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LAW REPUBLIC OF LITHUANIA LAW ON SUPPLEMENTING ARTICLES 264, 266, 283, 368, 378, AMENDING 3691 OF THE CODE OF CRIMINAL P

LAW REPUBLIC OF LITHUANIA LAW ON SUPPLEMENTING ARTICLES 264, 266, 283, 368, 378, AMENDING 3691 OF THE CODE OF CRIMINAL PROCEDURE AND SUPPLEMENTING THE CODE WITH ARTICLE 4011 AND CHAPTER XIII 15 February 2000 No VIII-1542 Vilnius Article

  1. Supplementing Article 264 with Paragraph 2 Article 264 shall be supplemented with paragraph 2 : “The specific features of the judicial proceedings where the defendant cannot be present in the court where the hearing takes place all the time for reasons of his physical condition shall be laid down in Article 266 and Chapter XIII of this Code.” Article
  2. Supplement to Article 266
  3. Paragraph 1 of Article 266 shall be supplemented with the following 4th, 5th, 6th and 7th sentences and the paragraph shall be set forth to read as follows: “The case shall be heard in the court of the first instance with the defendant attending the hearing. The appearance of the defendant is mandatory. The hearing of the case in the absence of the defendant shall be permitted only in those cases when he is not present in the territory of the Republic of Lithuania and avoids to appear in the court. If a person charged with genocide (Art.71 of the Criminal Code - hereinafter CC), war crimes such as killing of persons protected under international humanitarian law (Art. 333 of the CC), exile of the civilian population of an occupied state (Art. 334 of the CC), causing injuries to persons protected under international humanitarian law, torturing them or subjecting them to any other inhuman treatment (Art. 335 of the CC), violation of the norms of international humanitarian law with regard to the civilians and protection of their rights during the time of war (Art. 336 of the CC), the prohibited war attack (Art. 337 of the CC), the forcible use of civilians and prisoners of war in the armed forces of the enemy (Art. 338 of the CC), destruction of the protected objects or plunder of national treasures (Art. 339 of the CC), cannot for reasons of his physical condition, according to the findings of experts, be present at the place of the hearing, the defendant shall be provided technical facilities at the place where he is staying to directly take part in the proceedings by giving evidence to the court, putting questions to other participants of the hearing and take other procedural steps. The defendant shall have the right to decide in which procedural steps he will take part together with his counsel, in which he will conduct his defence only through his counsel, as well as what evidence and motions he will make himself or through his counsel. The court may arrive at the place where the defendant is staying and take certain procedural steps if this is not inconsistent with the findings of the forensic experts. The participation of the defence counsel in the courtroom or at the place where the defendant is staying, when an audio-visual communication with the courtroom is available, shall be obligatory throughout the whole course of the proceedings.
  4. Article 266 shall be supplemented with the following paragraph 2: “Following the conviction of the person charged with the offences referred to in paragraph 1 of this Article, according to the procedure set forth therein, the judgement of conviction shall be referred for execution under Article 4011 of this Code only after the recovery of said person to such an extent that he would be able to participate in the court hearing. If after his recovery the person protests against the judgement, he shall have the right to appeal against the judgement under Article 3691of this Code or to file an application with the court on the resumption of the criminal case under the provisions of Chapter XIII of this Code”. Article
  5. Supplement to Paragraph 2 of Article 238 In paragraph 2 Article 283, the phrase “with the exception of cases specified in paragraph 1, Article 266 of this Code” shall be inserted after the word “court”, and the whole paragraph shall be set forth to read as follows: “If the defendant is hiding from court, also if the defendant falls ill with a mental or some other serious disease which prevents him from appearing in court, the court, with the exception of cases specified in paragraph 1, Article 266 of this Code, shall stay the proceedings against the defendant until he is found or until he recovers, but shall continue the proceedings against the other defendants. However, if individual proceedings obstruct establishment of the truth, the entire proceedings shall be stayed. The search for the hiding defendant shall be announced by a court ruling.” Article
