Communicated on 25 April 2016
FOURTH SECTION
Application no. 65611/10
Giedrė VITIENĖ
against Lithuania
lodged on 12 October 2010
STATEMENT OF FACTS
The applicant, Ms Giedrė Vitienė, is a Lithuanian national who was born in 1978 and lives in Vilnius.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2004 the applicant started working as an advisor to a member of Parliament who belonged to the political party D.P. The applicant’s main responsibilities were organising meetings and other events for D.P. members. She was neither a member of the party nor employed by it.
In 2006 the Prosecutor General’s office opened a criminal investigation against D.P. concerning allegations of fraudulent account management: it was suspected that the party had failed to record in its official accounts large sums of money which it had received from various sources, thereby breaching the requirements regulating the funding of political parties. The authorities seized a large quantity of “unofficial” cash expenditure receipts which showed that certain amounts of money ‒ which had not been entered in the official accounts ‒ had been spent on various items such as campaigning, purchasing office supplies, paying employees’ salaries, etc. Several individuals were indicted for their role in the fraudulent account management, including the party’s former accountant, N.S.
N.S. explained to the authorities that she had handled large amounts of unaccounted cash and had kept a record of the unofficial expenditure. N.S. would give the money to individuals to be spent on behalf of the party, and those individuals would fill in cash expenditure receipts indicating what the money had been spent on. N.S. stated that the applicant had been one of those involved and had been given unaccounted cash to organise events for the party and had filled in unofficial cash expenditure receipts.
The applicant was not a suspect in the case concerning the allegedly fraudulent account management but she was questioned as a witness in the case against N.S. in 2006 and 2007. She was warned that giving false testimony would attract criminal responsibility under Article 235 of the Criminal Code. The applicant was shown several cash expenditure receipts bearing hand-written notes indicating the purpose of the expenditure, such as “petrol for the meeting of February 14” and “concerts in Šiauliai and Klaipėda”. She was asked whether the handwriting on those receipts was hers, and responded in the negative. However, a court-appointed expert concluded that the handwriting of the receipts was in fact the applicant’s.
The applicant was subsequently charged with giving false testimony. In those proceedings she argued that her right not to incriminate herself had been violated. She claimed that if she had admitted her involvement with the unaccounted cash and the unofficial receipts, she would have risked being accused of fraudulent account management. She also argued that she should have been questioned not as a witness but as a suspect and thereby have been exempted from criminal responsibility for giving false testimony.
The domestic courts dismissed the applicant’s complaints concerning self-incrimination. They held that the decision as to whom to consider a suspect in the case was in the hands of the prosecution, and the prosecution had not had any grounds for suspecting the applicant of fraudulent account management. She had therefore been rightfully questioned as a witness. The applicant’s testimony concerning the unofficial cash expenditure receipts had been needed in order to verify the statements made by N.S., not in order to establish the applicant’s role in the fraudulent account management. The applicant had not been accused of fraudulent account management in relation to the case against N.S. or in any other case, meaning that her testimony concerning the unaccounted cash and the unofficial receipts could not have been, and in fact had not been, used in any case against her.
By the final judgment of 13 April 2010, the applicant was found guilty of giving false testimony and given a fine of 3,750 Lithuanian litai (LTL), (approximately 1,086 euros (EUR)).
B. Relevant domestic law
Article 80 § 1 of the Code of Criminal Procedure (hereinafter – “the CCP”) stipulates 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.
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention that her right not to incriminate herself was breached. The applicant submits that even though she was questioned about her own involvement in criminal activity, her procedural status was that of a witness and she was subsequently held liable for giving false testimony.
QUESTION TO THE PARTIES
Has there been a breach of the applicant’s right not to incriminate herself, as guaranteed by Article 6 § 1 of the Convention, in view of the fact that she was held criminally liable for giving false testimony about her own actions in connection with an investigation into fraudulent account management (see Weh v. Austria, no. 38544/97, §§ 39-46, 8 April 2004, and the cases cited therein)?
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