CASE OF BAURAS v. LITHUANIA
No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)
Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Georges Ravarani
5. The applicant was born in 1964 and lives in Vilnius. 6. In 1989 the applicant and R.Ž. started a company which imported and sold various goods. D.A., who was the stepson of the applicant’s sister, sometimes worked as a security guard on the company’s premises and as the applicant’s bodyguard. 7. In July 1993 R.Ž. and another individual, A.Č., were found murdered in R.Ž.’s flat in Vilnius. 8. In August 1993, while the applicant was in a car with D.A., the latter threatened him with a firearm. When the applicant tried to escape, D.A. hit him with the barrel of the gun, fired some shots into the ground, took the applicant’s Rolex watch and fired at several passers-by, injuring them. 9. On an unspecified date the authorities opened a pre-trial investigation into the murder of R.Ž. and A.Č. (see paragraph 7 above) and the incident between the applicant and D.A. in the car (see paragraph 8 above). 10. In September 1993 the Lithuanian authorities issued a search warrant in respect of D.A. It appears that he had left Lithuania and lived in several different countries. In July 2009 D.A. was apprehended in Ukraine and subsequently extradited to the Lithuanian authorities. 11. In December 2007 the applicant was officially notified that he was suspected of having organised the murder of R.Ž. and A.Č. for personal gain while they were in a helpless state, as set out in Article 129 § 2 (2), (5), (6) and (9) of the Criminal Code (see paragraph 34 below). It was suspected that the applicant had acted together with D.A. Further details were subsequently added to that notice in September 2012 and March 2013. 12. In October 2009 D.A. was officially notified that he was suspected of having murdered R.Ž. and A.Č. for personal gain while they were in a helpless state. D.A. was also notified that he was suspected of having attempted to murder the applicant and several other individuals, as set out in Article 129 § 2 (5), (7), (8), (9), (10) and (11) of the Criminal Code (see paragraphs 8 above and 34 below). 13. In May 2010 the prosecutor decided to separate the pretrial investigation against the applicant and D.A. (see paragraph 37 below). He noted that the investigation concerned two criminal offences – the murder of R.Ž. and A.Č. (see paragraph 7 above) and the attempted murder of the applicant and other individuals (see paragraph 8 above). The prosecutor observed that the applicant had been suspected of the former offence and that he had been granted victim status in respect of the latter offence, and the prosecutor considered that one person could not have dual status in the same investigation. He also noted that the investigation in respect of D.A. was almost complete and the case would soon be ready for trial, whereas the investigation in respect of the applicant was still ongoing. For those reasons, the prosecutor concluded that it was necessary to separate the investigation against the applicant from that against D.A. 14. D.A. was charged with the murder of R.Ž. and A.Č. for personal gain while they were in a helpless state (hereinafter “the first charge”) and with the attempted murder of the applicant and several other individuals (hereinafter “the second charge”). The criminal case was transferred to the Vilnius Regional Court for examination on the merits. With regard to the first charge, the applicant had the status of witness, and with regard to the second charge, he had the status of victim. 15. The Vilnius Regional Court issued its judgment on 20 June 2011. It found D.A. guilty of the first charge as set out in Article 129 § 2 (2), (5) and (9) of the Criminal Code (see paragraph 34 below). The court based its conclusion on multiple witness testimonies, the examination of various material objects, and conclusions delivered by forensic experts. 16. One of the documents examined by the court was a handwritten letter which D.A. had addressed to the applicant at some point in 1993. The applicant had received that letter from D.A.’s father and presented it to the police. A forensic examination revealed that the letter had indeed been written by D.A. In the letter, D.A. stated that he had killed R.Ž. on the applicant’s orders so that the applicant would get all the profit from their business. D.A. also alleged that the applicant had bought him weapons to carry out unspecified criminal activities for the applicant’s benefit, and had bribed judges and prosecutors in order to help D.A. avoid criminal responsibility for some unspecified offences. D.A. further alleged that the applicant had promised to pay him for the murder, but had still not done so, and that that had been the reason for their conflict in the car (see paragraph 8 above). He threatened to forward the letter to various newspapers if the applicant failed to pay him. 17. When questioned by the court, D.A. submitted that the contents of the letter were false. He claimed that the applicant had owed him some money for another debt, so he had made up the story in the letter in order to scare the applicant into paying him back. The applicant, who was questioned as a witness in respect of that charge, also denied all the allegations in the letter and stated that he had no connection to the murder. 