CASE OF RAMANAUSKAS v. LITHUANIA
Violation of Art. 6-1;Pecuniary and non-pecuniary damage - award
András Baka;Antonella Mularoni;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Elisabet Fura;Françoise Tulkens;Ireneu Cabral Barreto;Jean-Paul Costa;Karel Jungwiert;Khanlar Hajiyev;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Renate Jaeger;Stanislav Pavlovschi
9. The applicant is a Lithuanian national who was born in 1966 and lives in Kaišiadorys. 10. He formerly worked as a prosecutor in the Kaišiadorys region. 11. The applicant submitted that in late 1998 and early 1999 he had been approached by AZ, a person previously unknown to him, through VS, a private acquaintance. AZ had asked him to secure the acquittal of a third person and had offered him a bribe of 3,000 United States dollars (USD) in return. The applicant had initially refused but had later agreed after AZ had reiterated the offer a number of times. 12. The Government submitted that VS and AZ had approached the applicant and negotiated the bribe with him on their own private initiative, without having first informed the authorities. They alleged that AZ had suspected the applicant of having accepted bribes in the past. 13. On an unspecified date AZ, who was in fact an officer of a special anti-corruption police unit of the Ministry of the Interior (Specialiųjų tyrimų tarnyba – “the STT”), informed his employers that the applicant had agreed to accept a bribe. 14. On 26 January 1999 the STT applied to the Deputy Prosecutor General, requesting authorisation to use a criminal conduct simulation model (“the model” – see paragraph 32 below). The request stated: “Senior Commissioner [GM], Head of the Operational Activities Division of the [STT], having had access to information concerning [the applicant’s] criminal conduct, has established that [the applicant] takes bribes since he has agreed to assist a defendant, [MN], in return for payment. In implementing the criminal conduct simulation model, which is intended to establish, record and put an end to [the applicant’s] unlawful acts, an STT official [AZ] will hand over 12,000 litai, or the equivalent in foreign currency if required. Implementation of [the model] will require [AZ] to simulate criminal acts punishable under Articles 284 and 329 of the [Criminal Code]. With reference to section 11 of the Operational Activities Act ..., the undersigned requests the Deputy Prosecutor General to authorise the criminal conduct simulation model for a period of one year. This request is based on the information obtained during the preliminary inquiry.” 15. On 26 January 1999 the STT sent a letter to the Deputy Prosecutor General outlining the model as follows: “[STT] officials have collected operational information attesting that [the applicant] takes bribes. In implementing the criminal conduct simulation model, which is intended to establish, record and put an end to [the applicant’s] unlawful acts, an STT official [AZ] will simulate the offences of offering a bribe and breaching currency and securities regulations. In view of the above, and in accordance with section 11 of the Operational Activities Act, I hereby request you to authorise the criminal conduct simulation model and thus to exempt [AZ] from criminal responsibility for the offences under Articles 284 and 329 of the [Criminal Code] which are intended to be simulated. [The model] will be implemented by STT officials on the basis of a separate operational action plan. Implementation of [the model] will be financed by STT resources.” 16. On 27 January 1999 the Deputy Prosecutor General gave the required authorisation by countersigning and placing his official seal on the letter in question. This document constituted the final version of the model. 17. On 28 January 1999 the applicant accepted USD 1,500 from AZ. 18. On 11 February 1999 AZ gave the applicant a further USD 1,000. 19. On the same date the Prosecutor General instituted a criminal investigation in respect of the applicant for accepting a bribe, an offence punishable under Article 282 of the Criminal Code in force at that time. 20. On 17 March 1999 the Prosecutor General dismissed the applicant from his post as a prosecutor on grounds relating to corruption. Referring to the relevant provisions of the Prosecuting Authorities Act, the Prosecutor General stated that the applicant had been dismissed for a disciplinary offence and for activities discrediting the prosecuting authorities. 21. On an unspecified date the pre-trial investigation was concluded and the case was referred to the Kaunas Regional Court. During the trial the applicant pleaded guilty but alleged that he had succumbed to undue pressure from AZ in committing the offence. 22. On 18 July 2000 the Deputy Prosecutor General authorised a judge of the Kaunas Regional Court to disclose the details of how the model had been implemented “provided that this [did] not harm the interests” of the individuals and authorities involved in the operation. 23. On 29 August 2000 the Kaunas Regional Court convicted the applicant of accepting a bribe of USD 2,500 from AZ, in breach of Article 282 of the Criminal Code then in force, and sentenced him to nineteen months and six days’ imprisonment. The court also ordered the confiscation of his property in the amount of 625 Lithuanian litai (LTL). It found it established, firstly, that AZ had given the applicant the bribe during their meetings on 28 January and 11 February 1999, in return for a promise that the applicant would intervene favourably in a criminal case against a third person and, secondly, that AZ had entered into contact and negotiated with the applicant through VS. 24. The court’s conclusions were mainly based on the evidence given by AZ and on secret recordings of his conversations with the applicant. The court had also examined AP, a prosecutor working in the same regional office as the applicant, whose evidence had not gone beyond confirmation that the applicant had dealt with the criminal case against the third person (MN) indicated by AZ. VS was not summoned to appear at the trial as his place of residence was unknown, but a statement by him, which had been recorded by the pre-trial investigators, was read out in court. However, the Kaunas Regional Court did not take it into account in determining the applicant’s guilt. The court’s judgment did not contain any discussion of the authorisation and implementation of the model. 