CASE OF POCIUS v. LITHUANIA
Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award
András Sajó;Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
5. The applicant was born in 1962 and lives in Kaunas. 6. By letter of 28 May 2002, Kaunas City Police informed the applicant that his permits to keep and carry a firearm for defence purposes as well as a hunting rifle had been revoked because on 19 April 2002 the applicant had been listed in an “operational records file” (policijos operatyvinė įskaita), a database containing information gathered by law-enforcement authorities (see paragraphs 24-26 in 'Relevant domestic law' below). The applicant was informed that he was to hand in these firearms to the authorities and would receive money for them. 7. On 19 September 2002 the applicant requested the Kaunas City District Court to order the removal of his name from the operational records database. The applicant stated that he had only discovered that his name had been so listed from the aforementioned police letter. 8. On 11 October 2002 the Kaunas City District Court refused the applicant's request, finding that he should have brought his claims before the administrative courts. 9. The applicant appealed to the Kaunas Regional Court, arguing that he had never been informed of the reasons for the listing of his name in the operational records file and requesting that it be removed. The applicant also asked the court to order the police to provide him with all the written materials concerning the listing of his name. 10. On 21 October 2002 the Kaunas Regional Court found that it was necessary to decide which court – of general or administrative jurisdiction – was competent to hear the applicant's case. 11. On 29 October 2002 Kaunas city police officials instituted criminal proceedings on charges of theft when acting in an organised group (Article 271 § 3 of the Penal Code). The applicant was charged on 16 November 2002 and placed under house arrest. 12. On 26 November 2002 the special chamber responsible for questions of jurisdiction, composed of the judges of the Supreme Court and the Supreme Administrative Court, decided that the applicant's case should be examined by the administrative courts. 13. On 27 March 2003 the applicant was charged with covering up a crime committed by others (Article 295 of the Penal Code). In particular, the investigators suspected that in October and November 2002 the applicant had helped to hide stolen cars on the premises of the company where he worked as the director. In his application the applicant maintained that this was not a fresh charge against him but a substitution for the previous charge of theft (see paragraph 11 above). 14. On 27 May 2003 the Kaunas City District Court ordered that the applicant be released from house arrest. 15. On 29 May 2003 the Kaunas Regional Administrative Court allowed the applicant's action, holding that the listing of his name in the police file was contrary to the principles of the presumption of innocence and the rule of law. Having reviewed the classified materials submitted by the police, the court found no evidence showing that the applicant had been engaged in any criminal activity. The court also noted the absence of any accusatory judgment against the applicant. On the contrary, testimony to his positive attributes, submitted to the court by environmental protection agencies and non-governmental associations, showed the applicant's goodwill and dedication (principingumą) to protecting nature. For the above reasons, the court ordered the Kaunas police officials to remove the applicant's name from the operational records file. 16. On 12 June 2003 the Kaunas police appealed. They contended that, when listing the applicant's name in an operational records file, the police had respected the applicable rules. In their appeal they observed that the file had been submitted to the Kaunas Regional Administrative Court and that the judges had acquainted themselves with that information. Lastly, the police noted that criminal proceedings on charges of theft had been pending and that the applicant was one of the accused. 17. On 23 July 2003 the Supreme Administrative Court quashed the lower court's decision and returned the case for fresh examination. It was noted that the lower court had erred in law and failed to consider certain relevant evidence. The appellate court emphasised that, when adopting a decision, the lower court had to evaluate all the evidence which had been presented at the hearing and to determine which circumstances had been established and which had not. In particular, the lower court had not properly examined the circumstances relating to the criminal proceedings on charges of theft and had failed to evaluate the applicant's procedural position in them. The Supreme Administrative Court stressed that it was indispensable to examine all the circumstances relevant to the dispute over the listing of the applicant's name in the operational records file. 18. On 1 December 2003 the Kaunas Regional Administrative Court dismissed the applicant's claim. The court admitted that a person listed in police records could be negatively affected in a number of ways, for example, he could lose the right to carry a firearm or face restrictions when applying for certain jobs. However, the court noted that having examined the “written evidence” in the case, as well as having examined, in the judges' chambers, the operational file on the applicant, the listing of the applicant's name in the police file had been lawful and justified. Whilst acknowledging that it had not been possible to disclose the operational file to the applicant, the court noted, nevertheless, that the applicant had been able to substantiate his claims by providing evidence or by asking the court to obtain the relevant materials when it had not been possible for him to obtain them himself. It concluded that he had not adduced any proof in support of his claim that the listing of his name in the operational file was unlawful. 19. The applicant appealed, noting the lower court's observation that the listing of his name in the police file could entail negative consequences for him. The applicant also submitted that he was an inspector of nature protection (gamtos apsaugos inspektorius) and that he had been attacked by poachers on numerous occasions. Consequently, were the guns to be taken away from him, it would be too dangerous for him to pursue that activity. Furthermore, the applicant alleged that the gun was necessary for defending his family – living in a remote and insecure rural area – and also for his job, as he occasionally transported large sums of money from his company's safe to the bank. 20. The applicant argued that he had had no access to the information which had served as the basis for the listing of his name in the police file. No reasons, except for theories (išskyrus prielaidas) had been disclosed to him. Relying on the above, the applicant submitted that his rights of defence had been breached and that the file on him should be destroyed. 