18. However, the court held that the letter constituted D.A.’s confession to the murder. The court considered it unlikely that D.A., who at the time of writing the letter had already been suspected of the murder, would falsely incriminate himself in the letter to the applicant, especially as their relationship at that time had not been friendly. It then stated that several of the allegations in the letter had been proved – for example, the applicant had admitted to having bought weapons for D.A., and there had indeed been several sets of criminal proceedings against D.A. which had eventually been discontinued. The court concluded: “As the facts laid out in the letter are consistent and objective, there are no grounds to doubt the truthfulness of the contents of the letter; the statement in the letter that [D.A.] – upon the orders of the individual in respect of whom a separate pretrial investigation was opened – killed [R.Ž.] so that all the profit would go to that individual alone, and that all the money which they had jointly owned would belong to the individual in respect of whom a separate pre-trial investigation was opened, must be considered true.” 19. The descriptive part of the judgment also stated that D.A. had killed R.Ž. and A.Č. while acting with unidentified accomplices. However, the court did not take that into account as an aggravating circumstance. 20. As for the second charge against D.A., the court changed its legal classification. The court considered that it had not been proved that D.A. had intended to kill the applicant or any of the passers-by (see paragraph 8 above). However, it found D.A. guilty of stealing the applicant’s property of high value (the Rolex watch) while threatening him with a firearm, and of negligently injuring several other individuals in his attempt to escape. D.A. was given a cumulative sentence of sixteen years’ imprisonment. The court also allowed the applicant’s civil claim submitted in respect of the second charge in its entirety, and ordered D.A. to pay him 40,000 Lithuanian litai (LTL – approximately 11,600 euros (EUR)) in pecuniary damages for the stolen watch. 21. The prosecutor, D.A., the applicant and another victim submitted appeals against the Vilnius Regional Court’s judgment of 20 June 2011. In his appeal, the applicant argued that the court had de facto found him guilty of having instigated the murder of R.Ž. and A.Č., despite the fact that he had not been the accused in that case and had not been able to defend himself. The applicant asked the Court of Appeal to remove from the descriptive part of the judgment all the passages which alleged his involvement in the murder, in particular those which discussed D.A.’s letter (see paragraphs 16-18 above). 22. In its judgment of 12 June 2012 the Court of Appeal amended the first-instance judgment in part. It held that the Vilnius Regional Court had erred in changing the legal classification of the second charge, found D.A. guilty of the second charge as it had been originally presented (see paragraph 14 above), and increased the sentence to nineteen years’ imprisonment. In addition, the court removed from the descriptive part of the judgment the phrase that D.A. had killed R.Ž. and A.Č. while acting with unidentified accomplices (see paragraph 19 above) – it held that, without identifying such individuals, inter alia, it could not be determined whether there had been an intention for them to act together. 23. The court dismissed D.A.’s appeal contesting his guilt in respect of both charges. With regard to the first charge, D.A. argued, inter alia, that his letter to the applicant (see paragraphs 16-18 above) should not have been considered evidence of his guilt. In response to D.A.’s arguments, the court stated: “D.A.’s guilt in respect of the charge against him – the murder of R.Ž. and A.Č. for personal gain while they were in a helpless state – has been proved by a series of pieces of indirect evidence collected in the case and adequately assessed in the [firstinstance] judgment, as well as one of the main pieces of direct evidence D.A.’s letter to [the applicant], allowing [the court] to make well-founded conclusions regarding the nature of the convicted individual’s actions and the form of his guilt. ... It is underlined that the principal statements of the letter, assessed together with the other evidence collected in the case, correspond to the events which took place at that time ... The chamber concludes that the facts indicated in D.A.’s letter are not made up, he refers to actual events which took place in his life, and there is no indication that he intended to threaten [the applicant] with that letter to make the latter pay him money.” 