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SECOND
SECTION
CASE OF LALAS v. LITHUANIA
(Application
no. 13109/04)
JUDGMENT
STRASBOURG
1 March
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Lalas v. Lithuania,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Ireneu
Cabral Barreto,
David Thór Björgvinsson,
Giorgio
Malinverni,
András Sajó,
Işıl
Karakaş, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 8 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13109/04) 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, Marius Lalas (“the
applicant”), on 12 April 2004.
- The
applicant was represented by Mr O. Martinkus, a lawyer practising in
Klaipeda. The Lithuanian Government (“the Government”)
were represented by their Agent, Ms Elvyra Baltutytė.
- The
applicant alleged that, in breach of Article 6 § 1 of the
Convention, he had been subjected to entrapment, and had thus been
unfairly convicted of drug dealing. He further complained that
certain essential evidence had not been disclosed at his trial.
- On
9 June 2009 the President of the Second Section decided to give
notice of the applicant's complaints under Article 6 § 1 of the
Convention. It was also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mr Marius Lalas, is a Lithuanian national who was born in
1978. The place where the applicant lives is unknown, as he is in
hiding (see paragraph 23).
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
19 February 2003 the Kaišiadorys District Court convicted the
applicant, together with his accomplice M., of attempted drug dealing
in large quantities (Articles 16 § 2 and 232-1 § 5 of the
Criminal Court as then in force). The court established that the
offence had been disclosed using a “criminal conduct simulation
model” (“the model”), which had been authorised
against M. by the Prosecutor General on 29 May 2002.
- The
court found that in June 2002 (4 June according to the Government)
V., a policeman acting as an undercover agent under the model, had
approached M. and, during their conversation on various topics, asked
where he could get psychotropic drugs. M. had said that he could
procure and sell samples to the policeman straight away and more
thereafter if the samples were good. The samples would cost from 15
to 21 Lithuanian Litai (“LTL”) (about 5 euros) per gram,
depending on the quantities required. He had refused to lower the
price for the first transaction, but suggested that it might be
cheaper if V. needed a regular supply. However, the officer had
replied that he could not wait and they had agreed to telephone each
other on the matter. V. had to undergo a hospital
intervention. Thereafter, it was M. who contacted V.,
suggesting a meeting so that he could provide V. with drug samples.
- On
an unknown date, M. had contacted the applicant with a request to
obtain the drugs (0,5 kg), as V. liked the samples. The applicant had
agreed to procure the narcotics. The Government contended that the
applicant had contacted an acquaintance who had provided him
with drugs.
- On
21 June 2002, the applicant and M. had sold V. a few samples. The
Government contended that the applicant had provided just one sample
of amphetamines and stressed that he had stayed in the car while M.
went to V.'s car.
- On
23 June, V. had telephoned M., requesting more drugs for a total
sum of USD 3,000. On 25 June the applicant and M. had provided V.
with 250 grams of amphetamines. The applicant and his accomplice had
been arrested immediately. Both had pleaded guilty to the attempted
drug offence.
- The
court questioned V. as an anonymous witness in private, outside the
courtroom via an audio relay. His identity was not disclosed in order
to protect him and the proper functioning of the police drug squad.
At that stage the defence did not put any questions to V.
After V.'s testimony had been read out by the trial judge, the
defence formulated some questions which were put to him by the judge
and answered. The other evidence examined by the court included the
transcripts of the conversations between V. and M., the testimony of
another police officer who had acted as V.'s back-up during the
operation, of their supervising officer and of the applicant and his
co-accused, as well as an expert's findings.
- The
documents relating to the use of the model were classified as secret
and were not disclosed to the defence because they would have
disclosed the identity of the police officers involved and the
operational methods of the drug squad. The Government contended that
the applicant was not, however, denied access to information about
the execution of the model.
14. Defence
counsel, in his final submissions to the trial court,
contended that the undercover police officer V. had acted
unlawfully and that the applicant had been incited to commit the
offence. Consequently, the officer's evidence could not be relied on.
Furthermore, counsel contended that the applicant had never been
involved in drug dealing before.
- At
the same time, M.'s defence counsel argued that the initial
conversations between V. and M. had deliberately not been recorded by
the police officer and that was because the crime was provoked.
