Fair Trials, together with Lithuanian LEAP members, submitted an opinion to the Legal Committee of the Lithuanian Parliament regarding its consideration of the proposed legislation transposing the Directive on the Right to Information in Criminal Proceedings (Right to Information Directive).LEAP Member Rolandas Tilindis (BLS Lithuania attorney) explains the country’s position on the Right to Information.

"Under Lithuanian law, pre-trial investigation is organised and led by a prosecutor. Unfortunately Article 7 of the Code of Criminal Procedure (CPC) provides for adversarial proceedings only at the trial stage, which results in an inequality of arms between prosecution and defence in the course of pre-trial investigation.

The legislation proposed to implement the Directive on the Right to Information in Criminal Proceedings (Right to Information Directive) unfortunately replicates this inequality.

Although Article 181 of the CPC states that the suspect and his counsel may have access to the case materials at any time, certain provisions allow the prosecutor to restrict access to the case file on his own discretion when such access might hinder the investigation. However the CPC does not provide any definition of what constitutes “hindering the investigation”. Such a broad derogation is not consistent with the very limited grounds for restricting access found in the Right to Information Directive.

In practice this prosecutorial discretion means that access to the case file is restricted rather than allowed. Therefore, the lawyer has only very limited information and depends on data obtained from the client. Defenders do not have adequate time to access the relevant documents before the first opportunity to argue against pre-trial detention effectively, in contravention of the Right to Information Directive.

Limited access to the case file often prevents the defence from launching applications before the Prosecutor to collect evidence in favour of a suspect, i.e to question additional witnesses, gather experts opinions, collect audio/video and telecommunication records, etc. Evidence may be lost if not requested in due time, as the defence is not allowed to acquire this information himself.

Furthermore, inadequate access to the case file makes it impossible to monitor the progress of the investigation and to challenge the decision to keep someone detained. The defence is unable to keep the pressure on the prosecution to investigate efficiently and effectively.

Article 187 of the CPC provides that suspects are to be informed of their rights by providing them with a copy of the list of rights mentioned in Article 21(4) of the CPC. This list alone, however, does not comprise a simple, accessible, and comprehensive letter of rights such as is required by the Right to Information Directive. Most suspects are unlikely to be able to understand the legalistic language used in the CPC.

Moreover some provisions of Article 21(4) of the CPC might even be considered misleading. For example, the stated right “to give evidence”, if not balanced by the inclusion of an explanation of the corresponding right to silence, might confuse suspects into thinking that they are actually required to give evidence. Therefore lawyers are deeply concerned by the lack of any explicit mention of the right to silence for suspects prior to their first interrogation, as demanded by the Right to Information Directive.

From the lawyer’s perspective such provisions restrict suspects’ right to an effective defence. We hope that Fair Trials’ submissions are of use to the Legal Committee of the Seimas (Parliament) in its efforts to correctly transpose the Right to Information Directive and ensure implementation of the highest standards of procedural rights."

This article was published on Fair Trials International website.