24. As to the applicant’s appeal, the court stated: “Contrary to what is alleged in [the applicant’s] appeal, the first-instance court, while examining the evidence related to [D.A.’s] guilt in respect of the murder of R.Ž. and A.Č., did not assess [the applicant’s] actions relating to the organisation of the murder of those individuals. As can be seen from the case file, on 22 December 2007 [the applicant] was notified that he was suspected of having organised the murder of R.Ž. and A.Č. ... [The applicant] is entitled to exercise his defence rights and defend himself against the accusation in that criminal investigation. Only that investigation can determine [the applicant’s] guilt in respect of the criminal offence of which he is suspected ... [The applicant] essentially contests his guilt in respect of the part of the judgment in which he does not have the status of either convicted individual or victim ... and his request goes beyond his procedural rights as a witness ... [The applicant’s appeal] is thereby dismissed.” 25. D.A. and the applicant submitted appeals on points of law against the Court of Appeal’s judgment of 12 June 2012. The applicant raised essentially the same arguments as in his previous appeal (see paragraph 21 above). 26. On 28 February 2013 the Supreme Court dismissed the appeals. In response to the applicant’s submissions, the Supreme Court stated that the criminal proceedings in question concerned D.A.’s and not the applicant’s guilt in respect of the murder of R.Ž. and A.Č., and the applicant had not had victim status with regard to that charge, so he was not legally entitled to submit an appeal on points of law (see paragraph 40 below). 27. On 11 April 2013 the applicant was served with an indictment and charged with having incited D.A. and another unidentified individual to murder R.Ž. and A.Č. for personal gain while they were in a helpless state, as set out in Article 24 § 5 and Article 129 § 2 (2), (5), (6) and (9) of the Criminal Code (see paragraphs 34-35 below). The case was transferred to the Vilnius Regional Court for examination on the merits. 28. When questioned by the court, the applicant denied his guilt in respect of the murder. He submitted that all the allegations against him in D.A.’s letter had been false, and that D.A. had written the letter with the purpose of blackmailing the applicant, which was why the applicant had decided to give it to the police. D.A. was questioned as a witness and gave essentially the same statements as in the previous criminal proceedings, including those relating to his letter (see paragraph 17 above). 29. On 9 October 2014 the Vilnius Regional Court acquitted the applicant. It considered that neither direct nor indirect evidence adequately proved that he was guilty of having instigated the murder of R.Ž. and A.Č. The court underlined that it had not been proved that the death of R.Ž., who had been the applicant’s business partner, had been beneficial to the applicant; on the contrary, after his death, their company had suffered great losses and had eventually ceased operating. In addition, the court considered that the prosecution had not established any motive for the applicant to kill A.Č. 30. With regard to D.A.’s letter, the court stated that, although the letter included facts which were true, some of its other contents appeared to be “characteristic of blackmail”, in particular those which alleged that the applicant had bought D.A. weapons specifically to commit criminal offences, or that he had bribed some officials to help D.A. avoid criminal responsibility (see paragraph 16 above). The court also considered that D.A.’s threat to forward the letter to the media further indicated that it had been written with the purpose of blackmailing the applicant. Lastly, the court underlined that the applicant had not paid D.A. the money which he had demanded, nor had he destroyed the letter, but had submitted it to the police, which confirmed that the applicant had not been connected to the murder of R.Ž. and A.Č. 31. The prosecutor appealed against that judgment. He submitted, inter alia, that the contents of D.A.’s letter had been examined in the previous criminal proceedings which had been concluded by a final court judgment (see paragraphs 18, 23 and 26 above), and the courts in the proceedings against the applicant should have followed that assessment. 32. On 5 March 2015 the Court of Appeal upheld the applicant’s acquittal. In response to the prosecutor’s arguments concerning D.A.’s letter, it stated that the courts in the criminal proceedings against D.A. had not examined the applicant’s actions in relation to the murder of R.Ž. and A.Č., so the prosecutor’s arguments had to be dismissed. From the information which the parties submitted to the Court, it appears that no appeal against that judgment was lodged before the Supreme Court.