Committee on Enforced Disappearances
Additional information submitted by Lithuania under article 29 (4) of the Convention *
[Date received: 15 September 2023]
I.Introduction
1.In accordance with Article 29(4) of the International Convention for the Protection of All Persons from Enforced Disappearance (hereinafter – the Convention), the Republic of Lithuania submits to the United Nations Committee on Enforced Disappearances (hereinafter – the Committee) established under Article 26 of the Convention additional information on the implementation of this Convention.
2.The Republic of Lithuania signed the Convention at the opening ceremony for the signing of the Convention on 6 February 2007 in Paris. The Republic of Lithuania ratified the Convention by Law No XII-254 of 23 April 2013. The Convention entered into force for the Republic of Lithuania on 13 September 2013.
3.In accordance with Article 29(1) of the Convention, the State Parties shall, within two years after the entry into force of this Convention for the State Party concerned, submit to the Committee a report on the measures taken to give effect to their obligations under the Convention. Lithuania submitted its first report on the implementation of the provisions of the Convention in September 2015.
4.On 16 October 2017, the Committee adopted its Concluding Observations No CED/C/LTU/CO/1 on the report submitted by Lithuania under Article 29(1) of the Convention (hereinafter – the Concluding Observations).
5.In paragraph 37 of its Concluding Observations, the Committee asked the Government of the Republic of Lithuania to collect information on the implementation of the recommendations contained in paragraphs 22, 24 and 26 of the Concluding Observations within one year of the submission of the report and to submit this information to the Committee.
6.In paragraph 38 of the Concluding Observations, the Committee requested the State Party to submit, no later than 15 September 2023, specific and updated information, in accordance with Article 29(4) of the Convention, on the implementation of all the recommendations made in the Concluding Observations and any other new information on the fulfilment of the obligations contained in the Convention.
II.Implementation of the recommendations made in the Committee’s Concluding Observations
Additional information relating to paragraph 12 of the Concluding Observations (CED/C/LTU/CO/1)
7.On 22 June 2023, the Seimas of the Republic of Lithuania approved the amendments to the Criminal Code of the Republic of Lithuania (hereafter – the Criminal Code) aimed at implementing the recommendation made by the Committee in paragraph 12 of its Concluding Observations to take all measures necessary to ensure that the definition of enforced disappearance in national legislation is fully in line with the definition provided in Article 2 of the Convention. These amendments to the Criminal Code entered into force on 6 July 2023.
8.Article 1 of the Law Amending Articles 100¹, 100³ and 113¹ of the Criminal Code supplemented the definition of the crime of enforced disappearance set out in Article 1001 of the Criminal Code by a new constituent element “arrest” and reads as follows: “A person who, while acting as an agent of the State or as a person or a group of persons acting with the authorisation, support or acquiescence of the State, detains, arrests, abducts a person or otherwise deprives him of liberty, followed by a refusal to acknowledge such a detention, arrest, abduction or deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, shall be punished by a custodial sentence for a term of three up to fifteen years.”
9.In our view, this amendment to the Criminal Code ensures full conformity of the national definition of the crime of enforced disappearance to the provisions of Article 2 of the Convention.
Additional information relating to paragraph 14 of the Concluding Observations
10.Chapter XV of the Criminal Code regulates crimes against humanity and war crimes. This Chapter also contains the above-referred Article 100¹, which defines the crime of enforced disappearance and establishes criminal liability for the commission of this crime. Article 113¹ of Chapter XV of the Criminal Code regulates the responsibility of a superior for the crimes against humanity and war crimes committed by persons subordinate to him de jure or de facto.
11.Taking into account paragraph 14 of the Concluding Observations, which recommends that Lithuania take the legislative measures necessary to ensure that national law specifically provides for the criminal liability of superiors in accordance with Article 6(1)(b) of the Convention, Article 2 of the above-referred Law Amending Articles 100¹, 100³ and 113¹ of the Criminal Code has supplemented Article 1131 of the Criminal Code with a new paragraph 2. This paragraph establishes the criminal liability of a superior for his acts when he has at his disposal data on the intention of persons subordinate to him de jure or de facto to commit enforced disappearance (or any other crime provided for in Chapter XV of the Criminal Code) or is aware of the enforced disappearance already committed by the above-referred persons (or of the commission of any other crime provided for in Chapter XV of the Criminal Code) and intentionally does not take all necessary and reasonable measures within his power to prevent the criminal acts or to detect such acts. The recast of Article 1131 of the Criminal Code has been supplemented with a new paragraph 2, which provides that: “A person who carried out the duties of a superior knowing that the persons subordinate to him de jure or de facto committed or intended to commit the criminal offence provided for in this Chapter or disregarding this information and failing to take all necessary and reasonable measures within his power to prevent the commission of such criminal offences or an attempt to commit them, or failing to submit this information to the competent authorities for investigation, shall be punished by a custodial sentence for a term of three up to ten years”.
12.Thus, this amendment to the Criminal Code ensures full compatibility of the provisions of the Lithuanian national law to the provisions of Article 6(1)(b) of the Convention, inter alia, by introducing an even higher standard of criminalisation in Lithuanian national law.
Additional information relating to paragraph 16 of the Concluding Observations
13.It should be noted that the sanction provided for in the Criminal Code for the commission of the crime of enforced disappearance is a custodial sentence for a term of three up to fifteen years. In this context it should be noted that, according to Article 11(2) of the Criminal Code, premeditated crimes are classified according to their seriousness into minor, less serious, serious and grave crimes. Article 11(6) of the Criminal Code provides that a grave crime shall be a premeditated crime punishable, under the criminal law, by a custodial sentence of the maximum duration in excess of ten years. On the basis of these provisions, Lithuanian national law attributes the crime of enforced disappearance to the category of the most dangerous crimes – grave crimes punishable by the most severe custodial sentences.
