Last Updated on November 21, 2019 by LawEuro
Communicated on 2 October 2019
SECOND SECTION
Application no. 59272/18
Mindaugas GADEIKIS
against Lithuania
lodged on 6 December 2018
STATEMENT OF FACTS
1. The applicant, Mr Mindaugas Gadeikis, is a Lithuanian national, who was born in 1977 and is detained in Kybartai.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. In August 2000 the applicant, while under the influence of alcohol, beat up his uncle, who died the following day. A forensic examination established that the victim had sustained more than forty injuries to various parts of his body. On unspecified dates a pre-trial investigation was opened and the applicant fled abroad. In 2017 he was apprehended in France, extradited to Lithuania and charged with aggravated murder. The applicant admitted his guilt and expressed remorse.
1. The Klaipėda Regional Court
4. On 8 March 2018 the Klaipėda Regional Court convicted the applicant of aggravated murder. On the basis of forensic reports, witness testimonies and other evidence, the court considered it reliably established that the applicant had killed his uncle in a particularly cruel manner.
5. The court observed that from the date of the crime until the applicant’s conviction the criminal law had been amended several times. At the time when the crime had been committed, the Criminal Code of 1961 had been in force. The sentence for aggravated murder provided in that Code had been from ten to twenty years’ imprisonment or life imprisonment. While the pre-trial investigation had been ongoing, the Criminal Code of 2000 had been adopted (and entered into force in 2003). Under that Code, the relevant sentence had been from five to twenty years’ imprisonment or life imprisonment. By the time of the applicant’s conviction, the Criminal Code had been amended (hereinafter “the Criminal Code as amended in 2007”) to the effect that the relevant sentence was from eight to twenty years’ imprisonment or life imprisonment. The Klaipėda Regional Court held that the Criminal Code of 2000 was the most favourable to the applicant because the lowest available sentence under that Code (five years’ imprisonment) was more lenient than under the versions of the Criminal Code of 1961 and 2007 (ten years’ and eight years’ imprisonment, respectively). The court therefore ruled that the Criminal Code of 2000 had to be applied.
6. It then observed that seventeen years and six months had passed since the crime had been committed and it was therefore necessary to assess whether the proceedings had become time-barred. Under the Criminal Code of 1961, the relevant statutory limitation period had been fifteen years; under the Criminal Code of 2000, it had been twenty years; and under the Criminal Code as amended in 2007, it was thirty years.
7. The Klaipėda Regional Court noted that, in accordance with the case-law of the Supreme Court, courts had to apply the statutory limitation period provided in that Criminal Code which was applicable to the criminal offence in question, and two different Criminal Codes could not be applied in respect of a single criminal offence (see paragraph 17 below). As the Klaipėda Regional Court had already ruled that the Criminal Code of 2000 was the applicable one, it held that it was that Code which determined the statutory limitation period, irrespective of whether the limitation period provided in the Criminal Code of 1961 might have been more favourable to the applicant.
8. The court emphasised that when determining which Criminal Code was more favourable to the applicant, it had to comprehensively assess all the relevant provisions of the different codes. It observed that the Criminal Code of 1961 appeared to be more favourable, on the face of it, as it had provided for a shorter statutory limitation period. However, under that Code, the application of the statute of limitations had not been mandatory – in cases concerning crimes punishable by life imprisonment, courts had had the authority to extend the statutory limitation period. As a result, under the Criminal Code of 1961, even when fifteen years had passed after the commission of the crime, the prosecution would not necessarily have become time-barred. On the contrary, the Criminal Code of 2000 had not provided for any possibility to extend the statutory limitation period. The Klaipėda Regional Court pointed out that the Supreme Court had held that, as a result, the provisions of the Criminal Code of 1961 concerning the statute of limitations could not be considered more lenient than those of the Criminal Code of 2000 (see paragraph 18 below).
9. Accordingly, the Klaipėda Regional Court ruled that the twenty-year statutory limitation period provided under the Criminal Code of 2000 had to be applied in the applicant’s case, and thus the proceedings had not become time-barred.
