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CASE OF
RAMANAUSKAS v. LITHUANIA
(Application
no. 74420/01)
JUDGMENT
STRASBOURG
5 February
2008
This
judgment is final but may be subject to editorial revision.
In the case of Ramanauskas v. Lithuania,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Nicolas Bratza, President,
Jean-Paul
Costa, appointed to sit in respect of Lithuania,
Christos
Rozakis,
Boštjan M. Zupančič,
Peer
Lorenzen,
Françoise Tulkens,
Ireneu
Cabral Barreto,
Rıza Türmen,
Corneliu
Bîrsan,
András Baka,
Mindia
Ugrekhelidze,
Antonella Mularoni,
Stanislav
Pavlovschi,
Elisabet Fura-Sandström,
Khanlar
Hajiyev,
Dean Spielmann,
Renate Jaeger,
judges,
and Michael O'Boyle, Deputy
Registrar,
Having
deliberated in private on 28 March and 12 December 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 74420/01) against the Republic
of Lithuania lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Lithuanian national, Mr Kęstas
Ramanauskas (“the applicant”), on 17 August 2001.
- The
applicant, who was granted legal aid, was represented by
Mr R. Girdziušas, a lawyer practising in Kaunas. The
Lithuanian Government (“the Government”) were represented
by their Agent, Ms E. Baltutytė.
- The
applicant alleged, in particular, that he had been the victim of
entrapment and that he had been denied the opportunity to examine a
key witness in criminal proceedings against him.
- The
application was allocated to the Second Section of the Court (Rule 52
§ 1 of the Rules of Court). Danutė Jočienė,
the judge elected in respect of Lithuania, withdrew from sitting in
the case (Rule 28). The Government accordingly appointed Jean-Paul
Costa, the judge elected in respect of France, to sit in her place
(Article 27 § 2 of the Convention and Rule 29 § 1).
- On
26 April 2005 the application was declared partly admissible by a
Chamber of the Second Section composed of the following judges:
András Baka, Jean-Paul Costa, Rıza Türmen, Karel
Jungwiert, Mindia Ugrekhelidze, Antonella Mularoni, Elisabet
Fura-Sandström, and also Stanley Naismith, Deputy Section
Registrar. On 19 September 2006 the Chamber relinquished jurisdiction
in favour of the Grand Chamber, neither of the parties having
objected to relinquishment (Article 30 of the Convention and Rule
72).
- The
composition of the Grand Chamber was determined in accordance with
the provisions of Article 27 §§ 2 and 3 of the Convention
and Rule 24.
- The
applicant and the Government each filed written observations on the
merits.
- A
hearing took place in public in the Human Rights Building,
Strasbourg, on 28 March 2007 (Rule 59 § 3).
There
appeared before the Court:
(a) for the Government
Ms E. Baltutytė,
Agent,
Ms S. Balčiūnienė, Adviser;
(b) for the applicant
Ms A. Vosyliūtė,
Counsel,
Mr K. Ramanauskas, Applicant.
The
Court heard addresses by Ms Baltutytė and Ms Vosyliūtė.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mr Kęstas Ramanauskas, is a Lithuanian national who
was born in 1966 and lives in Kaišiadorys.
- He
formerly worked as a prosecutor in the Kaišiadorys region.
- The
applicant submitted that in late 1998 and early 1999 he had been
approached by AZ, a person previously unknown to him, through VS, a
private acquaintance. AZ had asked him to secure the acquittal of a
third person and had offered him a bribe of 3,000 United States
dollars (USD) in return. The applicant had initially refused but had
later agreed after AZ had reiterated the offer a number of times.
-
The Government submitted that VS and AZ had approached the applicant
and negotiated the bribe with him on their own private initiative,
without having first informed the authorities. They alleged that AZ
had suspected the applicant of having accepted bribes in the past.
- On
an unspecified date AZ, who was in fact an officer of a special
anti-corruption police unit of the Ministry of the Interior
(Specialiųjų tyrimų tarnyba – “the
STT”), informed his employers that the applicant had agreed to
accept a bribe.
- On
26 January 1999 the STT applied to the Deputy Prosecutor General,
requesting authorisation to use a criminal conduct simulation model
(“the model” – see paragraph 32 below). The request
stated:
“Senior Commissar [GM], Head of the Operational
Activities Division of the [STT], having had access to information
concerning [the applicant's] criminal conduct, has established that
[the applicant] takes bribes since he has agreed to assist a
defendant, [MN], in return for payment.
In implementing the criminal conduct simulation model,
which is intended to establish, record and put an end to [the
applicant's] unlawful acts, an STT official [AZ] would hand over
12,000 litai, in foreign currency if required.
Implementation of [the model] would require [AZ] to
simulate criminal acts punishable under Articles 284 and 329 of the
[Criminal Code].
With reference to section 11 of the Operational
Activities Act ..., the undersigned requests the Deputy Prosecutor
General to authorise the criminal conduct simulation model for a
period of one year.
This request is based on the information obtained during
the preliminary inquiry.”
- On
26 January 1999 the STT sent a letter to the Deputy Prosecutor
General outlining the model as follows:
“[STT] officials have collected operational
information attesting that [the applicant] takes bribes.
In implementing the criminal conduct simulation model,
which is intended to establish, record and put an end to [the
applicant's] unlawful acts, an STT official [AZ] would simulate the
offences of offering a bribe and breaching currency and securities
regulations.
In view of the above, and in accordance with section 11
of the Operational Activities Act, I hereby request you to authorise
the criminal conduct simulation model and thus to exempt [AZ] from
criminal responsibility for the offences under Articles 284 and 329
of the [Criminal Code] which are intended to be simulated.
[The model] would be implemented by STT officials on the
basis of a separate operational action plan.
