CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 décembre 2023

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page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s4F597665 { width:33.22pt; display:inline-block } .sEEEC397 { width:146.09pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block }   SECOND SECTION CASE OF JASUITIS AND ŠIMAITIS v. LITHUANIA (Applications nos. 28186/19 and 29092/19)     JUDGMENT   Art 7 • Nullum crimen sine lege • Applicants’ conviction of trafficking in human beings a foreseeable consequence of their actions • Domestic law prohibiting trafficking in human beings sufficiently accessible to the applicants • Wording of relevant Criminal Code provision did not give rise to uncertainty or ambiguity as to the elements of the crime • Interpretation of that provision foreseeable and consistent with the essence of the offence • Applicants’ actions seen against backdrop of constituent elements of offence taken in combination   Prepared by the Registry. Does not bind the Court.   STRASBOURG 12 December 2023   FINAL   12/03/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Jasuitis and Šimaitis v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen , President ,   Jovan Ilievski,   Egidijus Kūris,   Pauliine Koskelo,   Frédéric Krenc,   Diana Sârcu,   Davor Derenčinović , judges , and Hasan Bakırcı, Section Registrar, Having regard to: the applications (nos.   28186/19 and 29092/19) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Lithuanian nationals, Mr   Vilandas Jasuitis (“the first applicant”) and Mr Darius Šimaitis (“the second applicant”), on 22   May 2019 and 27   May 2019 respectively; the decision to give notice to the Lithuanian Government (“the Government”) of the complaint, under Article   7 of the Convention, concerning the foreseeability of the applicants’ conviction of trafficking in human beings; the parties’ observations; Having deliberated in private on 21 November 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the applicants’ complaint that their conviction on charges of trafficking in human beings had not been foreseeable and had therefore been in breach of Article 7 of the Convention. THE FACTS 2.     The applicants were born in 1988; they live in Šiauliai. They were represented by Mr G. Danėlius, a lawyer practising in Vilnius. 3.     The Government were represented by their Agent, Ms   K.   Bubnytė-Širmenė. 4.     The facts of the case may be summarised as follows. 5 .     As specified by the Government (referring to a decision delivered by the Šiauliai Regional Court on 16   January 2017; see also paragraphs 11-18 below), on an unspecified date the applicants placed the following job advertisement online: “Web model job offer for attractive girls – can be main or additional job, with a [flexible] schedule; there are no special requirements – just need to be communicative, have the basics of English, [and] know how to and to want to communicate with people. [T]he nature of the work: online communication with people from different countries of the world in English. Send a short résumé with a photograph by e-mail to [email protected] ; salary depends on your desire and efforts, [and] ranges from LTL 2,000 [approximately EUR 580] to LTL   5,000 [approximately EUR   1,450]; the job is only for persons aged 18 and up).” 6.     Between September 2012 and August 2013 the applicants hired a number of young women to work as “web models”. The women were hired to communicate with clients over the Internet. The applicants signed contracts with the women and provided some of them with computers, video cameras and other equipment. All the women worked in Lithuania – some from their own apartments, others from apartments which were rented by the applicants and provided to them. The applicants paid the women in cash or by bank transfer. 7 .     On 19 April 2013 one of those women, P.Ch., born in 1994 – who at the time in question was still a high school student – lodged a complaint with the police, stating that in January 2013 she had seen the online advertisement and had then made contact via Skype with one of the applicants, who had explained to her the nature of the job – namely, to communicate with persons online while appearing in front of the camera. Initially, she had agreed and had then been taken to an apartment in Panevėžys. Two weeks later she had been asked by the applicants to show her clients her naked body, to dance striptease, to use sex toys and to do everything the clients requested. She had refused, but the applicants, by threatening her and by using psychological violence, had forced her to undertake those actions. P.Ch. asked that the suspects be brought to justice. 8.     On 21 April 2013 the police opened a pre-trial investigation based on the suspicion that a crime of trafficking in human beings, set out in Article   147 of the Criminal Code (see paragraph   57 below), had been committed. 9 .     