Communicated on 29 September 2016
FOURTH SECTION
Application no. 43154/10
Henrikas DAKTARAS
against Lithuania
lodged on 12 July 2010
STATEMENT OF FACTS
The applicant, Mr Henrikas Daktaras, is a Lithuanian national who was born in 1957 and is serving a life sentence in Lukiškės Prison in Vilnius. He is represented before the Court by Mr V. Sirvydis, a lawyer practising in Kaunas.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On an unspecified date the prosecutors started a criminal investigation into crimes committed by a criminal association that the applicant belonged to. The applicant was later charged with offences ranging from participation in a criminal association armed with firearms and explosives, attempted murders and murders of a number of persons, robberies, unlawful deprivation of liberty, extortion and unlawful possession of firearms. The case was given number 01-2-00015-05.
On 4 January 2006 the applicant signed a legal assistance agreement with his lawyer K. Ašmys.
In December 2008 the Vilnius City First District Court authorised a search of the applicant’s home in the district of Kaunas. The search was conducted on 6 February 2009; the police took, among other documents, K. Ašmys’ reports to the applicant, as well as numerous documents regarding the services provided and the fees that the applicant and his wife paid or were due to pay the applicant’s lawyer between 2006 and 2007.
The applicant then complained that the documents taken were protected by lawyer-client confidentiality. He relied on Article 46 of the Law on the Bar (see Relevant domestic law below).
By a final ruling of 12 January 2010, the Vilnius City First District Court dismissed the complaint as unfounded. The court noted that the criminal case no. 01-2-00015-05 concerned acts committed by a criminal association. It was necessary to gather data about the applicant’s financial transactions to establish whether his income came from lawful sources. The court also underlined that at the time the search was performed K. Ašmys was not the applicant’s lawyer in the aforementioned criminal case. No procedural documents drafted by K. Ašmys in that criminal case had been collected during that search, nor was there an examination of the extent of the services he had provided to the applicant or the fees paid by the latter. The investigators could not have known that K. Ašmys would later become the applicant’s lawyer. Lastly, the guarantees listed in Article 46 of the Law on the Bar applied when the search was performed on the advocate’s premises, but not when searching his client’s home.
In June 2010 the State Tax Inspectorate opened an investigation into the financial activities of K. Ašmys’s, as a lawyer, and ordered him to provide information about his financial transactions for the period of September 2005 to December 2008.
In July 2010 the applicant complained about the search and the State Tax Inspectorate’s investigation to the Lithuanian Bar Association. He argued that the actions taken against his lawyer breached the applicant’s right of defence.
The applicant states that the State Tax Inspectorate also investigated the financial transactions of his wife’s company, without informing her that the information obtained could be used in the criminal proceedings against her husband.
B. Relevant domestic law
The Law on the Bar (Advokatūros įstatymas) at the relevant time read as follows:
Article 46. Guarantees of an Advocate’s Activities
“1. An advocate may not be summoned as a witness or to give explanations as to the circumstances which have come to his knowledge in the pursuit of his professional activities.
2. In the pursuit of their professional activities, advocates cannot be identified with their clients and their cases.
3. It shall be prohibited to examine, inspect or take away from the advocate’s practice documents or files containing information related to his professional activities, or to examine postal items, wiretap telephone conversations, or monitor any other information transmitted over telecommunications networks and other communications or actions, except when the advocate is suspected or accused of a criminal act. In that case permission shall cover only the documents related to the allegations or charges made against the advocate ...
5. It shall be prohibited to gain access, overtly or covertly, to information relating to an advocate’s professional secret and to use it as evidence. The advocate’s professional secret shall cover consultations with the advocate, the terms of the contract with the client, the information and data provided by the client, the nature of any consultations, and information collected by the advocate by order of the client.
6. The Lithuanian Bar Association must be notified if the advocate becomes a suspect or a defendant or procedural actions are taken against him.”
COMPLAINTS
Relying on Article 6 of the Convention, the applicant argues that the search of his home was in breach of his right to defend himself through a lawyer of his choosing. He further complains that his wife was forced to provide to the tax authorities evidence incriminating the applicant.
QUESTIONS TO THE PARTIES
1. Has the applicant had a fair trial, as required by Article 6 § 1 of the Convention (see Chopenko v. Ukraine, no. 17735/06, §§ 48 and 49 in limine, 15 January 2015)? The Court draws particular attention to the fact that during the search the documents related to the applicant’s legal assistance agreement with the lawyer K. Ašmys were taken from the applicant’s home.
2. To what extent, if at all, have the tax authorities’ conclusions as to K. Ašmys’ financial transactions with the applicant or his wife been used in the applicant’s criminal case?
3. Has the applicant’s wife been forced to provide documents incriminating the applicant?
4. The applicant is requested to specify the timeframe of his agreements with the lawyers who defended him throughout the criminal proceedings and to provide supporting documents as well as the judgments of the trial, appellate and cassation courts in the applicant’s criminal case no. 01‑2‑00015-05.
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