Communication No. 875/1999
Submitted by: Jan Filipovich (represented by counsel)
Alleged victim: The author
State party: Lithuania
Views: 4 August 2002
Subject matter: Unjustified duration of criminal
proceedings before conviction (4 years and
4 months)
The complaint
3.1 The author alleges that he is a victim of a
violation of the right to a fair trial, as provided for in
article 14, paragraph 1, because neither the
preliminary investigation nor the oral proceedings
were unbiased, since no importance was attached to
the results of an investigation conducted by a
commission set up to determine the reason for the
delay in the surgical operation and the diagnostic
error. The author states that, if the investigation’s
version of events was correct, the only possible
charge that could have been brought was grievous
bodily harm, not premeditated murder.
Procedural issues: Level of substantiation of claim
Substantive issues: Undue delay - Sentence within
the limits of the penalty provided by previous
law
Articles of the Covenant: 14, paragraphs 1 and 3 (c);
and article 15, paragraph 1
Articles of the Optional Protocol: 2
Finding: Views (violation of article 14, paragraph
3 c)).
3.2 The author alleges a violation of article 14,
paragraph 3 (c), of the Covenant because, although
the investigation began in September 1991, he was
not sentenced until 16 January 1996 and the final
decision was handed down only on 2 May 1996, i.e.
four years and eight months after the start of the
proceedings. In his view, this constitutes undue
delay.
1.
The author of the communication, dated
25 January 1997, is Jan Filipovich, a Lithuanian
citizen convicted of premeditated murder. He claims
to be a victim of a violation by Lithuania of
article 14, paragraphs 1 and 3 (c), and article 15,
paragraph 1, of the Covenant. He is represented by
counsel. The Covenant and the Protocol entered into
force for Lithuania on 20 February 1992.
3.3 The author alleges that there was a violation
of article 15, paragraph 1, because the penalty
imposed was heavier than the one that should have
been imposed at the time the offence was committed.
He states that, in 1991, the penalty for premeditated
murder imposed by article 104 of the Lithuanian
Criminal Code was 3 to 12 years’ deprivation of
liberty. He was, however, sentenced under the new
article 104 of the Criminal Code, which provides
for 5 to 12 years’ deprivation of liberty, and he was
given a term of 6 years. He also alleges that the court
never stated either in its ruling or in subsequent
decisions that he was convicted under the version of
article 104 of the Criminal Code in force since 10
June 1993.2
The facts as submitted by the author
2.1 On 3 September 1991, the author and
Mr. N. Zhuk got into a fight, following which
Mr. Zhuk was found unconscious and taken to the
hospital, where he was not operated on until
5 September and died that same day. According to
the author, the causes of death were trauma to the
abdominal cavity and peritonitis, which developed
because of the delay in operating on Mr. Zhuk.
2.2 The preliminary investigation began in
September 1991. The author was convicted of
premeditated murder by the Vilnius District Court on
16 January 1996.1 The author appealed the decision
in the same Court, which dismissed the appeal on
13 March 1996. On 2 May 1996, the Criminal
Division of the Lithuanian Supreme Court rejected
the author’s application for judicial review.
Subsequently, on 1 July 1996, the Vice-President of
the Supreme Court and the Attorney-General of
Lithuania refused to submit an application for
judicial review.
The State party’s observations on admissibility and
the merit
(a) Alleged violation of article 14, paragraph 1, of
the Covenant
4.1 With regard to article 14, paragraph 1, the
State party draws attention to the Committee’s case
2
1
The new Lithuanian Criminal Code entered into force
in June 1993.
Article 104 of the Criminal Code.
122
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