As summarised by the Government, who referred to the bill of indictment, the Šiauliai Regional Court’s judgment and the Supreme Court’s ruling (see paragraphs 49-53 below), in the course of the pre-trial investigation into the alleged trafficking in human beings the pre-trial investigation had identified the following women. P.Ch., born in 1994, had just turned 18 when she was recruited by the applicants. At the relevant time she was in her final year in high school and had been living separately from her parents, who had been undergoing a divorce. Following her recruitment, she had been threatened and required to work longer hours than had been agreed; owing to the treatment to which she had been subjected to, she had become desperate and had tried to commit suicide; she had subsequently been treated in a psychiatric facility. D.D., born in 1993, had been offered the possibility of sharing (with other “web models”) an apartment which that would be rented by the applicants for work; she had been screamed at when she had not made enough effort to undress and flirt with her clients. V.T., born in 1993, had been raising a child alone, had lacked money to buy essentials, and had often argued with her mother. S.S., born in 1992, had been in a difficult financial situation, as had J.Š., born in 1990, whose mother had been sick, and who had had two minor siblings who had needed her help. J.A., born in 1989, had had a poorly paid job and had been living in an apartment provided under a social assistance scheme. T.M., born in 1993, had been raising her two-and-a-half-year-old child alone; she had given birth while still in high school and had been short of money with which to buy essentials. When she had been working for the applicants, she had been monitored; the applicants had several times visited her and had urged her to work more – shouting at her and humiliating her, including in front of her child. They had also demanded that she pay back the money that she owed to the applicants; she had repaid that money and then ceased to work for them. In addition, they had offered her work as an escort girl abroad, which she had refused. When the police had started their investigation, T.M. had been contacted by the first applicant, who had been trying to meet up with her, but she had refused, because she had been afraid of the applicants. V.R., born in 1989, had started to work in an apartment that had been rented in T.M.’s name. The applicants had been asked to earn at least 350   US   dollars (USD) per week and when both of them had made that amount in a couple of hours and had stopped working the applicants had come to their apartment and had demanded that the continue to work; they had threatened T.M. and had shouted at her. V.R. had also been offered the possibility of participating in the recording of pornographic video clips. When T.M. had informed the applicants that she would not be working for them anymore they had tried to obtain information from V.R. about T.M.’s private life. R.G., born in 1985, had been raising three children on her own and had had no job, and had lacked money for essentials. She had found out about the above-mentioned offer of a job as a “web model” on the Internet and had been tempted by the salary offered; she had accordingly contacted the applicants and had subsequently met the first applicant. She had started work but had soon realised that she wouldn’t actually receive the promised sum; moreover, she had found it intolerable that the first applicant had been instructing her on how to dress and how to behave, and she had decided not to work for the applicants anymore. When the first applicant had noticed that she was no longer online he had contacted her and had been angry, speaking in a raised tone, so she had simply hung up. Afterwards she had received several threatening text messages from the first applicant, indicating that he was aware where she lived. R.G. had told him that she had not been paid for the work that she had performed. A.M., born in 1994, had been contacted through a dating site (in her profile section she had received an advertisement for a job as a “web model”). She had met the second applicant, who had told her that the job would only involve having conversations with people over the Internet. After she had started to work she had realised that the work would involve pornography, so she had refused to continue with the work and had paid back all the money that she had received. 10 .     According to an internal police memorandum (tarnybinis pranešimas) dated 14   August 2013, the police started an additional pre-trial investigation as they had received a complaint from one of the victims, V.R., who earlier that month had received telephone calls from two different telephone numbers during which she had been asked to meet and to discuss her testimony in connection with the above-mentioned pre-trial investigation into alleged trafficking in human beings. It appears from the police memorandum, V.R. had been given a recording device by the police. V.R. had then met with the person who had made the telephone call, notably the first applicant, who had told victim: “Now this is going to happen: you will tell the police that there has been no violence, that you have not been showing your naked body, and that you have not been beaten.” The first applicant had then given V.R. 200 Lithuanian litas LTL (   60 euros (EUR)) in order to persuade her to change her testimony. The police considered that in this manner both applicants had sought to influence the victim V.R. to change her testimony. Their actions had constituted the crime of influence on a victim, under Article   233 §   3 of the Criminal Code (see paragraph   57 below). the Šiauliai Regional Court 11 .     