CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 26 mars 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sAAD669EE { font-family:Arial; font-size:6.67pt; font-weight:bold; vertical-align:super } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sBAD0D18F { width:1.87pt; display:inline-block } .s8D4F77DC { width:188.45pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }     FOURTH SECTION DECISION Application no. 43154/10 Henrikas DAKTARAS against Lithuania   The European Court of Human Rights (Fourth Section), sitting on 26   March 2019 as a Chamber composed of:   Jon Fridrik Kjølbro, President,   Paulo Pinto de Albuquerque,   Faris Vehabović,   Egidijus Kūris,   Iulia Antoanella Motoc,   Carlo Ranzoni,   Georges Ravarani, judges, and Marialena Tsirli, Section Registrar, Having regard to the above application lodged on 12 July 2010, 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 1.     The applicant, Mr Henrikas Daktaras, is a Lithuanian national, who was born in 1957 and is serving a life sentence in Lukiškės Prison in Vilnius. He was represented by Mr   V.   Sirvydis, a lawyer practising in Kaunas. 2.     The Lithuanian Government (“the Government”) were represented by their Agent, Ms K.   Bubnytė-Širmenė. A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Criminal proceedings against the applicant and the “Daktarai” criminal organisation (a)     The criminal investigation and the applicant’s conviction 4 .     In May 2005 prosecutors opened a criminal investigation into crimes committed by a criminal organisation, “Daktarai”. The prosecutors established that between 1990 and 1993 the applicant, together with his accomplices, had created a criminal organisation in Kaunas, armed with firearms and explosives. The crimes committed by that criminal organisation in the following years ranged from attempted murder and murder of a number of people, robberies, unlawful deprivation of liberty, destruction of property, extortion and unlawful possession of firearms. The criminal case was given number 01-2-00015-05 (hereinafter “the main criminal case”). During the course of the investigation, more and more crimes committed by the applicant and his accomplices were uncovered, so charges in respect of those were joined to the main criminal case. 5 .     On 19   December 2008 criminal charges were brought against the applicant. He fled Lithuania but was arrested in Bulgaria in September 2009. On the basis of the European Arrest Warrant and decisions by the Bulgarian courts, he was extradited to Lithuania in October 2009. 6 .     On 26   February 2009 the prosecutor decided to temporarily seize property belonging to the applicant and his family, under Articles 116 and 151 of the Code of Criminal Procedure (see paragraphs 43 and 44 below). The prosecutor noted that the applicant had no property registered in his name except for a motorcycle, whereas the property registered in the name of his mother and his wife included plots of land, houses, apartments and cars. The prosecutor also noted that the “Daktarai” criminal organisation had committed crimes for the motive of personal gain and in order to have a major influence among criminals not only in Kaunas but throughout Lithuania. The decision to seize the applicant’s property was subsequently upheld by court decisions. The seizure of some of the property that had been registered in the name of the applicant’s mother was lifted in 2015. The seizure of property registered in the name of the applicant’s wife, R.D., continued until last year (see paragraphs 24-27 below). 7 .     On 3   March 2009 the applicant’s wife signed an agreement with a lawyer, K.A., authorising him to represent the applicant in all criminal, civil and administrative proceedings in Lithuania. Afterwards,   on 9 March 2009, K.A. provided the Prosecutor General’s Office with a power of attorney to represent the applicant and asked the prosecution for permission to see the documents of the main criminal case (see paragraph 4 above). 8 .     On 10   October 2009, having been extradited to Lithuania, the applicant signed a record confirming that he wanted K.A. to defend him in the main criminal case. 9 .     On 23 November 2009 the prosecutor in charge of the criminal case regarding the “Daktarai” criminal organisation asked a court to authorise the censorship of the applicant’s correspondence – letters to and from prison. The prosecutor argued that it was important in order to bring the members of the criminal organisation to justice; it would prevent them from colluding on their testimony, and influencing witnesses or victims. The prosecutor also emphasised that the applicant’s correspondence with his lawyers, law-enforcement authorities and the European Court of Human Rights would not be censored. It transpires that the prosecutor’s request was granted. 10 .     On 31   August 2009 the prosecutor also asked the State Tax Inspectorate to open a tax investigation ( mokestinis patikrinimas ) in respect of the applicant, his wife, a couple of his wife’s companies, as well as a number of co-accused. The prosecutor noted that he had been investigating the main criminal case regarding very serious crimes committed by a criminal organisation. The case file had led him to conclude that as of 1993 the members of that criminal organisation had been obtaining means through crime and had been carrying out economic and financial activity hiding income and avoiding taxes. They had thus caused substantial harm to the State and its citizens. 11 .     