  6. Supplement to Paragraph 1 of Article 368 Paragraph 1 of Article368 shall be supplemented with the 2nd sentence and this paragraph shall be set forth to read as follows: “Persons who have the right to file an appeal but who have missed the time limit for filing the appeal for valid reasons shall have the right to petition the court which has delivered the judgement of conviction to extend the time limit. With regard to the convicted person referred to in Article 3691, the fact that the convicted had not returned to the territory of the Republic of Lithuania or missed the time limit for filing an appeal by reason of his illness or the state of physical health (Article 266 of this Code) shall be regarded, among others, a valid reason”. Article
  7. Amendment of Paragraph 1 Article 3691 Three new sentences shall be inserted after the 1st sentence in paragraph 1 of Article 3691, paragraph 2 shall be repealed and the Article shall be set forth to read as follows: “Article
  8. Filing an Appeal against the Judgement Rendered in Absentia The convicted person whose case was heard in accordance with the procedure specified in Article 266 of this Code shall have the right to file an appeal even after the time limit for filing the appeal has expired, by stating that he shall take part in the hearing of the appeal. The defendant must file with the court, together with his appeal, a petition for the extension of the time limit for filing an appeal. The petition shall be heard by the court in the manner laid down in Article 368 of this Code. At the same time the court which rendered the judgement shall decide whether execution of the judgement for persons who have been convicted in absentia because they were not in the territory of the Republic of Lithuania and tried to keep away from the court must be stayed.” Article
  9. Supplement to Paragraph 6 of Article 378 Two sentences shall be inserted after the 1st sentence of paragraph 6 of Article 378 and the paragraph shall be set forth to read as follows: “The court of appeal may carry out judicial investigation. When examining the appeal of the convicted persons specified in Article 266 of this Code, the court must repeat the steps of judicial investigation performed in the court of first instance, when the evidence used as a basis for the judgement of conviction was examined, if the convicted person disagrees in the appeal with the assessment of the said evidence. The steps of judicial investigation must be repeated irrespective of whether or not the case has been reviewed by appeal or by cassation on the appeals by other participants in the proceedings. Judicial investigation shall be carried out according to the provisions of Section 26 of Chapter IV of this Code.” Article
  10. Supplementing the Code with Article 4011 The Code shall be supplemented with Article 4011: “Article
  11. Procedure of Referring for Execution the Court Judgement Rendered while Applying Article 266 of this Code The judgement of conviction rendered in respect of the person sentenced for the criminal offences specified in paragraph 1 of Article 266 of this Code, where the trial had proceeded as set forth in Article 266, shall be referred for execution only after the recovery of the person and only if the person does not appeal against the judgement in the manner laid down in Article 3691 or does not apply to court for resumption of criminal proceedings in the manner set forth in Chapter XIII of this Code. The judgement shall be referred for execution by the ruling of the court which rendered the judgement. The prosecutor must oversee that the judgement in respect of the person charged with the criminal offence provided for in Article 266 be referred for execution after the recovery of the person. The prosecutor shall from time to time request from medical institutions information on the state of health of the convicted person and, as necessary, shall order medical expert examination to be conducted. Upon ascertaining that the person has recovered, the prosecutor must within 5 days notify him against his signature, that in case of his failure to exercise, within 20 days after the day of receipt of the notification, the right to appeal against the judgement provided for in Article 3691 or the right established in paragraph 2 of Article 266 and Section 41 of this Code to apply for the resumption of the proceedings, the judgement shall become effective and shall be referred for execution. At the same time the prosecutor must inform the court which rendered the judgement of the recovery of the person charged with the criminal offence provided for in Article 266 and indicate the time limit by which the person may lodge an appeal according to the procedure prescribed by Article 3691 or file an application according to the procedure laid down in Section 41.” Article
  12. Supplementing the Code with Chapter XIII The Code shall be supplemented with the following Chapter XIII: “CHAPTER XIII PROCEDURE FOR RESUMING THE PROCEEDINGS INSTITUTED ACCORDING TO THE PROVISIONS OF ARTICLE 266 OF THE CODE Section 41 RESUMPTION OF CRIMINAL PROCEEDINGS ON THE PETITION OF THE PERSON CONVICTED ACCORDING TO THE PROVISIONS OF ARTICLE 266 OF THIS CODE Article
