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Committee on Enforced Disappearances considers report of Lithuania

GENEVA (5 September 2017) - The Committee on Enforced Disappearances today concluded its consideration of the initial report of Lithuania on its implementation of the provisions of the International Convention on the Protection of All Persons from Enforced Disappearance.

Introducing the report, Paulius Griciûnas, Vice-Minister of Justice of Lithuania, said that the Convention remained important for the protection of human rights and the prevention of torture and other heinous crimes in all countries and that in Lithuania, this landmark human rights instrument complemented and strengthened national legal protection from enforced disappearances and other forms of deprivation of liberty.  The Criminal Code recognized enforced disappearances and the separation of children as autonomous crimes, and established personal responsibility for enforced disappearances which it also recognized as a crime against humanity with no statute of limitations.  The Code recognized as victims of enforced disappearances also a family member or a close relative of a person who died as a result of this crime.  Recently, the Ombudsman’s Office had become an accredited national human rights institution with A status under the Paris Principles and it was becoming the main voice of human rights in Lithuania.

In the ensuing discussion, Committee Experts welcomed the accreditation under the Paris Principles of the Ombudsman’s Office and asked whether it also acted as a national preventive mechanism against torture and about the resources and support provided to it in the realization of its mandate.  The delegation was asked about the status of the Convention in the domestic legislation and its direct application by the courts; the circumstances defining whether the crime of enforced disappearance was interpreted as an individual crime or as a crime against humanity; the steps taken by a prosecutor in the absence of a complaint of enforced disappearances (ex officio procedure); and about the exceptional situations under the law and in particular the application of – and the consequences of the application of – martial law.  The Experts also took up the issue of secret rendition sites in Lithuania, and asked a series of questions concerning the national investigation, the transparency of the process, availability of information to persons claiming a status of a victim and to the public at large, and the legal space to ensure that the perpetrators were brought to justice and that victims had justice.

In concluding remarks, Suela Janina, Committee Expert and Rapporteur for Lithuania, commended the criminalization of enforced disappearances as a separate crime in the domestic legislation and was particularly pleased that there was no statute of limitation to the crime of enforced disappearance.

Emmanuel Decaux, Committee Co-Rapporteur for Lithuania, in his final remarks, urged Lithuania to go even further in transposing article 6 of the Convention concerning the criminal responsibility of superiors for enforced disappearances.

In his concluding remarks, Mr. Griciûnas commended the positive spirit of this dialogue which would make Lithuania see the Convention in a different light.

The delegation of Lithuania included representatives of the Ministry of Justice, Ministry of Social Security and Labour, Ministry of Defence, the Prosecutor General’s Office, Lithuanian Criminal Police Bureau, and the Permanent Mission of Lithuania to the United Nations Office at Geneva.

Live webcast of the Committee’s public meetings is available at http://webtv.un.org/

The Committee will next meet in public at 3 p.m. today, 5 September, to begin its consideration of the initial report of Gabon (CED/C/GAB/1).

Report

The initial report of Lithuania can be read here: CED/C/LTU/1.

Presentation of the Report

PAULIUS GRICIÛNAS, Vice-Minister of Justice of Lithuania, recalled that Lithuania had ratified the Convention in 2013 and it had entered into force in 2014, and that Lithuania had also recognized the competence of the Committee under articles 31 and 32 to receive and consider individual and inter-State complaints.  Even though there were no cases of enforced disappearances in Lithuania, the Convention remained important for all countries to protect human rights and prevent torture and other heinous crimes.  This landmark international human rights instrument complemented and strengthened national legal protection from enforced disappearances and other forms of deprivation of liberty, stressed Mr. Griciûnas and went on to explain that the Criminal Code of Lithuania had transposed the essential provisions of the Convention, including the definition of enforced disappearances and the separation of children as autonomous crimes.  The Criminal Code provided that the responsibility for enforced disappearances was with the person acting as a State agent or a person or a group of persons who, acting with the authorisation, support or acquiescence of the State, detained, abducted or otherwise deprived another person of his liberty while refusing to acknowledge the detention, abduction or deprivation of liberty, or concealed the disappeared person’s fate or whereabouts. 

