SECOND SECTION
AS TO THE ADMISSIBILITY OF
Application no. 74420/01
by Kęstas RAMANAUSKAS
against Lithuania
The European Court of Human Rights (Second Section), sitting
on 26 April 2005 as a Chamber composed of:
MrA.B. Baka, President,
MrJ.-P. Costa,
MrR. Türmen,
MrK. Jungwiert,
MrM. Ugrekhelidze,
MrsA. Mularoni,
MrsE. Fura-Sandström, judges,
and Mr S. Naismith, Deputy Section Registrar,
Having regard to the above application lodged on 17 August 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the fact that Mrs D. Jočienė, the judge elected in respect of Lithuania, withdrew from sitting in the case (Rule 28), and that the respondent Government appointed Mr J.-P. Costa, the judge elected in respect of France, to sit in her place (Article 27 § 2 of the Convention and Rule 29 § 1),
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Kęstas Ramanauskas, is a Lithuanian national who was born in 1966 and lives in Kaišiadorys. He was represented before the Court by Mr R. Girdziušas, a lawyer practising in Kaunas. The respondent Government were represented by Mrs D. Jočienė, of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant 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 offered him a bribe of USD 3,000 in return for a promise to obtain the acquittal of a third person. The applicant having initially refused, AZ thereafter reiterated the offer a number of times before the applicant agreed.
The Government submitted that VS and AZ had approached the applicant and negotiated the conditions for the bribe on their own private initiative, before the authorities were informed.
On an unspecified date AZ, who was in fact an officer of a special anti-corruption police unit of the Ministry of Interior (STT), informed his employers that the applicant had agreed to accept a bribe.
On 26 January 1999 the STT applied to the Prosecutor General, requesting authorisation of a Criminal Conduct Imitation Model (“the model”).
On 27 January 1999 the Deputy Prosecutor General authorised the model whereby VS and AZ were permitted to imitate criminal acts of bribery (contrary to the then Article 284 of the Criminal Code) and a breach of the relevant currency regulations (Article 329).
On 28 January 1999 the applicant accepted 1,500 US dollars (USD) from AZ.
On 11 February 1999 AZ paid the applicant a further USD 1,000.
On the same date the Prosecutor General instituted a criminal case against the applicant for accepting a bribe (the then Article 282 of the Criminal Code).
On an unspecified date, the pre-trial investigation was concluded and the case was transmitted to the Kaunas Regional Court.
On 18 July 2000 the Deputy Prosecutor General permitted a judge of the Kaunas Regional Court to disclose the details of the implementation of the model “to the extent that it did not contradict the interests” of the persons and the authorities who had executed the model.
On 29 August 2000 the Kaunas Regional Court convicted the applicant of accepting a bribe of USD 2,500 from AZ (Article 282 of the Criminal Code then in force). He was sentenced to 19 months and 6 days’ imprisonment. It was established that AZ had given the applicant the bribe during their two meetings of 28 January and 11 February 1999, in return for the promise of favourable actions by the applicant in a criminal case against a third person. It was confirmed that AZ had entered into contact and negotiated with the applicant with the assistance of VS. The court reached these conclusions essentially on the basis of the evidence given by AZ and secret recordings of his conversations with the applicant. The Court also questioned another witness, AP, a prosecutor working in the same regional office as the applicant, who only confirmed that the applicant had dealt with the criminal case of the third person. VS was not examined during the trial. His statements were read out in court as they had been recorded by the pre-trial investigators. However, the trial court did not take them into account for the applicant’s conviction.
On appeal by the applicant, on 26 October 2000 the Court of Appeal upheld the judgment. The applicant was arrested on that day.
On 23 November 2000 the applicant submitted a cassation appeal, arguing inter alia that he had been incited to accept a bribe by VS and AZ, and that VS had not been questioned during the proceedings.
The date of the final decision of the Supreme Court is not clear. A copy of the decision submitted to the Court reads “23 January 2001” as its date of adoption. However, the applicant and the Government (in part of their observations) submit that the decision was in fact taken on 27 February 2001.
In the decision of 23 January 2001, the Supreme Court rejected the applicant’s cassation appeal, stating inter alia:
“There is no evidence in the case-file that [the applicant’s] freedom of will was eliminated or otherwise constrained in such a way that he had no other choice than to breach the law by his own actions. [AZ] neither demanded that [the applicant] act in favour of the person offering the bribe, nor did he threaten [the applicant]. An oral request was made to help discontinue the case [against the third person] ... K. Ramanauskas understood the unlawfulness of the request ... [and] the Regional Court correctly found him guilty ...
