CASE OF MALININAS v. LITHUANIA
Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient
Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria
6. The applicant was born in 1980 and, at the time of lodging his application, he had been serving a custodial sentence at Pravieniškės prison. 7. On 19 February 2003 the Kaišiadorys District Court convicted the applicant - together with an accomplice - of attempted drug dealing in large quantities (Articles 16 § 2 and 232-1 § 5 of the Criminal Code as then in force). The court established that the offence had been disclosed using a “Criminal Conduct Simulation Model” (“the model”), which had been authorised by the Prosecutor General on 29 May 2002. 8. The court found that on 4 June 2002 V, a policeman acting as an undercover agent under the model, had met the applicant and, during their conversation on various topics, asked where he could get psychotropic drugs. The applicant had said that he could procure and sell samples to the policeman straight away, and more thereafter if the samples were good. The samples would cost between 15 to 21 LTL per gram, depending on the quantities required. He refused to lower the price for the first transaction, but suggested that it might be cheaper thereafter if V needed a regular supply. However, the officer replied that he could not wait and they agreed to telephone each other on the matter. V had to undergo a hospital intervention. Thereafter it was the applicant who contacted V, suggesting a meeting so that he could provide V with drug samples. On 21 June 2002, the applicant sold V some drugs. 9. On 23 June 2002 V had telephoned the applicant, requesting more drugs for a total sum of USD 3,000. On 25 June 2002 the applicant provided V with 250 grams of amphetamines. He said that he had around 5 kilos of drugs (amphetamines) and that the price would be lower next time. The applicant and his accomplice were arrested immediately. The applicant pleaded guilty to the attempted drug offence. 10. The court questioned V as an anonymous witness, outside the courtroom via an audio relay. His identity was not disclosed in order to protect him and the proper functioning of the police drug squad. At that stage the defence did not put any questions to V. After his testimony had been read out by the trial judge, the defence formulated some supplementary questions which were put to him by the judge and answered. The other evidence examined by the court included the transcripts of the conversations between V and the applicant, the testimony of another police officer who acted as V’s back up during the operation, their supervising officer, the testimony of the applicant and his co-accused and an expert’s conclusions. 11. The documents relating to the authorisation of the model were classified as secret and were not disclosed to the defence because they would have disclosed the identity of the police officers involved and the operational methods of the drug squad. The Government contended that the applicant was not, however, denied access to information about the execution of the model. In their submissions to the Court, the Government provided further information about it. The police had information about the applicant’s continued large scale drug dealings in Lithuania and abroad under the nickname of “Malina”. Two police officers were authorised to contact the applicant and his associates and, should their suspicions prove to be founded, they were authorised to procure drugs from him. The steps to be taken and the equipment to be used to obtain proof were set out in the model, which was authorised for a year. 12. Defence counsel, in his final submissions to the trial court, contended that the applicant had been incited to commit the offence by the undercover police officer, who had acted unlawfully. Consequently, the latter’s evidence could not be relied on. Counsel requested that the applicant’s acts be qualified as an attempted offence, for which a milder sentence would be appropriate. 13. The trial court concluded that the use of the model in the case had been lawful. It observed inter alia as follows: “[T]he Criminal Conduct Simulation Model is used to collect evidence about the criminal activities of a particular person. That is what happened in the present case. Having obtained information that the defendant ... was selling psychotropic substances, the police officer - whose identity was concealed - expressed his wish to get some drugs. The subsequent activities of [the applicant], i.e., the selling of a large quantity of drugs, were in part determined by the conduct of the police officer.” 14. The court acknowledged that the applicant’s conduct had been influenced by Officer V from the outset, and commented at the sentencing stage that it had not been established the applicant had sold or tried to sell drugs to anyone other than this officer. The applicant was convicted of the attempted offence and sentenced to three years and six months’ imprisonment, as well as to the confiscation of 3000 Lithuanian Litai (“LTL”; about 857 euros [“EUR”]). 15. The applicant appealed, complaining inter alia that V had overstepped the legitimate limits of investigation by influencing and inciting him to sell a large quantity of drugs. In his view, this warranted a lesser penalty. The Government contended that he did not dispute the finding of the first instance court that the authorisation of the model had been lawful and, consequently, that he had been involved in drug dealing previously. The parties did not request that the evidence be re-heard de novo. 16. On 10 June 2003 the Kaunas Regional Court upheld the conviction, considering that the applicant was guilty of a completed offence, not a mere attempt. The court thus re-classified the conviction under Article 260 § 2 of the new Criminal Code and increased the sentence to nine years’ imprisonment. With respect to the applicant’s entrapment allegations, the court noted: “[I]n establishing the persons involved in drug-dealing, [the officers] did not overstep the limits of the Criminal Conduct Simulation Model. ... [T]he police have only uncovered the ring of persons committing crimes and have discontinued their criminal activities. The officers joined in the crime that was already taking place ... Having established the group of accomplices, the officers discontinued their criminal activities, but did not influence or incite them.” 17. The applicant lodged a cassation appeal. He alleged that the actions of V had been unlawful. He could have discontinued the crime on 21 June 2002, when the applicant had handed over the drug samples. However, V had offered to buy more drugs for a price significantly higher than their market value. The applicant alleged that V had thus provoked him into selling drugs in large quantities. According to the Government, the aim of this appeal was thus to receive a reduction in sentence. 18. The Supreme Court partially dismissed the applicant’s cassation appeal on 14 October 2003. It held, inter alia, as follows: “In the present case, the Criminal Conduct Simulation Model ... was applied in order to protect society and the State from the challenges posed by the consumption and illegal circulation of drugs and psychotropic substances. The model was sanctioned by the Prosecutor General, in view of the possession of information about [the applicant] selling narcotic substances. Such data ... is a lawful ground for the use of the model. By entering into contact with the applicant and offering to buy psychotropic substances from him..., V only joined in the criminal activity of [the applicant] and uncovered his accomplice. Such actions cannot be considered to be entrapment (nusikaltimo provokavimas): it appears from the case file that [the applicant] was not subject to any pressure ... [The applicant’s] allegation that the police undercover agent induced (paskatino) a person who had never offended before to commit a serious crime is unsubstantiated. On the contrary, the use of [the model] helped stop the criminal activity.” 19. The applicant’s conviction was again re-classified as an attempt to sell drugs in large quantities (Articles 22 § 1 and 260 § 2 of the new Criminal Code), but the sentence of nine years’ imprisonment was retained. 20. The relevant domestic law and practice, as well as the relevant international law, concerning police undercover activities and criminal conduct simulation models, have been summarised in the judgment of 5 February 2008 in the case of Ramanauskas v. Lithuania ([GC] no. 74420/01, §§ 31-37).