On 16 January 2017 the Šiauliai Regional Court found the applicants guilty of trafficking in human beings (Article   147 §   2 of the Criminal Code, see paragraph   57 below), and of exploitation for the provision of forced labour or services (Article   147 1 §   1 of the Criminal Code), as well of using a person’s forced labour or services (Article   147 2 §   1 of the Criminal Code, see paragraph   57 below). 12 .     The applicants were also found guilty of several other criminal acts: unlawful use of an electronic means of payment (Article   215 §   1 of the Criminal Code), influence on a victim (Article   233 §   1 of the Criminal Code; see paragraph   57 below), and possession of pornographic material (Article   309 §   1 of the Criminal Code). In their applications before the Court, the applicants did not contest the lawfulness of those convictions. 13 .     The Šiauliai Regional Court established that the applicants, acting in an organised group and operating in various towns in Lithuania between September 2012 and August 2013 – had agreed (i) to recruit ( verbuoti ) young women to work as “web models” on a pornographic website by providing services of a pornographic nature to users of that website, and (ii) to profit from those services, so that those women would be exploited for the purpose of providing pornographic services. They had then (i) recruited D.D., S.S., A.M., G.Z. P.Ch., V.T., T.M., V.R., J.Š. J.A. and R.G., and (ii) forced ( vertė ) P.Ch., V.T., T.M., V.R., J.Š., J.A. and R.G. (who had already been recruited) to provide pornographic services, had made use of those services by receiving pecuniary advantage from those services, and had produced and distributed pornographic material. 14 .     The trial court also found it established that the applicants had recruited the victims to work as “web models” by using deceit – that is, giving the victims to understand that the job was legal, even though the applicants (i) had themselves understood that the work involved pornography and that the recruits could only earn money by performing pornographic actions, (ii) had not revealed ( neatskleisdami ) that to the victims, and (iii) had – taking advantage of the victims’ naivety and trust ( naivumas ir patiklumas ), and their inability to assess the danger of pornography and its negative consequences – made untrue promises regarding good pay. 15 .     The court specifically found it proven that the victims had been vulnerable and dependent on the applicants, and had suffered abuse at their hands. For example, R.G. had lived in her home with three small age children, had been watched by the applicants over the Internet, and had been instructed on how to go about her work; she had thus been pressured into feeling indebted to the applicants and working to repay them for the job they had found for her. When at certain point she had refused to continue performing her work, which had included showing her intimate parts over the webcam and performing intimate actions upon herself, the applicants had used psychological violence and had persuaded her to continue providing pornographic services. The applicants had received the money earned by R.G. for the services that she had provided on the websites. The court furthermore determined that two of the victims, A.M. and G.Z., had also been deceived by the applicants’ failure to reveal to them the true nature of the job. They had been employed as “web models”, and the applicants had paid part of the rent money for the apartment in Klaipėda that A.M. and G.Z. had rented out; one of the women had been provided with webcams, but, having learned that they would be required to provide pornographic services online, they had refused to work. The court likewise established the element of deceit in case of T.M., who had not been informed of the true nature of the job. The applicants had rented her an apartment in Telšiai, where she had stayed with a small child and another victim (V.R.). By giving T.M. money to cover basic needs the applicants had made her feel that she was in their debt and that she should work to repay that money; she had been watched by the applicants, who had supervised how she worked and had given her suggestions regarding how to act while performing in front of the webcam. The applicants had also used psychological violence against T.M. so that she would continue working. V.R. had also been deceived into providing pornographic services by the applicants; she had been given money and had been made to feel that she was in the applicants’ debt; she had also been controlled by them, and they had persuaded her to continue in the job. Another victim, P.Ch., who had been at high school at the time of the events in question, and had been naïve and trusting ( naivumas ir patiklumas ), had been given a webcam and the use of an apartment in Panevėžys that the applicants had rented, thus rendering her financially dependent on them. The applicants had monitored her over the Internet while she worked, and they had given her orders ( nurodymus ) regarding how she should work; they had also suggested that she drink alcohol, and they had employed psychological violence against her so that she would continue in the work. The applicants had also deceived D.D. regarding the true nature of the job by not revealing