Communicated on 18 December 2019
SECOND SECTION
Application no. 14833/18
Virginijus ADOMAITIS
against Lithuania
lodged on 23 March 2018
SUBJECT MATTER OF THE CASE
The applicant worked as a director of the Kybartai correctional institution. Between June 2015 and May 2016 the law-enforcement authorities applied criminal intelligence measures in respect of the applicant, on suspicion that he had committed a criminal offence – abuse of office (Article 228 § 1 of the Criminal Code) – having unjustifiably given commendations to the inmates. Those measures included interception of his telephone communications and placing covert listening devices in the applicant’s office in that institution. Ultimately, the authorities did not open a criminal investigation against the applicant for lack of incriminating evidence.
The applicant however submits that the information which was collected when using the criminal intelligence measures had been leaked to his superiors at the Department of Prisons. As a result, and on the basis of that information, he was dismissed from service in subsequent disciplinary proceedings. The applicant points out that he had challenged his dismissal but that the court proceedings regarding this matter were still pending.
In the meantime, the applicant took a number of steps seeking to obtain the information gathered against him during his secret surveillance. However, the Department of Prisons refused to disclose that information, notwithstanding a court decision obliging it to release it to the applicant.
Under Article 6 § 1 of the Convention the applicant complains that he had not been able to see the materials of his secret surveillance, even if those materials had led to his dismissal, and notwithstanding the fact that all other institutions had access to that information.
He also maintains under Article 13 of the Convention that he had attempted to challenge the actions and decisions of various authorities, which included the investigators, the prosecutors, the Department of Prisons, the Seimas’ parliamentary commission for oversight of intelligence bodies, and the courts. In this connection, the applicant complains that there is lack of precise and proper legal framework indicating how information collected when employing the criminal intelligence model may be used and its lawfulness contested. In his case, this has led to the result that all the attempts by the applicant to bring complaints with the authorities to scrutinise any errors, which could have occurred when employing the criminal intelligence model and using the obtained information, were futile.
Lastly, the applicant complains under Article 8 of the Convention that his communications had been intercepted. He submits that there had been no proper factual and legal basis to intercept his communications and that he was also dissatisfied with the fact that that information had been leaked to serve as a basis for his disciplinary proceedings.
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QUESTIONS TO THE PARTIES
1. Has the applicant had effective access to a court (or another institution) in relation to his complaint that the materials collected while using the criminal intelligence model had been used against him during the disciplinary proceedings that led to his dismissal, as required by Articles 6 and/or 13 of the Convention (see Drakšas v. Lithuania, no. 36662/04, §§ 67 and 68, 31 July 2012)?
Have the proceedings the applicant underwent been devoid of arbitrariness? Has there been an institution which could effectively scrutinise any errors which could have occurred in the implementation of criminal intelligence surveillance measures?
Has the decision-making procedure complied with the requirements of the adversarial proceedings and equality of arms, and did it incorporate adequate safeguards to protect the interests of the applicant, as required by Article 6 of the Convention (see Pocius v. Lithuania, no. 35601/04, §§ 51-58, 6 July 2010; Prebil v. Slovenia, no. 29278/16, § 42, 19 March 2019)? In that context, has the applicant had a possibility to effectively contest the gathering, use and retention of the materials collected while using the criminal intelligence model?
2. Has there been an interference with the applicant’s right to respect for his private life (see, in this context, Pocius, cited above, §§ 42 and 43)?
If so, has the disclosure, to other State institutions, of the materials collected while using the criminal intelligence model been in compliance with the requirements of Article 8 § 2 of the Convention? In particular, what were the specific legal and factual grounds for such a disclosure? Did it pursue legitimate aim, and was it necessary in a democratic society (see Dragojević v. Croatia, no. 68955/11, §§ 78-84, 15 January 2015, with further references; also see Liblik and Others v. Estonia, nos. 173/15 and 5 others, §§ 125-31, 28 May 2019)?
The parties are requested to provide information about the outcome of the applicant’s litigation regarding his dismissal, together with supporting documents.
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