On 29 October 2009 the prosecutor specified his earlier request. In order to establish the circumstances relevant to the main criminal case, he asked the tax authorities to establish whether the property acquired by the applicant, his wife and his co-accused between 1993 and 2008 had been obtained from lawful sources and whether they had paid all the taxes due. 12.     Regarding the proceedings for extradition (see paragraph   5 above), between January and October 2010 the applicant’s lawyer K.A. challenged the criminal charges against the applicant. In particular, he argued that the scope of those charges, as presented to the applicant after his return to Lithuania, had been wider than the ones listed in the European Arrest Warrant. By a final decision of 15 October 2010 the court dismissed K.A.’s complaint, pointing out that the prosecution had continued investigating the crimes committed by the applicant and the criminal organisation even after they had issued the European Arrest Warrant, and while the applicant had been hiding in Bulgaria. The applicant remained in pre-trial detention until his conviction. 13 .     According to the material presented by the parties, during the pre-trial investigation against her husband and the criminal organisation, the applicant’s wife was questioned as a witness on two occasions. Firstly, on 20   November 2009 she explained that she had been given sums of money totalling about half a million Lithuanian litas (LTL) (approximately 145,000   euros (EUR)) as a present by the applicant’s mother and by a distant relative, A.M. As later pointed out by the Court of Appeal in the judgment of 17   January 2017, A.M. was subsequently questioned by the Federal Bureau of Investigation in the United States of America, but he denied having ever given any sum of money to the applicant or to R.D. (see also paragraphs 24 and 25 below). 14 .     When again questioned as a witness on 13   January 2011, R.D. refused to answer the questions about her and her family’s financial operations, on the grounds that the main criminal case had been connected to her husband. She stated that, if necessary, she would testify in court. 15 .     The pre-trial investigation was completed and the indictment in the main criminal case was drawn up on 11   February 2011. The applicant was indicted with establishing and heading the “Daktarai” criminal organisation armed with firearms and explosives, attempted murder and murder of a number of people for motives of personal gain (that is, in order to obtain pecuniary advantage), infliction of injuries, robberies, extortion, fraud, unlawful deprivation of liberty and using fake identity documents (identity card and driver’s licence which he used in Bulgaria), and unlawful possession of firearms. Fourteen civil claims were submitted by the victims of the criminal organisation’s crimes, claiming compensation for pecuniary and non-pecuniary damage exceeding in total LTL   8,500,000 (approximately EUR   2,500,000). 16 .     On 23   June 2011 the Klaipėda branch of the State Tax Inspectorate produced specialist report no.   AC6-3, as earlier requested by the prosecutor (see paragraphs 10 and 11 above). The report was based on information provided by various State authorities and institutions, such as the General Prosecutor’s Office, the Criminal Police Bureau, the tax inspectorates, the Statistics Department and a number of commercial banks in Lithuania. The report also relied on testimony given by the applicant’s wife to the pre-trial investigation about certain transactions and how she had obtained property (see paragraph 13 above). 17.     It transpires from that report that a lawyer, R.G., provided the tax authorities with a certificate ( priešpriešinės informacijos surinkimo pažyma ) showing that between February 1999 and October 2007 the applicant and his wife had paid him sums amounting to LTL   16,700 (approximately EUR   4,800) when he had been providing legal services to the applicant and his son, E.D. 18 .     In the same report the tax authority also established, this time on the basis of information provided by a commercial bank in Lithuania, that between February 2006 and August 2007 the applicant’s wife had paid the lawyer K.A. a total of LTL   11,725. 19 .     The tax authority also established that between 1993 and 2008 the applicant’s wife had obtained property and had expenditure that exceeded her lawful income by LTL   860,574 (approximately EUR   250,000). She had concluded several fictitious agreements stating that other persons had loaned or gifted her sums of money totalling LTL   454,000 (approximately EUR   130,000) to justify how her family had obtained certain objects belonging jointly to her and the applicant ( bendroji jungtinė nuosavybė ). Lastly, the tax authority established that the applicant’s wife and her private company owed the State a total of LTL   209,147 (approximately EUR   60,000) in unpaid taxes. 20 .     On 14 June 2013 the Klaipėda Regional Court found the applicant guilty of more than twenty counts of the aforementioned crimes (see paragraph 15 above). It transpires from the trial court’s decision that the applicant was defended by the lawyer K.A. When imposing the sentence, the court noted that the applicant had a prior conviction, he had established the “Daktarai” criminal organisation and had clearly been its leader, had been found guilty of seven very serious crimes involving attempted murders, had personally taken part in four murders, and had committed the crimes for the motive of personal gain and to maintain influence in the criminal underworld. His actions showed that crime was his way of life. Accordingly, no sentence less than life imprisonment was appropriate for him. The court also convicted thirteen of the applicant’s conspirators of similar crimes, and imposed on them sentences of up to twenty years of imprisonment. 21 .     