CASE OF PAULIKAS v. LITHUANIA
No violation of Article 6+6-2 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-2 - Presumption of innocence)
András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano
5. The applicant was born in 1980 and lives in Skuodas. He worked as a traffic police officer in the Skuodas Region. 6. On 7 November 2007, at around 2 p.m., three ten-year-old children were hit by a car in the village of Aleksandrija in the Skuodas Region. Two of the children died at the scene and the third died later that day in hospital. The car left the scene of the crash immediately. A criminal investigation was opened the same day. 7. The following morning, at around 7 a.m., the applicant turned himself in to the police and confessed that he had been driving the car. The applicant submitted that he had not drunk any alcohol before the accident and that he was unable to give the exact speed he had been going. He stated that he had seen a group of children walking in front of him and “had briefly lost control of the car”, the car had gone off the road and “hit something”. The applicant submitted that he did not remember hitting the children “because everything had happened very fast”. Nor did he remember anything that had happened after the accident because he “had been in shock”. He stated that the only thing he remembered was waking up in a summer house the morning after the accident, after which he had gone to the police to confess. 8. On the same day the applicant was served with an official notice that he was suspected of a breach of road traffic safety regulations which had resulted in the death of other persons (Article 281 § 5 of the Criminal Code) and of a failure to provide assistance to persons in a life-threatening situation (Article 144 of the Criminal Code). He was detained on remand and suspended from his post as a police officer. 9. The accident attracted considerable media attention. On 8 November 2007 one of the biggest national newspapers, Lietuvos rytas, published an article entitled “A police officer’s BMW crushed fourthgraders” (Policijos patrulio BMW traiškė ketvirtokus). The article stated that it was “suspected that the car was being driven by the police officer S. Paulikas” because the car belonged to his mother. It published interviews with several of the village’s residents, who described the details of the accident and alleged that the applicant may have been drunk. The article also mentioned that two years previously another police officer had caused a traffic accident in the Skuodas Region in which two children had received fatal injuries, but that the criminal proceedings against the officer had been discontinued. 10. On the same day the website of Lietuvos rytas carried an article headlined “After horrific accident in Skuodas Region [the Minister of the Interior] suggests [the Police Commissioner General] should resign”. It quoted a statement made by the Minister: “Apologies will not suffice. The chief of the police must assume personal responsibility for this terrible incident. Especially as this was not the first time that police officers, who are supposed to stop traffic violations, have themselves caused terrible accidents. If I do not receive any reaction from the police chief, I believe that further efforts to improve the work of the police will be impossible and I will be ready to step down myself.” The Police Commissioner General told journalists that he “accepted responsibility” because “the chief is responsible for what happens in the police organisation”. However, he expressed doubts whether “every such incident” should lead to the resignation of senior police officers. The article also quoted the President’s spokesperson as questioning “how many more victims of the war on the roads will it take for politicians and State officials to finally notice and start solving the problems on the roads”. The article stated that the President was awaiting a response from the Ministry of the Interior and from the police on whether they had been making sufficient efforts to create “an atmosphere of absolute intolerance” for officers and public officials who abused intoxicating substances. 11. On 9 November 2007 Lietuvos rytas published a photograph of the applicant on its front page, with a caption reading “the man who caused the horrific accident (kraupios avarijos kaltininkas), S. Paulikas, turned himself in only after it was no longer possible to detect if he had been driving while drunk”. It also published an article entitled “Both [the Police Commissioner General] and [the Minister of the Interior] must resign”, providing comments from the leaders of the main political parties about who should take political responsibility for the accident and for the “ineffective road traffic safety policy”. That day and the day after Lietuvos rytas published details of over a dozen traffic accidents which had been caused by police officers since 2000, where it had been suspected that the officers had driven while being drunk and where people had been killed or seriously injured but the officers had received mild sentences or had escaped criminal liability altogether. 