25. On 26 October 2000 the Court of Appeal upheld the judgment on an appeal by the applicant, finding that there had been no incitement and that the authorities had not put any active pressure on the applicant to commit the offence. 26. On 23 November 2000 the applicant lodged a cassation appeal. Relying in particular on the Constitutional Court’s decision of 8 May 2000 (see paragraph 34 below), he argued that there were no statutory provisions allowing the authorities to incite or provoke a person to commit an offence. In that connection, he submitted that on several occasions he had unsuccessfully requested the first-instance and appeal courts to consider the influence exerted by AZ and VS on his predisposition to commit the offence. He further complained that the lower courts had not taken into account the fact that AZ was a police officer and not a private individual. He argued that AZ had incited him to accept the bribe. Furthermore, he stated that the authorities had had no valid reason to initiate an undercover operation in his case and that they had overstepped the limits of their ordinary investigative powers by inducing him to commit an offence. He also submitted that VS had not been examined during the trial. 27. On 27 February 2001 the Supreme Court dismissed the applicant’s cassation appeal in a decision which included the following passages: “There is no evidence in the case file that [the applicant’s] free will was denied or otherwise constrained in such a way that he could not avoid acting illegally. [AZ] neither ordered [the applicant] to intervene in favour of the person offering the bribe, nor did he threaten him. He asked him orally for help in securing the discontinuation of proceedings [against the third person] ... K. Ramanauskas understood that the request was unlawful ... [and] the Regional Court was therefore correct in finding him guilty ... [The applicant] contests the lawfulness of [the model] ..., stating that the case discloses a manifest example of incitement (kurstymas) by the officers of the special services to accept the bribe ... [He submits that, by law], authorisation to simulate a criminal act cannot be given in the absence of evidence of the preparation or commission of an offence. Therefore, in his view, such a procedure cannot pursue the aim of inciting a person or persons to commit a crime. If the model were used for that purpose, it would be unlawful [and] the information thereby obtained could not be admitted in evidence ... [The] model cannot be authorised and implemented unless a person has planned or started to commit an offence, evidence of which should be submitted to a prosecutor ... It appears from the case file that [the authorities] were contacted by [VS] and [AZ] after [their initial] meetings with K. Ramanauskas, during which he had agreed in principle that he would perform the requested actions for USD 3,000 ... Accordingly, in authorising the use of the model, [the authorities] merely joined a criminal act which was already in progress. ... The case file contains no evidence that [VS] is an employee of the special services ... [AZ] works at the STT as a police driver ... but this does not mean that he is prohibited from acting in a private capacity. There is no evidence that [VS] and [AZ] negotiated with K. Ramanauskas on police instructions. It has, however, been established that [VS] and [AZ] handed money to him on the police’s orders. The court considers that provocation (provokacija) to commit a crime is similar but not equivalent to incitement (kurstymas) ... Provocation is a form of incitement consisting in encouraging a person to commit an offence ... entailing his criminal responsibility so that he can then be prosecuted on that account. While such conduct is morally reprehensible, the term ‘provocation’ is not used either in criminal or procedural law or in the Operational Activities Act of 22 May 1997 ... From a legal standpoint, provocation does not constitute a factor exempting from criminal responsibility a person who has thereby been induced to commit an offence ... Since the case file contains contradictory evidence as to the conduct of [VS] and [AZ] before the criminal conduct simulation model was authorised, it is difficult to establish who was the instigator (iniciatorius) of giving and accepting the bribe, or, in other words, who incited whom to give or accept the bribe. [VS] ... stated that, after he had contacted K. Ramanauskas to ask him to intervene in securing the discontinuation of the criminal case [against the third person], K. Ramanauskas had been the first to say that he could settle the matter for USD 3,000. For his part, [AZ] ... stated that K. Ramanauskas had said that the discontinuation of the case would cost USD 3,000. In his testimony K. Ramanauskas alleged that [VS] had asked him if USD 3,000 would be enough to ensure that the case was discontinued. In these circumstances, it cannot be said with any certainty who was the instigator of the bribery, nor can it be inferred that [VS] and [AZ] incited K. Ramanauskas to accept the bribe. Furthermore, there is no reason to conclude that [VS] and [AZ] provoked the offence committed by K. Ramanauskas