CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 3 novembre 2005

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Zupančič , President ,   Mr   L. Caflisch ,   Mr   J. Hedigan ,   Mrs   M. Tsatsa-Nikolovska ,   Mr   V. Zagrebelsky ,   Mr   David Thór Björgvinsson ,   Ms   I. Ziemele, judges , and Mr V. Berger , Section Registrar , Having regard to the above application lodged on 1 February 2002, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Ms Jūratė Lenkauskienė, is a Lithuanian national who was born in 1957 and lives in Kaunas. She is represented before the Court by Mr G. Zavtrakovas, a lawyer practising in Kaunas. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 29 December 2000 the Kaunas City District Court convicted the applicant of complicity in forging a passport (Articles 18 and 207 of the Criminal Code as then in force). The court found inter alia that the applicant had agreed with SK, a police officer acting under the “Criminal Conduct Imitation Model” (see the ‘Relevant domestic law and practice’ part below), to falsify a number of seals on SK’s passport for a fee of 1,200 Lithuanian litai (about EUR 350). It was also found that the applicant acted in conspiracy with RB and GD, co-defendants convicted alongside her. The applicant was sentenced to one year and six months’ imprisonment, but the sentence was rescinded by virtue of an amnesty act. Upon the applicant’s appeal, on 3 April 2001 the Kaunas Regional Court upheld the above judgment. On 8 May 2001 the applicant submitted a cassation appeal, claiming inter alia that she had been incited to accept a bribe by SK. She submitted in particular that SK had systematically searched for her by calling her telephone 15 times in the space of two months in early 1999, having thus shown the initiative to incite the commission of the offence. As a result of the pressure exerted by SK, the applicant had met him twice, there being nothing in their conversations (secretly recorded by SK) to show that she had been predisposed to commit an offence. The applicant alleged that, in accordance with the findings of the Constitutional Court, such circumstances disclosed a provocation. The applicant further alleged that the trial had been unfair and the courts had been biased in view of a number of articles printed in the Lithuanian press in the context of the criminal proceedings. She also alleged a violation of the presumption of innocence in this connection. On 26 June 2001 the Supreme Court disallowed the appeal, finding that the applicant had only contested factual findings of the lower courts, but that she had presented no allegations of a “substantive breach” of the domestic criminal law within the meaning of Articles 382 and 418-1 of the Code of Criminal Procedure as then in force. On 27 June 2001 the applicant submitted a further cassation appeal, reiterating the same grounds. That appeal was again disallowed by the Supreme Court on the same basis on 16 October 2001. B.     Relevant domestic law and practice The Criminal Code applicable at the material time punished acts of forgery (Article 207). Article 18 of the Code dealt with matters of complicity. The Code of Criminal Procedure applicable at the material time provided that a case could be examined at cassation instance only in view of a “substantive breach” of the procedural law (Article 418-1). Pursuant to Article 382 of the Code, “substantive breaches” of the statute were those which violated or restricted the rights of the parties or otherwise prevented the court from examining the case in a comprehensive manner, affecting the lawfulness and reasonableness of the judgment. The second paragraph of Article 382 also listed specific violations of the statute in view of which a judgment must “in any event” be quashed, such as the right to have a lawyer or the right to have access to the case-file. The establishment of incitement or provocation to commit an offence were not listed among these specific conditions warranting annulment of the judgment “in any event”. In accordance with Article 2 paragraph 12 of the Operational Activities Act 1997 (amended in 1999), a “Criminal Conduct Imitation Model” (“the model”) serves to denote authorised actions having the elements of a crime, aimed at the protection of the more important interests of the State, society or the individual. Under the second paragraph of Article 4 of the Act, operational activities within the meaning of the Act can be undertaken in the following circumstances: - where the person, who has prepared or committed a serious offence, is not identified; - upon the possession of the “verified initial information” about a criminal act; - upon the possession of the “verified initial information” about a person’s belonging to a criminal organisation; - upon the suspicion of activities by foreign secret services; - when an accused, defendant or convicted person absconds. Article 7 paragraph 2 (3) of the Act provides that the model can be undertaken only upon the existence of one of these circumstances, and if authorised in accordance with Articles 10 and 11 of the