The Klaipėda Regional Court ordered the applicant, together with some of his co-accused, to pay compensation for the non-pecuniary damage sustained by the victims of their crimes, including murders, in the amount of more than LTL   600,000 (approximately EUR   175,000). The court left some of the civil claims unexamined, granted another civil claim but left its amount to be determined in civil proceedings, and ordered the confiscation from the applicant and his three co-convicted of LTL   73,867 (approximately EUR   21,000) each as unlawfully gained means. 22 .     By a judgment of 30 June 2015 the Court of Appeal varied the lower court’s judgment by acquitting the applicant of two counts of murder and accordingly reduced the amount payable by him as compensation for non-pecuniary damage (see the previous paragraph). That being so, given the remaining proven charges, the court left the applicant’s sentence of life imprisonment unchanged. The Court of Appeal also lifted the temporary seizure of the property belonging to the applicant’s mother, holding that she could not be equated to a suspect or person charged with a crime as listed in Article 116 of the Code of Criminal Procedure (see paragraph 43 below). As to the property registered in the name of R.D., the Court of Appeal held that property belonging to her and the applicant was joint common property ( bendroji jungtinė nuosavybė ), that is, property acquired after their marriage in the name of one or both spouses, irrespective of whose name that property had been registered in, since R.D. was the applicant’s wife. At the Court of Appeal, the applicant was represented by the lawyer K.A. 23 .     By a final ruling of 16   June 2016 the Supreme Court upheld the appellate court’s verdict in respect of the guilt of the applicant and his co-accused, except for one of the co-accused. The Supreme Court quashed, as not sufficiently reasoned, the part of the Court of Appeal’s decision by which it had upheld the temporary seizure of property belonging to the applicant’s wife and remitted that part for fresh examination by the Court of Appeal. During the proceedings at the Supreme Court the applicant was represented by the lawyers K.A. and V.S. The applicant’s wife, who had the status of a person whose property had been temporarily seized ( asmuo, kurio nuosavybės teisė apribota ), was represented by the lawyer V.S. (b)     Final decisions as to temporary seizure of R.D.’s property 24 .     On 27   January 2017 the Court of Appeal noted that part of the judgment by which the applicant had been found guilty of participation in the criminal organisation and its crimes, and by which civil claims had been awarded against him and confiscation had been ordered, had already come into force ( įsiteisėjo ) (see paragraphs 20-23 above). Accordingly, the case before it concerned only the seizure of R.D.’s property, which had been temporarily imposed by the prosecutor on 26   February 2009 and had continued throughout the criminal proceedings against her husband and the other members of the “Daktarai” criminal organisation. The Court of Appeal noted that although the case file contained a contract of division of property concluded by the applicant and R.D. in 1995, other documents showed that they had continued to treat their property as joint common property and managed it together. It was noteworthy that even before the date on which the property division contract had been concluded, the applicant had already committed a number of crimes, such as attempted murder, murder and extortion of property, which attracted the confiscation of property as a penalty and could also have led to substantial claims. Accordingly, the formal division of property could be seen as an attempt by the applicant to avoid any undesirable consequences should his crimes be unveiled. The Court of Appeal also stated that R.D. “could not have not known ( negalėjo nežinoti )” about her husband’s unlawful activities. In a similar vein, at the Court of Appeal hearing the applicant had confessed to having been involved in the illegal trade of spirits, which, in the court’s view, had clearly provided him with a significant income. It was also pertinent that by a final court judgment the applicant had also been found guilty of crimes which he had committed while held in detention. For example, he had organised and planned the murder of two individuals, and had extorted property from others. Having examined the tax authority’s report of 23   June 2001 (see paragraphs 16-19 above), the Court of Appeal established that there was a clear disproportion between the income of the applicant and his wife and the property they owned. It followed that the temporary seizure of R.D.’s property had been lawful. 25 .     Lastly, the Court of Appeal pointed out that no charges regarding illicit enrichment had been brought against either the applicant or his wife (see paragraph 47 below). The temporary seizure of their property was related only to the crimes which the applicant had committed and for which he had been convicted, and only in order to secure the payment of civil claims and the confiscation of property. 26 .     