- The
trial court concluded that the use of the model in the case had been
lawful. The court observed inter alia:
“[T]he Criminal Conduct Simulation Model is used
to collect evidence about the criminal activities of a particular
person. That is what happened in the present case. Having obtained
information that M. ... was selling psychotropic substances, the
police officer - whose identity was concealed - expressed his wish to
get some drugs. The subsequent activities of [both the applicant and
his accomplice], i.e. the selling of a large quantity of drugs, were
in part determined by the conduct of the police officer.”
- The
court acknowledged that the applicant's and his accomplice's conduct
had been influenced by Officer V. from the outset, and commented at
the sentencing stage that it had not been established that the
applicant and M. had sold or tried to sell drugs to anyone other than
this officer.
- The
applicant was convicted of the attempted offence and sentenced to
three years' imprisonment, as well as to the confiscation of LTL
2,000 (approximately 580 euros).
- The
applicant appealed to the Kaunas Regional Court. His
defence counsel argued that the sentence imposed was too heavy.
Taking into account the established circumstances of the case –
that the crime was incited by the police officers and that the
applicant had not even been mentioned in the authorisation for the
model – the officers had controlled the actions of the
applicant and his accomplice. As there was no real damage done to the
interests protected by law, and the applicant had acknowledged his
guilt, the goal of punishment could be reached by imposing another
sentence. The Government contended that the applicant had not claimed
that V. had overstepped the legitimate limits of investigation by
influencing and inciting M. and the applicant to sell a large
quantity of drugs: he had mainly raised issues relating to the
punishment and had claimed that he had been drawn into committing the
crime by M.
- On
10 June 2003 the Kaunas Regional Court upheld the conviction,
considering that the applicant was guilty of a completed offence. The
court also re-classified the conviction under Article 260 § 2 of
the new Criminal Code and set the sentence at eight years of
imprisonment. With respect to the applicant's entrapment allegations,
the court noted:
“The court finds the [applicant's] arguments
that he was drawn into committing the crime by M. unfounded. The
evidence shows that M., as the person who carried out the
crime, had already been detected when drug-related crimes were being
investigated. The case file shows that both M. and Lalas actively
carried out the crime. ... [I]n establishing the persons involved in
drug-dealing, [the officers] did not overstep the limits of the
Criminal Conduct Simulation Model. ... [T]he police have only
uncovered the ring of persons committing crimes and brought to an end
their criminal activities. The officers joined in the crime that was
already taking place ... Having established the group of accomplices,
the officers brought to an end their criminal activities, but did not
influence or incite them.”
- The
applicant lodged a cassation appeal. He alleged that the police
actions had been unlawful. He argued that the authorities had applied
the Criminal Conduct Simulation Model, as a consequence of which he
had been induced into a crime by assisting M. to fulfil the police
officer's lucrative request to procure drugs. The applicant observed
that he had acted on the police officer's instructions. The lower
courts had had no data that before the model had been sanctioned
either the applicant or M. had ever been involved in similar or any
other crimes. The applicant alleged that, at least from 21 June
2002, the police had known that he was an accomplice of M. However,
the authorities had failed to sanction the application of the
Criminal Conduct Simulation Model against him and, moreover, had
continued provoking him to sell drugs in even larger quantities.
Lastly, the applicant claimed a breach of his defence rights,
alleging that he could not acquaint himself with the documents
related to the authorisation to use the simulation model.
- The
Supreme Court dismissed the applicant's cassation appeal
on 14
October 2003. As regards the lawfulness of the Model, it held:
“In the present case, the Criminal Conduct
Simulation Model ... was applied in order to protect society and the
State from the challenges posed by the consumption and illegal
circulation of drugs and psychotropic substances. The model was
sanctioned by the Prosecutor General, in view of the possession of
information about M. selling narcotic substances. Such data ... is a
lawful ground for the use of the model.
By entering into contact with M. and offering to buy
psychotropic substances from him ..., V. only joined in the criminal
activity of M. and uncovered his accomplice. Such actions cannot be
considered as entrapment (nusikaltimo provokavimas): it
appears from the case file that M. and Lalas were not subject to any
pressure ... [The
applicants'] allegation that the police undercover agent drew into
the crime (paskatino) persons who had never offended before to
commit a serious crime, is unsubstantiated. On the contrary, the use
of [the model] helped to stop the criminal activity. ...