Mr. Griciûnas further said that the Criminal Code defined unlawful separation of children as a criminal act, and recognized enforced disappearance as a crime against humanity which had no statute of limitations.  Lithuania had chosen not to include in the law special additional measures concerning the responsibility of a higher-ranking officer, as the existing Criminal Code regulation established the commander’s responsibility for negligent performance of duties and as such conformed with the requirements of the Convention concerning the responsibility of a superior.  In the context of the rights of victims of enforced disappearances, the May 2016 amendments to the Criminal Code recognized as a victim not only the person to whom the act had caused damage, but also a family member or a close relative of a person who died as a result of this crime.  Recently, the Ombudsman’s Office had become an accredited national human rights institution accredited with A status under the Paris Principles and it was becoming the main voice of human rights in Lithuania which served as a bridge between national and international human rights instruments and between civil society and the State, concluded Mr. Griciûnas.

Questions from the Committee Experts
 
SUELA JANINA, Committee Expert and Rapporteur for Lithuania, commended Lithuania for the timely submission of the report and asked how the lack of input by non-governmental organizations to the preparation of the report could be explained.

What additional measures had been taken to endow the Office of the Ombudsman to provide with its new statute and how was the work of the Office being supported in practice?  Did the Office serve as a national preventive mechanism?

Could the delegation inform on the position of the Convention in the domestic legal system, especially in relation to its direct application by the courts?

The incorporation of the crime of enforced disappearances in the national law was a very positive step, and Ms. Janina commended that the definition of enforced disappearances was almost identical to that of the Convention, with the exception of the element of “arrest” – could the delegation explain why this element was missing?

Enforced disappearances were included in the Criminal Code under Chapter 15 on war crimes and crimes against humanity, noted the Rapporteur and asked the delegation to explain when enforced disappearances was considered as an individual crime and when it was considered a crime against humanity.

How severe was the punishment for enforced disappearances compared to other severe and serious crimes? 

The right to file a complaint for an enforced disappearance was guaranteed, but the Committee was interested to hear more about steps taken by the prosecutor in the absence of a complaint - what was the ex officio procedure for alleged enforced disappearances to be followed by the prosecutor?

EMMANUEL DECAUX, Committee Expert and Co-Rapporteur for Lithuania, stressed that the key idea in the Convention was that no special circumstance could be invoked to justify enforced disappearances, and asked about the regimes of exceptional situations under the law in Lithuania.  When was martial law applied and what were its consequences, particularly in relation to enforced disappearances?

The Committee had established a clear declaration of principle with regard to military courts in relation to enforced disappearances, recalled the Co-Rapporteur.

Could the delegation explain how it applied article 6.1 concerning “accomplice” and other parts of article 6 concerning the responsibility of a superior?

How were the extraterritorial jurisdiction and universal jurisdiction of the courts coordinated?

Response by the Delegation

The delegation confirmed that the Ombudsman’s Office was also a national preventive mechanism against torture and it was a very active institution which submitted its own observations during the Universal Periodic Review of Lithuania.  It was an institution what worked hard to maintain its independence and to foster a result-oriented dialogue.  Its resources were approved by parliament and it was foreseen that its budgetary allocation would be increased next year.

With regard to consultations with non-governmental organizations, the delegation explained that the report in its draft form had been made public and as such accessible to any citizen or organization to submit their comments and observations.  Some non-governmental organizations had been informed about the publishing of the draft report and invited to submit their remarks, including the Organization of Missing Persons.  The delegate stressed that the missing persons that this organization was concerned about were not missing due to the State’s action, and this could explain why no submission had been received.

International treaties and instruments were directly applicable in Lithuania and the best example of the direct applicability was the European Convention on Human Rights. 

The Criminal Code established criminal liability of a person who detained or deprived another person of liberty; this definition did not include the element of “arrest” as “arrest” was defined by the law in Lithuania as a short-term deprivation of liberty.

With regard to the criminal responsibility of a superior who deliberately ordered another person to commit a crime of enforced disappearances, he or she was considered as an accomplice or an organizer, which was considered by the courts to be an aggravating circumstance.

The Criminal Code classified crimes into chapters based on objects; enforced disappearances was in the chapter on war crimes and crimes against humanity.  The crime of enforced disappearance was considered a crime against humanity if it was committed systematically.  The crime of enforced disappearance was considered a very grave and serious crime which carried the corresponding penalties.