14.According to the provisions of Lithuanian national law, when imposing a penalty for a particular criminal offence, the measure of a penalty shall be calculated based on the average penalty provided for in the sanction, by adding the minimum and the maximum measure of the penalty provided for in the sanction of the article which is subsequently divided by half (Article 61(3) of the Criminal Code). When imposing a penalty, a court shall take into consideration whether only mitigating circumstances or only aggravating circumstances, or both mitigating and aggravating circumstances have been established and shall assess the relevance of each circumstance (Article 61(1) of the Criminal Code). Having assessed mitigating and/or aggravating circumstances, the amount, nature and interrelation thereof, also other circumstances indicated in Article 54(2) of the Criminal Code (such as the degree of dangerousness of a committed criminal act; the form and type of guilt; the motives and objectives of the committed criminal act; the stage of the criminal act; the personality of the offender; the form and type of participation of the person as an accomplice in the commission of the criminal act; the damage caused by the criminal act), a court shall make a reasoned choice of a more lenient or more severe type of a penalty as well as the measure of the penalty with reference to the average penalty provided for in the crime sanction of the relevant article (Article 61(2) of the Criminal Code). The above provisions must also be followed when imposing penalties for the crime of enforced disappearance, for which the average penalty set out in the sanction is a custodial sentence for a term of 9 years.
15.With regard to the recommendation in paragraph 16(b) of the Concluding Observations to establish specific aggravating and mitigating circumstances provided for in Article 7(2) of the Convention and applicable in case of the crime of enforced disappearance committed, it is pertinent to note that the list of mitigating circumstances is set out in Article 59 of the Criminal Code. Paragraph 1, sub-paragraphs 1 to 13 of this Article provide that the following circumstances shall be considered as mitigating: the offender has provided assistance to the victim or otherwise actively avoided or attempted to avoid more serious consequences; the offender has confessed to commission of an act provided for by a criminal law and sincerely regrets or has assisted in the detection of this act or identification of the persons who participated therein; the offender has voluntarily compensated for or eliminated the damage incurred; the criminal act has been committed due to a very difficult financial condition or desperate situation of the offender; the act has been committed as a result of mental or physical coercion, where such a coercion does not eliminate criminal liability; the commission of the act has been influenced by a provoking or venturesome behaviour of the victim; the act has been committed at the request of the victim, who is in a desperate situation; the act has been committed in violation of conditions of arrest of a person who has committed the criminal act, direct necessity, discharge of professional duty or performance of an assignment of law enforcement institutions, conditions of industrial or economic risk or lawfulness of a scientific experiment; the act has been committed by exceeding the limits of self-defence, where a criminal law provides for liability for exceeding the limits of self‑defence; the act has been committed in a state of extreme agitation caused by unlawful actions of the victim; the act has been committed by a person of diminished legal capacity; the act has been committed by a person intoxicated by alcohol or drugs against his will; a voluntary attempt to renounce commission of the criminal act has been unsuccessful. It should be noted that this list is not exhaustive, and the court may recognise circumstances other than those listed above as mitigating circumstances. These provisions apply absolutely to all criminal offences set out in the Criminal Code, including the crime of enforced disappearance.
16.It should also be noted that the mitigating circumstances provided for in Article 59(1), sub-paragraphs 1 and 2 of the Criminal Code (the offender has provided assistance to the victim or otherwise actively avoided or attempted to avoid more serious consequences; the offender has confessed to commission of an act provided for by a criminal law and sincerely regrets or has assisted in the detection of this act or identification of the persons who participated therein) correspond, in principle, to the mitigating circumstances set out in Article 7(2)(a) of the Convention (persons who, having been implicated in the commission of an enforced disappearance, effectively contribute to bringing the disappeared person forward alive or make it possible to clarify cases of enforced disappearance or to identify the perpetrators of an enforced disappearance).
17.The list of aggravating circumstances is set out in Article 60(1), sub-paragraphs 1 to 14 of the Criminal Code and includes the following circumstances: the act has been committed by a group of accomplices (taking into consideration the nature and extent of participation of each accomplice in the commission of the criminal act, a court shall have the right not to recognise this circumstance as aggravating); the act has been committed by an organised group; the act has been committed by reason of disorderly conduct or for mercenary reasons; the act has been committed by torturing the victim or otherwise subjecting him to cruel treatment or taunting; the act has been committed against a young child; the act has been committed against a person who, due to an illness, disability, old age or for other reasons, was in a helpless state, without his request, or the act has been committed against a minor taking advantage of his dependency or through abuse of trust, authority or influence; the act has been committed against a woman known to be pregnant; the act has been committed by taking advantage of a public or other person’s disaster; the act has been committed by a person under the influence of alcohol, narcotic, psychotropic or other psychoactive substances, where these circumstances influenced the commission of the criminal act; the act has been committed in a publicly dangerous manner or by using explosives, explosive materials or firearms; the committed act has inflicted serious damage or a real threat to the victim’s life; the act has been committed in order to express hatred towards a group of persons or a person belonging thereto on grounds of age, sex, sexual orientation, disability, race, colour of the skin, nationality, language, descent, ethnic origin, social status, religion, convictions or views; the act has been committed by a repeat offender; the acts specified in paragraphs 3 and 4 of Article 149 (Rape), paragraphs 3 and 4 of Article 150 (Sexual Assault), paragraph 2 of Article 151 (Sexual Abuse), Article 1511 (Satisfaction of Sexual Desires by Violating a Minor’s Freedom of Sexual Self-Determination and/or Inviolability), Article 1521 (Grooming of a Person under the Age of Sixteen Years), Article 153 (Sexual Molestation of a Person under the Age of Sixteen Years), Article 162 (Exploitation of a Child for Pornography), paragraph 3 of Article 307 (Gaining Profit from Another Person’s Prostitution), paragraph 3 of Article 308 (Involvement in Prostitution), paragraphs 2 and 3 of Article 309 (Possession of Pornographic Material) have been committed by a close relative, family member or co-resident of the minor victim.
