Preliminary investigation that has lasted more than 5.5 years did not violate the reasonable duration of the trial because it involved a complex case!
JUDGMENT
Arewa v. Lithuania 09.03.2021 (app. no. 16031/18)
SUMMARY
Reasonable duration of the pre-trial investigation. Complexity of the case.
The case concerned a criminal prosecution against the applicant for engaging in illegal economic activity with the involvement of banks and suspicious transfers of funds to Europe, China and the United States. The preliminary investigation had already lasted about 5.5 years and was in progress at the time of the appeal. The applicant lodged a complaint alleging breach of the reasonable duration of the trial and breach of family life because he had been forced to stay away from his family throughout the pre-trial investigation.
The Court recalled its established case law on the criteria for determining the length of the trial, which depend on the complexity of the case and the co-operation of the accused.
The ECtHR found that in the present case, investigations had to be carried out in Hong Kong, Hungary, Spain, Denmark and the USA and that for a period of 2 years the preliminary investigation did not proceed because evidence was expected from those countries. It also found that neither the applicant’s conduct (which exercised the right to remain silent and deny the accusation that its rights are enshrined in recognized international standards at the heart of the concept of a fair trial) delayed the preliminary investigation.
The ECtHR ruled that the investigation was carried out with the necessary speed, depending on the circumstances, and that the reasonable length of time of the pre-trial was not violated (Article 6§1 of the ECHR). Accordingly, it considered inadmissible the allegation of violation of family life, due to non-exhaustion of domestic remedies.
PROVISION
Article 6 par. 1
PRINCIPAL FACTS
The applicant, Olusegun Bamise Arewa, is a Nigerian national who was born in 1989 and lives in
Vilnius.
The case concerned the length of criminal proceedings instigated against Mr Arewa for conducting
illegal financial operations and their impact on his family rights.
Relying in particular on Article 6 § 1 (right to a fair trial within reasonable time) of the European
Convention on Human Rights, the applicant complained that the criminal charges against him had
not been determined within a reasonable time.
THE DECISION OF THE COURT….
The applicant was subject to a “charge” at least from the date on which he was served with the official notice that he was a suspect, 15 July 2014. According to the latest information in the Court’s possession, the criminal proceedings were still at the pre-trial investigation stage until at least 22 October 2019; see also De Clerck v. Belgium, no. 34316/02, § 71, 25 September 2007). The period to be considered thus lasted at least five years and three months.
The Court reiterates that the reasonableness of the length of the proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute. In addition, only delays attributable to the State may justify a finding of a failure to comply with the “reasonable time” requiremen.
The Court accepts that the proceedings against the applicant involved a degree of complexity, given that the applicant was suspected of operating a fake company in Lithuania and participating in international money laundering in respect of the receipt of USD 1,853,800. The Court acknowledges that the scale and complexity of a criminal case concerning suspected money laundering and forgery of documents, which is often compounded further by the involvement of several suspects, may justify the extensive length of proceedings (see, mutatis mutandis, Hasslund v. Denmark, no. 36244/06, § 31, 11 December 2008, and the case-law cited therein). In the present case, inquiries had to be carried out in Hong Kong, Hungary, Spain, Denmark and the USA. Having regard to those circumstances, and also in the light of Lithuania’s international obligations, the Court accepts that the investigation was relevant, time‑consuming and difficult. Thus, for the purposes of Article 6 § 1 of the Convention the case was particularly complex (see Frederiksen v. Denmark (dec.), 23012/02, 16 September 2004).
As to the applicant’s conduct, the Court observes that he had initially refused to testify, and chose to testify only three years later (see paragraph 19 above). Even so, and contrary to what has been suggested by the Government, given that the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 (see Aleksandr Zaichenko v. Russia, no. 39660/02, § 38, 18 February 2010), the Court cannot reproach the applicant on that account. It has not been argued by the Government that the applicant otherwise hindered the criminal investigation, thus prolonging its duration. Whilst noting the Vilnius Regional Court’s brief statement, the Court also finds that the other court decisions in the applicant’s case lacked such criticism towards the applicant. Thus, the Court is not persuaded that the applicant’s behaviour did, on its own, account for the length of the proceedings (see Eckle v. Germany, 15 July 1982, § 86, Series A no. 51, and Panju v. Belgium, no. 18393/09, § 89, 28 October 2014).
