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)

1.1The 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. The author is not represented by counsel.

1.2On 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

2.1On or about 25 June 2003, two young women were brutally killed in their flat in Siauliai. Their bodies were discovered on 29 June 2003.

2.2On 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.

2.3The 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.

2.4On 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. 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 then before a judge of Siauliai District Court. 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.

2.5The 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.

2.6The 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.

2.7On 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.

2.8On 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.

2.9On 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.

2.10Following 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.

2.11In 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 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.

2.12Between 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.

2.13On 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.

2.14In 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

3.1The 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.

3.2Relying 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.

3.3The 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.

3.4Moreover, he claims a violation of his rights under article 14 (3) (g) of the Covenant on account of psychological and physical 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.

3.5Lastly, 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

4.1On 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.

4.2The 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.

4.3With 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, 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.

4.4The 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. 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; however, it has no right to impose a stricter sentence than life imprisonment. 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.

4.5The 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.

4.6As 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.

4.7The 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. 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. 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.

4.8With 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 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.

4.9The 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.

4.10As 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. 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.

4.11The 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.

4.12The 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 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.

4.13Having 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

5.1On 1 March 2014, the author reiterated most of his previous allegations.

5.2In 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.

5.3He 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.

5.4Regarding 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.

5.5Regarding 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.

5.6The 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.

5.7He 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.

5.8As 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.

State party’s observations on the merits

6.1On 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.

6.2The 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 home during which the items sought had been found – 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.

6.3Concerning 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.

6.4Concerning 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 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.

6.5As 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. 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.

6.6The 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, 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.

6.7The 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.

6.8As 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 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

7.1On 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.

7.2The 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.

7.3The 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

8.1Before 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.

8.2The 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.

8.3As 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.

8.4The 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 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.

8.5Concerning 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.

8.6The 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.

8.7Regarding 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.

8.8The 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), 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

9.1The 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.

9.2The 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 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.

9.3The 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.

9.4The 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. 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, 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.

9.5In 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. 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.

9.6The 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 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.