18.The provisions of Article 60 of the Criminal Code, in the same way as the above‑mentioned provisions of Article 59, apply absolutely to all criminal offences set out in the Criminal Code, including the crime of enforced disappearance. It should be noted that the aggravating circumstances provided for in sub-paragraphs 5, 6, 7 and 11 of paragraph 1 Article 60 of the Criminal Code (the act has been committed against a young child; the act has been committed against a person who, due to an illness, disability, old age or for other reasons, was in a helpless state, without his request, or the act has been committed against a minor taking advantage of his dependency or through abuse of trust, authority or influence; the act has been committed against a woman known to be pregnant; the committed act has inflicted serious damage or a real threat to the victim’s life) include the aggravating circumstances provided for in Article 7(2)(b) of the Convention (established in the event of the death of the disappeared person or the commission of an enforced disappearance in respect of pregnant women, minors, persons with disabilities or other particularly vulnerable persons).
19.It is considered that the aggravating circumstances established in Lithuanian national law not only ensure the implementation of the provisions provided for in Article 7(2) of the Convention, but also provide for an even higher standard of criminalisation. For example, Lithuanian national law recognises as an aggravating circumstance a real threat to the victim’s life and does not require the existence of the relevant consequences for the person’s health or life. Meanwhile the death of a person is not considered as an aggravating circumstance under the provisions of Lithuanian national law, as the actions of a person which cause such consequences are qualified as a separate crime (murder or negligent homicide) punishable by severe custodial sentences, which are not related to the crime of enforced disappearance.
Additional information relating to paragraph 18 of the Concluding Observations
20.The Law on State Secrets and Official Secrets of the Republic of Lithuania (hereinafter – the Law on State Secrets and Official Secrets) regulates the grounds and procedure for marking, classifying, storing, using and declassifying the information comprising a state secret or an official secret, coordinating and controlling/supervising protection actions, and sets minimum requirements for specific areas of protection of classified information (ensuring of personnel security, administration of classified information, physical security of classified information, security of classified contracts, protection of classified information communications and information systems). Article 2(3) of this Law stipulates that classified information means data in any form, regardless of the manner of their recording or transmission, which constitute a state secret or an official secret.
21.According to the provisions of the above-referred Law, a state secret is understood as classified information whose loss or unauthorised disclosure may pose a threat to the sovereignty, territorial integrity and defence power of the Republic of Lithuania, cause damage to state interests and pose a hazard to human life or health or create preconditions for the rise of the hazard to human life (Article 2(26) of the Law on State Secrets and Official Secrets). Meanwhile an official secret according to the provisions of the above-referred Law is understood as classified information whose loss or unauthorised disclosure may cause prejudice to interests of state institutions or create preconditions for the rise of a hazard to human health (Article 2(21) of the Law on State Secrets and Official Secrets).
22.According to Article 5 of the Law on State Secrets and Official Secrets, classified information shall be categorised into top secret, secret, confidential and restricted information according to its importance, the extent of prejudice likely to be caused to the State, institutions thereof or persons in the event of a loss or disclosure of this information to unauthorised persons and the level of protection required to protect such information. Accordingly, the classifications of information, in decreasing order of importance, are: (1) “Top Secret”; (2) “Secret”; (3) “Confidential”; (4) “Restricted”.
23.It should be noted that, according to Article 3(6) of the Law on State Secrets and Official Secrets, classified information must be entrusted in strict compliance with the “need‑to-know” principle. The “need-to-know” principle shall mean that the information classified “Top Secret”, “Secret” and “Confidential” or the classified information released to the Republic of Lithuania by foreign states, the European Union or international organisations and applied the classifications equivalent to “Top Secret”, “Secret” or “Confidential” may be entrusted only to the persons who hold appropriate authorisations to handle or familiarise with classified information and who need, in performing their official duties, to familiarise with and handle such information. The information classified “Restricted” and the classified information released to the Republic of Lithuania by foreign states, the European Union or international organisations and applied the classification equivalent to “Restricted” may be entrusted only to the persons who have the right to handle or familiarise with the information classified “Restricted” or who hold an authorisation to handle or familiarise with classified information and who need, in performing their official duties, to familiarise with and handle such information.
24.It should be noted that the persons holding authorisations granting the right to handle or familiarise with the classified information attributed to a higher classification shall not need a separate authorisation to handle or familiarise with the classified information attributed to a lower classification or the right to handle or familiarise with the classified information classified “Restricted” (Article 17(3) of the Law on State Secrets and Official Secrets).
25.Article 25 of the Law on State Secrets and Official Secrets regulates the provisions relating to familiarisation with the classified information at the disposal of another entity of secrets. Paragraph 1 of this Article states that the right to familiarise with the information classified “Top Secret”, “Secret” or “Confidential” and being at the disposal of another entity of secrets shall be granted to a person by the head of the entity of secrets having the information at its disposal or by a person authorised by him in compliance with the “need-to-know” principle. The person must submit a letter of targeted authorisation of the head of the institution where he is employed. This letter must confirm that the person holds an authorisation to handle or familiarise with the classified information applied a relevant classification and specify the need, based on the performance of immediate duties, to familiarise with specific classified information as well as the volume of the classified information which the person needs to familiarise with. Paragraph 2 of the above-referred Article states that a decision of the head of the entity of secrets having classified information at its disposal or a person authorised by him prohibiting a person from familiarising with the classified information specified in a letter of targeted authorisation may, within one month from the date of receipt of the said decision, be appealed against to the Commission for the Coordination of the Protection of Secrets.
26.Decisions of the Commission for the Coordination of the Protection of Secrets shall be appealed against in accordance with the procedure laid down by the Law on Administrative Proceedings of the Republic of Lithuania (Article 12(8) of the Law on State Secrets and Official Secrets) – to an institution for preliminary extrajudicial investigation of disputes or court.
27.It should be noted that, in accordance with paragraph 4 of the Regulations on the Competence of the Prosecutor’s Office and Prosecutors of the Republic of Lithuania as approved by Order No I-141 of 17 April 2012 of the Prosecutor General of the Republic of Lithuania (recast by Order No I-290 of 30 December 2014 of the Prosecutor General of the Republic of Lithuania), upon taking up their duties, prosecutors must obtain an authorisation to handle the information classified “Top Secret” and “Secret”, therefore, in prosecution (including prosecution for the crime of enforced disappearance), prosecutors have the right and real possibility to access to the content of state secrets and official secrets in accordance with the provisions of Article 155 of the Code of Criminal Procedure of the Republic of Lithuania (hereinafter – the Code of Criminal Procedure) and under the legal mechanism established in the Law on State Secrets and Official Secrets. It should also be noted that, where the right of prosecutors to have access to state and official secrets that are relevant to the circumstances under investigation in criminal proceedings is restricted, prosecutors have the right to submit a complaint to impartial and independent judicial bodies.