By a final ruling of 18   January 2018 the Supreme Court upheld the Court of Appeal’s finding that in 1995 the applicant and his wife had concluded a fictitious agreement on the division of property, because the aim of that contract had been not to divide the property but to avoid any possible penalties for the applicant’s criminal activity. Accordingly, the Court of Appeal had been correct in upholding the decision to seize R.D.’s property, since to do otherwise would have risked merely convicting the applicant without protecting the civil plaintiffs’ right to compensation. The Supreme Court also pointed out that the Court of Appeal’s decision had not affected R.D.’s legal status, except for the finding that the property which de jure had been hers had in fact been the common property of both spouses. Accordingly, even though the Court of Appeal had noted that R.D. “could not have not known” that her husband’s behaviour had been against the law, this did not mean that the actions of R.D., whose property had been seized, had been assessed in the light of any kind of legal liability. All the more so as it was clear that the seizure of the property that belonged both to the applicant and R.D. had been applied precisely for the purpose of compensating the victims for damage and for guaranteeing the confiscation of property to the value of LTL   73,867 (approximately EUR 21,000). The fact that R.D. had been ordered to pay taxes on certain income (see paragraphs 16 and 19 above) had nothing to do with the principle of non bis in idem . 27 .     That being so, the Supreme Court found that some of the property had been seized unnecessarily, since the total value of the seized property had exceeded the civil claims and the confiscation order. Accordingly, the Supreme Court quashed the decision to seize the applicant’s house and two cars, but left the remaining parts of the Klaipėda Regional Court’s judgment of 14   June 2013 and the Court of Appeal ruling of 27   January 2017 unchanged (see paragraphs 21 and 24 above). (c)     Search of the applicant’s and his wife’s home and complaint lodged by applicant’s lawyer K.A. alleging a breach of professional secret 28 .     Within the main criminal proceedings against the applicant and the “Daktarai” criminal organisation (see paragraph 4 above), on 18   December 2008 the Vilnius City First District Court granted a prosecutor’s request to authorise a search of the applicant’s home, owned by the applicant’s wife and situated in Užliedžiai village, Kaunas county. The court pointed out that the criminal case concerned activities of a criminal organisation which was suspected of having committed serious crimes. There was reason to believe that evidence such as notes, photographs, firearms, explosives, documents and other objects proving the applicant’s criminal activity, his connections with the “Daktarai” criminal organisation and other organised criminal groups in Kaunas could be found in the applicant’s home. 29 .     The search was conducted on 6   February 2009. As noted by the authorities in January 2010, objects pertinent to the criminal investigation regarding the criminal organisation had been taken during the search. In addition, the authorities also found and took documents about the applicant’s and his family’s financial dealings, so that the source of income could be established. After those documents had been examined, the authorities wished to return them to the applicant’s wife. However, between November 2009 and January 2010 they were not successful, because she refused to take the documents from the authorities. 30.     On 28 October 2009 the applicant’s lawyer K.A. lodged a complaint that during the search of 6 February 2009 documents had been taken from the applicant’s and his wife’s home. He claimed that those documents included his reports about services provided to his client, as well as about bank transfers made in order to pay him. The lawyer asserted that those documents had been protected by lawyer-client confidentiality. He relied on Article 46 of the Law on the Bar (see paragraph 49 below). 31 .     The lawyer’s complaint was dismissed first by the prosecutor overseeing the main criminal case, and then by a higher prosecutor. Both prosecutors noted that the case was about a criminal organisation that was suspected of having committed serious crimes in order to obtain property, and that the law allowed the confiscation of property for such crimes. For that reason, information about the financial dealings of the suspects and their family members and the source of their income was being collected during the criminal investigation. The prosecutors acknowledged that, during the search of 6   February 2009, K.A.’s reports to the applicant’s wife about the services provided by him had been seized. Nonetheless, at that time K.A. had not been representing the applicant in main criminal case no.   01-2-00015-05. The reports thus had been about the services provided in other criminal case(s). Furthermore, that information did not fall within the sphere of professional secret, because it only included payments to the lawyer, and not the content of the services provided. It merely concerned the lawyer’s financial report to the client. Moreover, those documents had been obtained not during a search of the lawyer’s office, but during the search of the applicant’s home. Lastly, the search had been authorised by a court in order to obtain evidence. 32 .     By a final ruling of 12 January 2010, the Vilnius City First District Court dismissed the lawyer’s complaint as unfounded. The court noted that the main criminal case no.   01-2-00015-05 concerned acts committed by the “Daktarai” criminal organisation. It was necessary to gather data about the applicant’s financial transactions to establish whether his income had come from lawful sources. The court also pointed out that at the time the search had been performed, K.A. had not yet been appointed to represent the applicant in the aforementioned criminal case. No procedural documents drafted by K.A. in that criminal case had been gathered during that search, nor had there been any examination of the extent of the services he had provided to the applicant or the fees paid by the latter. The investigators could not have foreseen that K.A. would later become the applicant’s lawyer in the main criminal case. Lastly, the guarantees listed in Article 46 of the Law on the Bar applied when a search was performed on an advocate’s premises, but not when searching his client’s home. 2.     