that it was related to pornography and by not explaining that she could not earn the considerable sums of money that they had promised her if she did not engage in pornographic activity. The applicants had rented an apartment in Panevėžys, where D.D. had lived with P.Ch. When D.D. had started to work, but had refused to engage in pornographic activity, the applicants had screamed at her and mocked her ( ėmė rėkti ir tyčiotis ) of the fact that she was earning so little money; the applicants had expected that D.D. would start engaging in pornographic performances, but she had refused to continue working as a “web model”. V.T. had also been deceived: she had been vulnerable, naïve and gullible, and the applicants had exploited her precarious financial situation and the fact that she had been raising a small child. The applicants had persuaded V.T. to come to live in another town, Šiauliai, they had paid her travel costs. In Šiauliai she had been initially placed with the child to live in a hotel, then the applicants had rented her an apartment, given her money to cover basic needs, a computer and a webcam, thus making her feel indebted to them. They had monitored over the Internet how she worked and had given her instructions how to act; she had been under their control. Having exploited her vulnerability and dependence on them, the applicants had threatened her and her family with physical violence. S.S. had also been deceived as to the nature of the job. The applicants had rented an apartment for her; however, once she had realised that without engaging in pornographic activity it would be impossible for her to earn money, she had refused the job. J.Š. had been equally deceived: the applicants had made use of her vulnerability, which had stemmed from her difficult financial situation and her wish to help her ill mother. She had been given a computer and a webcam, she had been monitored and controlled by the applicants over the Internet, when performing intimate actions with herself in an apartment rented out by her in Vilnius. J.A. had also been the victim of the applicants’ deception: the applicants had given her a computer and a webcam, thus making her feel that she was indebted to them; the applicants had monitored her work, and had suggested how she should work. She had worked in her apartment in Visaginas. 16 .     Regarding the question of whether the elements of the crime of trafficking in human beings under Article   147 §   2 had been made out in respect of the applicants’ actions, the Šiauliai Regional Court noted that the two applicants had used deceit ( apgaulė ) in respect of the victims; they had also exploited the victims’ vulnerability in order to recruit them and then to use them to provide services of a pornographic nature. According to that court, the victims’ vulnerability had manifested itself ( pasireiškė ) because of their naivety, trustfulness, inability to properly assess the nature of the proposed work and its consequences, and their precarious financial situation (they had had no employment). Under those circumstances the victims had had no choice but to give in to the applicants’ influence ( poveikis ), which the latter had made use of. The court also held that the applicants, by inflicting psychological violence on the victims, had forced ( vertė ) them to provide services of a pornographic nature. Accordingly, the applicants, in order to exploit ( išnaudoti ) – by means of deceit – the victims’ vulnerability, had recruited and controlled the victims, restricting their freedom. 17.     The Šiauliai Regional Court’s more detailed reasoning regarding the applicants’ conviction for trafficking in human beings is reflected in paragraphs   49-52 below, the Supreme Court having upheld the Šiauliai Regional Court’s findings. 18 .     The Šiauliai Regional Court also established that the applicants, acting as an organised group, had between 11 and 14   August 2013 attempted to pressurise V.R. and T.M. into perjuring themselves in the criminal case regarding trafficking in human beings (see paragraph   10 above); the applicants had persuaded V.R. (in a telephone call) to meet them. During that meeting, the second applicant had surveyed the surroundings in order to be sure that no police were present. The first applicant had met V.R. and had instructed her to give false testimony – specifically, to say that she had never undressed during her interactions with customers over her webcam, and that no violence had been used against T.M.; the first applicant had told V.R. to meet T.M. and to persuade her to give false evidence, too – namely to say that she had never worked as a “web model”, and had done nothing more than sign a contract. The first applicant had given V.R. LTL   200 (EUR   60) in return for her anticipated perjury, but had told her to give LTL   100 (from that sum) to T.M. The Court of Appeal The applicants’ appeal 19 .     On 6   February 2017 the applicants appealed, arguing, inter alia , that the trial court had failed to properly assess the alleged contradictions in the victims’ testimony regarding the applicants’ behaviour and actions which the victims had perceived as threatening and as the psychological violence, and regarding their use of deceit, the victims having been forced to engage in pornographic activities, the discrepancy between the respective levels of the victims’ expected and actual pay, their vulnerability, their dependence on the applicants, and the fact that the victims had been manipulated psychologically. 