The information which is obtained by use of the [model]
constitutes a State secret ... and is accessible only to persons who
have special authorisation. Neither [the applicant] nor his lawyer
has such authorisation. Consequently, the fact that secret operative
information was not disclosed to them cannot be regarded as a
violation of the applicant's defence rights. It should be noted that
the first instance court acquainted itself with the secret operative
information and its sources, and properly evaluated the lawfulness of
the model.”
As
regards the qualification of the offence the Supreme Court held that
“the activities [of Malininas and Lalas] which
constituted the objective part of the norm of § 2 of
Article 260 of the Criminal Code were controlled by the officials and
partially realised under their influence.”
The applicant's conviction was again
re-classified as an attempt to sell drugs in large quantities
(Articles 22 § 1 and 260 § 2 of the new Criminal Code), and
the sentence of eight years' imprisonment was maintained.
- On
3 March 2004, the applicant's defence counsel submitted a request to
the Supreme Court for reopening the case, claiming that the courts'
decisions were based on inappropriate evidence which had been
gathered unlawfully. This request was dismissed by the Supreme Court
on 30 March 2004, on the ground that the arguments submitted by the
applicant were intended to contest the factual background of the case
and therefore were not a ground for reopening the case according to
domestic law. The Government indicated that at the time when the
request for reopening was lodged the applicant had already gone into
hiding.
- The
Government submitted information about M.'s request for reopening his
case, which has been granted by the Supreme Court
on 18 December
2008 after the judgment of the Court in the Malininas case
(Malininas v. Lithuania, no. 10071/04, 1 July 2008).
II. RELEVANT DOMESTIC LAW AND PRACTICE, AND RELEVANT
INTERNATIONAL LAW
- The
relevant domestic law and practice, as well as the relevant
international law, concerning police undercover activities and
Criminal Conduct Simulation
Models, have been summarised in the judgment
of 5 February 2008
in the case of Ramanauskas
v. Lithuania ([GC]
no.
74420/01, §§ 31-37).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that he had been subjected to entrapment and
thus had been unfairly convicted of drug-dealing. He further
complained about the non-disclosure at his trial of certain evidence
relating to the authorisation and use of the Criminal Conduct
Simulation Model. The applicant also invoked Articles 1 and 13 of the
Convention (the right to have an effective remedy before a national
authority) but the Court will limit its examination to the key issue
under Article 6 § 1.
- Article
6 § 1 of the Convention provides, insofar relevant, as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. The parties' submissions
1. The Government
- The
Government contended that the applicant had not suffered any
entrapment and consequently the application was manifestly
ill-founded. Alternatively they argued that the applicant could not
be considered as a victim of entrapment within the meaning of Article
34 of the Convention.
- The
applicant's situation had to be assessed separately from his
accomplice's one, as facts relating to M. and the undercover police
officer V., in so far as they concerned the execution of the Criminal
Conduct Simulation Model, were irrelevant in this case. The
model had not been authorised in respect of the applicant but only in
respect of his co-defendant. There was no direct causal link
between the measure taken against M. by the competent authorities
and the violations alleged by the applicant. The model had
been authorised because the investigating authorities had preliminary
information that M. was dealing with narcotic-psychotropic
substances. Its aim was “to identify the participants in the
criminal activity, to document their activity and to prosecute the
guilty persons”. No action under the model had
been performed in respect of the applicant by the undercover police.
- Referring
to Pyrgiotakis v. Greece (no. 15100/06, 21 February 2008) the
Government stressed that the applicant had confessed to his crime. He
had never had direct contact with V. but had been asked to join the
criminal activity by M. He had also participated financially as he
had lent LTL 1,500 to M. for purchasing the drugs. He had had no
problem supplying the drugs. He had thus committed and actively
carried out the crime of his own will. Therefore, the authorities
cannot be held responsible for the actions of a private person.
