DAKTARAS - Lithuania (Nº 42095/98)
*Judgment 10.10.2000 [Section III]

Facts: Criminal proceedings were brought against the applicant. At the close of the pre-trial investigation he requested that the proceedings be discontinued. However, this was refused by the prosecutor, who stated in his decision that the evidence gathered clearly proved his guilt. The applicant was convicted in February 1997 by the Regional Court and sentenced to 7½ years' imprisonment. On the applicant’s appeal, the Court of Appeal amended the judgment, finding that he should only have been convicted as a secondary party; the sentence was unchanged. The applicant then lodged a further appeal to the Supreme Court. The judge who had delivered the first instance judgment requested the president of the Criminal Division of the Supreme Court to lodge a cassation petition to have the appeal judgment quashed and the Regional Court judgment upheld. The president of the Criminal Division did so, making the same proposal, and then appointed the three judges who would examine the case, as well as the judge rapporteur. The prosecution endorsed the petition. The Supreme Court quashed the appeal judgment and upheld the Regional Court’s judgment.

Law: Article 6(1) – Although the Government maintain that the president gave only an independent and impartial opinion as to the issues raised by the case, such an opinion cannot be regarded as neutral from the parties’ point of view. By recommending that a particular decision be adopted or quashed, the president necessarily becomes the defendant’s ally or opponent. The president was in effect taking up the case of the prosecution, which endorsed the petition. While he did not himself sit in the case, he appointed the judges who did and also the judge rapporteur, and in such circumstances it cannot be said from an objective standpoint that there are sufficient guarantees to exclude any legitimate doubt as to the absence of inappropriate pressure. The fact that the president’s intervention was prompted by the first instance judge only aggravates the situation.

Conclusion: violation (unanimously).

Article 6(2) – The presumption of innocence may be infringed by prosecutors, particularly where the prosecutor performs a quasi-judicial function when ruling on a request to dismiss the charges at the stage of the pre-trial investigation. Nevertheless, in this case the statements were made in a reasoned decision at a preliminary stage of the proceedings, rather than in a context independent of the proceedings, such as a press conference. Moreover, the prosecutor used the same term as that used by the applicant in his request to discontinue the case on the ground that his guilt had not been "proved" by the evidence in the file. While the use of the term "proved" is unfortunate, having regard to the context in which it was used, both the applicant and the prosecutor were referring not to the question whether the applicant’s guilt had been established by the evidence but to the question whether the case-file disclosed sufficient evidence of the applicant’s guilt to justify proceeding to trial.

Conclusion: no violation (unanimously).

Article 41 – The Court considered that the finding of a violation constituted in itself sufficient just satisfaction. It made an award in respect of costs.