Criminal proceedings against the applicant, his wife and his mother for influencing a witness and a victim 33 .     On 4   January 2006 the applicant’s wife signed a legal assistance agreement with a law firm, “Adversus”, represented by the lawyer K.A. The law firm and K.A. personally agreed to represent the applicant before all State institutions in Lithuania in connection with “that criminal case” against the applicant (“ šioje baudžiamojoje byloje ”), without specifying the number of the criminal case. The agreement specified that it was confidential and set out the manner in which the lawyer’s services should be paid for. 34 .     By a judgment of 8   December 2006 the Vilnius Regional Court found the applicant guilty of one count of extortion of property belonging to G.K. and of attempting to influence G.K. and his wife by persuading them not to testify against him. The applicant was sentenced to two years and nine months of imprisonment, and ordered to pay LTL   20,000 (approximately EUR   5,800) to each of the victims as compensation for non ‑ pecuniary damage. 35 .     By the same judgment the applicant’s mother, J.D., was found guilty of attempting to influence G.K. and his wife. She was sentenced to a fine of LTL   5,000 (approximately EUR   1,500). Although the applicant’s wife had been charged with influencing the victim, G.K., the trial court acquitted her, holding that there was insufficient evidence against her. It transpires from the Vilnius Regional Court’s decision that the applicant, his wife and his mother were represented by the lawyers K.A. and R.G. 36 .     The prosecutor lodged an appeal against the decision to acquit the applicant’s wife, arguing that the trial court had erred in acquitting her because her actions – “innuendoes and hidden threats ( užuominos ir paslėpti grąsinimai )” voiced to G.K. – had been sufficient to find her guilty. For their part, the victims and civil claimants, G.K. and his wife, argued that the civil damages awarded had been too low, also taking into account the emotional impact on them. Because of the crime, they had had to take part in the witness protection programme, could no longer contact their family members and friends, and had to hide where they lived. All of that had taken an emotional toll on them and on their son. 37 .     By a judgment of 29   March 2007 the Court of Appeal essentially upheld the trial court’s judgment. The applicant and his wife were represented by lawyers K.A. and R.G. The appellate court lowered the award for non-pecuniary damage payable by the applicant to G.K. and his wife to LTL   7,000 (EUR   2,000) and LTL   2,000 (EUR   600), respectively, finding that the applicant’s actions when extorting the property had not been “intensive”, and that he had been directly threatening only G.K. but had not been in contact with his wife. 38 .     By a final ruling of 30 October 2007 the Supreme Court upheld the Court of Appeal’s judgment. At that stage of the proceedings the applicant and his wife were represented by lawyers K.A. and R.G. 3.     Administrative proceedings regarding the tax authorities’ order that the applicant’s lawyer K.A. provide certain financial information 39 .     On 16 June 2010 the State Tax Inspectorate opened an investigation into the financial activities of K.A., as a tax payer, and asked him ( mokesčių administratoriaus nurodymas ) to provide information about his financial transactions – payments made to him by physical persons – for the period September 2005 to December 2008. On 29   June 2010 K.A. informed the tax authorities that he would not be able to provide that information for objective reasons (see paragraph below). The tax authorities then asked the banks in Lithuania to provide information about the lawyer’s transactions. On the basis of the information provided by the banks, the tax authorities established that the applicant’s wife had paid K.A. a total of LTL   11,725 (EUR   3,400) in five payments between February   2006 and August 2007. 40 .     In the meantime, K.A. challenged the tax authorities’ request ( nurodymas ) before the administrative courts. He pointed out that he had been the applicant’s lawyer in the main criminal case and that, to his knowledge, during the search of his client’s home his reports to his client had been seized (see paragraphs 29-32 above). It was on the basis of those seized documents that the State Tax Inspectorate had been ordered to inspect the lawyer’s accounts in order to establish his client’s expenditure. The lawyer argued that he could not provide such information because it could be used in the main criminal case against his client. He also submitted that the tax authorities’ request had caused a conflict of interest: if a lawyer were to provide the authorities with information that was detrimental to his client’s interest, the client would then refuse the services of that lawyer. The lawyer relied on Article 6 §§ 1 and 3 (c) of the Convention. 41 .     