CASE OF RAMANAUSKAS v. LITHUANIA (No. 2)
No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Vincent A. De Gaetano
4. The applicant was born in 1966 and lives in Kaišiadorys. 5. The applicant worked as a lawyer in his own private practice. 6. On 28 January 2011 V.Š., a convicted prisoner, provided a statement to the Special Investigation Service (Specialiųjų tyrimų tarnyba, hereinafter “the STT”) and stated the following. He had heard from other inmates that the deputy head of Pravieniškės Correctional Facility, L.D., took bribes to transfer inmates to units with lighter security and that L.D. had mentioned to V.Š. that it was possible to be released on probation for money. V.Š. was questioned by the STT and stated that in December 2010 L.D. had asked him to his office and enquired whether he wanted to be released early. L.D. had indicated that he had a friend who could help V.Š. obtain release on probation and promised to organise a meeting with him. V.Š. was asked again that month by L.D. to go to the latter’s office, where he met the applicant (see paragraph 7 below). V.Š. asked the applicant what he should do in order to obtain release on probation. The applicant stated that V.Š. would first have to be transferred to a unit with lighter security. V.Š. asked the applicant how much it would cost him and the applicant replied that Kaišiadorys [District Court] would cost him 7,000 Lithuanian litai (LTL, approximately 2,027 euros (EUR)). After that the applicant indicated several judges that would agree to release V.Š. on probation. The applicant also stated that the cost for the same thing in the Kaunas Regional Court would be approximately LTL 10,000 (approximately EUR 2,896) but that that was not the final amount. The applicant also mentioned that V.Š. would have to pay LTL 1,000 (approximately EUR 290) for the transfer to a unit with lower security. After that conversation V.Š. started recording his discussions with L.D. and the applicant using a voice recorder watch which he said he had obtained from other inmates in exchange for cigarettes. Figures mentioned during the other meetings were LTL 2,000 (approximately EUR 579) for the transfer to another unit and LTL 12,000 (approximately EUR 3,475) for the judges at the Kaunas Regional Court as that amount could be more easily divided in three than LTL 10,000. V.Š. stated that no agreement on legal services had been concluded with the applicant. V.Š. then contacted an acquaintance, G.T., a former police officer who promised to contact the authorities. 7. The transcript of the conversation recorded between V.Š. and the applicant on 26 January 2011 showed that V.Š. had around LTL 35,000 (approximately EUR 10,137). The conversation went as follows: “The applicant: ‘ ...You understand that the intermediary who will go will also need some, and..’ ... The applicant: ‘You know, salaries there are [LTL] 7,000, so you know...’ The applicant: ‘As with [D], when he brought, looked, he went there with those pennies, [they] said no, and he did not have any more...’ V.Š.: ‘Listen, I will be honest, for example I said, the deputy head asked me, asked. I told him that I will have ten, ten euros, so to say thirty five litai.’ The applicant: ‘... With that, we can easily talk about Kaunas.’ ... The applicant: ‘I believe you. I think that it will go through with such an amount of money.’” The applicant told V.Š. that that amount might not actually be necessary. V.Š. then told the applicant that G.T. would contact him and give him LTL 2,000 (EUR 579). The applicant also told V.Š. that he had won a case against Lithuania at the Court and that he had not accepted a bribe in that case. The conversation went as follows: “The applicant: ‘I have already been burnt and only got things straight in Strasbourg. I have won [in] the Strasbourg Court against Lithuania. I previously worked as a prosecutor.’ V.Š.: ‘The deputy did not tell me anything.’ The applicant: ‘I could go back to being a prosecutor. I have won a case against Lithuania in Strasbourg.’ V.Š.: ‘I will ... shake your hand. I can say ... that this seems unreal to me.’ The applicant: ‘... The prosecutor with a bribe... Strasbourg proved that it was a provocation. I proved it in Strasbourg. The proceedings [there] took eight years.’ The applicant: ‘It was nothing to do with a bribe .... I ... bought an apartment, I asked someone to give me a loan... He ... was in prison later. He was released... and became a snitch.’ V.Š.: ‘A friend’. The applicant: ‘... He used to sleep at my mother’s place... I don’t know where he disappeared to. He will not die a natural death. I was not the only one he set up. Two judges in Kaunas as well.’ ... The applicant: ‘And I won a case in Strasbourg later. The Supreme Court rehabilitated me.’ V.Š.: ‘Yes.’ The applicant: ‘The Grand Chamber of seventeen judges, the plenary session for criminal cases.’ ... The applicant: ‘So look. When will that person come? So that I know what ...’ V.Š.: ‘So I can call you and simply say one word. Tomorrow, the day after tomorrow.’” The applicant asked V.Š. to make sure that G.T. did not tell anyone about the agreement and V.Š. assured him that G.T. would not ask any questions. 8. On 31 January the STT asked a prosecutor to apply to a pre-trial judge for authorisation for G.T. and V.Š. to offer and give a bribe to L.D. and the applicant, in accordance with the provisions of domestic law. The prosecutor also sought permission to make video and/or voice-recordings, to take pictures and to allow three officers to monitor L.D.’s and the applicant’s telephone conversations. The prosecutor also asked the Vilnius City Second District Court on the STT’s behalf to authorise covert surveillance of the applicant and L.D. for two months. The STT additionally informed the prosecutor that a pre-trial investigation had been opened against L.D. and the applicant. 9. On the same day the Vilnius City Second District Court authorised taps on the telephones of L.D., V.Š., G.T. and the applicant and allowed G.T. and V.Š. to perform actions which imitated criminal conduct for two months, until 31 March 2011. V.Š. was allowed to use various types of telecommunications and electronic network measures. 10. On 31 January 2011 V.Š. was transferred to a unit with lighter security, based on good behaviour and active participation in the commemoration of the Day of the Defenders of Freedom. 11. On 31 January 2011 G.T. was questioned by the STT. He stated that he had visited V.Š. earlier in January 2011 and that the latter had asked him whether he could give LTL 2,000 to someone. G.T. had agreed. 12. On 1 February 2011 V.Š. and G.T. signed documents stating that they were not allowed to incite someone to commit an offence. 13. On the same day the applicant visited V.Š. and they talked about the situation of V.Š. 14. Later that day G.T. called the applicant and agreed to meet him the following day. After the meeting G.T. left LTL 2,000, given to him by the STT officers, in the side pocket of the applicant’s car. 15. On 3 February 2011 V.Š. called the applicant and asked how matters were proceeding. The applicant said that he would call back, but later asked to call the following Tuesday. On 10 February 2011 V.Š. called the applicant and said that they would be in touch; he also asked if the applicant would pay him a visit and the applicant said that he would come at some point in the future. On 14 February 2014 V.Š. called the applicant and said that he had received a character reference from the psychologist and the applicant stated that he would be in touch. V.Š. then asked the applicant whether he should call him and the applicant said that he could call when the documents for his transfer to a unit with lighter security were ready. On 19 February 2011 V.Š. called the applicant and informed him that the documents for the court had already been prepared. The applicant stated that he would be in touch and would come to visit V.Š. because they could not talk on the telephone. The applicant said that V.Š. could call him the following Wednesday or Thursday but then decided that Wednesday would be the best day. On 1-3 March 2011 V.Š. called L.D. and complained that he could not reach the applicant and asked for help in finding him. On 3 March 2011 L.D. called a certain A. and asked him where the applicant was. A. told him that it was not the first time that the applicant had disappeared. 16. On 7 March 2011 L.D. called the applicant and said that people were looking for him. The applicant said that V.Š.’s case was still in progress. L.D. asked the applicant to come and meet V.Š. and the applicant said that he had understood. V.Š. then called the applicant, who said he was going to visit him in a few hours and that they would talk in person. V.Š. again called the applicant later that day and asked whether he should bring the medical certificate to the meeting and the applicant said that he was already in the correctional facility. During the visit they discussed the fact that V.Š.’s case had not yet been transferred to court. V.Š. asked whether the applicant still had the necessary access [in the Kaunas Regional Court]. The applicant confirmed that he did, that the person concerned was coming back from Austria the following Monday and that without that person the matter could not be settled there. The applicant asked whether V.Š. wanted him to participate in a hearing before the court of first instance and V.Š. said yes. Then they talked about someone else’s situation and the applicant said that he knew the prosecutor and had bought him. The applicant further said that not every prosecutor could be bought but there were two he could buy. V.