Communicated on 5 October 2016
FOURTH SECTION
Application no. 9464/14
Gintautas JURGELAITIS
against Lithuania
lodged on 21 January 2014
STATEMENT OF FACTS
The applicant, Mr Gintautas Jurgelaitis, is a Lithuanian national, who was born in 1970 and lives in the village of Žūklijai (in the Šakiai Region).
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Criminal proceedings concerning assault
On 26 February 2011 the applicant was served with a notice that he was suspected of being an accomplice to an armed assault of another person which had caused that person minor health impairment, contrary to Article 138 § 1 of the Criminal Code. On the same day and the following day, the applicant was questioned as a suspect in the pre-trial investigation; he denied having taken part in the assault. On an unspecified date another individual, S.B., also became a suspect in the pre-trial investigation. It was suspected that the applicant and S.B., driving in the applicant’s car, had chased another car in which A.A. and V.Ž. had been present. It was further suspected that S.B. had had a knife and that the applicant had been aware of it. Lastly, it was suspected that after the two cars had stopped, the applicant had started talking to V.Ž., while S.B. had assaulted A.A. with the knife.
On 1 March 2011 the pre-trial investigation in respect of the applicant was discontinued on the grounds that his actions had not constituted a crime under Article 138 § 1 of the Criminal Code. The investigation continued in respect of S.B. The applicant was questioned several times as a witness in the criminal case against S.B. and was warned that giving false testimony would attract criminal responsibility under Article 235 of the Criminal Code. In all his statements the applicant maintained that he had arrived at the location of the assault after it had already finished and that he had not known that S.B. had had a knife.
On 16 December 2011 S.B. was found guilty of a criminal offence under Article 138 § 1 of the Criminal Code.
2. Criminal proceedings concerning false testimony
On 17 January 2013 the Šakiai District Court found the applicant guilty of giving false testimony in the criminal case against S.B. The court held that the applicant’s testimony in that case had been inconsistent and contradictory, and that the testimony of other witnesses had proven that the applicant had been present during the assault and that, prior to the assault, S.B. had shown the applicant that he had had a knife.
The applicant submitted that by questioning him as a witness and not as a suspect, the authorities had breached his right not to incriminate himself. He argued that he had been questioned about his own role in the assault (as an accomplice to S.B.) and therefore should have been exempted from liability for refusing to testify or giving false testimony. The applicant also submitted that although the pre-trial investigation in respect of him had been discontinued, the law provided that it could be reopened, so there had remained a possibility that his testimony could be used for charging him as an accomplice to the assault committed by S.B. However, the Šakiai District Court dismissed those arguments and held that the applicant had only been questioned about S.B.’s actions, not his own, and that he had not been a suspect in the case. The applicant was fined 1,950 Lithuanian litai (LTL, approximately 565 euros (EUR)).
The applicant appealed against that judgment, raising essentially the same arguments concerning his right not to incriminate himself. However, on 17 May 2013 the Kaunas Regional Court dismissed his appeal. It reiterated that, at the time when the applicant was questioned as a witness, the pre-trial investigation against him had been discontinued, so there was no reason to find that he might have incriminated himself. The court also stated that the applicant had been informed that he had been called as a witness, and had been warned about criminal responsibility for giving false testimony, so he had had no reason to believe that he might still be a suspect. The court also pointed out that the facts about which the applicant had been questioned had been relevant only for the criminal responsibility of S.B. and not for that of the applicant.
The Kaunas Regional Court upheld the applicant’s conviction for giving false testimony but found that the lower court had erred when determining the sentence because it had applied an old version of the Criminal Code. The Kaunas Regional Court therefore changed the applicant’s sentence in line with the version of the Criminal Code which was in force at the time when the applicant gave his last testimony in the criminal proceedings against S.B., and fined him LTL 15,600 (EUR 4,518).
The applicant submitted an appeal on points of law, again arguing that his right not to incriminate himself had been breached. However, on 23 December 2013 the Supreme Court dismissed his appeal. It reiterated that the applicant had been warned about criminal responsibility for giving false testimony and that he had been questioned about the actions of S.B. and not his own, so it must have been clear to him that his testimony could not incriminate him.
B. Relevant domestic law
Article 80 § 1 of the Code of Criminal Procedure (hereinafter – “the CCP”) provides that persons who are to give testimony about their own possibly criminal activity cannot be questioned as witnesses unless they agree to be thus questioned. Article 82 § 3 and Article 83 §§ 2 and 4 of the CCP provide that when such persons are questioned, they have the right to legal representation and to ask that they be granted status as a suspect, and they are exempted from liability for refusing to testify or giving false testimony.
Article 217 § 2 of the CCP allows the reopening of a previously discontinued pre-trial investigation following the discovery of essential circumstances which are relevant for the proper examination of the case and which had not been established at the time of adopting the decision to discontinue the investigation.
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention that his right not to incriminate himself was breached. He submits that even though he was questioned about his own involvement in the criminal activity as an accomplice, his procedural status was that of a witness and he was subsequently held liable for giving false testimony and given a substantial fine. He also submits that the domestic courts did not properly examine his arguments related to his right not to incriminate himself.
QUESTION TO THE PARTIES
Has there been a breach of the applicant’s right not to incriminate himself, as guaranteed by Article 6 § 1 of the Convention, in view of the fact that he was held criminally liable for giving false testimony in the criminal proceedings against S.B. (see Weh v. Austria, no. 38544/97, §§ 39‑46, 8 April 2004, and the cases cited therein)?
The parties are requested to submit copies of the statements which the applicant gave in the context of the criminal proceedings against S.B. The parties are also requested to inform the Court whether there have been any other related proceedings against the applicant.
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