By a decision of 22   November 2010 the Vilnius Regional Administrative Court dismissed K.A.’s complaint. The court agreed with K.A. that the reason to inspect his accounts had been to obtain information about the payments made by the applicant or on his behalf by his wife. That being so, the court noted that the lawyer had not provided the information he had been asked for – such data had eventually been obtained from the banks. Moreover, the lawyer had not lodged a complaint about the carrying out of a tax investigation of his accounts, nor about its results. The court stressed that the consequences on the lawyer’s relationship with his client, if any, could have been caused not by the request to submit information, but by the tax investigation itself. It had been explained to the lawyer, however, [by the tax authority] that it was possible not to provide the requested information, and he had used that opportunity. After such refusal, the tax authority, for its part, had no longer insisted that the lawyer provide the requested information. The court lastly held that since the lawyer had not been challenging the tax investigation, as such, there was no reason to examine the lawfulness of the request to provide information vis-à-vis Article 6 of the Convention. 42 .     By a final decision of 20 October 2011 the Supreme Administrative Court dismissed K.A.’s appeal and discontinued the case. The court held that the request to provide information had not had any legal consequences and therefore could not be the subject of a dispute to be examined in a court. The request had not constituted a final decision regarding a certain question; it had only been an intermediary step in tax proceedings. B.     Relevant domestic law and practice 1.     As to the seizure and confiscation of property during criminal proceedings 43 .     The Code of Criminal Procedure in force at the relevant time provided that during criminal proceedings a prosecutor had to take steps to safeguard a civil claim by finding property belonging to a suspect or the accused and temporarily seizing that property (Article 116). 44 .     The Code of Criminal Procedure also provided: Article 151. Temporary seizure of property ( Laikinas nuosavybės teisės apribojimas ) “1. With a view to securing a civil claim or the possible confiscation of property, a prosecutor may impose the temporary seizure of property belonging to a suspect or ... other physical persons in possession of property received or acquired through criminal means ...” 45.     On 13   December 1993 the Constitutional Court delivered a ruling in response to the Supreme Court’s question whether the supplementary penalty of confiscation of property, as foreseen by the Criminal Code valid at the material time, was in compliance with the Constitution, particularly its Article   23, which protects the right to property. The Constitutional Court found in the affirmative. It held: “The criminality data of recent years show that the threat to society is growing not only due to the rate of crime but also due to its structure. The property of residents is threatened with growing frequency, with more than two-thirds of crimes being of such type. The structure and dynamics of criminality may not influence [the answer] to the question whether one or another punishment is in conformity with the provisions established in the Constitution. However, an assessment of the situation and the indirect influence on this phenomenon by established punishment is imperative. ... ... by confiscating property, as a supplementary criminal penalty, one seeks to exert influence on the motivation for criminal behaviour that causes crimes for personal gain to be committed. The purpose of a supplementary penalty is to further individualise the punishment, to expand the limits of its application by allowing [more] measures to be applied to the criminal, taking into consideration the nature and degree of the crime committed and the personality of the culprit. By combining criminal legal measures in such a way, their effectiveness could be increased and a basis created for seeking the goals of punishment as much as possible. The arguments in favour of denying a supplementary penalty – confiscation of property – are not well founded. It is maintained that, following the confiscation of property, a person is left with no property. [However], under the relevant laws, not all the property is confiscated. The property that may not be confiscated is listed in Article 36 of the Criminal Code. Furthermore, in each criminal case the court, by individualising the penalty imposed on the convicted person, takes into consideration the nature of the crime, how dangerous the crime was, the culprit’s personality and other [relevant] circumstances of the case. The court also has a possibility of taking into account what property the person on trial has and the sources of the property acquired, and of evaluating whether the property of the convicted person is linked to the crime committed as well as to other circumstances. On that basis, the court may impose confiscation of all property or of separate items. When arguing that confiscation of property should not be permitted, an argument is used that the confiscation of the convicted person’s property may have an influence on the pecuniary interests of that person’s family or those of other persons. It must be noted, however, that only the property belonging to the convicted person would be confiscated. Moreover, according to the existing system of [criminal] penalties, most of the punishments have an impact not only on the convicted person’s interests, because if a heavy fine or long-term imprisonment were imposed, this would also have no less of a pecuniary impact on the family members than confiscation of some of the property or of some of the items. When evaluating the confiscation of property as a supplementary penalty, it should be noted that the United Nations ... have endorsed the Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules), point   8.2 of which recommends, besides other penalties, applying confiscation of property or deprivation of property rights. In sum, it can be stated that confiscation of property is one of legal means with the help of which attempts are made to put a stop to crimes for personal gain that threaten other people’s property, which is protected by the Constitution. ...” 