10. The court additionally observed that the applicant had been accused of killing his elderly relative in a particularly cruel manner, and after committing the crime he had fled abroad and hidden to escape criminal proceedings. It considered that in such circumstances there were reasonable grounds to believe that, were the Criminal Code of 1961 to apply, the fifteen-year statutory limitation period provided therein would have been extended. The court also stated that the possibility to apply the statute of limitations in the applicant’s case was “logically eliminated by the criminal policy on the issue” – it pointed out that the legislative amendments of 2000 and 2007 had progressively increased the statutory limitation period applicable to murder (from fifteen to twenty years in 2000, and from twenty to thirty years in 2007), which demonstrated that the criminal policy was consistently developing towards longer limitation periods.
11. When determining the applicant’s sentence, the court took into account the fact that he had committed the crime while under the influence of alcohol and had acted in a particularly cruel manner. However, at that time the applicant had been of a young age, he had been employed, had completed voluntary military service and had received a positive character reference from his supervisor; a long time had passed since the crime; the applicant had admitted his guilt and expressed remorse; and the victim in the proceedings (the applicant’s grandmother) had not asked for a harsh punishment. The court therefore considered that the punishment had to be close to the minimum provided by law and sentenced the applicant to six years’ imprisonment.
2. The Court of Appeal
12. The applicant lodged an appeal against the judgment of the Klaipėda Regional Court. He argued, inter alia, that the statutory limitation period provided in the Criminal Code of 1961 had been more favourable to him than under the Criminal Code of 2000, and as a result, the more favourable provision should have been applied and the proceedings should have been discontinued as time-barred. He contended that, taking into account all the mitigating circumstances present in his case (see paragraph 11 above), there were no grounds to believe that the fifteen-year limitation period provided in the Criminal Code of 1961 would have been extended.
13. On 5 July 2018 the Court of Appeal upheld the lower court’s judgment in its entirety. It reiterated that, in line with the case-law of the Supreme Court, the statute of limitations under the Criminal Code of 1961 was not considered to be more lenient than under the Criminal Code of 2000 because its application had not been mandatory. It also upheld the conclusion of the lower court that even if the Criminal Code of 1961 had been applied, taking into account all the circumstances of the applicant’s case, the statutory limitation period would most likely have been extended.
3. The Supreme Court
14. The applicant lodged an appeal on points of law in which he raised similar arguments as before (see paragraph 12 above). However, on 28 September 2018 the Supreme Court refused to accept the appeal for examination on the grounds that it raised no important legal issues.
B. Relevant domestic law and practice
15. Article 3 of the Criminal Code of 2000 provides, in relevant parts:
“1. The criminality of an act and punishability of a person shall be determined by a criminal law in force at the time of the commission of that act …
2. A criminal law nullifying the criminality of an act, commuting a penalty or otherwise mitigating the legal circumstances of the person who committed the criminal act shall have a retroactive effect, that is, it shall apply to the persons who committed the criminal act prior to the coming into force of such a law …
3. A criminal law establishing the criminality of an act, imposing a more severe penalty or otherwise aggravating the legal circumstances of the person who has committed the criminal act shall have no retroactive effect …”
16. In ruling no. 38 of 20 December 2002 the Senate of the Supreme Court held:
“12. … The legal circumstances of the person who committed the criminal act may be mitigated by a law which … reduces the statutory limitation period …
13. A law … aggravating the legal circumstances of the person who has committed the criminal act … is such which … prolongs the statutory limitation period …
14. A criminal law may contain amendments some of which [mitigate the legal circumstances of the person who committed the criminal act] and others [aggravate them]. When faced which such a law, courts have to comprehensively assess the old and the new legal regulations and the criminal act committed, in accordance with the relevant criteria provided [in the Criminal Code]: the criminality and punishability of the act committed, and the legal situation of the person. Having assessed each of these criteria, the more favourable law has to be applied in accordance with the rules of retroactive application of the criminal law.
When deciding on the legal classification of the criminal act, the applicable law is the one which provides the elements of the crime that are more favourable to accused. That is determined taking into account … the applicable punishment as well.