  13. Quashing of the Judgement of Conviction on the Petition of the Person Convicted under the Provisions of Article 266 of this Code Application for the quashing of the judgement of conviction and resumption of the proceedings may be lodged by the convicted person who for reasons of his physical condition participated in the judicial proceedings in the manner laid down in Article
  14. The judgement of conviction shall be quashed and the proceedings shall be resumed following the application of the person referred to in paragraph 1 hereof by the court which rendered the judgement, which, however, must be of a different composition. Article
  15. Filing of the Application The application for the quashing of the judgement of conviction and resumption of the proceedings shall be filed with the court which rendered the judgement. Article
  16. Grounds for Granting the Application The application for the quashing of the judgement of conviction and resumption of the proceedings shall be granted if the court establishes, upon assessing the findings of experts and other evidence, that the convicted person by reason of his mental or other condition or for other reasons was not able to fully exercise his procedural rights at the trial and his current condition allows him to be present in the courtroom throughout the whole course of the hearing. The application for the quashing of the judgement of conviction and resumption of the proceedings shall not be granted if the convicted person at the same time exercises the right to appeal against the judgement laid down in Article 3691 of this Code. The application shall not be granted if it is filed more than 20 days after the receipt of the prosecutor’s notice specified in paragraph 2 of Article 4011 of this Code. The application shall also be dismissed if the court establishes conclusively that the convicted person simulated illness during the previous court hearing and until the rendering of judgement. Article
  17. Procedure for Resuming Criminal Proceedings The issue of resumption of proceedings shall be examined and decided in the County Court by the chamber of three judges of the Criminal Division of the Court, who formerly have not participated in the proceedings; the chamber shall be made up and one of the judges shall be appointed as chairman of the chamber by the Chairman of the County Court or the Chairman of the Criminal Division of the Court. Participating in the hearing shall be the convicted person, his defence counsel and the prosecutor. At the appointed time the judge or the chairman of the chamber shall open the hearing, announce what application and in respect of what judgement is to be heard. Thereafter the judge or the chairman of the chamber shall ascertain who has arrived at the hearing and announce the composition of the court, while the court shall decide, in the manner prescribed by this Code, the issue of dismissal should such arise. The hearing shall commence with the report of the judge or any of the judges of the chamber, stating the substance of the application After the judge’s report the prosecutor, the convicted person and his defence counsel shall be heard. In order to make a ruling the court shall retire to the retiring room. Having made the ruling the court shall return to the courtroom and the judge or the chairman of the chamber shall read out the operative part of the ruling and cite the grounds for the making thereof. A justified ruling shall be drawn up and signed by the judge or by the entire chamber of judges within three days after the making of the decision. Article
  18. Court Rulings in Respect of the Application for the Resumption of the Proceedings Upon considering the application, the court may make one of the following rulings: 1) to quash the court judgement, resume the proceedings and refer the case for de novo hearing; 2) to refuse to resume the proceedings. If the court refuses to resume the proceedings, the convicted person shall have the right to appeal against the judgement within 20 days from the coming into effect of the ruling whereby the resumption of the proceedings is refused, except where the refusal is given in the cases specified in paragraphs 2 and 3 of Article
  19. Article
  20. Procedure after the Resumption of the Criminal Proceedings After the resumption of the criminal proceedings on the application of the person referred to in paragraph 1 of Article 471, judicial investigation shall continue and the subsequent judgement of conviction shall be appealed against according to the general procedure.” I hereby proclaim this Law enacted by the Seimas of the Republic of Lithuania PRESIDENT OF THE REPUBLIC VALDAS ADAMKUS

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