28.Considering the foregoing, we believe that the existing legal regulation fully ensures that the authorities responsible for the investigation of the crimes of enforced disappearance may have access to all information and documents relevant to their investigations.
Additional information relating to paragraph 20 of the Concluding Observations
29.Article 11(1) of the Law on Treaties of the Republic of Lithuania regulates that the treaties of the Republic of Lithuania that have entered into force shall be binding in the Republic of Lithuania. The Constitutional Court of the Republic of Lithuania has noted in the Ruling of 24 January 2014 that, in accordance with Article 135(1) of the Constitution, the Republic of Lithuania shall be guided by the universally recognised principles and norms of international law. This provision, inter alia, establishes the constitutional principle of the respect for international law, i.e. the principle of pacta sunt servanda, which means the imperative of fulfilling in good faith the obligations assumed by the Republic of Lithuania under international law, inter alia, under treaties. It should be noted that the Convention entered into force in Lithuania on 13 September 2013. Article 16(1) of the Convention provides that no State Party shall expel, return (refouler), surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance. This provision is incorporated in Article 9 of the Criminal Code and is mandatory in Lithuania.
30.Article 9 of the Criminal Code provides that it shall be allowed not to extradite a foreigner to another state where, inter alia: the person is being prosecuted for a crime of political nature; the person may be subject to capital punishment for the committed crime in another state; there exist other grounds provided for by treaties of the Republic of Lithuania (including the grounds provided for in Article 16 of the Convention) (Article 9(3)(3), (5) and (8) of the Criminal Code). This Article also provides that the persons who have been granted asylum or temporary protection in accordance with the laws of the Republic of Lithuania shall not be punishable under a criminal law of the Republic of Lithuania for the criminal acts for which they were prosecuted abroad and shall not be extradited to foreign states, except in the cases provided for in the criminal law (Article 9(4) of the Criminal Code). Article 9ˡ of the Criminal Code regulates the surrender of a person under a European Arrest Warrant. This Article establishes the grounds for not surrendering a foreigner to the state that issued a European Arrest Warrant and provides that a foreigner shall not be surrendered to the issuing state if the court finds that the surrender of the person pursuant to the European Arrest Warrant would violate fundamental human rights and/or freedoms (Article 91(3)(1) of the Criminal Code). Thus, according to the legal regulation currently in force, in the cases where it is identified that the person to be extradited or surrendered would face a real danger of enforced disappearance or other serious danger to his/her life or health in the state requesting extradition, such a person would not be extradited (surrendered) on the basis of the grounds laid down in Articles 9 and 9ˡ of the Criminal Code and the treaties.
31.In accordance with Article 130(1) of the Law on the Legal Status of Foreigners of the Republic of Lithuania, it shall be prohibited to expel or return a foreigner to a country where his life or freedom is under threat or where he may be subjected to persecution on the grounds of race, religion, nationality, membership of a certain social group or political opinion or to a country from where he may later be expelled to such country. Paragraph 2 of this Article states that a foreigner shall not be expelled from the Republic of Lithuania or returned to a country where there are serious grounds to believe that in that country the foreigner will be tortured, subjected to cruel, inhuman or degrading treatment or punishment. When taking a decision on the return or expulsion of a foreigner from the Republic of Lithuania, the Migration Department under the Ministry of the Interior of the Republic of Lithuania or, as the case may be, the State Border Guard Service under the Ministry of the Interior of the Republic of Lithuania shall examine all the documents collected and shall take a decision only if the circumstances referred to in Article 130(1) or (2) of the Law on the Legal Status of Foreigners are not established in the country to which the foreigner may be expelled. Thus, under the procedures currently in force, all the relevant risks (not only the risk of enforced disappearance) are assessed and a foreigner may be returned (expelled) only after an assessment of whether the principle of non-refoulement will not be infringed. It should be noted that the above-referred wordings of the Law on the Legal Status of Foreigners are in line with the relevant provisions of European Union legislation.
Additional information relating to paragraph 22 of the Concluding Observations
32.The circumstances of Lithuania’s alleged involvement in the rendition and secret detention programmes are being investigated in pre-trial investigation No 01-2-00015-14 carried out by the Prosecutor General’s Office of the Republic of Lithuania. A procedural decision has not yet been taken in this case. It should be noted that the pre-trial investigation in this matter is carried out at the highest level of law enforcement authorities – the investigation group is comprised of a prosecutor of the Organised Crime and Corruption Investigation Department of the Prosecutor General’s Office and a pre-trial investigator of the Lithuanian Criminal Police Bureau.
33.Following the entry into force of the judgment of the European Court of Human Rights in the case Abu Zubaydah v. Lithuania (Petition No 46454/11, 31 May 2018), an investigation plan has been drawn up. A decision has been made to ensure broader investigation of the alleged criminal offences, which was initially initiated under the relevant articles of the Criminal Code providing for liability for abuse of office (Article 228(1) of the Criminal Code) and for unlawful transportation of a person across the State border (Article 292(3) of the Criminal Code). The investigation has been continued under Article 100 of the Criminal Code on treatment of persons prohibited under international law. It should be noted that the latter offence is not subject to the statute of limitations.
34.In order to intensify the pre-trial investigation in the criminal proceedings, various investigative actions were undertaken, e.g., a repeated detailed request for legal assistance was submitted to the authorities of the United States of America (hereinafter – the US), the Prosecutor General’s Office issued the European Investigation Order to the Romanian competent authorities with the objective of clarifying information regarding an alleged transfer of Central Intelligence Agency detainees to the Republic of Lithuania, a detailed retrospective monitoring of the publicly available sources was conducted, the expert of international criminal law was consulted, information requests were sent to the competent authorities, various notifications and reports have been included into the investigative material and analysed when determining the possibility of investigative actions in order to verify the relevant circumstances under the procedure set out by the criminal procedure provisions.