Concerning the duty of the prosecutor to act, the delegation explained that any notification of enforced disappearance, filed by anyone – a family member, a law enforcement officer, or anyone else – served as a ground to initiate a pre-trial investigation.  The prosecutor also had a duty to act if the information of alleged enforced disappearance originated from the press; in this case, an investigation would start to verify the information and if it was found sufficient, a pre-trial investigation would be opened.  If a case was in any way connected to a law enforcement officer, the prosecutor would conduct the investigation her or himself.

Lithuania’s universal jurisdiction was stipulated in article 7 of the Criminal Code which established the jurisdiction for all crimes which carried international liability.

The law defined eight criminal protection measures, and each person had the right to refuse those measures.  The law offered an ample range of measures which could be adapted to personal circumstances and there were no cases in which the protective measures had been declined by the person in question.

The military police had competence against soldiers and its competence over civilians was very limited; all civilians involved in a criminal investigation must be immediately transferred to the civilian police.  The civilian rules of pre-trial investigation also applied to military police.

Martial law and the state of war were one and the same, explained the delegation, adding that it could be established by parliament in the case of defending the homeland.  It could also be declared by the President in case of an attack on Lithuania, and this decision must be presented to parliament for verification.  In case of martial law, civilian police and civilian courts still functioned until they were unable to fulfil their functions; the military police would take over only if the civilian institutions were unable to function, for example because they were destroyed.

Questions by the Committee Experts

In the next round of questions, SUELA JANINA, Committee Expert and Rapporteur for Lithuania, noted that the legislation in Lithuania recognized the crime of enforced disappearance as an individual crime and asked whether there was a provision that reflected the crime of enforced disappearance as a crime against humanity.

On the responsibility of superiors for enforced disappearances, how did the law ensure their criminal liability, both in case of neglect of duty, for failing to prevent the crime for happening, and for being an accomplice and issuing the order.

Could the delegation clarify the sanctions that the crime of enforced disappearance carried? 

EMMANUEL DECAUX, Committee Expert and Co-Rapporteur for Lithuania, took up article 6 of the Convention concerning the responsibility of superiors for the crime of enforced disappearance, and asked the delegation to explain its implementation in the country. 

Other Committee Experts addressed the relationship between the crime of enforced disappearance and the sentencing, and the link between the minimum and maximum sentence; inquired after a specific rule allowing the extraterritorial jurisdiction and the criminal prosecution outside of the territory of the country; and asked for clarifications on the criminal responsibility of superiors for crimes of enforced disappearances, for negligence, for complicity, and for all other behaviours that fell in between the two.

If an enforced disappearance was followed by the death of the person, what was the maximum sentence to be applied to the perpetrators?  How would it compare to another serious crime, such as murder?

Concerning the mitigating and aggravating circumstances to crimes, how would those apply to the crime of enforced disappearance?

Response by the Delegation

The Office of the Ombudsman acted as a national human rights institution and as a national preventive mechanism against torture, said the delegation.

Enforced disappearance was different from other disappearances and was presumed to be committed by the State or a State official, and thus was considered to be a crime against humanity, even if it was committed by one person alone.  It carried the sanction of three to fifteen years imprisonment, and it was at the discretion of the court to decide the width of the sanction.

With regard to the mitigating circumstances, the delegation explained that this article of the Criminal Code was applied in exceptional circumstances, at the discretion of the court.  Some of the mitigating circumstances for the crime of enforced disappearance, and which were in compliance with the provisions of the Convention, could include cases when the offender provided assistance to the victim, contributed to the finding of the victim, confessed to the commission of an act and sincerely regretted it, or provided voluntary compensation for the damage. 

The criminal act of enforced disappearance was stipulated in article 100 of the Criminal Code, and it stipulated direct criminal liability of a person committing this crime in the name of the State or as a State official.  The Criminal Code also established responsibility for instigation of the crime, complicity in the commission of the crime, and for neglect to prevent the crime.

Everyone had the right to appeal a decision denying the application of a protective measure within five days.

The prosecutor launched a pre-trial investigation, decided who were the suspects in the investigation, and brought charges when deemed appropriate.  All decisions by the prosecutor could be appealed.