Š. said that he had LTL 30,000 (approximately EUR 8,689) and it did not matter for what [court] he had to pay. The applicant then asked V.Š. to speak quieter. He also asked V.Š. to call him from time to time. V.Š. asked whether he would have to pay something before the hearing in the Kaišiadorys District Court and the applicant said he would not have to give much because the chances were fifty-fifty. The applicant also stated that the rest of the money would be held in reserve for Kaunas [Regional Court] and he would take LTL 1,000 for Kaišiadorys [District Court]. Later in the same conversation he mentioned LTL 1,500 (approximately EUR 434). The applicant asked V.Š. to get in touch with his contact person, who was to call and meet the applicant in the evening. After the applicant had left the correctional facility V.Š. called him and told him that the papers had been sent to the court on the twenty-third. The applicant asked V.Š. to call him in an hour. When V.Š. called, the applicant told him that the hearing would take place on 23 March and that the applicant would participate in it; he also asked to call him in the evening. 17. On 9 March 2011 V.Š. called the applicant, who said that he would write him a message. On 14 March 2011 V.Š. called the applicant and they again discussed V.Š.’s situation. On 17 March 2011 V.Š. called the applicant and the applicant said that they would keep in touch after the following Sunday, and V.Š. was asked to call on Monday after lunch. On 18 March 2011 V.Š. called the applicant, who said that he would not participate in the hearing at the court of first instance regarding V.Š.’s release on probation and that if something happened he would inform V.Š. On 21 March 2011 V.Š. called the applicant, who confirmed his intention as regards the court of first instance because he did not expect anything good to come out of it. However, he said he would try to talk to someone and V.Š. said he would not forget his debt to the applicant. On 23 March 2011 V.Š. called the applicant and informed him that the Kaišiadorys District Court had decided not to release him on probation. The applicant then said that he would visit V.Š. so he could sign an appeal. On 23 March 2011 V.Š. called L.D. and asked him to ask the applicant about his chances to be released on probation. L.D. called the applicant the same day and asked how matters were proceeding with their client. The applicant said that he would come on Friday and that they would talk then. On 25 March 2011 the applicant visited V.Š., who signed some blank pieces of paper, on which the applicant said he would later write an appeal. V.Š. asked whether they would be covered by the amount they had discussed before. The applicant said that he would see, that he had talked with the men in question and asked them to do everything and that they would receive some money. V.Š. then told the applicant that his contact person would come the following Monday. After that, they discussed amounts and the applicant told V.Š. that the entire sum discussed would be necessary. V.Š. asked whether they were talking about thirty [thousand] and whether that amount included the applicant’s share and the applicant said it did. The applicant also said that before that amount would have guaranteed his release on probation one hundred percent but that now there was some trouble. The applicant then told V.Š. to call his contact person and ask him to meet the applicant on Monday. V.Š. asked whether his person (G.T.) should bring thirty (thousand) and the applicant confirmed that he should. 18. On 29 March 2011 the applicant and G.T. met in the applicant’s car, where LTL 30,000 was given to the applicant so that he could secure V.Š.’s release on probation. The applicant was arrested by STT officers immediately afterwards and the money was found in the side door pocket of the applicant’s car. 19. V.Š. was questioned additionally on 30 March 2011. He stated that L.D. had talked of the applicant as a reliable person who had access to prosecutors and judges. V.Š. also showed that L.D. had been the first one to start a conversation about the possibility of V.Š. being released on probation and that L.D. had told him several times before that “serious men pay money and are released and do not sit in prison” (rimti vyrai moka pinigus ir eina į laisvę, o ne sėdi kalėjime). 20. On 8 April 2011 the Kaunas Regional Court dismissed V.Š.’s appeal and upheld the first-instance decision not to release him on probation. 21. On 9 August 2011 a bill of indictment was drawn up against L.D. and the applicant. The applicant was accused of promising to influence L.D. and the judges at the Kaišiadorys District Court and the Kaunas Regional Court with a bribe so that V.