- As
regards the Criminal Conduct Simulation Model authorised in respect
of M., the Government submitted that it was an essential tool to
prevent the spread of such crimes which pose a dangerous threat to
society. The model had a clear legal basis and its execution was
strictly controlled by the authorities. There had to be preliminary
information about the preparation or execution of a serious crime,
put in the form of a reasoned, written request for the authorisation
of a Criminal Conduct Simulation Model from the police narcotics
department to the institutionally independent Prosecutor General or
his/her Deputy, who were obliged to supervise the legality of the
operation. The preliminary operational information – that the
applicant's accomplice was selling drugs – had been verified by
Officer V. On that basis, he had applied to the Prosecutor General to
authorise the simulation model. The Government submitted a document
(criminal police bureau document n. 38S1493) which states that “there
is information obtained about S. Malininas under the name of Malina”.
- The
model was confidential, albeit disclosed to the trial court, until
the close of the criminal proceedings, whereupon certain information
about the written request could be revealed, whilst excluding police
investigative methods and the identities of the officers involved in
the operation. The Government submitted that the applicant had not
shown how such disclosure of the model and the identity of Officer V.
could have assisted his defence. The evidence gathered in the present
case had confirmed the preliminary information gathered by the police
in respect of M. and was acquired in strict accordance with the
authorised model.
- The
Government stressed that the applicant's conviction was not based
solely on the testimony of the undercover, anonymous police officer,
which anyway the applicant had been able to challenge by putting
questions through the trial judge. There had been other convincing
evidence on the arrest of the applicant and his accomplice, their
confessions at that time and their testimony in court, the testimony
of the other back-up officer in the operation and of the supervising
officer, as well as an expert's findings. The courts also considered
the submissions by the applicant and his
co-defendant. V.'s
testimony did not have such significant relevance in respect of the
applicant because it mostly concerned M.
- The
authorisation and execution of the model were subject to judicial
scrutiny. Any illegality in either of these aspects would have
rendered the evidence obtained thereby inadmissible. However,
unlawful incitement was not raised by the applicant before or during
the trial. The entrapment allegations were not formulated “as
an essential argument of defence”. They were merely mentioned
in the applicant's appeal (“the impulse to commit the crime was
given by the State officers”) among other arguments which were
meant to substantiate the request for a milder sentence. The
entrapment arguments were set more clearly in his cassation appeal,
where the applicant contested the legality of the authorisation and
the way of applying the model. Moreover, the defence counsel was
contradictory in appeal and cassation appeal, since he stated that
the applicant was drawn into committing the crime by his accomplice
M. and at the same time argued that the applicant had been incited by
V., a person who had never had contact with him. Nevertheless, the
courts had examined the question when considering the lawfulness of
the model and they had assessed the respective roles of the officer,
the co-defendant and applicant. In its decision of 14 October 2003,
the Supreme Court had made a thorough assessment of the applicant's
arguments. The conclusion was that the applicant had had the
deliberate intention of selling the drugs at their current market
value. Accordingly, the officer's behaviour did not amount to a
provocation or incitement.
- As
to the second aspect of the applicant's complaint under Article 6 §
1 of the Convention, the Government submitted that, despite Officer
V.'s anonymity, the defence had had a full opportunity to question
him, but his testimony had not been contested. Moreover, only part of
the Criminal Conduct Simulation Model was withheld from the defence,
pursuant to the Law on State and Service Secrets, namely the
operational information about M.'s prior involvement in drug dealing
and the written request by the police to the Prosecutor General for
its authorisation. This was because it was necessary to protect the
identity of the police officers involved in such undercover
operations, as well as their working methods and sources, for future
activities. However, these materials were not the basis of the
applicant's conviction. All evidence about the execution of the model
was in the criminal case file and available to the defence. The
applicant was convicted solely on the basis of the evidence presented
at the trial and which was open to challenge by the defence.
Therefore the non-disclosure at stake had no significant importance
(Jasper v. the United Kingdom [GC],
no. 27052/95, §
52, 16 February 2000).