35.Particular emphasis was directed towards the circumstances established and the shortcomings identified by the European Court of Human Rights. For example, having regard to the inconsistencies identified in statements of witnesses, efforts were made to remove certain contradictions. With the permission of the European Court of Human Rights, the minutes of the closed fact-finding hearing were included in the case file to comprehensively analyse the expert evidence that has been presented to the European Court of Human Rights.
36.The complexity of the investigation is predetermined by the fact that the main evidentiary material is in the possession in foreign jurisdictions. The Lithuanian law enforcement authorities sought to expand cooperation with the countries dealing with similar investigations, however, no significant results have been achieved. Alternative avenues of international cooperation have also been explored for the collection of evidence in the US, in particular looking for possibilities to use the evidence collection procedure under Section 1782 of the US Code (after a final decision by the US Supreme Court, it was decided not to use this procedure in view of the extent to which the state secrets privilege had been applied) and to obtain relevant evidentiary material from the related investigations carried out by the US military commission and, potentially, from related international criminal investigations.
37.No suspects have been identified during the pre-trial investigation, no one has been served with notices of suspicion for the criminal offences under investigation, and there are no persons who have been granted the status of victims in this respect, especially considering the absence of evidence in this case regarding individuals who have been victims of the criminal offense that conforms to the standards of criminal procedure.
38.The information regarding the ongoing investigation was and will continue to be disseminated to the public via the public relations channels of the Prosecutor General’s Office, as well as through the reports on the execution of the European Court of Human Rights case Abu Zubaydah v. Lithuania. As alternative channels and solutions are currently being explored to gather the necessary evidentiary material, it must be stressed that the working methods, the means used and envisaged by law enforcement, and other related working information are highly sensitive, in particular the information covered by the rule of the confidentiality of pre-trial data. However, as soon as there are procedural decisions reflecting specific outcomes or when relevant information that can be publicly disclosed is obtained, it will be made public, provided that such disclosure does not compromise the successful completion of the investigation.
39.It is also important to note the efforts of Lithuania to seek diplomatic assurances that the violations found by the European Court of Human Rights regarding the detention conditions and restriction of liberty of the applicant Abu Zubaydah are brought to an end. Lithuania has already submitted three notes to the US authorities in this respect. In addition, in December 2022, remote consultations at expert level were held with representatives of the US State Department to discuss cooperation opportunities.
Additional information relating to paragraph 24 of the Concluding Observations
40.Following the assessment of the additional information provided by the Republic of Lithuania in 2018 on the implementation of the recommendations set out in paragraphs 22, 24 and 26 of the Concluding Observations, the Committee has, in addition, requested information on the measures taken to implement the amendments to the legal acts adopted in 2017 regarding the procedural safeguards for persons deprived of their liberty; on the complaints received in relation to any acts interfering with the exercise of such rights and on the sanctions applied for such acts.
41.It should be noted that, according to Article 50(4) of the Code of Criminal Procedure, when a person is temporarily detained in accordance with the procedure laid down by the Code of Criminal Procedure and has not exercised the right to select and call in a defence counsel, a pre-trial investigation officer or a prosecutor must appoint a defence counsel where the detainee requests to ensure participation of a defence counsel. According to the data of the State-Guaranteed Legal Aid Service, in 2022, a lawyer to provide state-guaranteed legal aid was appointed to a person in temporary detention in 831 cases.
42.On 28 June 2022, Law No XIV-1198 Amending Law No I-1175 on the Enforcement of Remand of the Republic of Lithuania was adopted, which recasts the Law on the Enforcement of Remand of the Republic of Lithuania in a new wording (hereinafter – the Law on the Enforcement of Remand). This Law regulates the procedure for the enforcement of remand. Article 6(5) of the Law on the Enforcement of Remand stipulates that the arrival of a person on remand at a detention facility shall, with the consent of the person on remand, be made known to a person designated by the person on remand no later than the following day. Article 7(1) to (3) of the Law on the Enforcement of Remand also provides for the right of persons on remand to meet, correspond with and call their defence counsel without hindrance. The number and duration of such meetings and calls, and the number of letters shall not be limited. During the meetings of persons on remand with their defence counsel, the confidentiality of communication between a person on remand and his/her defence counsel shall be ensured. Furthermore, if a person on remand wishes to call or correspond with his/her defence counsel but does not have funds in his/her personal account for calls, envelopes, postal stamps, writing supplies and paper, the detention facility shall, at the request of the person on remand, make it possible to make calls to the defence counsel or shall provide with the supplies necessary for correspondence with the defence counsel, or shall create conditions for contacting the defence counsel by means of electronic communication using the funds of the facility.
43.On 28 June 2022, the Seimas of the Republic of Lithuania also adopted Law No XIV-1196 Amending the Penal Enforcement Code of the Republic of Lithuania, which recasts the Penal Enforcement Code of the Republic of Lithuania (hereafter – the Penal Enforcement Code) in a new wording. The Penal Enforcement Code regulates the procedure for the enforcement of custodial sentences. Article 30(4) of the Penal Enforcement Code requires the administrations of places of detention to inform the person designated by the convicted person about the arrival of the convicted person to the place of detention. In addition, Article 42(1) of the Penal Enforcement Code provides for the right of the convicted persons to meet, correspond with and call their lawyer (assistant lawyer) without hindrance. The number and duration of such meetings and calls, and the number of letters shall not be limited. Paragraph 2 of the same Article states that the confidentiality of communications shall be ensured during communication between the convicted persons and their lawyer (assistant lawyer).
44.In order to ensure the implementation of the above-mentioned provisions of the Law on the Enforcement of Remand and the Penal Enforcement Code, Order No 1R-444 of 30 December 2022 of the Minister of Justice of the Republic of Lithuania approved the Internal Regulations of Places of Detention, paragraph 15 of which states that the place of detention shall send a notification about the arrival of the person on remand to the place of detention to his/her spouse, life partner or close relatives not later than the day following the day of his/her arrival. The place of detention shall send a notification about the arrival of a convicted person to the place of detention to the court which passed the sentence and to the convicted person’s spouse, life partner or close relatives within 3 working days after his/her arrival. The notification shall state the address of the place of detention, the time and procedure of communication with the detainee or the convicted person and other information.