Implementation of [the model] would be financed by STT
resources.”
- On
27 January 1999 the Deputy Prosecutor General gave the required
authorisation by countersigning and placing his official seal on the
letter in question. This document constituted the final version of
the model.
- On
28 January 1999 the applicant accepted USD 1,500 from AZ.
- On
11 February 1999 AZ gave the applicant a further USD 1,000.
- On
the same date the Prosecutor General instituted a criminal
investigation in respect of the applicant for accepting a bribe, an
offence punishable under Article 282 of the Criminal Code in force at
that time.
- On
17 March 1999 the Prosecutor General dismissed the applicant from his
post as a prosecutor on grounds relating to corruption. Referring to
the relevant provisions of the Prosecuting Authorities Act, the
Prosecutor General stated that the applicant had been dismissed for a
disciplinary offence and activities discrediting the prosecuting
authorities.
- On
an unspecified date the pre-trial investigation was concluded and the
case was referred to the Kaunas Regional Court. During the trial the
applicant pleaded guilty but alleged that he had succumbed to undue
pressure from AZ in committing the offence.
- On
18 July 2000 the Deputy Prosecutor General authorised a judge of the
Kaunas Regional Court to disclose the details of how the model had
been implemented “provided that this [did] not harm the
interests” of the individuals and authorities involved in the
operation.
- On
29 August 2000 the Kaunas Regional Court convicted the applicant of
accepting a bribe of USD 2,500 from AZ, in breach of Article 282
of the Criminal Code then in force, and sentenced him to 19 months
and six days' imprisonment. The court also ordered the confiscation
of his property in the amount of 625 Lithuanian litai (LTL). It found
it established, firstly, that AZ had given the applicant the bribe
during their meetings on 28 January and 11 February 1999, in return
for a promise that the applicant would intervene favourably in a
criminal case against a third person and, secondly, that AZ had
entered into contact and negotiated with the applicant through VS.
- The
court's conclusions were mainly based on the evidence given by AZ and
on secret recordings of his conversations with the applicant. The
court had also examined AP, a prosecutor working in the same regional
office as the applicant, whose evidence had not gone beyond
confirmation that the applicant had dealt with the criminal case
against the third person (MN) indicated by AZ. VS was not summoned to
give evidence at the trial as his place of residence was unknown, but
a statement by him, which had been recorded by the pre-trial
investigators, was read out in court. However, the Kaunas Regional
Court did not take it into account in determining the applicant's
guilt. The court's judgment did not contain any discussion of the
authorisation and implementation of the model.
- On
26 October 2000 the Court of Appeal upheld the judgment on an appeal
by the applicant, finding that there had been no incitement and that
the authorities had not put any active pressure on the applicant to
commit the offence.
- On
23 November 2000 the applicant lodged a cassation appeal. Relying in
particular on the Constitutional Court's decision of 8 May 2000 (see
paragraph 34 below), he argued that there were no statutory
provisions allowing the authorities to incite or provoke a person to
commit an offence. In that connection, he submitted that on several
occasions he had unsuccessfully requested the first-instance and
appeal courts to consider the influence exerted by AZ and VS on his
predisposition to commit the offence. He further complained that the
lower courts had not taken into account the fact that AZ was a police
officer and not a private individual. He argued that AZ had incited
him to accept the bribe. Furthermore, he stated that the authorities
had had no valid reason to initiate an undercover operation in his
case and that they had overstepped the limits of their ordinary
investigative powers by inducing him to commit an offence. He also
submitted that VS had not been examined during the trial.
- On
27 February 2001 the Supreme Court dismissed the applicant's
cassation appeal in a decision which included the following passages:
“There is no evidence in the case file that [the
applicant's] free will was denied or otherwise constrained in such a
way that he could not avoid acting illegally. [AZ] neither ordered
[the applicant] to intervene in favour of the person offering the
bribe, nor did he threaten him. He asked him orally for help in
securing the discontinuation of proceedings [against the third
person] ... K. Ramanauskas understood that the request was unlawful
... [and] the Regional Court was therefore correct in finding him
guilty ...
[The applicant] contests the lawfulness of [the model]
..., stating that the case discloses a manifest example of incitement
(kurstymas) by the officers of the special services to accept
the bribe ... [He submits that, by law], authorisation to simulate a
criminal act cannot be given in the absence of evidence of the
preparation or commission of an offence. Therefore, in his view, such
a procedure cannot pursue the aim of inciting a person or persons to
commit a crime. If the model were used for that purpose, it would be
unlawful [and] the information thereby obtained could not be admitted
in evidence ... [The] model cannot be authorised and implemented
unless a person has planned or started to commit an offence, evidence
of which should be submitted to a prosecutor ... It appears from the
case file that [the authorities] were contacted by [VS] and [AZ]
after [their initial] meetings with K. Ramanauskas, during which he
had agreed in principle that he would perform the requested actions
for USD 3,000 ... Accordingly, in authorising the use of the
model, [the authorities] merely joined a criminal act which was
already in progress.
...
The case file contains no evidence that [VS] is an
employee of the special services ... [AZ] works at the STT as a
police driver ... but this does not mean that he is prohibited from
acting in a private capacity. There is no evidence that [VS] and [AZ]
negotiated with K. Ramanauskas on police instructions. It has,
however, been established that [VS] and [AZ] handed money to him on
the police's orders.
The court considers that provocation (provokacija)
to commit a crime is similar but not equivalent to incitement
(kurstymas) ... Provocation is a form of incitement consisting
in encouraging a person to commit an offence ... entailing his
criminal responsibility so that he can then be prosecuted on that
account. While such conduct is morally reprehensible, the term
'provocation' is not used either in criminal or procedural law or in
the Operational Activities Act of 22 May 1997 ... From a legal
standpoint, provocation does not constitute a factor exempting from
criminal responsibility a person who has thereby been induced to
commit an offence ...
