Communicated on 24 February 2016
FOURTH SECTION
Application no. 51760/10
Raisa ŠARKIENĖ
against Lithuania
lodged on 13 August 2010
STATEMENT OF FACTS
The applicant, Ms Raisa Šarkienė, is a Lithuanian national, who was born in 1956 and lives in Vilnius. She is represented before the Court by Mr T. Jacukovič, a representative of the Lithuanian Human Rights Observers Association based in Vilnius.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 6 May 2008 the applicant, together with her friend A. and A.’s minor son L., attended the recording of the weekly TV show “Duets of Stars” (“Žvaigždžių duetai”). The show was a singing competition among celebrity duets that were assessed by a three-member jury. The chairperson of the jury was a well-known opera singer V.J.
That evening after the show, V.J. received a text message on his personal mobile phone, with the following text:
“I want to tell you this right now! You didn’t have problems – you will now! We have warned you!!! Don’t you think that you live and have protection, moron! I repeat, this was the last warning! I’ll give you time to enjoy your life, if you want to have a family and not coffins, this is not a joke, mister soloist! Godmother!!! We have warned you! We are watching you! Good luck. Until the next time, if you’re still alive.” (“Staigiai noriu pasakyti! neturėjot problemu ju bus! mes gi jus ispejom!!! ar jums neatrodo, kad gyvenat, apsauga turi glusai! kartoju paskutinis buvo ispejimas! duodu laiko dziaugtis gyvenimu jei nori tureti seima o ne karstus cia nejuokai ponas soliste! kriksto mama!!! perspejom! mes jus stebim! sekmes. iki kito karto jei gyvas dar busit.”)
V.J. informed the police that he had been threatened, and the police opened an investigation. It was identified that the phone number from which the message had been sent belonged to L. His mother A. stated that L. had lost his mobile phone some time around 6 May 2008. Subsequently that phone was found at the possession of another individual V., who informed the police that the phone had been given to him by the applicant as a present.
On 10 July 2008 the applicant was informed that she was suspected of threatening to murder or cause a severe health impairment to another person, under Article 145 § 1 of the Criminal Code. That same day she was questioned by the police. No lawyer was present during the questioning. The applicant confessed to sending the aforementioned text message to V.J. She stated that she was a fan of singer R. who had been a participant of “Duets of Stars”, and on 6 May 2008 V.J., as the chairperson of the jury, had given negative feedback about R.’s performance. The applicant claimed that she had felt insulted and upset by V.J.’s comments, so she had taken an unknown mobile phone from her table and sent the text message. She stated that she had not known whose phone that was, but she had put it into her purse and forgotten about it until much later, when she found the phone again and gave it to her friend V. The applicant claimed that she was sorry about the incident and wanted to apologise to V.J.
Subsequently the applicant requested State-guaranteed legal aid and her request was granted. In all the following proceedings she was represented by a lawyer.
On 17 April 2009 the Vilnius City 1st District Court held an oral hearing in the applicant’s case. The applicant withdrew her earlier confession and stated that she had only confessed because of the pressure exerted upon her by police officers. Before the court she claimed that she did not have V.J.’s phone number, did not know him personally, and had not sent him the text message nor had any reasons to do so.
The court also heard the testimonies of three police officers who had interacted with the applicant on 10 July 2008. They all denied putting any pressure on the applicant to confess. Officer D.K. also stated that the applicant had been informed about her right to a lawyer but had not requested one.
The court found the applicant guilty of threatening to murder or cause a severe health impairment to another person. She was ordered to stay at home from 22:00 to 06:00 for six months and to find a job or register at a labour exchange. The court also awarded non-pecuniary damages of 10,000 Lithuanian litai (LTL, approximately 2,900 euros (EUR)) from the applicant to V.J.
On 22 July 2009 the Vilnius Regional Court upheld the applicant’s conviction but reduced the amount of non-pecuniary damages to LTL 5,000 (EUR 1,450).
On 2 February 2010 the Supreme Court dismissed the applicant’s cassation appeal. In respect of the applicant’s defence rights, the Supreme Court noted that on 10 July 2008 the applicant had been informed about her right to a lawyer and waived that right, so questioning her in the absence of a lawyer could not be considered a breach of her defence rights.
According to the applicant, she received the Supreme Court’s judgment on an unspecified date after 15 February 2010.
B. Relevant domestic law
The relevant provisions of the Code of Criminal Procedure provide as follows:
Article 10. The suspected, accused or convicted person’s right to defence
“1. A suspected, accused or convicted person has the right to defence. This right must be ensured from the moment of their detention or the first questioning.
2. The court, prosecutor or investigating officer must ensure the possibility for the suspected, accused or convicted person to defend themselves by means prescribed in the law ...”
Article 52. Waiving the right to a lawyer
“1. A suspected or accused person can waive their right to a lawyer at any stage of the proceedings ... The right to a lawyer may be waived only at the initiative of the suspected or accused person himself/herself. The waiver of the right to a lawyer must be recorded in a written report.
2. The investigating officer, prosecutor or court is not bound by the waiver of the right to a lawyer where such a waiver has been submitted by a minor or by a person who cannot exercise his/her defence rights because of physical or psychological limitations, or by a person who does not know the language of the proceedings, or by a person who is suspected or accused of committing a serious or very serious crime and the case is complex or large-scale, or there are any other reasons raising doubts as to that person’s ability to defend himself/herself.
3. Waiving the right to a lawyer does not preclude the suspected, accused or convicted person from having a lawyer at any later stage of the proceedings.”
COMPLAINT
The applicant complains under Article 6 § 1 and 6 § 3 (c) of the Convention that police officers pressured her to waive her right to a lawyer and, in the absence of a lawyer, to falsely confess to an offence which she claims she did not commit.
QUESTIONS TO THE PARTIES
1. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention?
2. Did the applicant have a fair trial in the determination of the criminal charge against her, in accordance with Article 6 § 1 and 6 § 3 (c) of the Convention, in view of the fact that the applicant’s confession made in the absence of a lawyer was subsequently used for her conviction?
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