ŠARKIENĖ v. LITHUANIA
Inadmissible
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Georges Ravarani
1. The applicant, Ms Raisa Šarkienė, is a Lithuanian national who was born in 1956 and lives in Vilnius. She had been granted legal aid and was represented before the Court by Mr R. Burda, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė. 2. On 6 May 2008 the applicant, together with her friend A. and A.’s minor son L., attended a recording of the weekly television show “Celebrity Duets” (Žvaigždžių duetai). The show was a singing competition in which celebrity duets were assessed by a three-member judging panel. The head judge was a well-known opera singer, V.J. The panel also included another musician, D.K. 3. That evening after the show, V.J. received a message on his personal mobile telephone with the following text: “I want to tell you this right now! You didn’t have problems – you will now! We have warned you!!! Don’t you think that you live and have protection, moron! I repeat, this is your last warning! I’ll give you time to enjoy your life, if you want to have a family and not coffins, this is not a joke, Mr Soloist! Godmother!!! We have warned you! We are watching you! Good luck. Until the next time, if you’re still alive.” (“Staigiai noriu pasakyti! neturėjot problemu ju bus! mes gi jus ispejom!!! ar jums neatrodo, kad gyvenat, apsauga turi glusai! kartoju paskutinis buvo ispejimas! duodu laiko dziaugtis gyvenimu jei nori tureti seima o ne karstus cia nejuokai ponas soliste! kriksto mama!!! perspejom! mes jus stebim! sekmes. iki kito karto jei gyvas dar busit.”) 4. V.J. informed the police that he had been threatened and the police opened a pre-trial investigation. It was discovered that the mobile telephone from which the message had been sent belonged to L. (see paragraph 2 above). On an unspecified date his mother A. was questioned as a witness and stated that L. had lost his mobile telephone sometime around 6 May 2008. 5. On 22 May 2008 the applicant was questioned as a witness. She stated that she had attended several recordings of “Celebrity Duets” but could not remember the exact dates. She confirmed that she had gone there once with A. and L. and that L. had had a mobile telephone with him, but the applicant had not paid attention to where L. had left it. She stated that she had not taken the telephone or sent any text messages from it. The applicant also said that she had heard from A. that a text message had been sent to V.J. from L.’s telephone; however, the applicant stated that she did not have V.J.’s telephone number and had never called or texted him. 6. On an unspecified later date L.’s telephone was found in the possession of another individual, V. He told the police that the telephone had been given to him by the applicant, who was his friend. 7. On 10 July 2008 the applicant was taken to a police station and served with an official notice (pranešimas apie įtarimą) stating that she was suspected of threatening to kill or seriously injure V.J., under Article 145 § 1 of the Criminal Code (see paragraph 21 below). The notice listed the suspect’s rights under the Code of Criminal Procedure, including the right to a lawyer. The applicant signed the notice to confirm that she had received it and that her rights had been explained to her. She also signed another notice which reiterated her right to a lawyer (teisės turėti gynėją išaiškinimo protokolas), on which she wrote that she did not need a lawyer during questioning. She also signed a notice confirming her decision to refuse a lawyer (protokolas dėl gynėjo atsisakymo), on which she also wrote that she did not need a lawyer during questioning. The latter notice indicated that the refusal did not prevent the applicant from requesting a lawyer at any later stage in the proceedings (see Relevant domestic law in paragraph 20 below). 8. On the same day the applicant was questioned by the police and confessed to having sent the aforementioned text message to V.J. She stated that she was a fan of the singer R., a participant in “Celebrity Duets”. On 6 May 2008 V.J., as the head judge, had given negative feedback about R.’s performance. The applicant claimed that she had felt insulted and upset by V.J.’s comments, so she had taken an unknown mobile telephone from her table and sent him the text message. She had known V.J.’s telephone number from before, although she could not remember how she had obtained it. The applicant stated that she had not known whose mobile telephone it had been, but she had put it in her purse and forgotten about it until much later, when she had found it again and given it to her friend V. She also said that she had thrown away the SIM card at some point. The applicant stated that during her previous questioning she had given a different statement because she had understood that she had done wrong and had been scared to admit it. She was sorry for the incident and wanted to apologise to V.J. The applicant also provided a handwritten confession in which she reiterated the essential details of her statement. 