As regards the conduct of the Lithuanian authorities, the Court acknowledges that for more than two years – between 16 September 2014 and 23 January 2017 – they did not perform investigative actions while waiting for replies to their legal assistance requests from foreign jurisdictions. That being so, it is not insensitive to the intricacies that a criminal investigation concerning alleged money laundering on an international scale could entail. In its case-law under Article 5 § 3 of the Convention, the Court has recognised that the need to obtain evidence from many sources, including from abroad, and to determine the facts and degree of alleged responsibility of each of the co-suspects, constitutes relevant and sufficient grounds for the applicants’ detention during the period necessary to terminate the investigation (see Łaszkiewicz v. Poland, no. 28481/03, § 59, 15 January 2008, and Merčep v. Croatia, no. 12301/12, § 110, 26 April 2016). The Court does not see why this reasoning would not be applicable in the present case where the applicant was one of two co-suspects in the scheme of international money laundering. The Court also notes that in September 2017, as their defence strategy, the applicant and the other suspect, Mr A.L.C., asked the Lithuanian authorities to look for persons who could possibly have forged transcripts of the Jammo shareholders’ meeting, thus only adding on the list of the Lithuanian authorities’ investigative tasks. Being mindful not to substitute its view for that of the investigating officers, the Court does not see how the Lithuanian authorities could have done more to expedite the pre-trial investigation, or that some investigative measures could have been performed while the Lithuanian authorities were waiting for the replies to their legal assistance requests from abroad. The Court also observes that when holding that the proceedings in the applicant’s criminal case had not been excessive, the domestic courts not only underscored the need for legal assistance requests that had been sent abroad as such, but also referred to the fact that the replies received to certain of those requests had been inconclusive, only prompting further questions, and thus requiring further correspondence with law enforcement authorities abroad. It is also clear that the criminal investigation had evolved, and evidence had to be collected from more and more jurisdictions . When explaining the length of the pre-trial investigation, apart from its international element, the Lithuanian courts also referred to the financial nature of the crimes, as well as the fact that other actions by the investigators – searches and witness interviews – had been undertaken in a timely manner.
As to what was at stake for the applicant, the Court notes that he had initially been detained, for two months. Afterwards the measure had been changed to an obligation to register at the police station on a weekly basis and not to leave his place of residence, the latter measure having remained in force. The Court also observes the fact that the applicant had agreed to maintain the last measure as sufficient to guarantee his participation in the criminal proceedings.
Lastly, the Court notes that throughout most of the criminal proceedings against him, the applicant had been obliged to live in Lithuania without a valid residence permit . It is not unreasonable to hold that such a state of affairs caused him certain feelings of insecurity. The Court is also mindful of the Supreme Administrative Court’s case-law, pursuant to which when an alien is held in Lithuania under remand measures but without a residence permit, the situation is “rather paradoxical”. That being so, the Court also observes that at no point during the criminal proceedings would a decision regarding the applicant’s deportation have been taken. Therefore the Court is not ready to hold that even if there were outstanding criminal charges against him, the applicant suffered any tangible practical consequences. Moreover, as clearly stated by the criminal court, as well as by the Migration Department and afterwards by the Vilnius Regional Administrative Court, any negative effect on the applicant had been a result of him being a suspect of a serious crime.
In the light of the foregoing considerations, the Court cannot hold that the criminal case, during the period under the Court’s review, did not proceed with the necessary expedition and thus failed to satisfy the reasonable time requirement.
There has accordingly been no violation of Article 6 § 1 of the Convention.