46.     As concerns confiscation of property, at the material time the new Criminal Code provided: Article 72.   Confiscation of Property 1.     Confiscation of property shall be the compulsory uncompensated taking into the ownership of the State of any form of property subject to confiscation and held by the offender, his accomplice or other persons. 2.     Confiscation of property shall be applicable only in respect of the property used as an instrument or a means to commit a crime or as the result of a criminal act. A court must confiscate: 1)     the money or other items of material value delivered to the offender or his accomplice for the purpose of commission of the criminal act; 2)     the money and other items of material value used in the commission of the criminal act; 3)     the money and other items of material value obtained as a result of the commission of the criminal act. 3.     Property transferred to other natural or legal persons shall be confiscated regardless of whether or not those persons are subject to criminal liability, where: 1)     the property has been transferred to them for the purpose of committing a criminal act; 2)     when acquiring the property, they were aware, or ought to have been aware and could have been aware that this property, money or the valuables newly acquired by means thereof have been gained by means of a criminal act. 4.     Property transferred to other natural or legal persons may be confiscated regardless of whether or not the person who transferred the property is subject to criminal liability, where this person ought to and could have been aware that that property may be used for the commission of a serious or grave crime. ... 7.     When ordering confiscation of property, a court must specify the items subject to confiscation or the monetary value of the property subject to confiscation.” 47 .     On 11   December 2010 the new Criminal Code was supplemented by Article 189 1 : Article 189 1 . Illicit enrichment “1. Anyone who holds by right of ownership property the value of which exceeds 500   BSA, while being aware or having to be and likely to be aware that such property could not have been acquired with legitimate income, shall be punished by a fine, or by arrest, or by deprivation of liberty for up to four years. 2. Anyone who takes over the property referred to in paragraph 1 of this Article from third parties shall be relieved of criminal liability for illicit enrichment where he/she gives notice thereof to the law-enforcement authorities before he/she is served notice of suspicion and where he/she actively cooperates in determining the origin of the property. 3. Legal persons shall also be held liable for the acts provided for in this Article.” 48 .     In a ruling of 15   March 2017 the Constitutional Court held that Article 189 1 §   1 of the new Criminal Code, which establishes criminal liability for illicit enrichment, was in compliance with the Constitution. Even so, the Constitutional Court held that criminal liability may not be applied retroactively. The court also pointed out that although the manner in which the right of ownership is acquired may vary, it may not be in conflict with the requirements that stem from the Constitution, inter alia , with the principles of justice and good faith. The Constitutional Court also held: “... striving for an open, just and harmonious civil society and a State under the rule of law ... implies that it is obligatory to try to safeguard each person and society as a whole against criminal attempts. It is one of the duties of the State and one of its priority tasks to ensure such safety. The Constitution consolidates such a concept of a democratic State whereby the State not only seeks to protect and defend its people and society from crimes and other dangerous violations of the law, but also is able to do this effectively. In a State under the rule of law, the general principle of law whereby no one may enjoy profit from a violation of law committed by him/her must not be disregarded. ... When interpreting the content of the constitutional principle of a State under the rule of law, the Constitutional Court has also held that the measures established and applied by the State for the prevention of crimes, as well as for restricting and reducing crime, must be effective.” [References to earlier rulings of the Constitutional Court omitted]. 2.     As to lawyer-client confidentiality 49 .     The Law on the Bar ( Advokatūros įstatymas ) in force at the relevant time read as follows: Article 46. Guarantees in respect of an advocate’s activities “1. An advocate may not be summoned as a witness or to give explanations as to circumstances which have come to his knowledge in the pursuit of his professional activities. 2. In the pursuit of their professional activities, advocates cannot be identified with their clients and their cases. 3. It shall be prohibited to examine, inspect or take away the advocate’s documents or files containing information related to his professional activities, or to examine postal items, wiretap telephone conversations, or monitor any other information transmitted over telecommunications networks and other communications or actions, except when the advocate is suspected or accused of a criminal act. In that case permission shall cover only the documents related to the allegations or charges made against the advocate. 