Since the case file contains contradictory evidence as
to the conduct of [VS] and [AZ] before the criminal conduct
simulation model was authorised, it is difficult to establish who was
the instigator (iniciatorius) of giving and accepting the
bribe, or, in other words, who incited whom to give or accept the
bribe. [VS] ... stated that, after he had contacted K. Ramanauskas
to ask him to intervene in securing the discontinuation of the
criminal case [against the third person], K. Ramanauskas had been the
first to say that he could settle the matter for USD 3,000. For
his part, [AZ] ... stated that K. Ramanauskas had said that the
discontinuation of the case would cost USD 3,000. In his testimony K.
Ramanauskas alleged that [VS] had asked him if USD 3,000 would be
enough to ensure that the case was discontinued. In these
circumstances, it cannot be said with any certainty who was the
instigator of the bribery, nor can it be inferred that [VS] and [AZ]
incited K. Ramanauskas to accept the bribe. Furthermore, there is no
reason to conclude that [VS] and [AZ] provoked the offence committed
by K. Ramanauskas in accepting the bribe. It can only be said
unequivocally that the initiative (iniciatyva) to apply to K.
Ramanauskas in order to have the case [against the third person]
discontinued came from [AZ].
However, the court considers that the answer to the
question whether a person has actually induced (palenkė)
or otherwise incited (sukurstė) another to offer or
accept a bribe is of no consequence as far as the legal
classification of [the applicant's] conduct is concerned. Incitement
(kurstymas) to commit an offence is one of the various forms
of complicity. Under the branch of criminal law dealing with
complicity, incitement is a form of conspiracy. A person who commits
an offence after having being incited to do so incurs the same
criminal responsibility as a person who acts of his own volition ...
Even assuming that K. Ramanauskas was incited by [VS] and [AZ] to
accept a bribe, it must be emphasised that the incitement took the
form of an offer, and not of threats or blackmail. He was therefore
able to decline (and ought to have declined) the illegal offer ... It
follows from the testimony of K. Ramanauskas that he understood
the nature of the acts he was being asked to carry out, and accepted
[the bribe] of his own free will ...
At the same time it must be noted that it is a specific
feature of bribery as an offence that one side is necessarily the
instigator (kurstytojas) of the offence. A State official
soliciting a bribe is an instigator within the meaning of Article 284
[of the Criminal Code then in force – 'the CC'] in that he
incites (kursto) another to pay him a bribe, in breach of that
Article. [A person] offering a bribe to a State official is
necessarily an instigator within the meaning of Article 282 of the CC
since, by making the offer, he incites the official to accept a
bribe, that is, to commit the offence provided for in that Article
... Both the person giving and the person accepting a bribe exercise
their free will ... and may therefore choose between possible forms
of conduct. A person who intentionally chooses the criminal option
while having the possibility of resisting the incitement rightly
incurs criminal responsibility, regardless of the outside factors
that may have influenced his choice ...”
- On
27 March 2001 the applicant began serving his prison sentence. He
remained in prison until 29 January 2002, when he was released on
licence.
- Furthermore,
the prohibition on his working in the legal service was lifted in
July 2002. In January 2003 his conviction was expunged.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
Criminal Code applicable at the material time punished the acts of
accepting a bribe (Article 282), offering a bribe (Article 284) and
breaching currency and securities regulations (Article 329).
- Article
18 of the Criminal Code in force at the time and Article 24 of the
present Criminal Code (in force since 1 May 2003) provide that
incitement is one of the possible forms of complicity in an offence
and is punishable alongside other forms of assistance (aiding and
abetting, organising, executing) in the commission of an offence.
These provisions define an instigator (kurstytojas) as a
person who induces (palenkė) another to commit an
offence. The term kurstymas (which can also be translated as
“incitement” or “instigation”) is normally
used in domestic legal doctrine to define the notion of complicity.
- The
Operational Activities Act (Operatyvinės veiklos įstatymas)
was enacted in 1997 and remained in force until 27 June 2002. Section
2(12) of the Act defined a “criminal conduct simulation model”
(Nusikalstamos veikos imitacijos elgesio modelis) as a set of
actions entailing the elements of an offence, authorised with a view
to protecting the best interests of the State, society or the
individual.
Section
4(2) of the Act authorised the initiation of “operational
activities” within the meaning of the Act where:
(a) the
authorities did not know the identity of an individual who was
preparing to commit or had committed a serious offence;
(b) the
authorities had obtained “verified preliminary information”
about a criminal act;
(c) the
authorities had obtained “verified preliminary information”
about a person's membership of a criminal organisation;
(d) the
authorities suspected activities by foreign secret services; or
(e) an
accused, defendant or convicted person had absconded.
Section
7(2)(3) of the Act provided that the authorities could have recourse
to a model only in one of the above scenarios, and then only on
condition that the requirements of sections 10 and 11 of the Act were
satisfied.
Sections
10 and 11 of the Act empowered the Prosecutor General or his deputy
to authorise the use of a criminal conduct simulation model on an
application by the police or the investigative authorities. The
application for authorisation had to include, among other things, a
reference to the limits of the conduct intended to be simulated (that
is, the legal characterisation under a specific provision of the
Criminal Code of the actions to be taken) and the purpose of the
operation, including its interim and ultimate aims.
Section
8(1)(3) of the Act required the authorities to protect persons from
active pressure to commit an offence against their own will.
Section
13(3) of the Act afforded the right to contest the lawfulness of
evidence obtained by means of special techniques.