Act. Pursuant to Articles 10 and 11, the model shall be authorised by the Prosecutor General or his Deputy upon an application in this respect by the competent police or investigative authority. It shall be effective for a period of one year. In accordance with Article 8 paragraph 1 (3) of the Act, the authorities shall protect persons from active pressure to commit an offence against their own will. Article 13 paragraph 3 of the Act provides a right to contest the lawfulness of evidence obtained by using special equipment. In 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 had ruled on 29 April 1999, inter alia , that: “According to Article 2 of the Operational Activities Act, the Criminal Conduct Imitation Model (hereinafter “the model”) serves to denote actions containing elements of an offence, authorised with a view to protecting the more important interests of the State or the individual. ... The model shall be authorised with respect to [the police] actions, not with respect to an individual committing crime. in the commission of a crime. This factor ... does not render unlawful the evidence collected during the implementation of the model. In particular, establishing the [police] request [for authorisation] referred to the result which was sought - to establish the identity of all persons, involved in the trafficking [of people] ... . Of course, the [police] officers cannot foresee in advance which persons will take part [in the commission of the offence]. Identifying members of a criminal group was a specific aim of the [prosecution when] authorising the model. ... . The Act does not require that relevant facts be submitted about a person in order to justify the authorisation of [the] model. [The Act] only imposes the requirement [on the police] to submit facts which justify application [of the model] ...” By decision of 12 October 1999 in that case, the Supreme Court held regarding the use of police undercover agents as follows: “The[se] circumstance[s] [were] not known by [the applicants] at the time of the commission of an offence. They were convinced that they were trafficking persons who had crossed the Lithuanian border illegally. As Article 82-1 of the Criminal Code provides that the crime is committed by direct intent, [the applicants’] error as to the subject of the crime has no importance on the classification of their conduct. By being convinced that they were trafficking [people], they exercised in fact the conduct stipulated in Article 82-1 ... Their conduct was therefore properly classified as a completed offence. The authorisation of [the model] only served to legalise the actions of the police officers who took part in the trafficking.” On 8 May 2000 the Constitutional Court ruled in the Milinienė case (see decision on admissibility in Milinienė v. Lithuania , no. 74355/01) 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 was emphasised that the use of clandestine measures, as such, was not contrary to the European Convention of Human Rights, or indeed the Constitution, as long as such measures were based on clear and foreseeable legislation and were proportionate to the legitimate aims sought. The Constitutional Court found that the Act clearly regulated the scope and procedure for the use of various forms of operational activities, such as the model. The Constitutional Court emphasised that the commission of a fresh offence could not be incited ( kurstoma ) or provoked ( provokuojama ) by way of the model. Furthermore, it did not allow incitement of a person to commit a crime even where the person had planned the offence but had subsequently discontinued his actions. It was observed in this respect that, by authorising and implementing the model, the investigative authorities and their undercover agents could only “join the continuing criminal acts that [had] not yet been concluded”. The Constitutional Court emphasised that it was for the courts of ordinary jurisdiction to establish in each particular case whether the investigating authorities had gone beyond the limits of the model, as permitted by the Act, regarding alleged incitement, provocation or another form of abuse of the model. It was also stated that the authorisation of the model did not amount to a licence to commit a crime for a police agent or third person acting as an undercover agent. The authorisation only meant that the actions of the agent were legitimate from the point of view of domestic law, even if the agent could imitate a real crime by way of those actions. The overall aim of the operational activities, including the model, was to investigate crime, which related to the competence of prosecutors as well as courts. Thus the Constitutional Court held that no judicial authorisation was required for the model, an authorisation by a prosecutor being sufficient. Furthermore, no judicial authorisation was necessary, constitutionally, for secret audio or video recordings of conversations in the implementation of the operational activities under the Act. Only wiretapping and surveillance techniques by way of the use of stationary devices