Questions by the Committee Experts

SUELA JANINA, Committee Expert and Rapporteur for Lithuania, asked about the principle of non-refoulement and about the specific prohibition in the law of forced return, extradition or expulsion of a person at risk of being forcibly disappeared in his or her country of origin, and also requested the delegation to explain all the grounds on which this principle was applied and respected.  What recourse did persons have to their refoulement orders if they deemed they were at risk of enforced disappearances?  Did Lithuania have a list of countries of destination where return or extradition was prohibited, and was this list coordinated with the European Union?

Was the national investigation into the issue of secret rendition sites in Lithuania still ongoing, and was it transparent?  How were the persons claiming status of victims informed of the investigation, and how was the public informed?  What legal space was there to ensure an effective investigation, bring perpetrators to justice and ensure justice to victims?

The delegation was asked about the legal provisions governing the fundamental rights of detainees, particularly concerning the right of informing a family member of the detention and the place of detention.  What complaint mechanism was in place for detainees, who was responsible for investigating the complaints, and what sanctions were available to punish those who violated the fundamental rights of detainees? 

There were two separate detainee registration systems in the country, but the clarity was not there concerning their relationship and inter-dependence.  The delegation was asked to explain how all detained, arrested and convicted persons were registered, from the first moment of detention, and how the violations of the procedure were sanctioned.

To what degree did the definition of a victim of enforced disappearances coincide with the very broad definition contained in article 24 of the Convention?  In Lithuanian law, who was a “family member” and who was a “relative”?

EMMANUEL DECAUX, Committee Expert and Co-Rapporteur for Lithuania, took note of the competency of the Ombudsman to visit the places of detention and the very broad definition of a “place of detention” in Lithuania, which included all places where a person could be deprived of liberty.  Did the list of places of detention include both official and unofficial detention?  Were there any secret places of detention and could they be visited by the Ombudsman?  The Co-Rapporteur commended the Ombudsman’s mandate to visit places of detention, noting a very close link between the prevention of torture and the prevention of enforced disappearances.

What was being done to train the law enforcement officers and raise the awareness of the public in general about enforced disappearances?

A fundamental issue was the implementation of the right to non-recurrence and non-repetition – could the delegation explain?

Other Experts inquired about human rights training and the place of enforced disappearances in those manuals, and how Lithuania ensured that the acquired knowledge was applied in practice.

Who was in charge of rendering compensation decisions in criminal proceedings?  Could it be done within the framework of the criminal procedure, or did the victim have to initiate a civil procedure?  What was the minimum and maximum amount of the compensation, were there any guidelines on its application, and what was an average time to obtain compensation?

EMMANUEL DECAUX, Committee Expert and Co-Rapporteur for Lithuania, noted that the law defined the status of a missing person and asked how it related to disappeared persons, and in particular their families who needed the support not only in finding their loved ones, but also needed social support and services.

Another Expert asked the delegation to explain the principles of the sanctioning of persons responsible for enforced disappearances in the context of transitional justice.

Response by the Delegation

Responding to the question raised concerning the mandate of the Ombudsman to visit places of detention, the delegation explained that there were no limits to the Ombudsman visiting any State institution or premise.  If there were suspicions of a person being deprived of liberty, the prosecution and law enforcement officers cooperated with the Ombudsman to ensure access. 

There was no legal ground which would create an obstacle to the implementation of the recommendations made by the Ombudsman: to date, the Office had made 147 recommendations of which 92 had been implemented and a number were being implmented.  Those non-implemented recommendations often pertained to great structural or systemic changes, which required time and resources.  

The Ombudsman also participated in human rights training and awareness raising activities.  There were no limits for awareness raising activities in this sector and Lithuania was aware that there were still improvements to be made in this regard.

With regard to the fundamental rights of detainees, the delegation confirmed that each detainee had guaranteed access to a lawyer; if he or she could not afford one, a State-guarantee lawyer or advocate was provided.

In terms of the compensation to victims, the State compensated everyone who was a victim of a violent crime, regardless of who the perpetrator was.  There was another fund which provided compensation for damages caused by the State, in criminal and civil cases; the damages were awarded by the court, and there were no minimum or maximum limits, the amount depended on the circumstances of the case.  