- In
the proceedings which gave rise to the case of Pacevičius and
Bagdonas v. Lithuania (no. 57190/00, struck out of the Court's
list of cases on 23 October 2003), the Court of Appeal gave judgment
on 29 April 1999, holding, inter alia:
“Section 2 of the Operational Activities Act
defines [the criminal conduct simulation model] as a set of actions
entailing the elements of an offence, authorised with a view to
protecting the best interests of the State, society or the
individual. ... The model may be authorised only for operations by
[the police] and does not apply to individuals who commit offences.
The request [by the police for authorisation of the
model in this case] referred to the aim of the intended operation,
namely identification of all persons involved in a [human]
trafficking network.
Of course, the [police] officers could not foresee who
would take part in this crime ... One of the aims of the [prosecution
in] authorising the model was to establish the identities of members
of a criminal organisation.”
In a
judgment of 12 October 1999 in the same case the Supreme Court held
as follows regarding the use of police undercover agents:
“[The applicants] were not aware of the ongoing
operation at the time they committed the offence. They were convinced
that they were trafficking persons who had illegally crossed the
Lithuanian border. As Article 82-1 of the Criminal Code provides that
the offence in question is committed where direct intent has been
established, [the applicants'] error as to the nature of the act they
were committing is of no relevance to the legal classification of
their conduct. Since they were convinced that they were trafficking
[human beings], their acts fell objectively within the scope of the
offence defined in Article 82-1 ... Their conduct was therefore
rightly classified as a completed offence. The authorisation given to
the authorities [to use the model] served the sole purpose of
legitimising the actions of the police officers taking part in the
trafficking.”
- On
8 May 2000 the Constitutional Court ruled that the Operational
Activities Act was generally compatible with the Constitution. It
held in particular that the model constituted a specific form of
operational activity using intelligence and other secret measures in
order to investigate organised and other serious crime. It emphasised
that the use of clandestine measures, as such, was not contrary to
the European Convention on Human Rights, or indeed the Constitution,
as long as such measures were based on legislation that was clear and
foreseeable in effect and were proportionate to the legitimate aims
pursued. The Constitutional Court found that the Act provided a clear
definition of the scope and procedure for the use of various forms of
operational activities, including the model.
Referring
in particular to the Teixeira de Castro v. Portugal case
(judgment of 9 June 1998, Reports of Judgments and Decisions
1998-IV), the Constitutional Court emphasised that a criminal conduct
simulation model could not be used for the purpose of incitement
(kurstoma) or provocation (provokuojama) to commit an
offence that had not already been initiated. It further held that
this investigative technique did not allow officials to incite the
commission of an offence by a person who had abandoned plans to
commit the offence. It added that, by authorising and implementing
the model, the investigative authorities and their undercover agents
were restricted to “joining criminal acts that [had] been
initiated but not yet completed”. The Constitutional Court
emphasised that it was for the courts of ordinary jurisdiction
dealing with allegations of incitement or of other forms of abuse of
the model to establish in each particular case whether the
investigating authorities had gone beyond the limits of the legal
framework within which the model had been authorised.
The
Constitutional Court also stated that authorisation of the model did
not amount to a licence for a police officer or third person acting
as an undercover agent to commit a crime but simply legitimised –
from the point of view of domestic law – the acts which the
agent might be required to carry out in simulating an offence. The
main aim of operational activities, including the model, was to
facilitate criminal investigations, and on that account they came
within the sphere of competence of both the prosecuting authorities
and the courts. Accordingly, the model did not require judicial
authorisation but simply authorisation by a prosecutor. The
Constitutional Court further noted that secret audio and video
recordings of conversations taking place in the context of
operational activities under the Act were not subject to judicial
authorisation and that this was compatible with the Constitution.
Under section 10(1) of the Act, only wiretapping and
surveillance techniques using stationary devices required a court
order.
III. RELEVANT INTERNATIONAL LAW
- The
Council of Europe's Criminal Law Convention on Corruption (ETS no.
173, 27 January 1999) provides in Article 23 that each party is to
adopt such legislative and other measures as may be necessary,
including those permitting the use of special investigative
techniques, to enable it to facilitate the gathering of evidence in
this sphere.
The
explanatory report on the Convention further specifies that “special
investigative techniques” may include the use of undercover
agents, wiretapping, interception of telecommunications and access to
computer systems.
Article
35 states that the Convention does not affect the rights and
undertakings deriving from international multilateral conventions
concerning special matters.
- The
Council of Europe's Convention on Laundering, Search, Seizure and
Confiscation of the Proceeds from Crime (ETS no. 141, 8 November
1990) provides, in Article 4, that each party should consider
adopting such legislative and other measures as may be necessary to
enable it to use special investigative techniques facilitating the
identification and tracing of proceeds and the gathering of evidence
related thereto.
- The
use of special investigative techniques, such as controlled
deliveries in the context of illicit trafficking in narcotic drugs,
is also provided for in Article 73 of the Convention implementing the
Schengen Agreement of 14 June 1985 on the gradual abolition of checks
at the common borders, signed in Schengen on 19 June 1990.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant submitted that he had been incited to commit a criminal
offence, in breach of his right to a fair trial under Article 6 §
1 of the Convention, the relevant parts of which provide:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal ...”
A. The parties' submissions
1. The applicant
- The
applicant submitted that his right to a fair trial had been infringed
in that he had been incited to commit an offence that he would never
have committed without the intervention of “agents
provocateurs”.