in accepting the bribe. It can only be said unequivocally that the initiative (iniciatyva) to apply to K. Ramanauskas in order to have the case [against the third person] discontinued came from [AZ]. However, the court considers that the answer to the question whether a person has actually induced (palenkė) or otherwise incited (sukurstė) another to offer or accept a bribe is of no consequence as far as the legal classification of [the applicant’s] conduct is concerned. Incitement (kurstymas) to commit an offence is one of the various forms of complicity. Under the branch of criminal law dealing with complicity, incitement is a form of conspiracy. A person who commits an offence after having being incited to do so incurs the same criminal responsibility as a person who acts of his own volition ... Even assuming that K. Ramanauskas was incited by [VS] and [AZ] to accept a bribe, it must be emphasised that the incitement took the form of an offer, and not of threats or blackmail. He was therefore able to decline (and ought to have declined) the illegal offer ... It follows from the testimony of K. Ramanauskas that he understood the nature of the acts he was being asked to carry out, and accepted [the bribe] of his own free will ... At the same time it must be noted that it is a specific feature of bribery as an offence that one side is necessarily the instigator (kurstytojas). A State official soliciting a bribe is an instigator within the meaning of Article 284 [of the Criminal Code then in force – ‘the CC’] in that he incites (kursto) another to pay him a bribe, in breach of that Article. [A person] offering a bribe to a State official is necessarily an instigator within the meaning of Article 282 of the CC since, by making the offer, he incites the official to accept a bribe, that is, to commit the offence provided for in that Article ... Both the person giving and the person accepting a bribe exercise their free will ... and may therefore choose between possible forms of conduct. A person who intentionally chooses the criminal option while having the possibility of resisting the incitement rightly incurs criminal responsibility, regardless of the outside factors that may have influenced his choice ...” 28. On 27 March 2001 the applicant began serving his prison sentence. He remained in prison until 29 January 2002, when he was released on licence. 29. Furthermore, the prohibition on his working in the legal service was lifted in July 2002. In January 2003 his conviction was expunged. 30. The Criminal Code applicable at the material time punished the acts of accepting a bribe (Article 282), offering a bribe (Article 284) and breaching currency and securities regulations (Article 329). 31. Article 18 of the Criminal Code in force at the time and Article 24 of the present Criminal Code (in force since 1 May 2003) provide that incitement is one of the possible forms of complicity in an offence and is punishable alongside other forms of assistance (aiding and abetting, organising, executing) in the commission of an offence. These provisions define an instigator (kurstytojas) as a person who induces (palenkė) another to commit an offence. The term kurstymas (which can also be translated as “incitement” or “instigation”) is normally used in domestic legal doctrine to define the notion of complicity. 32. The Operational Activities Act (Operatyvinės veiklos įstatymas) was enacted in 1997 and remained in force until 27 June 2002. Section 2(12) of the Act defined a “criminal conduct simulation model” (Nusikalstamos veikos imitacijos elgesio modelis) as a set of actions entailing the elements of an offence, authorised with a view to protecting the best interests of the State, society or the individual. Section 4(2) of the Act authorised the initiation of “operational activities” within the meaning of the Act where: (a) the authorities did not know the identity of an individual who was preparing to commit or had committed a serious offence; (b) the authorities had obtained “verified preliminary information” about a criminal act; (c) the authorities had obtained “verified preliminary information” about a person’s membership of a criminal organisation; (d) the authorities suspected activities by foreign secret services; or (e) an accused, defendant or convicted person had absconded. Section 7(2)(3) of the Act provided that the authorities could have recourse to a model only in one of the above scenarios, and then only on condition that the requirements of sections 10 and 11 of the Act were satisfied. Sections 10 and 11 of the Act empowered the Prosecutor General or his deputy to authorise the use of a criminal conduct simulation model on an application by the police or the investigative authorities. The application for authorisation had to include, among other things, a reference to the limits of the conduct intended to be simulated (that is, the legal characterisation under a specific provision of the Criminal Code of the actions to be taken) and the purpose of the operation, including its interim and ultimate aims. Section 8(1)(3) of the Act required the authorities to protect persons from active pressure to commit an offence against their own will. Section 13(3) of the Act afforded the right to contest the lawfulness of evidence obtained by means of special techniques. 