Š. would be released on probation. He was also accused of taking a bribe of LTL 2,000 and LTL 30,000 respectively on two occasions. 22. On 31 August 2011 the Court of Appeal examined an application by the prosecutor to transfer the criminal case from the Kaišiadorys District Court. The Court of Appeal held that the applicant had stated that he could influence two judges in Kaišiadorys and thus decided to transfer the case to the Kėdainiai District Court so that the proceedings would be fair. 23. On 19 October 2011 the Vilnius City Third District Court approved an application by V.Š. to be released on probation. The court held that at that time V.Š. was serving his sentence in Vilnius Correctional Facility, where he had taken part in the social rehabilitation, legal and social education programmes and had provided information that he would be employed on release. 24. By a judgment of 18 July 2012 the Kėdainiai District Court found the applicant guilty of bribing an intermediary and sentenced him to sixty days in prison. The court found it established that G.T. had given the applicant LTL 2,000 and LTL 30,000 respectively during their meetings on 2 February and 29 March 2011 in return for a promise that the applicant would help in the proceedings for V.Š.’s release on probation. The applicant pleaded not guilty and stated that an act of provocation had been organised against him. He also stated that the money he had received was remuneration for his services as V.Š.’s lawyer. The applicant said that although no agreement on the provision of legal assistance had been concluded, he had intended to conclude one after the proceedings for V.Š.’s release on probation. The applicant refused to provide comments on the recordings and stated that his conversations with V.Š. were irrelevant because he had only wanted to show that he was working on his case. Those conversations had not been of any consequence as he had not been able to influence L.D. or the judges at Kaišiadorys District Court and Kaunas Regional Court (Pokalbių telefonu ir įrašu su V.[Š.] nekomentuoja, paaiškindamas, kad visi jo pokalbiai su V.[Š.] buvo dėl akių, kadangi kažką kalbėti su V.[Š.] reikėjo, tad nieko nereiškiančiais pokalbiais jis tik siekė parodyti, kad dirba, tačiau tuo jis nesiekė sukelti jokių pasekmių, kadangi negalėjo paveikti nei L.[D.], nei Kaišiadorių apylinkės ar Kauno apygardos teismo teisėjų). G.T. stated that he had known V.Š. since 2000 and that V.Š. had called him and asked for help. When G.T. had gone to Pravieniškės Correctional Facility, V.Š. had told him that the applicant required money and that V.Š. doubted that the money would be used in the proper way. The court’s conclusions were based on the evidence given by V.Š., G.T., L.D. and other employees of Pravieniškės Correctional Facility. It also addressed the secret recordings of the applicant’s conversations, including those recorded prior to the authorisation for actions imitating criminal conduct. The court held that the transcripts of the conversations between the applicant and V.Š. showed that the applicant had been the first to indicate the amounts of money to be paid. The applicant’s statement that he had been going to conclude an agreement on legal services after he had taken LTL 30,000 were refuted by his conversation with G.T., where the applicant had stated that in case of failure he would keep 20% of the money and return the rest. The video-recordings showed that the applicant had not counted the money and that he had indicated to G.T. to put it in the side pocket of the car door. That allowed the court to draw the conclusion that the applicant realised that the money was remuneration for his criminal activity. The court further held that V.Š.’s testimony, voice and videorecordings showed that the applicant had not been incited to take a bribe and that the criminal conduct simulation model had been applied within the limits prescribed by the court (see paragraph 12 above). By the same judgment the Kėdainiai District Court found L.D. guilty of abuse of office and forgery, which had allowed V.Š. to be transferred to a unit with lighter security (see paragraph 10 above). It ordered L.D. to pay a fine of LTL 12,480 (approximately EUR 3,614). L.D. pleaded guilty, but stated that V.Š. had named the applicant as a lawyer that could help him obtain release on probation. The court decided to return the recorder watch to V.Š. 25. The applicant and L.D. lodged an appeal. The applicant argued that the provisions of domestic law had been applied incorrectly, that V.Š. and G.T. used undue pressure, and that V.Š. had used unauthorised equipment, the recorder watch, which he had not been allowed to have in prison. The applicant asked the appellate court to question V.Š. and ask him how he had acquired such a watch in a correctional facility. The applicant also stated that L.D. had overseen matters relating to V.