The Republic of Lithuania is an independent democratic state, where respect for human rights is also expressed in the legal act of the highest legal force – the Constitution of the Republic of Lithuania. Here Article 20 of the Constitution declares: “The freedom of a human being shall be inviolable. No one may be arbitrarily detained or held arrested. No one may be deprived of his freedom otherwise than on the grounds and according to the procedures which have been established by law.” The provision seems understandable and clear, but while defending the interests of clients it is repeatedly observed that arrests are increasingly being used as if by themselves, without even a detailed statement of reasons why a lenient detention measures cannot achieve the purposes of the criminal proceedings. In this context, it should be noted that detention, as the most severe pre-trial detention measure, can be applied only on the basis established by law (the Code of Criminal Procedure of the Republic of Lithuania).

Article 122 of the Code of Criminal Procedure of the Republic of Lithuania identifies three grounds for detention:

1) the suspect will flee (hide) from the pre-trial investigation officers, the prosecutor or the court;

2) interfere with the process;

3) will commit new offenses specified in Part 4 of this Article.

Thus, it can be seen that the grounds for detention are clearly stated and only if they objectively exist can the detention of a person suspected of having committed a criminal offense be justified. However, in practice it is not uncommon for detention to be applied “automatically” as soon as allegations of a serious or very serious crime are made. Moreover, during a long pre-trial investigation, the person is still detained, again as if the term of detention was “automatically” extended. When applying detention, the courts often do not go into sufficient detail as to whether the grounds for imposing it actually exist, as if the request made by the prosecutor for the remand in custody is enough. In the meantime, the same person has been subjected to more lenient detention measures by the same prosecutor organizing and controlling the investigation, such as intensive supervision by obliging the suspects to be at home at the appropriate time and to wear an electronic surveillance device. In this case, the question naturally arises: was there a ground for detention, if after a while, without any changes in circumstances, the same person is subjected by more lenient detention measures.

A person shall be presumed innocent until proved guilty according to the procedure established by law and declared guilty by an effective court judgment (Article 31 of Constitution of the Republic of Lithuania). Nevertheless, even on the presumption of innocence, such a person may be considered detained if he is found to be a suspect, of course according to the maximum periods of detention laid down in Article 127 of the Code of Criminal Procedure and the grounds for detention set out above. However, once the pre-trial investigation has been terminated, the person must start a new trial for the damage they have suffered as a result of the detention. At present, the laws of the Republic of Lithuania do not stipulate that a person who has been unreasonably arrested should be compensated for damage without his or her own expressions, what means without a separate claim for damages. Consequently, after the termination of the pre-trial investigation, the person who was a suspect must defend his/her violated rights, find a lawyer and incur additional costs, regardless of the fact that the costs of the legal services provided were likely to have been incurred during the pre-trial investigation. On the other hand, even after a claim for damages has been brought before a court, it is assessed whether the claim is reasonable and whether the arrest was made without justification. For example,

The Supreme Court of Lithuania in case no. E3K-3-347-687 / 2018 on non-pecuniary damage that “The applicant’s detention period was from 2009 April 1 until 2011 June 29, the applicant was detained for 821 days”. In the present case, the court found that the applicant’s extension of the detention period was based on the grounds already mentioned in Article 122 of the Code of Criminal Procedure, but these grounds were identified by the courts only in the abstract, without the courts assessing whether they constituted a real ground for detention. Also, the Supreme Court of Lithuania, examining this case, pointed out that the extension of the pre-trial detention order imposed on the applicant resulted in an abuse of rights and a restriction of the freedom. When deciding the extension of the pre-trial detention period prosecutor did not consider a more lenient pre-trial detention. The prosecutor and the court did not put forward any arguments as to why less lenient detention would not have been effective. This ruling allows us to state that the courts still do not assess in detail whether the liberty of a certain person is deprived of his or her detention in the presence of real, objective grounds for detention.

It is also clear from the court order analyzed above that a person who was detained without a legal basis on 821 days since 1 April 2009, acquired the right to compensation for such detention only on 3 October 2018. In other words, his right was confirmed nine years after his arrest and only after he had actively demonstrated such a right during the proceedings. It is obvious that such legal regulation does not sufficiently guarantee human rights, on the other hand, it undermines the trust of individuals both in law enforcement institutions and in the idea of justice. In view of this still existing and very relevant problem, it is recommended to consider draft amendments to the law, which would stipulate that people who have suffered damage as a result of illegal detention have a real opportunity to recover it economically and quickly.



Černiauskas and Partners Law Firm Advocate’s assistant Evelina Polujanskaitė