33. In the proceedings which gave rise to the case of Pacevičius and Bagdonas v. Lithuania (no. 57190/00, struck out of the Court’s list of cases on 23 October 2003), the Court of Appeal gave judgment on 29 April 1999, holding, inter alia: “Section 2 of the Operational Activities Act defines [the criminal conduct simulation model] as a set of actions entailing the elements of an offence, authorised with a view to protecting the best interests of the State, society or the individual. ... The model may be authorised only for operations by [the police] and does not apply to individuals who commit offences. The request [by the police for authorisation of the model in this case] referred to the aim of the intended operation, namely identification of all persons involved in a [human] trafficking network. Of course, the [police] officers could not foresee who would take part in this crime ... One of the aims of [the prosecution] in authorising the model was to establish the identities of members of a criminal organisation.” In a judgment of 12 October 1999 in the same case, the Supreme Court held as follows regarding the use of police undercover agents: “[The applicants] were not aware of the ongoing operation at the time they committed the offence. They were convinced that they were trafficking persons who had illegally crossed the Lithuanian border. As Article 82-1 of the Criminal Code provides that the offence in question is committed where direct intent has been established, [the applicants’] error as to the nature of the act they were committing is of no relevance to the legal classification of their conduct. Since they were convinced that they were trafficking [human beings], their acts fell objectively within the scope of the offence defined in Article 82-1 ... Their conduct was therefore rightly classified as a completed offence. The authorisation given to the authorities [to use the model] served the sole purpose of legitimising the actions of the police officers taking part in the trafficking.” 34. On 8 May 2000 the Constitutional Court ruled that the Operational Activities Act was generally compatible with the Constitution. It held in particular that the model constituted a specific form of operational activity using intelligence and other secret measures in order to investigate organised and other serious crime. It emphasised that the use of clandestine measures, as such, was not contrary to the European Convention on Human Rights, or indeed the Constitution, as long as such measures were based on legislation that was clear and foreseeable in effect and were proportionate to the legitimate aims pursued. The Constitutional Court found that the Act provided a clear definition of the scope and procedure for the use of various forms of operational activities, including the model. Referring in particular to the Teixeira de Castro v. Portugal case (9 June 1998, Reports of Judgments and Decisions 1998-IV), the Constitutional Court emphasised that a criminal conduct simulation model could not be used for the purpose of incitement (kurstoma) or provocation (provokuojama) to commit an offence that had not already been initiated. It further held that this investigative technique did not allow officials to incite the commission of an offence by a person who had abandoned plans to commit the offence. It added that, by authorising and implementing the model, the investigative authorities and their undercover agents were restricted to “joining criminal acts that [had] been initiated but not yet completed”. The Constitutional Court emphasised that it was for the courts of ordinary jurisdiction dealing with allegations of incitement or of other forms of abuse of the model to establish in each particular case whether the investigating authorities had gone beyond the limits of the legal framework within which the model had been authorised. The Constitutional Court also stated that authorisation of the model did not amount to a licence for a police officer or third person acting as an undercover agent to commit a crime but simply legitimised – from the point of view of domestic law – the acts which the agent might be required to carry out in simulating an offence. The main aim of operational activities, including the model, was to facilitate criminal investigations, and on that account they came within the sphere of competence of both the prosecuting authorities and the courts. Accordingly, the model did not require judicial authorisation but simply authorisation by a prosecutor. The Constitutional Court further noted that secret audio and video recordings of conversations taking place in the context of operational activities under the Act were not subject to judicial authorisation and that this was compatible with the Constitution. Under section 10(1) of the Act, only wiretapping and surveillance techniques using stationary devices required a court order. 35. The Council of Europe’s Criminal Law Convention on Corruption (ETS no. 173, 27 January 1999) provides in Article 23 that each party is to adopt such legislative and other measures as may be necessary, including those permitting the use of special investigative techniques, to enable it to facilitate the gathering of evidence in this sphere. The explanatory report on the Convention further specifies that “special investigative techniques” may include the use of undercover agents, wiretapping, interception of telecommunications and access to computer systems. Article 35 states that the Convention does not affect the rights and undertakings deriving from international multilateral conventions concerning special matters. 36. The Council of Europe’s Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (ETS no. 141, 8 November 1990) provides, in Article 4, that each party should consider adopting such legislative and other measures as may be necessary to enable it to use special investigative techniques facilitating the identification and tracing of proceeds and the gathering of evidence related thereto. 37. The use of special investigative techniques, such as controlled deliveries in the context of illicit trafficking in narcotic drugs, is also provided for in Article 73 of the Convention implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at the common borders, signed in Schengen on 19 June 1990.