2. The applicant
- The
applicant objected to the Government's position that the
police officers' actions were directed only against M. and claimed
that he was subjected to entrapment. Despite the fact that the model
authorised the police officers “to acquire narcotic
psychotropic substances from M.”, the officers themselves
decided how many times and which quantity they wanted to buy. In
reaching the conclusion that M. and the applicant were accomplices,
the District Court established that they had been acting in concert,
pursuing a common goal. It follows that the applicant's criminal act
was influenced by the police officers and that the State must be held
responsible for the action of its officers. This was partially
acknowledged in the District Court judgment wherein it observed that
the subsequent activities of the co-defendants “were in part
determined by the conduct of the police officers”.
- It
cannot be said that the police officers joined in a crime that was
already taking place, as M. had never been under indictment for any
actions which justified the initiation of the model. The model had
not been initiated lawfully as no information about criminal
activities carried out by M. had been gathered by the police.
- Moreover,
defence counsel did not have the possibility to verify the lawfulness
of the model as it was not established what facts known by the police
officers had substantiated the execution of the model. The document
(criminal police bureau document n. 38S1493) submitted by the
Government contains no facts; it only states that “there is
information obtained about S. Malininas under the name of Malina”.
The applicant observed that after the reopening of the criminal
procedure in respect of M. the court dealing with the case had
obtained from the police Service Note of 28 May 2002 N. 20438,
wherein it is stated: “There is information obtained about the
person named Sieras who participates in narcotic-psychotropic
substances dealing in Klaipeda and smuggles the aforementioned
substances to England, where his accomplices sell them. It has been
established after the performed investigations that Sieras –
the citizen S. Malininas – ....has previous convictions...”.
These documents were not seen by the applicant or his counsel and
they could not have known about such documents during the case
hearing. The documents above clearly showed that information about
M.'s alleged criminal activity was contradictory: it remained unclear
what M.'s nickname was and who the person in question was, since M.
had no previous convictions prior to the present case. Therefore, no
facts whatsoever had been gathered regarding M. criminal acts before
the sanctioning of the model.
- The
applicant concluded that police officers had provoked the criminal
act and contended that when State officers instigate models not to
stop criminal acts but to test citizens' resistance to criminal
activities this is to be considered as entrapment. Therefore, there
had been a violation of the invoked provisions of the Convention.
B. Admissibility
- In
the light of the parties submissions, the Court finds that the
application is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. The Government's arguments,
including the objection under Article 34 of the Convention, concern
the merits of the case, which the Court will now proceed to examine.
Accordingly, the application must be declared admissible.
C. Merits
- The
Court recalls its recent Ramanauskas judgment (cited above,
§§ 49-74) in which it elaborated the concept of
entrapment in breach of Article 6 § 1 of the Convention, as
distinguished from the use of legitimate undercover techniques in
criminal investigations. In respect of the former, there must be
adequate safeguards against abuse, as the public interest cannot
justify the use of evidence obtained as a result of police incitement
(Teixeira de Castro v. Portugal, 9 June 1998, §§
34-36, Reports of Judgments and Decisions 1998 IV). The
Court has established that its function under Article 6 § 1
is to review the quality of the domestic courts' assessment of the
alleged entrapment and to ensure that they adequately secured the
accused's rights of defence, in
particular the right to adversarial proceedings and to equality of
arms (Edwards and Lewis v. the United Kingdom [GC], nos.
39647/98 and 40461/98, §§ 46-48, ECHR 2004 X).
Moreover, the Court recalls that the admissibility of evidence is
primarily a matter for regulation by national law and for assessment
by the domestic courts (Windisch v. Austria, 27 September
1990, § 25, Series A no. 186).
- As
regards the issue of entrapment, the Court held as follows at §
55 of its Ramanauskas judgment:
“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 v. Portugal,
[judgment of 9 June 1998, Reports
of Judgments and Decisions
1998-IV], ... p. 1463, § 38, and, by way of contrast,
Eurofinacom v. France
(dec.), no. 58753/00,
ECHR 2004 VII).”