Involuntary hospitalisation of a person in a psychiatric facility
45.On 1 May 2019, a recast of the Law on Mental Health Care of the Republic of Lithuania (hereinafter – the MHC Law) entered into force, which establishes the main rights of hospitalised persons (including involuntarily hospitalised persons).
46.Pursuant to Article 12(1) of the MHC Law, a patient with mental and behavioural disorders who refuses to be hospitalised may be involuntarily hospitalised under the procedure set out by the institutions authorised by the Government of the Republic of Lithuania for a maximum of 3 working days only if the patient’s behaviour and/or other objective data reasonably indicate that there is a real threat that his/her actions or inaction can cause substantial damage to his/her own or other people’s health, life and/or property.
47.If a patient with mental and behavioural disorders must be involuntarily hospitalised and/or involuntarily treated for more than 3 working days, the mental health care institution where the patient with mental and behavioural disorders is involuntarily hospitalised and/or involuntarily treated shall, not later than within 48 hours from the beginning of the involuntary hospitalisation and/or involuntary treatment apply to the court for the extension of the involuntary hospitalisation and/or involuntary treatment. The court may extend the period of involuntary hospitalisation and/or involuntary treatment for up to 1 month, and if there is a need for further extension, the institution shall again apply to the court, which may extend the period up to a maximum of 6 months.
48.In accordance with Article 12(7) of the MHC Law, in deciding the issues of involuntary hospitalisation and/or involuntary treatment of patients with mental and behavioural disorders, if the patient has not chosen his/her own lawyer, the mental health care institution must apply for the provision of secondary legal aid for the patient under the procedure set out by the Law on State-Guaranteed Legal Aid of the Republic of Lithuania.
49.It should be noted that the implementation of the provisions of the MHC Law is monitored in relation to the number of involuntary hospitalisations. A targeted survey on the practice of provision of legal services has also been carried out. A survey of all personal health care institutions that provide inpatient psychiatric services and applied involuntary hospitalisation in 2022 under the provisions of Article 12 of the MHC Law revealed that institutions follow internal procedures (that include the appointment of persons responsible for the process) and apply for the provision of secondary legal aid for all involuntarily hospitalised patients (if they do not have their own lawyer) when applying to the court for the extension of their involuntary hospitalisation. If patients have their own lawyer, possibilities for the lawyer to communicate with the patient and adequately represent him/her in court proceedings are ensured.
50.In accordance with Article 8 of the MHC Law, in addition to the rights laid down in other laws, hospitalised patients with mental and behavioural disorders shall have the right to communicate with other persons (including other patients), access the internet, telephone and other means of communication, and the mental health care institution is obliged, at the request of the hospitalised patient with mental and behavioural disorders, to help him/her contact his/her representative, close relatives or the person who provides assistance in decision making. The procedure for exercising these rights is laid down in the internal regulations of mental health care institutions. The monitoring carried out in personal health care institutions that provide inpatient psychiatric services showed that the following methods are used when ensuring the possibility to contact close relatives: most often a person has a mobile phone and may contact close relatives himself/herself; the person is also provided with opportunities to contact on his/her own or to inform that he/she has been hospitalised (e.g. phone calls are allowed); in cases where the person wishes and agrees, close relatives are informed of the hospitalisation by the personal health care institution; there are also cases when the contact details of close relatives are communicated to a lawyer and the lawyer contacts them.
51.It should also be noted that neither the Ministry of Health, which is responsible for personal health care institutions that provide inpatient psychiatric services, nor the Ministry of Justice, which is responsible for the places of detention, have received any complaints about any actions preventing the use of services of a lawyer or contacts with close relatives or any other person of patient’s choice.
Additional information relating to paragraph 26 of the Concluding Observations
52.The authorities of the Republic of Lithuania, having regard to the recommendation made in paragraph 26 of the Concluding Observations, organised a number of training sessions on the topics of the Convention during the period at issue. Information on the training sessions organised by the competent authorities in different fields is provided below.
Training for the staff of places of detention
53.Having regard to the Committee’s recommendations, training “Implementation of provisions of the International Convention for the Protection of All Persons from Enforced Disappearance” for officers of the penal enforcement system was organised in 2021. The training for employees of the penal enforcement system is planned for one calendar year, and the training on the Convention as recommended by the Committee will be included in these plans on an ongoing basis.
Training for prosecutors
54.Having regard to the recommendation of the Committee, the Prosecutor General’s Office of the Republic of Lithuania organised training “Enforced Disappearance” of 8 academic hours where 47 persons participated on 7 May 2019.
Training for officials of the State Security Department
55.It should be noted that the State Security Department of the Republic of Lithuania plans to include training on the provisions of the Convention in the training of intelligence officers in the nearest future.
Training for officers of the Special Investigation Service
56.The Director of the Special Investigation Service of Lithuania (hereinafter – the STT) approved by Order No 2-66 of 26 April 2023 the introductory training programme for the training of STT officers to act in situations involving the use of mental, physical coercion, special measures and firearms (hereinafter – the Programme) aimed at developing and assessing the abilities of STT officers to act in situations where physical, mental coercion, special measures and firearms may be used as an exceptional measure during official service.
57.The aim of the Programme is to explain the legal basis for the use of coercion during official service and the legal basis of procedural escorting before STT officers are authorised to carry out procedural escorting and are issued an official firearm (pistol) and special measures, to develop solid skills of these STT officers in the use of firearms, special measures and martial wrestling, and to test the ability of the STT officers to apply the developed skills and knowledge in practical activities. One of the main objectives of this Programme is to familiarise the STT officers with the legislation regulating the use of coercion and the procedural escorting of persons on remand or detained persons, the procedure for the allocation, acceptance, issue, carrying, keeping and storage of STT armament.