- He
argued that the authorities bore responsibility for the conduct of AZ
and VS. In its judgment in the instant case the Supreme Court had
acknowledged that AZ was in fact an officer of the special
anti-corruption police unit of the Ministry of the Interior (STT) and
had instigated the offence. The applicant contended that the
authorities could not legitimately claim that they had simply
“joined” a criminal act instigated by one of their own
employees, and asserted that they should accept full responsibility
for the acts carried out by AZ before the criminal conduct simulation
model had been authorised. In any event, all his meetings with AZ –
both before and after the model had been authorised – had taken
place on the latter's initiative, as was attested by the record of
AZ's telephone calls to the applicant. The applicant accordingly
submitted that the crime would not have been committed without the
authorities' intervention.
- The
applicant further complained that the domestic courts had failed to
give an adequate answer to the question of the authorities'
responsibility for the use of entrapment in inducing him to commit a
crime. He submitted that by putting him in contact with AZ, VS had
played a crucial role in the model that had led him to accept the
bribe. He asserted that VS was a long-standing informer of the
police, as was attested by the fact that the police had authorised
him to act as an undercover agent in the case. The applicant inferred
from this that the examination of VS would have been crucial in
establishing whether he had been incited to commit an offence and
that the authorities' failure to summon VS to appear as a witness had
breached the relevant provisions of Article 6. The court had not
sought to establish whether VS had collaborated with the judicial
authorities. The applicant therefore submitted that he had been
denied a fair hearing, in breach of Article 6 § 1 of the
Convention.
2. The Government
- The
Government submitted that, since the Court was not a “fourth-instance
judicial body”, it did not have jurisdiction to deal with the
applicant's complaints, which related mostly to questions of fact and
of application of domestic law.
- They
submitted that in any event the authorities had not incited the
applicant to commit an offence and that the model forming the subject
of his complaints had not infringed his rights under Article 6.
- In
this connection, the Government pointed out that VS and AZ had
approached the applicant and negotiated the bribe on their own
private initiative, without first having informed the authorities.
The use of the model in issue had been authorised subsequently in
order to protect the fundamental interests of society, on the basis
of the preliminary information submitted by AZ attesting to the
applicant's predisposition to accept a bribe. They asserted that, in
authorising and implementing the model complained of by the
applicant, the authorities had pursued the sole aim of “joining”
an offence which the applicant had planned to commit with VS and AZ,
who had acted on their own initiative and “in a private
capacity”. The authorities could not be held responsible for
any acts that VS and AZ had carried out before the procedure in
question had been authorised.
- The
Government added that only AZ had acted as an undercover agent of the
authorities, as the model had been authorised on his behalf. They
pointed out that, before requesting authorisation, the STT had
carefully verified the information submitted by AZ about the
applicant's criminal inclinations and had found it to be corroborated
by other data already in its possession. The investigating
authorities had drawn up a precise action plan for the implementation
of the model, clearly defining the nature and scope of the actions
they intended to carry out. The Government stated that they were
unable to provide the Court with a copy of the action plan or any
other data from the STT's file on the applicant since it had been
destroyed on the expiry of the five-year period laid down in the
Ministry of the Interior's regulations for keeping secret files.
However, they assured the Court that in all cases of this kind, the
Prosecutor General or his deputy would carefully scrutinise the
entire STT file on the suspect before authorising a criminal conduct
simulation model.
- The
Government asserted that the offence would in any event have been
committed without the intervention of the State authorities, since
even before the model had been authorised, the applicant had clearly
been predisposed to commit the offence. In support of that argument
they observed that after the model had been authorised, the applicant
had instantly accepted AZ's oral offer of a bribe and that the
authorities had not subjected him to any threats or other forms of
undue pressure. The applicant's guilt was aggravated by the fact
that, as a law-enforcement official, he was perfectly aware that his
actions were illegal. In conclusion, contrary to the position in the
Teixeira de Castro case (cited above), there had been no
incitement to break the law in the instant case.
- Having
regard to all these factors, the Government concluded that the
applicant had had a fair trial.
B. The Court's assessment
- The
applicant complained of the use of evidence resulting from police
incitement in the proceedings against him, in breach of his right to
a fair trial.
1. General principles
- The
Court observes at the outset that it is aware of the difficulties
inherent in the police's task of searching for and gathering evidence
for the purpose of detecting and investigating offences. To perform
this task, they are increasingly required to make use of undercover
agents, informers and covert practices, particularly in tackling
organised crime and corruption.
- Furthermore,
corruption – including in the judicial sphere – has
become a major problem in many countries, as is attested by the
Council of Europe's Criminal Law Convention on the subject (see
paragraph 35 above). This instrument authorises the use of special
investigative techniques, such as undercover agents, that may be
necessary for gathering evidence in this area, provided that the
rights and undertakings deriving from international multilateral
conventions concerning “special matters”, for example
human rights, are not affected.
- That
being so, the use of special investigative methods – in
particular, undercover techniques – cannot in itself infringe
the right to a fair trial. However, on account of the risk of police
incitement entailed by such techniques, their use must be kept within
clear limits (see paragraph 55 below).
- In
this connection, it should be reiterated that it is the Court's task,
in accordance with Article 19, to ensure the observance of the
engagements undertaken by the States Parties to the Convention. The
admissibility of evidence is primarily a matter for regulation by
national law and, as a rule, it is for the national courts to assess
the evidence before them. The Court, for its part, must ascertain
whether the proceedings as a whole, including the way in which
evidence was taken, were fair (see, among other authorities, Van
Mechelen and Others v. the Netherlands, judgment of 23 April
1997, Reports of Judments and Decisions 1997-III, p. 711, §
50; Teixeira de Castro, judgment of 9 June 1998, Reports
1998-IV, p. 1462, § 34; Sequeira v. Portugal (dec.),
no. 73557/01, ECHR 2003-VI; and Shannon v. the United Kingdom
(dec.), no. 67537/01, ECHR 2004-IV). In this context, the Court's
task is not to determine whether certain items of evidence were
obtained unlawfully, but rather to examine whether such
“unlawfulness” resulted in the infringement of another
right protected by the Convention.
