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CONSEIL COUNCIL DE L’EUROPE OF EUROPE COUR EUROPÉENNE DES DROITS DE L’HOMME EUROPEAN COURT OF HUMAN RIGHTS THIRD SECTION DECISION Application no. 39350/98 by Zbignevas Romualdas JODKO against Lithuania
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  CONSEILDEL ’ EUROPECOUNCILOFEUROPECOUREUROPÉENNEDESDROITSDEL ’ HOMMEEUROPEAN COURTOFHUMANRIGHTS   THIRD SECTION DECISION Application no. 39350/98  by Zbignevas Romualdas JODKO against Lithuania The European Court of Human Rights (Third Section) sitting on 7 September 1999 as a Chamber composed of Sir Nicolas Bratza,  President  , Mr J.-P. Costa, Mr L. Loucaides, Mr P. Kūris,  Mr W. Fuhrmann, Mr K. Jungwiert, Mrs H.S. Greve,  Judges , with Mrs S. Dollé, Section Registrar  ; Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 6 May 1997  by Zbignevas Romualdas Jodko against Lithuania and registered on 14 January 1998 under file no. 39350/98; Having regard to the reports provided for in Rule 49 of the Rules of Court; Having regard to the observations submitted by the respondent Government on 1 April 1999 and the observations in reply submitted by the applicant on 13 May 1999; Having deliberated; Decides as follows:  39350/98 - 2 -   THE FACTS The applicant is a Lithuanian national of Polish srcin, born in 1961. At present he is detained in the Rasų prison in Vilnius. The facts of the case, as submitted by the parties, may be summarised as follows. A. Particular circumstances of the case On 13 March 1996 the Vilnius Regional Court convicted the applicant of murder. He was sentenced to 11 years’ imprisonment. On 27 March 1996 the applicant was served with a written copy of the first instance judgment. The applicant appealed. On 15 May 19 96 the Court of Appeal held a hearing at which the applicant’s counsel was present. The court dismissed the appeal, finding that the first instance court had properly decided the case. In early 1997, the applicant approached the prison administration, asking why he had received no written version of the appellate decision of 15 May 1996. The Ministry of Justice informed him that on 22 May 1996 the Court of Appeal had in fact sent a written version of the appellate decision to a special hospital of the Ministry of Interior where, at the time, the applicant had been detained. The applicant applied to the Ombudsman, who confirmed that the hospital had received the decision on 23 May 1996. The Ombudsman advised the applicant to ask the hospital management about the alleged disappearance of the written decision. The applicant appears not to have approached the hospital management subsequently. Following the applicant’s demand, on 13 March 1997 the Court of Appeal sent him a written version of the decision of 15 May 1996. On 11 April 1997 he was furnished with another copy of the decision. The applicant expressed his intention to file a cassation appeal in the case but was informed by the Supreme Court that he had not complied with the three months’ time -limit to file a cassation appeal under Article 419 of the Code of Criminal Procedure. On 17 February 1999 the applicant applied to the Ministry of Justice, complaining that he had been denied access to the Supreme Court. The Ministry of Justice advised the applicant to apply to the Supreme Court for leave to file a cassation appeal out of time  pursuant to Article 120 of the Code of Criminal Procedure. There is no indication that the applicant subsequently requested that leave. B. Relevant domestic law Pursuant to Article 379 § 4 of the Code of Criminal Procedure, a decision of the appellate court dismissing an appeal is pronounced in open court. Reasons must be given. In its final form a written version of the decision must be prepared within 3 days after its  pronouncement. Pursuant to Article 386 § 1 of the Code, within 7 days following its adoption the appellate decision must be transmitted, for execution, to the court which gave the first instance judgment. Under Article 401 § 1 of the Code the first instance court is then required to furnish a copy of the first instance judgment to the prison administration (no time-limits are set by domestic criminal procedure in this respect). Article 401 § 1 also provides that,   - 3 - 39350/98   where the first instance judgment is amended or quashed, a written version of the appellate decision must also be sent to the prison for the defendant’s information. Under Article 419 of the Code of Criminal Procedure, a cassation appeal can be filed within three months after the first instance judgment becomes effective. Pursuant to Article 398 § 2 of the Code, if the appeal against the first instance judgment is dismissed at appellate instance, the first instance judgment becomes effective on the date when the appellate decision was taken. Article 418 § 2 of the Code lays down the requirements for a cassation appeal. Pursuant to the above provision, a cassation appeal should include references to the name of a cassation court, the case and decision at issue, the substance of the decision and the reasons for appealing against it, and the appeal claims. Article 421 § 2 of the Code of Criminal Procedure stipulates that, provided that a cassation appeal complies with the above requirements, a senior judge of an appellate court or cassation court should order the transmission of the case-file from the lower court. Within seven days following receipt of the case-file, a senior cassation court judge must issue an order accepting the appeal for consideration. Pursuant to Article 120 § 1 of the Code of Criminal Procedure, a time-limit that was missed for an important reason can be reinstated by a court upon the request of the person concerned. COMPLAINTS 1. Under Articles 6 and 13 of the Convention and Article 2 of Protocol No. 7 to the Convention the applicant complains that he was deprived of effective access to the Supreme Court. He states that, due to the mistake of the officials at the Court of Appeal, the copy of its  judgment of 15 May 1996 was sent to him only on 13 March 1997. Thus he missed the time-limit to submit a cassation appeal in his case. 2. Under Article 6 of the Convention the applicant further complains that he was deprived of the right to a fair trial. He alleges various material and procedural irregularities throughout the proceedings. The applicant submits that he is innocent and that the courts reached wrong decisions. PROCEDURE The application was introduced before the European Commission of Human Rights on 6 May 1997 and registered on 14 January 1998. On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol. On 13 January 1999 the Court decided to communicate the application to the respondent Government.  39350/98 - 4 -   The Government’s written observations were submitted on 1 April 1999. The applicant replied on 13 May 1999. THE LAW 1. The applicant states that he was deprived of effective access to the Supreme Court, and that thus Articles 6 and 13 of the Convention and Article 2 of Protocol No. 7 to the Convention were violated. Article 6 of the Convention provides, insofar as relevant, as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ... .”  Article 13 states: “Everyone wh ose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”  Article 2 § 1 of Protocol No. 7 to the Convention reads: “Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.” In their observations the Government assert that Article 6 guarantees no right to a cassation appeal, and that it is not applicable in connection with this part of the application. They submit that in any event the applicant’s co mplaint of a denial of access to the Supreme Court is unsubstantiated. According to the Government, the right to submit a cassation appeal is an accessible and enforceable right of the defendant or his counsel. No leave to file a cassation appeal is required. The cassation court is under the obligation to consider an appeal  provided that it has been correctly filed. The Code of Criminal Procedure imposes no restrictions on the right to lodge a cassation appeal, save the three months’ time -limit under Article 419 and the basic requirements for the contents of a cassation appeal under Article 418 § 2. Moreover, it is the duty of the cassation court to collect the material for the examination of the case; domestic law does not require that a copy of the contested decision  be annexed to a cassation appeal. On the facts of the case, the Government submit that the applicant missed the three months’ time -limit to file a cassation appeal because of his negligence. His careless attitude is confirmed by the fact that he did not make complaints about the decision of 15 May 1996 until early 1997. Furthermore, he did not complain in this respect to the hospital management after the Ombudsman advised him to do so. Nor did he apply for leave to file a cassation appeal out of time. The Government also stress that the applicant’s official defence counsel could have lodged a cassation appeal himself. However, the lawyer did not avail himself of this opportunity.
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