12. On 12 November 2007 the Police Commissioner General and the Minister of the Interior resigned. In an official statement issued on the same day, the President of Lithuania stated: “Over the past few days the whole of Lithuania has shared the pain of [the three families] who lost their children in an accident caused by a police officer. The seventh of November was not only the day of their tragedy but also reflected a serious crisis within the police force. The tragedy in the Skuodas Region emphasised the problems ingrained in the system of interior affairs and further diminished public trust in the police. The loss of children’s lives, the crime committed by an officer and its circumstances require clear answers why that happened, and determined solutions. It is intolerable that crimes committed by officers are justified or punished by relatively mild sentences. A police officer must feel a higher degree of responsibility than an ordinary citizen and he must by his actions set an example to society because he has been obliged by the State to protect public order and thus ensure the safety of society. A crime committed by an officer cannot be a simple statistical fact. It must be thoroughly examined and especially strictly evaluated (kruopščiai ištirtas ir itin griežtai įvertintas). ...” The rest of the statement discussed problems within the police force, such as a lack of qualified personnel, inadequate training and low pay. It also urged all police officers to act in accordance with their mandate and asked the general public not to judge all officers on the basis of offences committed by a few. 13. Many more articles in the press reported on the accident, the suspicion that the applicant had driven while being drunk, the funerals of the three children, reactions within the village, public protests in front of Skuodas police station, previous traffic accidents caused by police officers, and the resignations of the Minister of the Interior and the Police Commissioner General. 14. On 29 December 2007 the applicant was charged with a breach of road traffic safety regulations while being under the influence of alcohol which resulted in the death of other persons (Article 281 § 6 of the Criminal Code) and with a failure to provide assistance to persons in a life-threatening situation (Article 144 of the Criminal Code). 15. According to the rules of territorial jurisdiction, the case against the applicant should have been examined by the Skuodas District Court. However, it was transferred to the Klaipėda District Court because two of the Skuodas District Court judges had participated in the pre-trial investigation and the chairperson of the court had previously worked with the applicant’s father. 16. On 31 January 2008 the Klaipėda District Court began its examination of the applicant’s case. The court heard testimony from the applicant, his colleague M.K., who had been in the car with the applicant at the time of the accident, and another colleague V.J., who had been driving in a different car and had helped the applicant to leave the scene of the accident. It also heard other workmates who had seen the applicant before or soon after the accident, as well as the waitress from the restaurant where the applicant and M.K. had had lunch before the accident, the parents of the three children who had died, residents of the village who had witnessed the accident, and several court-appointed experts. The applicant admitted that he had been driving the car and that the three children had died as a result of the accident. However, he stated that he had not been drunk and had not exceeded the speed limit. He also argued that the accident had been caused by the weather and the reckless actions of some of the children. 17. All the hearings were held in public as none of the parties had asked for them to be closed, and several newspapers reported on the witness evidence. In a number of publications the applicant was called “a killer of children” (vaikų žudikas) and mocked for “suddenly losing his memory” (staiga sutriko atmintis) when testifying in court. The colleagues who testified in favour of the applicant were collectively called “defenders of the killer of children” (vaikų žudiko užtarėjai) who were “trying to get him off” (bando išsukti). The newspapers also expressed sympathy to the children’s families for having to “relive those cruel events”. Excerpts of the testimony of many of the witnesses, both in favour of and against the applicant, as well as the applicant’s final statement, were reprinted word-for-word. 18. On 17 March 2008 the Klaipėda District Court found the applicant guilty of both charges. The court established that the accident had occurred when the applicant had been under the influence of alcohol. It examined a video-recording from the restaurant where the applicant and M.K. had had lunch before the accident, showing that the two men had each drunk half a bottle of vodka. Another video-recording from the petrol station in which the applicant and M.K. had stopped after lunch showed the applicant buying two more bottles of vodka. Several witnesses – the waitress from the restaurant, some of the applicant’s colleagues, and people who had been present when the accident had happened – stated that the applicant had looked and sounded drunk. On the basis of that evidence, the court found that before the accident the applicant had consumed between 200 and 250 grams of alcohol. A court-appointed expert stated that after consuming so much alcohol the alcohol level in the applicant’s blood must definitely have been above the legally permitted threshold of 0.4 per mille (see paragraph 29 below). The court also noted that even though tests of the applicant’s blood and urine had not detected any traces of alcohol, they had not been reliable because they had been taken more than seventeen hours after the accident. The court held that since the applicant had deliberately hidden from the authorities during that period and had only given himself up the morning after the accident (see paragraph 7 above), he could not use the negative blood and urine tests to his advantage. 