58.In order to achieve the Programme aim and objectives, exercises of the introductory training of STT officers to act in situations involving the use of mental and physical coercion, special measures and firearms are held and tests of acquired practical skills and theoretical knowledge are carried out. The tests of practical skills and theoretical knowledge assess the following skills and knowledge of the STT officers who participated in theoretical and practical exercises: (1) laws and other legal acts of the Republic of Lithuania, legal acts of the STT regulating the procedure for the use of coercion during official service; (2) legal aspects of the use of coercion in situations of self-defence, detention of a person who has committed a criminal offence, fulfilment of professional duties and direct necessity; (3) legal regulation of the escorting of persons on remand or detained persons.
59.Exercises take place on a regular basis and are held by the order of the Deputy Director of the STT for groups not larger than ten STT officers. The aim of the exercises is to explain to the officers the legal basis for the use of coercion as set out in the Law on the STT and other legal acts. The method of exercises is theoretical exercising. The duration of exercises is 4 academic hours. Exercises consist of: (1) theoretical exercises (6 academic hours); (2) practical exercises (16 academic hours); (3) testing of practical skills and theoretical knowledge (2 academic hours). It should be noted that, in accordance with the Exercise Plan approved by the Programme, the following subjects are introduced to the STT officers: (1) Legal basis for the use of coercion – STT officers are introduced to the general provisions concerning the use of coercion, i.e., respect for fundamental human rights in the use of coercive measures, specific legal aspects of the use of coercive measures during official service in situations of self-defence, detention of a person who has committed a criminal offence, direct necessity, fulfilment of professional duties, the case law of the Supreme Court of Lithuania in criminal cases concerning the exceeded official authority through the use of coercion by officers. The participants are also introduced to the provisions of the Law on the STT, which establish the rights, duties and responsibilities of the STT officers after the use of coercion, the types and concept of coercive measures, the cases of and conditions for the use of mental, physical coercion and firearms; exercises also include presentation of examples of cases when the use of physical coercion or a firearm is forbidden and discussions on the actions of an STT officer after the use of mental, physical coercion or a firearm. (2) Legal basis of procedural escorting by the STT – STT officers are introduced to the rules of escorting, which set out the rights and duties of the persons being escorted, the specifics of activities and work organisation of escorting officers, the rules of escorting approved by the Minister of the Interior of the Republic of Lithuania, the procedure of procedural escorting by the STT approved by the order of the STT Director and familiarised with the rights and duties of the persons being escorted, the specifics of activities and work organisation of escorting officers.
Training for police officers
60.Article 5 of the Law on the Police of the Republic of Lithuania defines one of the main tasks of the police – to ensure the protection of human rights and freedoms. Order No 5-V-706 of 17 August 2020 of the Commissioner General of the Lithuanian Police approved a Police Officer’s Modular Professional Training Programme, which also provides for the development of competences of officers in the field of protection of human rights and freedoms in order to ensure that officers have the knowledge of the main international and national legislation regulating human rights and freedoms and take lawful decisions related to the ensuring of the protection of human rights and freedoms.
61.In accordance with module “Prevention of Criminal and Administrative Offences” of the above-referred Police Officer’s Modular Professional Training Programme, the course “Escorting of Persons” (10 academic hours) is delivered to the initial training trainees of the Lithuanian Police. The initial training trainees and officers who have completed their initial training courses, as well as officers who need to extend the validity of a professional development certificate or officers who have breached the requirements of escorting rules, or who are sent for further (refresher) training on the initiative of the head of a police institution, continue their training under professional development programme “Escorting Activities” (10 academic hours) in a distance learning environment.
Training for military personnel
62.In order to implement Article 23(1) of the Convention, the Ministry of National Defence has included training on key provisions of the Convention in its programme for the training of soldiers for operations in order to raise the awareness of soldiers of the crimes of enforced disappearance. The training emphasises the importance of prevention and investigation of enforced disappearance and aims to develop the skills necessary to detect cases of enforced disappearance as soon as possible.
63.In addition to the fundamentals of international humanitarian law, the training for soldiers participating in operations organised by the Lithuanian Armed Forces also includes the topic of treaty-based human rights law for soldiers deploying to international operations. Soldiers are reminded of the positive obligation of States to protect the right to life, which includes the duty to conduct effective investigations even at the time of ongoing military conflict. The duty to carry out such investigations in the national defence system of the Republic of Lithuania has been entrusted to the Military Police, the activities of which are regulated by the Law on the Military Police of the Republic of Lithuania.
Additional information relating to paragraph 28 of the Concluding Observations
64.Having regard to the recommendation made by the Committee in paragraph 28 of its Concluding Observations and in order to ensure the compatibility of the provisions of Lithuanian national law with the provisions of Article 24(1) of the Convention, the Seimas of the Republic of Lithuania approved the amendments to the Code of Criminal Procedure on 22 June 2023.
65.These amendments supplement the definition of victim contained in Article 28(1) of the Code of Criminal Procedure that was in force until that time. The addition integrates within the scope of the definition individuals who are family members or close relatives of a natural person who has been subjected to enforced disappearance, and reads as follows: “A victim shall be a natural person who has suffered physical, material or non-material damage as a result of a criminal act or a family member or close relative of a natural person deceased as a result of the criminal act or subjected to enforced disappearance who has suffered physical, material or non-material damage as a result of the person’s death or enforced disappearance. A person shall be recognised as a victim by a decision of a pre-trial investigation officer or a prosecutor or by a court ruling”. These amendments to the Code of Criminal Procedure entered into force on 6 July 2023.
Additional information relating to paragraph 30 of the Concluding Observations
66.Article 109 of the Code of Criminal Procedure states that a person who suffered material or non-material damage as a result of a criminal act shall have the right to file a civil claim in criminal proceedings against a suspect or an accused person or against the persons who are materially liable for acts of the suspect or the accused person.
67.Article 6.263 of the Civil Code of the Republic of Lithuania (hereinafter – the Civil Code) establishes a duty for every person to abide by the rules of conduct so as not to cause damage to another by his/her actions (active actions or refrainment from acting), and any damage caused to another person or property and, in the cases established by the law, also non-material damage must be fully compensated by the liable person. Article 6.251 of the Civil Code establishes the principle of full compensation of damages, i.e. it states that the damages incurred must be compensated in full, except in cases when limited liability is established by laws or a contract. Paragraph 2 of Article 6.250 of the Civil Code stipulates, inter alia, that non-material damage shall be compensated in all cases where it is incurred due to crime.