warranted a court order (Article 10 paragraph 1 of the Act). COMPLAINTS Under Articles 6 and 7 of the Convention the applicant complains that she was a victim of incitement by the State authorities, acting through SK, and that she was thus unfairly convicted of forgery. The applicant argues that the evidence against her was unlawful and could not be admitted at trial, and that the courts were not impartial. The applicant further complains that the Supreme Court did not examine her cassation appeals, disregarding her allegations of provocation set out in her cassation appeals of 8 May and 27 June 2001. THE LAW 1. The applicant complained under Article 6 of the Convention, which provides, insofar as relevant, as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” The Government stated that the applicant had raised no points of law in her cassation appeals, the domestic law allowing a cassation appeal only on legal questions (Article 418-1 of the Code of Criminal Procedure applicable at the material time). However, the applicant had raised only factual questions in her cassation appeal, without specifying any particular violation of the procedural law in view of the alleged factual circumstances, or showing that any breaches of her procedural rights may have prevented the courts from examining the case in a comprehensive manner and adopting a lawful and reasonable judgment (Article 382 § 1 of the Code). In particular, the applicant had not contested the lawfulness of the authorisation of the “Criminal Conduct Imitation Model”. There had thus been no violation of the applicant’s right to a court under Article 6 of the Convention in view of the refusal by the Supreme Court to entertain her cassation appeals of 8 May and 27 June 2001. Furthermore, in this respect the applicant had not exhausted domestic remedies with respect to her complaints under Article 6 of the Convention. In any event, there had been no violation of the principle of fairness of proceedings, the applicant having committed the offence on her own initiative, not as a result of any incitement or provocation. The applicant disagreed, stating that the authorities had provoked her to commit the offence, and that she had thereafter been denied the right to have her complaints examined by the Supreme Court. She concluded that Article 6 of the Convention had thus been breached in her case. To the extent that the Government have alleged non-exhaustion of domestic remedies under Article 35 § 1 of the Convention, the Court notes that the applicant did submit a cassation appeal in her case on two occasions, but they were both disallowed by the Supreme Court. It is observed that part the object of the applicant’s complaints under Article 6 of the Convention is her intention to prove the absence of an adequate remedy against the alleged violation of Article 6 and disclose that the State has failed to respect her right to a court under this provision, in view of her cassation appeals being disallowed by the Supreme Court. It follows that the Court cannot answer this question, namely whether an adequate remedy was available and afforded to the applicant to complain against the alleged unfairness of her trial, without establishing the merits of her complaints under Article 6 of the Convention. This part of the application cannot therefore be declared inadmissible for non-exhaustion of domestic remedies. In view of the parties’ observations, the Court finds that the applicant’s complaints under Article 6 of the Convention raise complex questions of fact and law, the determination of which should depend on an examination of the merits. They cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established. 2. The applicant further complained about the allegedly retroactive application of criminal law in respect of her conviction for being an accomplice in forgery. She invoked Article 7 of the Convention, which states as follows: “1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.” The Court notes however that the applicant does not contest the fact that, at the time when the alleged offence was committed, complicity in forgery constituted a crime under the national law (pursuant to Articles 18 and 207 of the Criminal Code as then in force), as envisaged by the first paragraph of Article 7 of the Convention. It would appear therefore that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. To the extent that the applicant has also complained under Article 7 about the alleged incitement to commit an offence, the Court notes that it will examine the merits of this complaint under Article 6 of the Convention. There is nothing in the case-file to warrant a separate examination of the same complaint under Article 7. It follows that the case must be rejected in accordance with Article   35 §§ 3 and 4 of the Convention insofar as it has been brought under Article 7 thereof. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant’s complaints under Article 6 of the Convention; Declares inadmissible the remainder of the application.   Vincent Berger   Boštjan M. Zupančič   Registrar   President