KUZMICKAJA v. LITHUANIA
Inadmissible
Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria
The applicant, Ms Natalja Kuzmickaja, is a Lithuanian national who was born in 1971 and lives in Vilnius. She was represented before the Court by Mr M. Paškevič, a lawyer practising in Vilnius. The Lithuanian Government were represented by their Agent, Ms Elvyra Baltutytė. The applicant was a shareholder in a company which owned a bar where she worked as a bartender. The police received an anonymous tip that the applicant’s bar was selling inaccurate, reduced measures of alcohol. Consequently, on 23 April 2003 police officer AD, accompanied by two other officers, SP and AR, carried out a “test purchase” (kontrolinis pirkimas) of drinks at the bar. He posed as a regular private customer, in order to establish whether it was serving the correct quantities of alcohol offered by its menu. Having asked for two shots of 50 grams of brandy, the applicant served AD shots of 40 and 44 grams respectively. On the same date police officer SP filed a record of an administrative offence, concluding that the applicant had thus defrauded the client (AD) in the amount of 0.96 Lithuanian Litas (‘LTL’; that is about 0.28 euros -’EUR’). On 11 June 2003 the Vilnius City Second District Court found the applicant guilty of the administrative offence of defrauding a customer (Article 163-1 of the Code of Administrative Offences). She was fined LTL 240 (about EUR 69.50). The court had before it by way of evidence, inter alia, the protocols of the offence and the “test purchase”, the testimony of the three police officers AD, SP and AR, and the explanations of the applicant. On 18 July 2003 the Supreme Administrative Court rejected the applicant’s appeal against the lower decision, stating inter alia: “The ‘test purchase’ is not an act of a forceful nature. Human rights are not restricted by such an action, and the information received in the execution thereof does not lose its value as evidence just because the execution of a ‘test purchase’ is not regulated [by law].” According to the Government, the Code of Administrative Law Offences at the material time provided, insofar as relevant, as follows: “Defrauding buyers or clients while weighing, thus increasing the fixed prices and tariffs of goods and services, failing to follow the requirements of the price references established in legal acts, or otherwise defrauding buyers or clients while selling them goods and providing services, shall be punished by a fine of 20 to 500 LTL, [and] employees of companies, including self-employed natural persons or officials, shall be punished by a fine of 100 to 1,000 LTL...” “ The factual data of the case is determined by the protocol of the administrative law offence, the photographs, the audio and visual records, the testimony of witnesses, the explanations of the aggrieved party and the offender, the protocol of the seizure of the goods and documents, and by any other documentation.” According to the applicant, Article 314 of the Code on Administrative Law Offences at the material time provided that, if a person failed to pay an administrative fine, it could be levied on the individual’s personal property, or replaced by community service. If none of these alternatives were viable, administrative arrest of up to 30 days could be ordered. The place for such an arrest was to be fixed by the police authorities (Article 338 of that Code). The Law on Police Activities at the material time provided, insofar as relevant, as follows: “1. The main tasks of the police shall be as follows: i. the protection of human rights and freedoms; ... iv. the prevention of criminal acts and other violations of law; v. the detection and investigation of criminal acts and other violations of law; ...” “1. While investigating a criminal act or possessing information that such an act is being planned, is being carried out or has been carried out, the police officer shall, in the manner and on a basis established by legal acts, have the right: i. to inspect the economic and commercial, as well as the financial or other activities of enterprises, agencies and organisations of all types, the state of protection of material valuables and goods, [and] the legality of their acquisition, production, utilisation and sale ...; ... iii. to ... check measurements ...; to examine, review and seize ... samples of raw materials, products and goods [or] other items...; iv. to obtain information and explanatory statements concerning criminal acts or violations from managers, officers and other persons materially responsible...; ... vi. to enter the premises, agencies and organisations of all types during working hours...; vii. within his [her] competence, to perform operational activities, investigate criminal cases ... and carry out any other activities provided for by laws and other legal acts.”