The delegation went on to explain the difference between the regular and fast-track extradition, and said that normally, the extradition ruling was made by the court within seven days.  If a person in question and the Prosecutor General agreed to the simplified procedure, the court would pass the final extradition judgment in three days.  Furthermore, the court had the duty to ensure that the person understood the simplified extradition procedure and that he or she had freely agreed to the procedure.  The person could always withdraw his or her agreement, in which case the simplified procedure would revert to the regular one.

The investigation into secret rendition sites was ongoing, as it took time to communicate with other countries.  There was a group of prosecutors who had been appointed to the investigation and who were well versed in the issue.  The delegation stressed that the investigation had been initiated based on the information provided by the non-governmental organizations, namely Redress and the national branch of Human Rights Watch, who had access to the information about the investigation and continued to be involved.

The issue of redress was considered in a criminal case, where a simplified procedure was applied.  It was enough for the victim to prove that the damage had been incurred, and material damage would be compensated.  There was also a possibility for non-pecuniary compensation, for example for the experienced stress or loss of the reputation, and damages were rather considerable.

Another delegate explained that it was a duty of the police officer to inform a relative or a family member of the detained person; they also had to indicate the name of than person in the protocol of the arrest and inform the prosecutor.

In 2017, Parliament had adopted legal amendments which prohibited corporal punishment against children in all settings and which reiterated the responsibility of the State to ensure the protection of children from all forms of violence.

The form of the reparation fully depended on the wishes of the applicant, who could choose between compensation, pecuniary compensation, restitution, and others.

Follow-up Questions and Answers

SUELA JANINA, Committee Expert and Rapporteur for Lithuania, asked about the access to the victim compensation funds for persons claiming to be victims of rendition, and about the definition of the victim of an enforced disappearance.

EMMANUEL DECAUX, Committee Expert and Co-Rapporteur for Lithuania, addressed the role of article 24 of the Convention on the definition of a victim of enforced disappearance and the philosophy underpinning it, and also inquired about non-material forms of compensation, including the guarantees of non-repetition.

The delegation was also asked about the access of detainees to health care, and about the timeframe governing the reparations, namely if it included the reparations for damages suffered during the Soviet era.

Responding, the delegation said that the primary health care was available in correctional facilities, while in the case of referrals and specialised health care needs, detainees were transferred, under guard, to a civilian hospital, where there were attended to by the same doctors who served the general population.
 
A person needed to have a status of a victim in order to access the compensation funds, the delegation said, and added that victims could be relatives or family members as well.  A person who lived in a union with the victim could also claim the status of the victim, as well as other persons who were taking care of the victim.  The status of a victim by such persons had to be claimed, and could not be forced on anyone.  Courts tried to evaluate the degree of non-material damage in monetary value.

Concluding Remarks

SUELA JANINA, Committee Expert and Rapporteur for Lithuania, said that this constructive dialogue provided an insight into Lithuania’s legislation and its implementation in practice.  Its purpose was not only to understand the steps taken by a State party to implement the Convention, but also to encourage other States to ratify the treaty.  The Rapporteur commended the criminalization of enforced disappearances as a separate crime in the legislation in Lithuania and was particularly pleased that there was no statute of limitation to the crime of enforced disappearance.  Training on the Convention was important, and it was a responsibility of the State to ensure a continuous and permanent training of law enforcement officers, prosecution and the judiciary.

EMMANUEL DECAUX, Committee Expert and Co-Rapporteur for Lithuania, welcomed the useful and sincere dialogue with the delegation of Lithuania and commended the State party for accepting the competence of the Committee to receive individual communications, and the training provided, including in the area of human trafficking.  In transposing the Convention, Lithuania had already ensured the highest level of legal certainty, said the Co-Rapporteur and urged Lithuania to go even further in transposing article 6 concerning criminal responsibility of superiors for enforced disappearances.

PAULIUS GRICIÛNAS, Vice-Minister of Justice of Lithuania, commended the positive spirit of this dialogue, after which Lithuania would see the Convention in a different light. 

RAINER HUHLE, Committee Vice-Chairperson, thanked the delegation and wished it a good return to Lithuania.

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