[The applicant] contests the lawfulness of [the model] ..., stating that the case discloses an apparent incitement (kurstymas) by the special service officers to accept the bribe ... [According to the law, the] model cannot be authorised in the absence of evidence of an offence which is being prepared or executed. Therefore the model cannot be authorised with a view to inciting a person or persons to commit a crime. If the model serves to incite to commit an offence, it is unlawful, [and] a court cannot consider [it] as evidence ... [The] model can be authorised and applied only where a person has planned or begun committing an offence, and this material 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, when it had already been essentially agreed that K. Ramanauskas would perform the requested actions for 3,000 US dollars ... Therefore [the authorities] only joined the criminal act in progress by way of the model. ...
The case contains no material attesting that [VS] is an employee of the special services ... [AZ] works at the STT as a policeman-driver ... but this does not mean that he can have no private interests. There is no evidence that, in negotiating with K. Ramanauskas, [VS] and [AZ] acted on an assignment by the law enforcement authorities. However, when giving the money to K. Ramanauskas, [VS] and [AZ] had acted under the auspices of the law enforcement authorities.
The chamber considers that a provocation (provokacija) to commit a crime is a similar but not equal thing to incitement (kurstymas) ... A provocation is a kind of incitement of a person to commit an offence in order to get at him ... by way of creating his criminal responsibility for the act. From the point of view of morals, a provocation is reprehensible behaviour; however the term provocation is used neither by the existing criminal and procedural laws, nor by the Operational Activities Act of 22 May 1997... The law does not provide that a provocation constitutes a factor eliminating the criminal responsibility of a person who has committed an offence as a result of the provocation...
As regards the actions of [VS] and [AZ] before the authorisation of the Criminal Conduct Imitation Model, the case file contains controversial evidence as to who was the initiator (iniciatorius) of giving and accepting the bribe, who incited to give or accept the bribe. [According to VS] ... after contacting K. Ramanauskas for help to discontinue the criminal case [against the third person], K. Ramanauskas was the first to say that the matter could be settled for 3,000 US dollars. [According to AZ] ... K. Ramanauskas said that the discontinuation of the case would cost 3,000 US dollars. K. Ramanauskas alleged in his testimonies that [VS] had asked him if 3,000 US dollars would be enough for discontinuing the case. In these circumstances, it cannot be firmly said who was the initiator of the bribery, or concluded that [VS] and [AZ] incited K. Ramanauskas to accept a bribe. Further, there is no ground to hold that [VS] and [AZ] provoked K. Ramanauskas to accept a bribe. It can only be said unequivocally that the initiative (iniciatyva) to apply to K. Ramanauskas for discontinuing the case [against the third person] came from [AZ].
At the same time the chamber considers that there is no difference whether one has specifically inclined (palenkė) or otherwise incited (sukurstė) a person to give or accept a bribe in so far as the legal assessment of [the applicant’s] behaviour is concerned. An incitement (kurstymas) to commit an offence is one of the various forms of participation by accomplices in a crime. According to the accomplice theory of criminal law, an incitement is a form of unlawful collaboration. A person incited to, and having later committed, an offence incurs the same criminal responsibility as the principal perpetrator ... In the instant case, even assuming that K. Ramanauskas was incited by [VS] and [AZ] to accept a bribe, such incitement was made in the form of an offer. K. Ramanauskas was not threatened; he was not blackmailed; he was therefore able to decline the criminal offer (and ought to have done so) ... In this case it follows from the testimonies of K. Ramanauskas that he understood the substance of the requested actions, and intentionally agreed to accept [the bribe] ...
At the same time it must be noted that the specific feature of bribery as an offence is that one side is inevitably an instigator (kurstytojas) in committing the offence. A State official asking for a bribe is an instigator within the meaning of Article 284 [of the Criminal Code as then in force, CC] in that he incites (kursto) the gift of a bribe, contrary to Article 284 of the CC. [A person] offering a bribe is always an instigator, within the meaning of Article 282 of the CC as, by making the offer, he incites a State official to accept a bribe, that is to commit the offence provided for in Article 282 of the CC ... Both the person giving and the one accepting a bribe have freedom of will ... to choose one of the possible forms of behaviour. And if the person intentionally chooses the criminal variant of behaviour while having the possibility not to submit to the incitement, he correctly incurs criminal responsibility, regardless of the outside influence on his determination ...”
On 31 January 2002 the applicant was released on licence.
B. Relevant domestic law and practice
The relevant domestic law and practice is set out in the decision on admissibility in the case of Bendžius v. Lithuania (decision of 26 April 2005, no. 67506/01).
COMPLAINTS
1. Under Articles 6 and 8 of the Convention, the applicant complained that he had been incited to commit an offence by the State authorities, acting through VS and AZ as undercover agents, and that as a result he had been unfairly convicted of bribery.
2. Under Article 6 the applicant also complained that the courts had not been impartial in that they had taken wrong decisions from the point of view of domestic law and the Convention.