- More
particularly, the Convention does not preclude reliance, at the
preliminary investigation stage and where the nature of the offence
may warrant it, on sources such as anonymous informants. However, the
subsequent use of such sources by the trial court to found a
conviction is a different matter and is acceptable only if adequate
and sufficient safeguards against abuse are in place, in particular a
clear and foreseeable procedure for authorising, implementing and
supervising the investigative measures in question (see Khudobin
v. Russia, no. 59696/00, § 135, 26 October 2006, and,
mutatis mutandis, Klass and Others v. Germany, judgment
of 6 September 1978, Series A no. 28, pp. 24-26, §§
52-56). While the rise in organised crime requires that appropriate
measures be taken, the right to a fair trial, from which the
requirement of the proper administration of justice is to be
inferred, nevertheless applies to all types of criminal offence, from
the most straightforward to the most complex. The right to the fair
administration of justice holds so prominent a place in a democratic
society that it cannot be sacrificed for the sake of expedience (see
Delcourt v. Belgium, judgment of 17 January 1970, Series
A no. 11, pp. 13-15, § 25).
- Furthermore,
while the use of undercover agents may be tolerated provided that it
is subject to clear restrictions and safeguards, the public interest
cannot justify the use of evidence obtained as a result of police
incitement, as to do so would expose the accused to the risk of being
definitively deprived of a fair trial from the outset (see, among
other authorities, Teixeira de Castro, cited above, pp.
1462-64, §§ 35-36 and 39; Khudobin, cited above, §
128; and Vanyan v. Russia, no. 53203/99, §§ 46 47,
15 December 2005).
- Police
incitement occurs where the officers involved – whether members
of the security forces or persons acting on their instructions –
do not confine themselves to investigating criminal activity in an
essentially passive manner, but exert such an influence on the
subject as to incite the commission of an offence that would
otherwise not have been committed, in order to make it possible to
establish the offence, that is, to provide evidence and institute a
prosecution (see Teixeira de Castro, cited above, p. 1463,
§ 38, and, by way of contrast, Eurofinacom v. France
(dec.), no. 58753/00, ECHR 2004 VII).
- In
the case of Teixeira de Castro (cited above, p. 1463, §
38) the Court found that the two police officers concerned had not
confined themselves “to investigating Mr Teixeira de Castro's
criminal activity in an essentially passive manner, but [had]
exercised an influence such as to incite the commission of the
offence”. It held that their actions had gone beyond those of
undercover agents because they had instigated the offence and there
was nothing to suggest that without their intervention it would have
been committed (ibid., p. 1464, § 39).
In
reaching that conclusion the Court laid stress on a number of
factors, in particular the fact that the intervention of the two
officers had not taken place as part of an anti-drug-trafficking
operation ordered and supervised by a judge and that the national
authorities did not appear to have had any good reason to suspect the
applicant of being a drug dealer: he had no criminal record and there
was nothing to suggest that he had a predisposition to become
involved in drug trafficking until he was approached by the police
(ibid., p. 1463, §§ 37-38).
More
specifically, the Court found that there were no objective suspicions
that the applicant had been involved in any criminal activity. Nor
was there any evidence to support the Government's argument that the
applicant was predisposed to commit offences. On the contrary, he was
unknown to the police and had not been in possession of any drugs
when the police officers had sought them from him; accordingly, he
had only been able to supply them through an acquaintance who had
obtained them from a dealer whose identity remained unknown. Although
Mr Teixeira de Castro had potentially been predisposed to commit an
offence, there was no objective evidence to suggest that he had
initiated a criminal act before the police officers' intervention.
The Court therefore rejected the distinction made by the Portuguese
Government between the creation of a criminal intent that had
previously been absent and the exposure of a latent pre-existing
criminal intent.
- Using
the same criteria, in the Vanyan judgment (cited above) the
Court found a violation of Article 6 § 1 in connection with a
test purchase of drugs which it found had constituted incitement.
Although the operation in question was carried out by a private
individual acting as an undercover agent, it had actually been
organised and supervised by the police.
- In
the Eurofinacom decision (cited above) the Court, while
reaffirming the principles set out above, held that the instigation
by police officers of offers of prostitution-related services made to
them personally had not in the true sense incited the commission by
the applicant company of the offence of living on immoral earnings,
since at the time such offers were made the police were already in
possession of information suggesting that the applicant company's
data-communications service was being used by prostitutes to contact
potential clients.
- In
the case of Sequeira (cited above) the Court found that there
had been no police incitement, basing its finding on the following
considerations:
“In the present case, it has been established by
the domestic courts that A. and C. began to collaborate with the
criminal-investigation department at a point when the applicant had
already contacted A. with a view to organising the shipment of
cocaine to Portugal. Furthermore, from that point on, the activities
of A. and C. were supervised by the criminal-investigation
department, the prosecution service having been informed of the
operation. Finally, the authorities had good reasons for suspecting
the applicant of wishing to mount a drug-trafficking operation. These
factors establish a clear distinction between the present case and
Teixeira de Castro, and show that A. and C. cannot be
described as agents provocateurs. As the domestic courts
pointed out, as in Lüdi [Lüdi v. Switzerland,
judgment of 15 June 1992, Series A no. 238], their activities did not
exceed those of undercover agents.”
- The
Court has also held that where an accused asserts that he was incited
to commit an offence, the criminal courts must carry out a careful
examination of the material in the file, since for the trial to be
fair within the meaning of Article 6 § 1 of the Convention, all
evidence obtained as a result of police incitement must be excluded.