- In
the Malininas case the Court found that the applicant's
accomplice had been incited to commit the offence by the police. It
also found that M.'s plea of incitement was not adequately addressed
by the domestic courts, in so far as relevant evidence was not
disclosed to the defence or tested in an adversarial manner
(Malininas v. Lithuania,
no. 10071/04, §§ 36-37,
1 July 2008). The Court had regard to the following considerations:
there was no evidence that M. had committed any drug offences
beforehand; the Criminal Conduct Simulation Model was not fully
disclosed before the trial court, particularly regarding the
purported suspicions about M.'s previous conduct; it was Officer V.
who took the initiative when he first approached M., asking where he
could acquire illegal drugs, and M. then offered to supply them
himself; as the transaction progressed, M. was offered a significant
sum of money – USD 3,000 – to supply a large amount of
narcotics – this obviously represented an inducement to produce
the goods; and the first instance court recognised the decisive role
played by the police.
- In
the present case, to ascertain whether or not the applicant was also
subjected to entrapment and whether he was able to raise the issue of
incitement effectively in the domestic proceedings, the Court has had
regard to the following considerations.
- The
Court agrees with the Government's position that the Criminal Conduct
Simulation Model had been authorised only in respect of M.
Nevertheless, during the execution of the model, the police
officers uncovered the persons committing crimes, including the
applicant
(see paragraphs 20 and 22 above). Even if the
undercover agent V. had no direct contacts with the applicant, it
was foreseeable for the police that in the execution of the model
M. was likely to contact other people to participate in the
crime because of the associational nature of drug-related
crimes. Moreover, the applicant and M. were considered by
the national courts as accomplices in the same crime, in which
they acted with the same goal and for which both were
convicted in the same criminal proceedings using the
evidence obtained in execution of the model. The
significant sum of money offered by V. to the applicant's accomplice
M. then represented an inducement to produce narcotics also in
respect of the applicant, as the subsequent activities of the
applicant and his accomplice M. were in part determined by the
conduct of the police officer. The first instance court recognised
the decisive role played by the police in respect of both of
the accomplices in inciting the commission of the crime
(see paragraph 16 above). In the Court's view, these
elements extended the role of the police beyond that of undercover
agents to that of "agents provocateurs". They did not
merely "join" an on-going offence; in the
circumstances of the present case, they instigated it also in
respect of the applicant (see Malininas, § 37).
Furthermore, the Court notes that the domestic courts when
convicting the applicant and his accomplice M. did not make any
distinction as regards the fact that the model was authorised
only in respect of M.
- As
to the procedural aspect, in the Court's view the same conclusion as
in the Malininas case must be drawn in the present case having
regard to the following considerations. The Court notes that there
was no evidence that either the applicant or his co-defendant had
committed any drug offences beforehand. The Government contended that
M. had a previous criminal record, but the documents submitted by the
parties show that there were no clear indications about his prior
involvement in drug dealing
(see paragraph 38 above). No
testimony was presented at the trial to show the co-defendants' prior
involvement in this illegal trade. Moreover, the officers had no data
about the applicant's involvement in drug dealing or about his prior
knowledge of M.'s illegal activity before the moment the police
officers initiated their operation. In particular, it appears that
the criminal conduct simulation model available to the trial court
was not fully disclosed to the applicant, particularly regarding
suspicions about the
co-defendants' previous conduct (paragraphs
13, 22 and 32 above). This relevant evidence was thus not put openly
before the trial court or tested in an adversarial manner. It follows
that the applicant's plea of incitement was not adequately addressed
by the domestic courts.
- In
the light of the foregoing considerations, the Court concludes that
the aggregate of these elements undermined the fairness of the
applicant's trial.
- Consequently,
there has been a violation of Article 6 § 1 of the Convention.
II. 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.”
- The
applicant claimed LTL 100,000 (about 28,962 euros) in respect of
non-pecuniary damage. He did not claim reimbursement of costs
and expenses.
- The
Government observed that the applicant has not proved the causal link
between the alleged damage and the alleged violation of the
Convention. They also considered this amount to be unreasoned,
unsubstantiated and excessive.
- In
the light of the parties' submissions and the material in the case
file, the Court considers that the finding of a violation constitutes
in itself sufficient just satisfaction for any non-pecuniary damage
suffered by the applicant (Malininas cited above, § 42).
- The
Court is of the view that, where an individual, as in the instant
case, has been convicted by a court in proceedings which did not meet
the Convention requirement of fairness, a retrial or a reopening of
the case, if requested, as provided for by Article 456 of the
Lithuanian Code of Criminal Procedure, represents in principle
an appropriate way of redressing the violation (see Öcalan v.