3. Finally, under Article 6 §§ 1 and 3 (d) of the Convention, the applicant complained that the principle of equality of arms and his defence rights had been violated in that VS, one of the two undercover agents in the case, had not been examined during the trial by the courts or the parties.
THE LAW
1. The applicant alleged incitement against him in breach of his right to a fair trial under Article 6 § 1 of the Convention, the relevant part of which provides as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...”
The applicant also complained that the incitement had breached Article 8 of the Convention, the relevant parts of which read as follows:
“1. Everyone has the right to respect for his private ... life, ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime, ...”
The Government submitted first that the Court was not competent to deal with the applicant’s complaints in that they related mostly to questions of fact and the application of domestic law, thus amounting to “fourth instance issues”.
The Government contended that in any event there had been no incitement of the applicant by the authorities, and no breach of Article 6 by the application of the model in his case. In this respect the Government stressed that VS and AZ had approached the applicant and negotiated the bribe on their own private initiative, before the authorities had even been informed about it. Thereafter the model had been authorised in order to secure the important interests of society, on the basis of the information given by AZ about the applicant’s determination to accept a bribe. By the authorisation and implementation of the model the authorities had only sought to “join” the applicant’s criminal acts that had been agreed upon between the applicant on one hand, and VS and AZ acting on their own “private” initiative on the other hand. The authorities could not be held responsible for any acts of VS and AZ carried out before the authorisation of the model. The Government concluded that no inappropriate pressure had been put on the applicant by the authorities. Consequently, the crime would have been committed even without the authorities’ intervention. In sum, there had been no incitement to commit the crime, in contrast to the position in the Teixeira de Castro v. Portugal case (no. 25829/94,
§§ 34-39, ECHR 1998-IV).
The applicant stated that there had been a breach of his right to a fair trial in view of the alleged incitement against him. In his view, it was enough to note that AZ had in fact been an STT officer who had incited him to accept a bribe, as confirmed by the decision of the Supreme Court in the case. By “joining” the criminal acts incited by AZ, the authorities had accepted full responsibility for the latter’s initiative. The applicant concluded that, without the authorities’ intervention, the crime would not have been committed. Furthermore, the applicant complained about the domestic courts’ failure to give an adequate answer to the question of the authorities’ responsibility for aiding and abetting the execution of an instigated crime. The applicant concluded that he had thus been denied a “fair trial” in breach of Article 6 of the Convention.
In view of the parties’ observations on this part of the application under Article 6 § 1 of the Convention, the Court finds that it raises complex questions of fact and law, the determination of which should depend on an examination of the merits. It cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
To the extent that the applicant makes the same complaint under Article 8 of the Convention about the unfairness of his conviction in view of the alleged incitement against him, the Court does not consider it necessary to examine the matter separately under that provision.
2. As regards the applicant’s allegation of judicial bias, the Court notes that the applicant contested the competence of the judges in carrying out their statutory functions. However, he did not present any evidence which might have disclosed, on a subjective or objective basis, an appearance of a lack of impartiality within the meaning of Article 6 § 1 (see, by contrast, the Daktaras v. Lithuania judgment, no. 42095/98, 10.10.2000, §§ 30-38; ECHR 2000-X).
It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
3. The applicant further complained that the principle of the equality of arms and his defence rights had been violated in that VS, one of the two undercover agents in the case, had not been examined during the trial by the courts or the parties. In that connection he alleged a violation of Article 6 §§ 1 and 3 (d) of the Convention, 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; ... .”
The Government submitted that this provision does not guarantee, as such, an absolute right to question every possible witness. The applicant had not presented sufficient reasons for the courts to examine VS, given that the trial court had not based the conviction on VS’s statements. Moreover, VS could not have been questioned during the trial as his place of residence was unknown. In any event, the courts had based the conviction on other inculpating evidence - chiefly the statements by AZ and the recordings of his conversations with the applicant - which the applicant had been able to contest in open court. The trial had thus been adversarial, and no breach of the above provision had occurred.
The applicant disagreed, stating that VS had in fact introduced the applicant to AZ and had been at the core of the alleged incitement to accept bribery. VS had been a secret informer of the authorities for a long time, as confirmed by the fact that he had been authorised to act as a police undercover agent in the case. According to the applicant, his statements would thus have been crucial in establishing whether incitement had taken place. The authorities’ failure to ensure the attendance of the witness at the trial had breached the above Convention provision.
In the light of the parties’ observations, the Court finds that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. It cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaint under Article 6 of the Convention about a breach of his right to a fair hearing regarding an alleged incitement to commit an offence and the fact that he was not permitted to examine VS in court;
Declares the remainder of the application inadmissible.
S. Naismith A.B. Baka
Deputy RegistrarPresident
Full & Egal Universal Law Academy