9. On 20 August 2008 the applicant was served with a revised notice stating that she was suspected of threatening to kill or seriously injure V.J., under Article 145 § 1 of the Criminal Code. She requested a lawyer and the police called for a State-appointed lawyer to represent her. She was then questioned in the presence of that lawyer. The applicant withdrew the statement and confession she had given on 10 July 2008 (see paragraph 8 above), stating that she had confessed because of “the instructions and persuasion of [police] officers” (pareigūnų nurodymu ir įkalbinėjimais). She stated that the statement she had given on 22 May 2008 was the correct one (see paragraph 5 above) and that she would give further evidence at trial. 10. On 9 September 2008 the applicant was charged with threatening to kill or seriously injure V.J., under Article 145 § 1 of the Criminal Code. The case was transferred to the Vilnius City First District Court for examination on the merits. 11. The applicant was represented by a State-appointed lawyer at all levels of court. 12. On 15 January 2009 the Vilnius City First District Court held an oral hearing. When questioned by the court, the applicant denied having sent the text message to V.J. She stated that she was a fan of the singer R. and that on 6 May 2008 she and her friend A. had been invited to attend the recording of “Celebrity Duets” by D.K., another member of the judging panel on the show (see paragraph 2 above). The applicant stated that A.’s son L. had had a mobile telephone, which at one point he had left on the table where she and A. had been sitting. The applicant stated that she had not touched the telephone, but an unknown man had approached them and asked to use a telephone; they had allowed him to use L.’s telephone and the man had written a text message on it. The applicant submitted that she had later taken L.’s telephone from A. and given it to V., because she and A. had thought that L. might have sent the text message to V.J. The applicant further stated that on 10 July 2008 (see paragraph 8 above) she had confessed because police officers had threatened her. She submitted that her statement of 22 May 2008 (see paragraph 5 above) was correct, with the clarification that L.’s telephone had been used by the unknown man. 13. The court heard evidence from several other witnesses. The applicant’s friend A. essentially corroborated the applicant’s statements (see paragraph 12 above). The applicant’s friend V. repeated that the applicant had given him L.’s telephone sometime back in May 2008 (see paragraph 6 above). The musician and member of the judging panel D.K. stated that he knew A. because she was his dentist and that he had seen the applicant in A.’s office a few times. He stated that A. had previously asked him to give better scores to the singer R. and that he had passed that request on to V.J., although the latter could not be persuaded. D.K. believed that A. and R. were friends, also stating that he had once seen R. with the applicant. 14. The court also heard evidence from three police officers who had been present at different stages of the applicant’s questioning. They stated that the applicant had been duly informed of her rights, including the right to a lawyer, but that she had not requested one until 20 August 2008 (see paragraphs 7 and 9 above). The officers denied having put any pressure on the applicant to confess or to give any particular evidence. 15. On 17 April 2009 the Vilnius City First District Court found the applicant guilty of threatening to kill or seriously injure V.J., under Article 145 § 1 of the Criminal Code. The court noted that during the pretrial investigation and trial the applicant had changed her version of events several times, and that her latest version including an unknown man could not be confirmed “by any evidence” (byloje nėra jokių įrodymų apie tokios situacijos buvimą). The court considered that there were no grounds for doubting the accuracy of her confession (see paragraph 8 above) because her claims of pressure by police officers had not been proven. The applicant was ordered to stay at home from 10 p.m. to 6 a.m. for six months and to find a job or register at an employment office. The court also awarded V.J. 10,000 Lithuanian litai (LTL, approximately 2,900 euros (EUR)) in non-pecuniary damages. 16. The applicant appealed against the judgment, arguing that she had not committed the criminal offence and that the text message had been sent by an unknown man (see paragraph 12 above). However, on 22 July 2009 the Vilnius Regional Court dismissed her appeal and upheld the conviction. The court referred, in particular, to D.K.’s testimony concerning the connection between the singer R. and the applicant’s friend A., and emphasised the fact that the mobile telephone had been disabled immediately after the message had been sent – it considered that these circumstances demonstrated a direct intent to threaten V.J. after the recording of the show. The court also held that witness testimony and other material in the case file sufficiently proved the applicant’s guilt. However, it reduced the amount of non-pecuniary damages to LTL 5,000 (approximately EUR 1,450), having regard to the nature of the criminal offence and the applicant’s financial situation. The Vilnius Regional Court did not address the question of whether the applicant had been pressured by police officers to refuse a lawyer and to confess; it appears from the judgment that the applicant did not raise that question in her appeal. 