short-term visit every two months. Upon permission of the prison administration, such short visit may be exchanged for a visit by the spouse, held in designated premises and without the guards supervision (Articles 83 and 85 of the CES). Persons convicted of negligent crimes and serving their sentence in open colonies (atvirosiose kolonijose) can receive unrestricted visits and even home leave for up to two days once a week (Articles 85 and 91 of the CES).

18 16 VARNAS v. LITHUANIA JUDGMENT C. Legal provisions for civil remedies for unlawful pre-trial detention 62. Article of the Civil Code allows a civil claim for pecuniary and non-pecuniary damage in the event of unlawful actions by the investigating authorities or a court in the context of a criminal case. The provision envisages compensation for an unlawful conviction, arrest or detention, or for the application of unlawful procedural measures of enforcement, or an unlawful administrative penalty. 63. On 1 October 2003 the Supreme Court ruled in the civil case of M.B., who claimed to have suffered non-pecuniary damage as a result of his allegedly unlawful pre-trial detention. The Vilnius Regional Court and the Court of Appeal had earlier dismissed M.B. s claim on the ground that a civil court had no jurisdiction to assess the lawfulness of M.B. s detention in a criminal case. The two courts also argued that M.B. did not have a right to damages, since the orders to detain him had not been recognised as unlawful and quashed in his criminal case. 64. The Supreme Court dismissed that reasoning and noted that the Convention, in particular Article 5 3 thereof, could be directly applied by the Lithuanian courts and that the lower courts, when deciding M.B. s claim for damages, had failed to examine whether the length of his detention had been reasonable, regardless of the fact that the court orders to detain him had not been quashed in criminal proceedings. The case was returned to the Court of Appeal for fresh examination. 65. By a ruling of 20 September 2004, the Court of Appeal granted M.B. s civil claim in part and awarded him 7,000 Lithuanian litai (LTL) (approximately 2,027 euros (EUR)) for the damage he suffered as a result of his detention, the length of which those courts found to be unreasonable. 66. On 28 February 2005 the Supreme Court upheld the above ruling. 67. In another civil case for damages, by a decision of 7 June 2005 the Vilnius Regional Court acknowledged that criminal proceedings, where the plaintiff had been accused of improper accounting and ordered not to leave her place of residence, were delayed because of investigators inaction and thus lasted unjustifiably long. The plaintiff therefore had a right to a compensation, in accordance with Article of the Civil Code. Given that the obligation not to leave her place of residence was the mildest procedural measure and it had been applied for only for eighteen months, the court awarded the plaintiff LTL 3,000 (approximately EUR 870) in compensation for non-pecuniary damage. 68. On 5 June 2007 the Court of Appeal decided yet another civil case where it found that the plaintiff had been detained for ten months without a proper legal basis. The court also established that the pre-trial investigation in the plaintiff s case had been unjustifiably long because no investigative actions had been performed for four years. Having taken into account the

19 VARNAS v. LITHUANIA JUDGMENT 17 Court s practice in similar cases and relying on Article of the Civil Code, the court awarded the plaintiff a sum of LTL 20,000 (approximately EUR 5,800) for non-pecuniary damage. D. Other relevant legal provisions 69. The Criminal Code at the relevant time provided that a person who steals high value property of another or steals another s property by participating in an organised group may be punished by imprisonment for a term of up to eight years (Article 178 3). A person who participates in the activities of a criminal association risks imprisonment for a term of from three to fifteen years (Article 249 1). A criminal association (nusikalstamas susivienijimas) is the most serious form of complicity, described as one where three or more persons are linked by permanent mutual relations and a division of roles or tasks in order to commit a joint criminal act one or several serious or grave crimes (Article 25 1 and 4). Another form of criminal complicity recognised by the Criminal Code is an organised group (organizuota grupė), which is where two or more persons agree, at any stage of the commission of a criminal act, to commit several crimes or one serious or grave crime, with each member of the group performing a certain task or role (Article 25 3). 70. The Code of Criminal Procedure provides that in the event that an appeal is lodged against a judgment, the execution of the judgment will be stayed. Nonetheless, the judgment may be put into effect if the convicted person submits a written request to start serving his sentence pending the outcome of his appeal (Article 315). III. RELEVANT INTERNATIONAL LAW AND PRACTICE A. International Covenant on Civil and Political Rights 71. Article 10 of the International Covenant on Civil and Political Rights, by which Lithuania has been bound since 20 November 1991, reads as follows: Article All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. 2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;...

20 18 VARNAS v. LITHUANIA JUDGMENT 72. General Comment No. 21 on Article 10 of the International Covenant on Civil and Political Rights was adopted by the United Nations Human Rights Committee on 10 April In so far as relevant it reads: 4. Treating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule. Consequently, the application of this rule, as a minimum, cannot be dependent on the material resources available in the State party Article 10, paragraph 2 (a), provides for the segregation, save in exceptional circumstances, of accused persons from convicted ones. Such segregation is required in order to emphasize their status as unconvicted persons who at the same time enjoy the right to be presumed innocent as stated in article 14, paragraph B. Council of Europe documents 73. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided by the Rules in their legislation and policies and to ensure wide dissemination of the Rules to their judicial authorities and to prison staff and inmates. 1. The 1987 European Prison Rules 74. The 1987 European Prison Rules (Recommendation No. R (87) 3) were adopted by the Committee of Ministers of the Council of Europe on 12 February Part V of the Rules contain a number of basic principles concerning untried prisoners, including the following: 91. Without prejudice to legal rules for the protection of individual liberty or prescribing the procedure to be observed in respect of untried prisoners, these prisoners, who are presumed to be innocent until they are found guilty, shall be... treated without restrictions other than those necessary for the penal procedure and the security of the institution Untried prisoners shall be allowed to inform their families of their detention immediately and given all reasonable facilities for communication with family and friends and persons with whom it is in their legitimate interest to enter into contact. 2. They shall also be allowed to receive visits from them... subject only to such restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution The 2006 European Prison Rules 75. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted a new version of the European Prison Rules (Recommendation Rec(2006)2). It noted that the 1987 Rules needed to be substantively revised and updated in order to reflect the developments