Turkey, no. 46221/99 [GC], § 210, in fine, ECHR
2005 – IV; Kahraman v. <<Turkey>>,
no. 42104/02, § 44, 26 April 2007; Malininas cited
above, § 43).
FOR THESE REASONS, THE COURT
- Declares the application admissible unanimously;
- Holds by five votes to two that there has been a
violation of Article 6 § 1 of the Convention;
- Holds by five votes to two that the finding of a
violation constitutes in itself sufficient just satisfaction for any
non-pecuniary damage suffered by the applicant;
- Dismisses unanimously the applicant's claim for
just satisfaction.
Done in English, and notified in writing on 1 March 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinions are
annexed to this judgment:
(a) Concurring
opinion of Judges Malinverni and Sajó;
(b) Dissenting
opinion of Judge Cabral Barreto;
(c) Dissenting
opinion of Judge David Thór Björgvinsson.
S.H.N.
F.T.
CONCURRING OPINION OF JUDGES MALINVERNI
AND SAJÓ
- We
agree in all respects with the Court's conclusions as to the
violation of Article 6 § 1 of the Convention. We would, however,
have liked the reasoning set out in paragraph 53 of the judgment, on
account of its importance, to have been included in the operative
provisions as well, for the following reasons.
- Firstly,
it is common knowledge that while the reasoning of a judgment allows
the Contracting States to ascertain the grounds on which the Court
reached a finding of a violation or no violation of the Convention,
and is of decisive importance on that account for the interpretation
of the Convention, it is the operative provisions that are binding on
the parties for the purposes of Article 46 § 1 of the
Convention. It is therefore a matter of some significance, from a
legal standpoint, for part of the Court's reasoning to appear also in
the operative provisions.
- And
indeed, what the Court says in paragraph 53 of the judgment is in our
view of the utmost importance. It reiterates that when a person has
been convicted in breach of the procedural safeguards afforded by
Article 6, he should, as far as possible, be put in the position in
which he would have been had the requirements of that Article not
been disregarded (the principle of restitutio in integrum). In
the present case, the best means of achieving this is the reopening
of the proceedings and the commencement of a new trial at which all
the guarantees of a fair trial would be observed, provided, of
course, that the applicant requests this option and it is available
in the domestic law of the respondent State.
- The
reason why we wish to stress this point is that it must not be
overlooked that the amounts which the Court orders to be paid to
victims of a violation of the Convention are, according to the terms
and the spirit of Article 41, of a subsidiary nature. Wherever
possible, the Court should therefore seek to restore the status
quo ante for the victim. It should even reserve its decision on
just satisfaction and examine this issue, where necessary, only at a
later stage, should the parties fail to settle their dispute
satisfactorily.
- Admittedly,
States are not required by the Convention to introduce procedures in
their domestic legal systems whereby judgments of their Supreme
Courts constituting res judicata may be reviewed. However,
they are strongly encouraged to do so, especially in criminal
matters. We believe that where, as in the present case, the
respondent State has equipped itself with such a procedure, it is the
Court's duty not only to note the existence of the procedure,
but also to urge the authorities to make use of it, provided, of
course, that the applicant so wishes. However, this is not legally
possible unless such an exhortation appears in the operative
provisions of the judgment.
- Moreover,
the Court has already included directions of this nature in the
operative provisions of judgments. For example, in Claes and
Others v. Belgium (nos. 46825/99, 47132/99, 47502/99,
49010/99, 49104/99, 49195/99 and 49716/99, 2 June 2005) it held in
point 5 (a) of the operative provisions of its judgment that “unless
it grants a request by [the] applicants for a retrial or for the
proceedings to be reopened, the respondent State is to pay, within
three months from the date on which the applicant in question
indicates that he does not wish to submit such a request or it
appears that he does not intend to do so, or from the date on which
such a request is refused”, sums in respect of
non-pecuniary damage and costs and expenses. Similarly, in Lungoci
v. Romania (no. 62710/00, 26 January 2006) the Court held in
point 3 (a) of the operative provisions of its judgment that “the
respondent State is to ensure that, within six months from the date
on which the judgment becomes final in accordance with Article 44 §
2 of the Convention, the proceedings are reopened if the applicant so
desires, and at the same time is to pay her EUR 5,000 (five thousand
euros) in respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount, to be converted into Romanian lei at the
rate applicable at the date of settlement”.