This is especially true where the police operation took place without
a sufficient legal framework or adequate safeguards (see Khudobin,
cited above, §§ 133-135).
- Lastly,
where the information disclosed by the prosecution authorities does
not enable the Court to conclude whether the applicant was subjected
to police incitement, it is essential that the Court examine the
procedure whereby the plea of incitement was determined in each case
in order to ensure that the rights of the defence were adequately
protected, in particular the right to adversarial proceedings and to
equality of arms (see Edwards and Lewis v. the United Kingdom
[GC], nos. 39647/98 and 40461/98, §§ 46-48, ECHR
2004 X, and, mutatis mutandis, Jasper v. the United
Kingdom [GC], no. 27052/95, §§ 50 and 58, 16 February
2000).
2. Application of these principles in the present case
- It
appears from the evidence in the present case that a request for
authorisation to use a criminal conduct simulation model, together
with a request for exemption from criminal responsibility, was made
by the STT on 26 January 1999, by which time AZ had already contacted
the applicant through VS and the applicant had apparently agreed to
seek to have a third person acquitted in return for a bribe of USD
3,000. In the Government's submission, that sequence of events showed
that VS and AZ had acted on their own private initiative without
having first informed the authorities. By authorising and
implementing the model, they argued, the prosecuting authorities had
merely put themselves in a position to establish an offence which the
applicant had already planned to commit. They had therefore not been
guilty of incitement.
- The
Court is unable to accept such reasoning. The national authorities
cannot be exempted from their responsibility for the actions of
police officers by simply arguing that, although carrying out police
duties, the officers were acting “in a private capacity”.
It is particularly important that the authorities should assume
responsibility as the initial phase of the operation, namely the acts
carried out up to 27 January 1999, took place in the absence of any
legal framework or judicial authorisation. Furthermore, by
authorising the use of the model and exempting AZ from all criminal
responsibility, the authorities legitimised the preliminary phase ex
post facto and made use of its results.
- Moreover,
no satisfactory explanation has been provided as to what reasons or
personal motives could have led AZ to approach the applicant on his
own initiative without bringing the matter to the attention of his
superiors, or why he was not prosecuted for his acts during this
preliminary phase. On this point, the Government simply referred to
the fact that all the relevant documents had been destroyed.
- It
follows that the Lithuanian authorities' responsibility was engaged
under the Convention for the actions of AZ and VS prior to the
authorisation of the model. To hold otherwise would open the way to
abuses and arbitrariness by allowing the applicable principles to be
circumvented through the “privatisation” of police
incitement.
- The
Court must therefore examine whether the actions complained of by the
applicant, which were attributable to the authorities, amounted to
incitement prohibited by Article 6.
- To
ascertain whether or not AZ and VS confined themselves to
“investigating criminal activity in an essentially passive
manner”, the Court must have regard to the following
considerations. Firstly, there is no evidence that the applicant had
committed any offences beforehand, in particular corruption-related
offences. Secondly, as is shown by the recordings of telephone calls,
all the meetings between the applicant and AZ took place on the
latter's initiative, a fact that appears to contradict the
Government's argument that the authorities did not subject the
applicant to any pressure or threats. On the contrary, through the
contact established on the initiative of AZ and VS, the applicant
seems to have been subjected to blatant prompting on their part to
perform criminal acts, although there was no objective evidence –
other than rumours – to suggest that he had been intending to
engage in such activity.
- These
considerations are sufficient for the Court to conclude that the
actions of the individuals in question went beyond the mere passive
investigation of existing criminal activity.
- Article
6 of the Convention will be complied with only if the applicant was
effectively able to raise the issue of incitement during his trial,
whether by means of an objection or otherwise. It is therefore not
sufficient for these purposes, contrary to what the Government
maintained, that general safeguards should have been observed, such
as equality of arms or the rights of the defence.
- It
falls to the prosecution to prove that there was no incitement,
provided that the defendant's allegations are not wholly improbable.
In the absence of any such proof, it is the task of the judicial
authorities to examine the facts of the case and to take the
necessary steps to uncover the truth in order to determine whether
there was any incitement. Should they find that there was, they must
draw inferences in accordance with the Convention (see the Court's
case-law cited in paragraphs 49-61 above).
- The
Court observes that throughout the proceedings the applicant
maintained that he had been incited to commit the offence.
Accordingly, the domestic authorities and courts should at the very
least have undertaken a thorough examination – as, indeed, the
Constitutional Court urged in its judgment of 8 May 2000 – of
whether the prosecuting authorities had gone beyond the limits
authorised by the criminal conduct simulation model (see paragraph 14
above), in other words whether or not they had incited the commission
of a criminal act. To that end, they should have established in
particular the reasons why the operation had been mounted, the extent
of the police's involvement in the offence and the nature of any
incitement or pressure to which the applicant had been subjected.
This was especially important having regard to the fact that VS, who
had originally introduced AZ to the applicant and who appears to have
played a significant role in the events leading up to the giving of
the bribe, was never called as a witness in the case since he could
not be traced. The applicant should have had the opportunity to state
his case on each of these points.
- However,
the domestic authorities denied that there had been any police
incitement and took no steps at judicial level to carry out a serious
examination of the applicant's allegations to that effect. More
specifically, they did not make any attempt to clarify the role
played by the protagonists in the present case, including the reasons
for AZ's private initiative in the preliminary phase, despite the
fact that the applicant's conviction was based on the evidence
obtained as a result of the police incitement of which he complained.
Indeed,
the Supreme Court found that there was no need to exclude such
evidence since it corroborated the applicant's guilt, which he
himself had acknowledged. Once his guilt had been established, the
question whether there had been any outside influence on his
intention to commit the offence had become irrelevant. However, a
confession to an offence committed as a result of incitement cannot
eradicate either the incitement or its effects.