68.Article 6.283 of the Civil Code regulates compensation for damage caused to another person’s health. Where a natural person has been mutilated or his/her health has been impaired in any other way, the person liable for the damage caused shall be bound to compensate to victim for all his/her damages suffered, including non-material damage. Damage in cases referred to shall be composed of the incomes the victim would have received had he/she not sustained the bodily harm, expenses related to the rehabilitation of health (medical treatment costs, expenses incurred for additional nourishment, medication, prosthetics, care of the injured person, acquisition of specialised transport means, retraining costs of the injured person and other expenses necessary for the rehabilitation of health). If the health of the victim deteriorated after the decision on the compensation for damages, he/she shall have the right to bring an action for compensation of additional expenses, except in the cases when the damage was compensated in the form of a specific lump sum. It should be noted that the provisions of this Article do not apply only in the cases when the victim has social insurance against accidents at work under the procedure established by laws. Article 2(1) of the Law on Social Insurance of Occupational Accidents and Occupational Diseases of the Republic of Lithuania provides that, in the cases stipulated by the Law, social insurance of occupational accidents shall compensate the persons insured by this type of social insurance for the loss of income or part of the income incurred due to insured events (occupational accidents at work (service), accidents on the way to/from work (service), or occupational diseases), and if they die because of the insured events – shall compensate their family members by paying the benefits set out in this Law from the National Social Insurance Fund and/or from the State budget. Thus, the provisions of Article 6.283 of the Civil Code do not apply only in cases where the victims or their relatives would get damage compensation in accordance with the procedure set out by the Law on Social Insurance of Occupational Accidents and Occupational Diseases.
69.The Civil Code also regulates the compensation for damage to honour and dignity. Article 2.24 of the Civil Code provides that a person shall have the right to demand refutation in judicial proceedings of the publicised data, which abase his/her honour and dignity and which are false, as well as redress of the material and non-material damage incurred by the public announcement of such data. After the person’s death, this right shall be held by his/her spouse, parents and children if the public announcement of false data about the deceased person also defames their honour and dignity. The data, which were made public, shall be presumed to be false as long as the person who publicised them proves the opposite.
70.It should also be noted that, if the accused or the persons who are materially liable for his/her actions do not possess sufficient means to compensate for damage, such damage may, in the cases and in accordance with the procedure provided for by the laws, be compensated with the funds allocated for this purpose by the State (Article 118 of the Code of Criminal Procedure). Article 2(6) of Law on the Compensation of Damage Caused by Violent Crimes of the Republic of Lithuania also provides for an advance compensation of the damage caused by violent crimes – compensation of the material and/or non-material damage caused by violent crimes from the special programme of the Fund for Crime Victims, when there is no decision of the court on the compensation of damage from the person who has committed the violent crime or from the person responsible for his/her act.
71.Having regard to the above, it is considered that the current system of reparation and compensation covers not only material and non-material damage, but also restitution, rehabilitation, and restoration of dignity and reputation, as provided for in Article 24(5) of the Convention.
Additional information relating to paragraph 32 of the Concluding Observations
72.Under the current legal regulation, the interests of a person who is an absentee as a result of the crime of enforced disappearance and of his/her relatives are covered by the general regulation of the protection of interests of persons who have been declared absentees.
73.In order to protect the property, finances and, at the same time, the social welfare of an absentee and his/her relatives, Article 2.29 of the Civil Code provides that, on the application of the persons concerned or a prosecutor, the court shall appoint a temporary administrator of the absentee’s property until the court’s decision becomes effective. Absentee’s spouse, close relatives or persons who are motivated to preserve his/her property may be appointed as a temporary administrator. The temporary administrator must take the inventory of the property and take measures to safeguard it. The temporary administrator shall administer the property, provide maintenance to the persons whom the absentee is obliged to maintain and pay the absentee’s debts. The temporary administrator shall have to obtain the authorisation of the court to dispose of the property, mortgage it or restrict the rights to property in some other manner. Where the absentee’s property is an enterprise, the court shall appoint its administrator. The administrator shall act in the name of the owner of the enterprise. Where the court gives a decision that the person is recognised an absentee, a permanent administrator of his/her property shall be appointed by the court’s decision. Also, in order not to undermine the legitimate expectations of the absentee, Article 2.30 of the Civil Code regulates the effects of the return of a person who has been declared absentee or of the discovery of his/her whereabouts and provides that, in such a case, the court shall revoke its decision to recognise the person an absentee and the administration to his/her property. Revenues received by the administrator from the property of the absentee shall be returned to the owner of the property who has returned, and the owner of the property shall reimburse the property administrator for all expenses related to the administration thereof. It is, therefore, considered that the existing legal regulation ensures the protection of the property of an absentee and his/her close relatives, including a person declared absentee as a result of the crime of enforced disappearance, both in case the person’s whereabouts are unknown and in the event of his/her appearance.
74.It should be noted that the Law on Cash Social Assistance for Low-Income Residents of the Republic of Lithuania (hereinafter – the Law on Cash Social Assistance for Low‑Income Residents) does not distinguish close relatives of absentees as a result of enforced disappearance as a separate assisted group, however, in accordance with this Law, municipalities provide cash social assistance to families according to their individual needs, in the exercise of the autonomous municipal function, which is financed from the funds of municipal budgets. Low-income persons who live together and single residents may receive cash social assistance and/or compensation for housing heating, drinking water and hot water costs. It should be noted that, in practice, municipalities assess a person’s specific situation and may grant assistance for the close relatives of such a person when they submit a certificate from the police that the person is considered disappeared. Attention should also be drawn to the fact that social assistance may also be granted from the municipal budget under the procedure set out by the council of a particular municipality in other cases (as a lump sum, targeted, periodic, conditional allowance; payment of housing debt; compensation for the costs of the increased quantity of hot and drinking water; compensation for housing maintenance costs not specified in the law, etc.) (Article 4(2) of the Law on Cash Social Assistance for Low-Income Residents). Social assistance is available in cases of poverty, homelessness, sickness, disability, natural disasters, and other cases.