Having determined the legal classification of the criminal act and the applicable punishment, other questions related to the legal circumstances of the person who has committed the criminal act have to be addressed: exemption from criminal liability and punishment, suspension of the sentence, statutory limitation period, etc. With regard to these matters, the more favourable law has to be applied, to the extent that that is permitted by the provisions of the Criminal Code which are applicable to the criminal act.”
17. In a ruling of 13 May 2008 in criminal case no. 2K-143/2008 and ruling of 2 July 2010 in criminal case no. 2K-331/2010 the Supreme Court held:
“There cannot be a situation when the criminal offence is classified according to an article of the Criminal Code of 2000 but the statutory limitation period is determined in line with the Criminal Code of 1961, or vice versa, because two different criminal codes may not be applied at the same time in respect of a single criminal act. In accordance with the relevant case-law, the statutory limitation period is determined by the criminal code which is applicable to the criminal offence in question. Therefore, if the Criminal Code of 2000 is deemed to be applicable to the criminal offence, the statutory limitation period provided for by the Criminal Code of 1961 may not be applied in that case, even if it would be more favourable to the accused. In accordance with Article 3 § 2 of the Criminal Code, in such instances the Criminal Code of 1961 must be applied to the criminal offence and the more favourable statutory limitation period provided for in that Code must be applied, or vice versa – all the issues must be decided in accordance with the Criminal Code of 2000 …
When deciding which criminal law must be applied in a given case, the court, in accordance with Article 3 § 2 of the Criminal Code, has to comprehensively assess the punishment provided for in the relevant provision of the Criminal Code, as well as the general provisions of that Code regarding the legal circumstances of the accused …
… In the present case, the court had to assess the criminal laws both from the perspective of the applicable punishment, and from the perspective of … the application of the statute of limitations … and determine which criminal law should have been applied …”
18. In a ruling of 23 December 2013 in criminal case no. 2K-575/2013 the Supreme Court held:
“As for the statute of limitations, [the Criminal Code of 2000] provided for a twenty-year limitation period in respect of crimes related to intentional taking away of another person’s life … [The Criminal Code of 1961] formally provided for a shorter, fifteen-year limitation period. However, in contrast to [the Criminal Code of 2000], [the Criminal Code of 1961] did not require the mandatory application of the statute of limitations after fifteen years. In the case of crimes punishable by … life imprisonment, the statute of limitations was not applied automatically. The question of the applicability of the statute of limitations had to be decided by the court [examining the case]. In the chamber’s view, in the circumstances of the present case, the statute of limitations would not have been applied in respect of the appellant. Accordingly, it must be considered that to the appellant, who has been convicted of a crime punishable by … life imprisonment, the relevant provisions of the Criminal Code of 1961 were not more lenient than those of the Criminal Code of 2000 …”
COMPLAINTS
19. The applicant complains under Article 6 § 1 and Article 7 of the Convention about the domestic courts’ refusal to discontinue the criminal proceedings against him as time-barred. He submits that the fifteen-year statutory limitation period provided in the Criminal Code of 1961, which was in force at the time when the crime was committed, was more favourable to him than the twenty-year statutory limitation period under the Criminal Code of 2000. However, the courts applied the less favourable criminal law retroactively.
QUESTION TO THE PARTIES
Was the application of the Criminal Code of 2000 in the applicant’s case in line with the principle of non-retroactivity of criminal law under Article 7 of the Convention? The Court refers to the fact that the Criminal Code of 2000 provided for a longer statutory limitation period than the Criminal Code of 1961, which had been in force at the time when the crime was committed (see Coëme and Others v. Belgium, nos. 32492/96 and 4 others, §§ 149-50, ECHR 2000‑VII, and Borcea v. Romania (dec.), no. 55959/14, § 65, 22 September 2015).
The Government are requested to provide examples of domestic courts’ case-law concerning the application of the statute of limitations under the Criminal Code of 1961 in cases similar to the applicant’s.
Leave a Reply