- In
conclusion, while being mindful of the importance and the
difficulties of the task of investigating offences, the Court
considers, having regard to the foregoing, that the actions of AZ and
VS had the effect of inciting the applicant to commit the offence of
which he was convicted and that there is no indication that the
offence would have been committed without their intervention. In view
of such intervention and its use in the impugned criminal
proceedings, the applicant's trial was deprived of the fairness
required by Article 6 of the Convention.
- There
has therefore been a violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 3 (d) OF THE
CONVENTION
- The
applicant further submitted that the principle of equality of arms
and the rights of the defence had been infringed in that during the
trial neither the courts nor the parties had had the opportunity to
examine VS, one of the two undercover agents involved in the case. He
alleged a violation of Article 6 §§ 1 and 3 (d), the second
of which provides:
“3. Everyone charged with a criminal
offence has the following minimum rights:
...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
...”
A. The parties' submissions
1. The applicant
- The
applicant submitted that his defence rights had been infringed in
that during the trial neither the courts nor the parties had had the
opportunity to examine VS, a key witness. He alleged that this
amounted to a breach of Article 6 § 3 (d) of the Convention.
2. The Government
- The
Government submitted that this provision did not guarantee, as such,
an absolute right to examine every witness a defendant wished to
call. They contended that the arguments advanced by the applicant in
support of his complaint that VS had not appeared in court were not
persuasive, since the trial courts had not based his conviction on
the statement by VS. They added that it had been impossible to secure
the attendance of VS as his place of residence was unknown. They
submitted that, in any event, the applicant had had the opportunity
to contest in open court the other items of evidence against him –
chiefly the statement by AZ and the recordings of his conversations
with the applicant – on which the courts had based their guilty
verdict. The proceedings in issue had therefore complied with the
adversarial principle and had not breached the Convention provision
relied on by the applicant.
B. The Court's assessment
- The
applicant complained that the proceedings against him had been unfair
in that it had been impossible to obtain the examination of VS as a
witness against him.
- The
Court considers that the applicant's complaint under this head is
indissociable from his complaint under Article 6 § 1 of the
Convention in so far as it merely concerns one particular aspect of
the conduct of proceedings which the Court has found to have been
unfair.
- In
conclusion, having regard to the findings set out in paragraphs 73 74
above, the Court does not consider it necessary to carry out a
separate examination under Article 6 § 3 (d) of the Convention
of the applicant's complaint that the proceedings were unfair.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant firstly claimed the sum of 123,283.69 Lithuanian litai (LTL
– approximately 35,652 euros (EUR)) for loss of earnings during
the period from 11 February 1999 to 29 January 2002, on the
basis of a gross monthly salary of LTL 3,472.78 (approximately EUR
1,000). He claimed a further sum of LTL 3,524.60 (approximately
EUR 1,021) for the costs incurred in the domestic proceedings,
including LTL 3,500 for fees (approximately EUR 1,013.67).
Lastly, he sought the reimbursement of LTL 625 (approximately EUR
181) in relation to the confiscation of his property and LTL 420
(approximately EUR 121) for translation costs.
- The
applicant also claimed LTL 300,000 (approximately EUR 86,755) in
respect of non-pecuniary damage, on account of the media campaign
against him, the harm to his reputation and the anxiety experienced
during his ten months in detention.
- While
accepting that the applicant had been dismissed by an order of the
Prosecutor General adopted on 17 March 1999, the Government asked the
Court to take into account the fact that the applicant had himself
tendered his resignation in a letter of 9 March 1999, thereby
manifesting his intention to leave his post. Accordingly, the
applicant's claim for loss of earnings was unfounded.
In
any event, the applicant's claims were excessive, since they were
based on gross monthly salary (LTL 3,472.78) whereas his net monthly
salary had been LTL 2,400.47.
- As
to the costs incurred in the domestic proceedings, the Government
submitted that they should not be refunded.
- With
regard to non-pecuniary damage, the Government observed that the
applicant had failed to establish that there was a causal link
between the damage alleged and the violation of the Convention. In
any event, the sum claimed was excessive.
- The
Court considers that it would be equitable to make an award in
respect of damage. The documents in the case file suggest that the
applicant would not have been imprisoned or dismissed from his post
in the legal service if the incitement in issue had not occurred. His
loss of earnings was actual, and the Government did not dispute this.
In
quantifying the damage sustained, the Court considers that it should
also take into consideration part of the applicant's costs in the
national courts to the extent that they were incurred in seeking
redress for the violation it has found (see Dactylidi v. Greece,
no. 52903/99, § 61, 27 March 2003, and Van de
Hurk v. the Netherlands, judgment of 19 April 1994, Series A no.
288, p. 21, § 66).
Likewise,
the Court considers that the applicant indisputably sustained
non-pecuniary damage, which cannot be compensated for by the mere
finding of a violation.
- Having
regard to the diversity of factors to be taken into consideration for
the purposes of calculating the damage and to the nature of the case,
the Court considers it appropriate to award, on an equitable basis,
an aggregate sum which takes account of the various considerations
referred to above (see mutatis mutandis, Beyeler v. Italy
(just satisfaction) [GC], no. 33202/96, § 26, 28 May 2002).
It therefore awards the applicant EUR 30,000 in compensation for
the damage sustained, including the costs incurred at domestic level,
plus any tax that may be chargeable on this amount.
B. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that it is not necessary to examine the
complaint under Article 6 § 3 (d) of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 30,000 (thirty thousand euros) in respect of damage, plus any tax
that may be chargeable, to be converted into Lithuanian litai at the
rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 5 February 2008.
Michael O'Boyle Nicolas Bratza
Deputy Registrar President