4. A search or seizure ( poėmis ) at the place of practice or residence or motor vehicle of an advocate entered in the List of Practising Advocates of Lithuania, a body search, an examination, inspection or seizure of documents and postal items may be conducted only in the presence of a member of the Council of the Lithuanian Bar Association or an advocate authorised by the Lithuanian Bar Association. The Lithuanian Bar Association must approve a list of advocates authorised by the Lithuanian Bar Association and submit it to the institutions concerned. The member of the Council of the Lithuanian Bar Association or the advocate authorised by the Lithuanian Bar Association present during such actions must ensure that documents not related to the allegations or charges made against the advocate are not taken. 5. It shall be prohibited to gain access, overtly or covertly, to information subject to an advocate’s professional secret and to use it as evidence. The advocate’s professional secret shall cover the fact that the advocate had been contacted/consulted ( kreipimosi į advokatą faktas ), the terms of the contract with the client, the information and data provided by the client, the nature of any consultations, and information collected by the advocate by order of the client. 6. The Lithuanian Bar Association must be notified if the advocate becomes a suspect or a defendant or if procedural actions are taken against him.” C.     Relevant international law 50 .     In 1990 the Council of Europe adopted the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (hereinafter – “the 1990 Convention”), which entered into force in respect of Lithuania on 1 October 1995. 51.     As stated in paragraph 10 of the Explanatory Report to the 1990 Convention: “...the Convention seeks to provide a complete set of rules, covering all the stages of the procedure from the first investigations to the imposition and enforcement of confiscation sentences and to allow for flexible but effective mechanisms of international cooperation to the widest extent possible in order to deprive criminals of the instruments and fruits of their illegal activities”. 52 .     Insofar as relevant, the 1990 Convention reads as follows: Article 2 – Confiscation measures “1. Each Party shall adopt such legislative and other measures as may be necessary to enable it to confiscate instrumentalities and proceeds or property the value of which corresponds to such proceeds.” Article 3 – Investigative and provisional measures “Each Party shall adopt such legislative and other measures as may be necessary to enable it to identify and trace property which is liable to confiscation pursuant to Article 2, paragraph 1, and to prevent any dealing in, transfer or disposal of such property.” Article 4 – Special investigative powers and techniques “1. Each Party shall adopt such legislative and other measures as may be necessary to empower its courts or other competent authorities to order that bank, financial or commercial records be made available or be seized in order to carry out the actions referred to in Articles 2 and 3. A Party shall not decline to act under the provisions of this article on grounds of bank secrecy. 2. Each Party shall 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. Such techniques may include monitoring orders, observation, interception of telecommunications, access to computer systems and orders to produce specific documents.” Article 5 – Legal remedies “Each Party shall adopt such legislative and other measures as may be necessary to ensure that interested parties affected by measures under Articles 2 and 3 shall have effective legal remedies in order to preserve their rights.” Article 6 – Laundering offences “1. Each Party shall adopt such legislative and other measures as may be necessary to establish as offences under its domestic law, when committed intentionally: a) the conversion or transfer of property, knowing that such property is proceeds, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of the predicate offence to evade the legal consequences of his actions; b) the concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of, property, knowing that such property is proceeds; and, subject to its constitutional principles and the basic concepts of its legal system; c) the acquisition, possession or use of property, knowing, at the time of receipt, that such property was proceeds; d) participation in, association or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the offences established in accordance with this article.” 53 .     The 1990 Convention was followed up by the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, which entered into force on 1   May 2008 (hereinafter – “the 2008 Convention”). Lithuania signed the Convention on 28   October 2015 but has not yet ratified it. The 2008   Convention 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. The Convention also points to the fact that quick access to financial information or information on assets held by criminal organisations is the key to successful preventive and repressive measures, and, ultimately, is the best way to stop them. 54.     On the law and practice regarding confiscation of property in the member States of the Council of Europe, also see Silickienė v. Lithuania (no.   20496/02, §§ 33-35, 10 April 2012). COMPLAINTS 55.     Relying on Article 6   §§   1 and 3   (c) of the Convention, the applicant complained about the search of his home. He considered that this had resulted in a breach of his right to defend himself through a lawyer of his choosing. The applicant further complained that his wife had been forced to provide the tax authorities with evidence that incriminated him. In his view, all of that had led to his not having had a fair tr