21. On 24 March 2004 the Supreme Administrative Court dismissed the applicant's appeal, upholding the reasoning of the lower court. It noted that, “having evaluated the written evidence in the case and the operational file [which under the Law on State Secrets could not be disclosed to the defence], it had been possible to conclude that the listing of the applicant's name in that operational file had been reasonable and lawful”. 22. On 28 June 2004 the criminal investigation in respect of the applicant on account of suspected theft was discontinued due to statutory limitations. 23. Article 21 of the Constitution provides that the dignity of a human being is to be protected by law. Article 22 states that the private life of a human being is inviolable and that information concerning it may be collected only following a reasoned court decision and only in accordance with the law. The law and the courts are to protect anyone from any arbitrary or unlawful interference with his or her private life or from encroachment upon his or her honour and dignity. Article 23 of the Constitution provides that property is inviolable and that ownership rights are protected by law. Property may be taken only for the needs of society in accordance with the procedure established by law and must be fairly compensated. Under Article 30 of the Constitution, a person whose constitutional rights or freedoms have been violated has the right to apply to a court. Article 48 provides that each human being may freely choose a job or occupation. 24. Article 2 § 1 of the Law on Operational Activities (Operatyvinės veiklos įstatymas) (as in force until 28 June 2002) described “operational activities” as being intelligence and counter-intelligence activities conducted by institutions and authorised by the State to combat organised crime. Under Article 2 § 8 of the Law, an “operational records file” is the data on individuals, events and other targets obtained during the process of operational activities, with the intention of providing information to operational entities. 25. Under Article 4 of the Law, possible reasons for commencing operational activities would be the existence of preliminary information about a crime which was being planned or had already been committed against the State, about another kind of major crime, about an individual who was planning or who had committed a crime, about an individual's links to a criminal organisation, or about the activities of foreign intelligence services. 26. Article 13 of the Law provided: “1. Information obtained during the course of operations may be disclosed during court proceedings with prior authorisation from the Prosecutor General or the Deputy Prosecutor General designated by him. Use of information obtained during the course of operations for purposes other than those for which it was intended is prohibited. 2. Information obtained during the course of operations may be used as evidence in a criminal case in accordance with the formalities and procedure established by the Code of Criminal Procedure. 3. If, during the course of proceedings, information about an individual obtained using special equipment is disclosed, the individual has the right to lodge a complaint and contest the use of that information in court, on the grounds that the information was obtained illegally. In such instances the court has the right to disclose excerpts from the reasoned authorisation request [to start an operational activity] in order to prove the legality of that authorisation.” 27. Article 17 § 1 (2) of the Law on the Control of Arms and Ammunition (Ginklų ir šaudmenų kontrolės įstatymas) provided at the material time that arms and ammunition could not be acquired or possessed by a person who did not have an impeccable reputation. According to Article 18 § 2 (5) of that Law, a person was not regarded as having an impeccable reputation if his or her name had been listed in an operational records file. Article 38 of the Law provided that, after a firearms licence had been revoked, the arms and ammunition were to be taken from the person concerned and sold through the Arms Fund (a State agency) or through other companies authorised to sell them. 28. Article 6 § 2 (4) of the Law on the Protection of Persons and Property (Asmens ir turto saugos įstatymas) provides that a person whose name is listed in an operational records file is not eligible to work as a security officer. 29. The relevant part of the Law on Administrative Procedure (Administracinių bylų teisenos įstatymas) provides as follows: “1. Evidence in an administrative case is all factual data found admissible by the court hearing the case and based upon which the court finds ... that there are circumstances which justify the claims and rebuttals of the parties to the proceedings and other circumstances which are relevant to the fair disposal of the case, or that there are no such circumstances ... 3. As a rule, factual data which constitutes a State or official secret may not be used as evidence in an administrative case, until the data has been declassified in a manner prescribed by law.” 30. In the judgment of 4 September 2002 in case no. A10-786-02, the Supreme Administrative Court stated, in so far as relevant to the present case, that: “as a rule, factual data which constitutes a State or official secret may not be used as evidence in an administrative case until it has been declassified (Article 57 § 3 of the Law on Administrative Procedure). Therefore, in the absence of other evidence, the [lower] court's reliance on solely written information provided by the State Security Department which was marked as secret had no legal basis”. 31. On 15 July 2007 the Constitutional Court adopted a ruling on the compatibility with the Constitution of Article 57 § 3 of the Law on Administrative Procedure, and Articles 10 § 4 and 11 of the Law on State Secrets. It ruled that no decision of a court could be solely based on information which constituted a State secret and which was not disclosed to the parties to the case. In the ruling no. A822-326/2009 of 8 October 2009 the Supreme Administrative Court confirmed the above principles.