- By
virtue of Article 46 § 2 of the Convention, supervision of the
execution of the Court's judgments is the responsibility of the
Committee of Ministers. That does not mean, however, that the Court
should not play any part in the matter and should not take measures
designed to facilitate the Committee of Ministers' task in
discharging these functions.
- To
that end, it is essential that in its judgments the Court should not
merely give as precise a description as possible of the nature of the
Convention violation found but should also, in the operative
provisions, indicate to the State concerned the measures it considers
the most appropriate to redress the violation.
Dissenting opinion of Judge Cabral Barreto
(Translation)
I
regret that I cannot follow the approach adopted by the majority of
the Chamber in the present case for the same reasons which I
expressed in my dissenting opinion in the case of Malininas
v. Lithuania, no.
10071/04, 1 July 2008.
DISSENTING OPINION OF JUDGE DAVID THÓR
BJÖRGVINSSON
I
disagree with the majority that there has been a violation of Article
6 § 1 of the Convention in this case.
As
explained above in the judgment, this case is closely linked to the
case of Malininas v. Lithuania (judgment of 1 October 2008),
where the Court also found a violation of Article 6 § 1 of the
Convention.
In
paragraph 45 above the majority accepts that the Criminal Conduct
Simulation Model (the Model) had been authorised only in respect of
Mr Malininas, the applicant in the above-mentioned case, and not
at any time did the police agents have direct contact with the
applicant in this case. In spite of this, the majority comes to the
conclusion that, in the case of the applicant, the police agents did
not “merely "join" an on-going offence; in the
circumstances of the present case, they instigated it also in respect
of the applicant.”
My
grounds for finding no violation is this case are the following:
Firstly,
I believe that in the earlier case it had been sufficiently
substantiated that Mr Malininas was predisposed to commit a drug
offence before the Model was implemented. I would point out that this
Court has accepted that the very circumstances in a particular case
may be indicative of a pre-existing criminal activity or intent and
thus justify undercover operations of the kind involved in the case.
Among such factors is the demonstrated familiarity of a person with
the drug market; such as knowledge of prices of different drugs, as
well as an ability to obtain drugs at short notice (See Bannikova
v. Russia, no. 18757/06, § 42, 4 November
2010, and Shannon v. the United Kingdom (dec.), no.
67537/01, ECHR 2004-IV). A strong indication of Mr Malininas'
primary involvement in drug dealings was his apparent familiarity
with the drug market, when approached by the police agent, as he was
already well informed about prices of psychotropic drugs, as well as
about possible suppliers of such drugs, in particular Mr Lalas, the
applicant in the case at hand. For this reason I believe the
undercover operations against Mr Malininas were justified.
Thus it cannot be said that the police by way of unjustified
undercover operations directed at Malininas instigated an offence in
respect of the applicant in this case.
Secondly,
as regards the applicant himself, and using the same criteria as
above, it is striking that he was ready and able to fulfil Mr
Malininas requests for psychotropic drugs worth of 3000 US dollars at
relatively short notice. It is hardly conceivable that someone, to
whom the world of drug trade was unknown before, would be able push
through a deal of this magnitude so quickly. This is enough to show
that the applicant was clearly predisposed to commit a drug offence
before the Model was implemented against Mr Malininas.
Thirdly,
as stated earlier the applicant in this case was never mentioned in
the authorisation for the Model (see paragraphs 19 and 45 above). It
is furthermore not disputed that the undercover police agents never
at any time contacted the applicant directly, but they only had
contact with Mr Malininas. Under these circumstances it is of
less relevance whether the applicant himself was predisposed to
commit drug offences before the police officers approached Mr
Malininas. The stark reality is that the applicant, without any
direct incitement or pressure from the police agent, agreed to supply
Mr Malininas, who was just another private individual, with large
quantities of illegal drugs.
For
these reasons I come to the conclusion that there has been no
violation Article 6 § 1 in this case.