Š.’s transfer to a unit with lighter security and that there was no evidence that he had tried to bribe L.D. The applicant also stated that he had never named any specific person in the courts whom he would have bribed because he had not intended to perform such an act. He had only talked to V.Š. about the outcome of the proceedings for release on probation because V.Š. had called him constantly. 26. On 23 October 2012 the Court of Appeal approved an application by the prosecutor to transfer the case to Panevėžys Regional Court from Kaunas Regional Court for examination on appeal in order to have a fair trial. 27. The Panevėžys Regional Court held an oral hearing where several witnesses, including V.Š., had been questioned. On 13 June 2013 the Panevėžys Regional Court held that V.Š. had purchased the watch for his personal use and that the provisions of domestic law did not directly prohibit the use of such equipment in prison. The court also held that the initial contact between V.Š. and the applicant had been arranged by L.D., that V.Š. had not known the applicant beforehand and had not had any motive to incite him to commit a crime. The court also found that no agreement on the provision of legal services had been concluded between the applicant and V.Š. and that the applicant’s argument that he had intended to conclude one later had been dismissed as an attempt to improve his situation. On the basis of the audio-recordings, the court also observed that the applicant had been the first to say that he could settle the matter for money. The court also found that there had been no incitement and that the authorities had not put any active pressure on the applicant to commit an offence. On the contrary, the applicant had incited V.Š. to give him an amount that would be sufficient for himself, an intermediary and three court judges. The court also held that at the time the offence had been committed, Article 226 § 1 of the Criminal Code provided for two alternative sentences for bribery of an intermediary: arrest or imprisonment for up to three years. On 5 July 2011 the Criminal Code had been amended and the applicant’s offence had then satisfied the requirements of Article 226 § 2 of the Criminal Code, which provided for various sentences: a fine, arrest or imprisonment for up to five years. As the provision in force provided for a more lenient sentence, the court decided to impose a fine of LTL 65,000 (approximately EUR 18,825). The court dismissed L.D.’s appeal by the same judgment. 28. The applicant lodged an appeal on points of law. He again argued that he had been incited to commit an offence, that V.Š., as a convicted prisoner, was not allowed to have recording equipment, that he had been provided with that equipment by the STT, and that the transcripts of the recordings should not have been used as evidence against him in the case. The applicant also alleged that the LTL 2,000 had been remuneration for his legal services and that he had not actually taken the LTL 30,000 from G.T., who had simply left the money in his car. The applicant further complained that the court of first instance had not even assessed whether the evidence had been lawfully collected. The appellate court, in turn, had approved evidence that had been gathered unlawfully and had misinterpreted domestic law. The applicant also argued that V.Š.’s testimony had contradicted itself: it was not clear who had informed the STT about the alleged crime. 29. On 28 January 2014 the Supreme Court dismissed the applicant’s appeal on points of law. The court held that the pre-trial investigation had been opened on 28 January 2011 upon the request of V.Š. Together with his testimony, V.Š. had given the authorities his voice-recording watch, where he had recorded his conversations with L.D. and the applicant. The court held that convicted prisoners who used voice recorders breached internal prison regulations, but that did not mean that officers who carried out a pretrial investigation and obtained information from such a voice recorder acted unlawfully. The court also held that the finding of the applicant’s guilt had not been based solely on the evidence obtained from V.Š.’s watch. The court observed that L.D. had suggested the applicant as a lawyer because he knew the prosecutors and judges dealing with V.Š.’s case, while L.D. had not incited the applicant to take bribes. By the same judgment the Supreme Court left an appeal on points of law by L.D. unexamined because therein he had raised arguments that had not been raised before the appellate court. 30. On 19 December 2014 the Supreme Court examined an application by the applicant to reopen the proceedings. It decided not to do so, but reduced the fine to LTL 13,000 (approximately EUR 3,765).