17. The applicant submitted an appeal on points of law to the Supreme Court, in which she alleged, inter alia, that her defence rights had been violated. On 9 December 2009 she was informed that the court would examine her appeal on 18 January 2010 and would pronounce its judgment on 2 February 2010. 18. On that date the Supreme Court dismissed the applicant’s appeal on points of law. In respect of her complaint concerning her defence rights, the court noted that the case file contained written documents with the applicant’s signatures, which had been drawn up in line with the relevant domestic law (see paragraph 20 below). This showed that the applicant had been informed of her right to a lawyer and had decided not to exercise it. The court also noted that the applicant had availed herself of her right to a lawyer during questioning on 20 August 2008 and at all subsequent stages of court proceedings (see paragraphs 9 and 11 above). Accordingly, it considered that there were no grounds for finding that the applicant’s right to a lawyer had been restricted at any point. The applicant did not attend the pronouncement of the judgment. She submitted that she had received a copy of it sometime after 15 February 2010. 19. The relevant part of Article 31 of the Constitution of the Republic of Lithuania reads: “... It shall be prohibited to compel anyone to give evidence against himself, or his family members or close relatives. ... A person suspected of committing a crime, as well as the accused, shall be guaranteed, from the moment of his apprehension or first interrogation, the right to defence, as well as the right to an advocate.” 20. At the material time, the relevant provisions of the Code of Criminal Procedure read: “1. A suspected, accused or convicted person has defence rights, [which] shall be ensured from the moment of their detention or first questioning. 2. The court, prosecutor or investigating officer must ensure that the suspected, accused or convicted person has the opportunity to defend him or herself by the means prescribed by law ...” “1. A lawyer must be present in the following situations: 1) where the suspect or the accused is a minor; 2) where the case concerns a person who is blind or deaf, or because of a physical or mental impairment cannot exercise his or her defence rights; 3) where the case concerns a person who does not understand the language of the proceedings; 4) where there are conflicts of interest between different suspects or the accused and at least one of them has a lawyer; 5) where the case concerns a crime for which a life sentence may be given; 6) where the case is being examined in the absence of the accused, as provided for by Chapter XXXII of this Code; 7) where the suspect or the accused is in detention; 8) where a decision is to be taken whether to extradite a person or transfer him or her to the International Criminal Court or [another State] under a European Arrest Warrant; 9) where the case is being examined by way of accelerated procedure.” “1. A suspect or an accused can waive his or her right to a lawyer at any stage of the proceedings ... The right to a lawyer may only be waived at the initiative of the suspected or accused person. The waiver of the right to a lawyer must be recorded in a written report. 2. The investigating officer, prosecutor or court is not bound by the waiver of the right to a lawyer where [it] has been submitted by a minor or by a person who cannot exercise his or her defence rights because of a physical or mental impairment, by a person who does not understand the language of the proceedings, or by a person who is suspected or accused of committing a serious or very serious crime and the case is complex or large-scale, or there are any other reasons raising doubts as to his or her ability to defend him or herself. 3. Waiving the right to a lawyer does not preclude the suspected, accused or convicted person from having a lawyer at any later stage of the proceedings.” 21. At the material time, Article 145 § 1 of the Criminal Code read: “1. Anyone who threatens to kill or seriously injure another person, where there is sufficient basis for believing that the threat may be carried out, shall be punished by community service, a fine, restriction of liberty, detention or imprisonment of up to two years. ...” 22. At the material time, Article 385 of the Code of Criminal Procedure provided that all judgments of the Supreme Court must be served on the parties to the proceedings.