19. The Klaipėda District Court also established that at the time of the accident the applicant’s car must have been going at a speed of at least 105 km/h. A court-appointed expert examined the tyre marks at the scene of the accident, the damage done to nearby objects and the positions in which the three children had been found, and reconstructed the course of events of the accident. The applicant’s colleague V.J., who had been driving in the car behind the applicant, testified that he himself had been going at around 100 km/h but had been unable to keep up with the applicant. Several people who had been present at the accident also stated that the noise made by the applicant’s car had indicated a very high speed. The court noted that the speed limit in the village was 50 km/h and that this must have been known to the applicant, who had worked as a police officer in the area. The court concluded that the accident had been caused by the excessive speed of the applicant’s car and not by the weather or the actions of the children. 20. The Klaipėda District Court also found the applicant guilty of failing to provide assistance to persons in a life-threatening situation. The court noted that the applicant had not shown any interest in the condition of the three children or called an ambulance but had immediately fled the scene of the accident. The court observed that the obligation to help people in lifethreatening situations was enshrined in the Law on Police Activity, with which the applicant had had to comply. By failing to do so, he had breached Article 144 of the Criminal Code (see paragraphs 29-30 below). 21. The court found no mitigating circumstances in the applicant’s favour. However, the fact that the victims had been minors was considered as an aggravating circumstance. The court also took the applicant’s character and his behaviour during and after the accident into account: he had been under the influence of alcohol, three people had died as a result of his actions, he had fled from the scene of the accident, had not expressed any remorse, had attempted to mislead the court by providing contradictory testimony, and his actions had discredited the authority of the police. As a result, the Klaipėda District Court held that the applicant’s punishment should be close to the maximum provided by law (see paragraph 29 below). He was given a consolidated sentence of ten years’ imprisonment, prohibited from driving a vehicle for three years, and ordered to pay a total of 3,000,000 Lithuanian litai (LTL, approximately 870,000 euros (EUR)) in non-pecuniary damages to the families of the three children. 22. Reporting on the sentence, Lietuvos rytas quoted excerpts from the judgment and published a brief statement by the mother of one of the children, who expressed her overall satisfaction with the judgment but stated that criminal laws should be changed to provide for stricter punishments. 23. The applicant appealed against the judgment. Among other things, he argued that he had not received a fair trial because of a media campaign against him. He argued that the media had ridiculed and discouraged the witnesses who had testified in his favour and that journalists and high-level State officials had urged the court to order the strictest sentence possible. The applicant stated that this had prevented the first-instance court from examining his case objectively. The applicant also argued that he had been given a stricter punishment because he was a police officer, which had constituted discrimination on the grounds of social status. 24. On 5 December 2008 the Klaipėda Regional Court partly amended the first-instance judgment. It upheld the lower court’s findings concerning the applicant’s drunkenness and the speed of his car, and dismissed the applicant’s complaint concerning discrimination. However, the Klaipėda Regional Court accepted the applicant’s argument that the age of the victims should not have been considered as an aggravating circumstance because the criminal offence had not been premeditated. Accordingly, the court reduced the consolidated sentence to nine years’ imprisonment. It also considered that the amount of non-pecuniary damages awarded by the first-instance court had been excessive and not reasonably related to the applicant’s means. Instead, the court awarded a total of LTL 900,000 (approximately EUR 261,000) to the three families. The prohibition on driving a vehicle for three years was upheld. 25. In response to the applicant’s complaints concerning the lack of a fair trial, the Klaipėda Regional Court stated that the media interest in the case had been understandable owing to its sensitive nature and that the media could not be prevented from reporting on public hearings. However, the court held that the first-instance judgment had been well-reasoned and based on reliable evidence, so there were no grounds to find that the judges had been influenced by the media or the statements of any of the officials. 26. On 8 May 2009 the Supreme Court dismissed a cassation appeal by the applicant and upheld the judgment of the Klaipėda Regional Court. It stated that the appellate court had provided an adequate examination of the applicant’s complaints concerning the fairness of his trial and that there was no need to re-examine them. 27. In January 2015 the applicant was released on probation. According to the Government’s observations submitted to the Court on 21 June 2016, the applicant had up to that date paid a total of LTL 2,268 (approximately EUR 657) in non-pecuniary damages to the victims’ families.