20 .     The applicants further disputed the lawfulness of their conviction under Article   147 §   2 of the Criminal Code. They considered that their actions had lacked the element of deceit; they further submitted that the assertion that the victims had been vulnerable and controlled by the applicants had not been properly established, that the victims had not been exploited. The applicants argued that, on the contrary, they had taken care of the victims by assisting them to find apartments in which to live, by contributing to their rent, and by providing the victims with money; in short, the victims’ upkeep had largely covered by the applicants, who had thus contributed to the victims’ well-being. The victims’ interests had therefore not been undermined; moreover, the applicants had allowed them to leave their jobs when they had so wished, and had acted in a civil manner. 21.     In their twenty-eight-page-long appeal, drafted by their advocate, G.D., the applicants had not argued that conditions similar to slavery had been an indispensable element of the crime of tracking in human beings (see also paragraph   92 below), and that without such conditions a crime could not be committed. In fact, the appeal had made no reference whatsoever to the element of slavery-like conditions. 22 .     Lastly, the applicants had contested their conviction of exploitation in the form of forced labour or services and of the use of a person’s forced labour or services, under Articles   147 1 §   1 and 147 2 §   1 of the Criminal Code respectively (see paragraph 11 above). The Court of Appeal ruling 23.     By a ruling of 22   February 2018 the Court of Appeal acquitted the applicants of trafficking in human beings, of exploitation in the form of forced labour or services, and of the use of a person’s forced labour or services. The appellate court found that the data in the case had been properly gathered and acknowledged as evidence; however, it found that the first-instance court had erred in assessing the factual circumstances of the case. As to Article 147 of the Criminal Code 24.     On the facts, the Court of Appeal firstly noted that the applicants had searched for women wishing to work as “web models” by placing an advertisement on the Internet. It was from that advertisement that five of the victims had learned of the job offer. The other six victims had learned of the job from friends, who had either been already contracted to engage in that activity, or who intended to take up that activity. All those women had become interested in the job offer because they wished to make more money, they were not happy with the money they had been earning or they did not have any source of income of any kind. 25.     Secondly, it had been established by the victims’ testimony that during their first conversations with the victims the applicants would tell them about the nature of the work: they had given some of them more details – that for that work they would need to undress and to behave erotically; to others the applicants would only give a hint and emphasise that the decision regarding whether to accept the job offer would be the women’s own choice. During those conversations the applicants would note that the women’s pay was dependent on the number of hours worked. 26.     Thirdly, even though three of the women asserted that they had been subjected to psychological violence in an effort to force them to work as much as possible, it was clear from the victims’ testimony that the threats had been related to the applicants urging the women to work more hours and to lure more clients. Nevertheless, those three victims had confirmed that once they had refused to do that work, they had received no threats or instigation ( grąsinimai ar raginimai ); they had only been urged to return the borrowed computers and webcams. 27.     Fourthly, there was nothing in the case file to indicate that the applicants had had recourse to any unlawful means of preventing the women who no longer wished to work from leaving. Four of the victims had refused the job the moment that they had understood its nature; other victims had refused the job within a month or more of starting it. Not a single victim had stated that she had come under pressure to continue working in the job; however, the applicants had demanded that the victims return the equipment that they had given them and repay money that they had lent to them for renting a flat or to cover other expenses. 28 .     Fifthly, none of the victims had testified that the applicants had controlled their activities and their daily life, except for the hours that they had spent working. All the victims had stated that the applicants had not had keys to the places where they had lived, and had almost never visited those apartments (except for one victim); some of the victims had not even met the applicants in person. 29.     The Court of Appeal then referred to the definition and elements of trafficking in human beings under Article   147 of the Criminal Code: the applicants had been convicted because they had committed the crime (i) by virtue of one action ( veiksmas ) – recruitment ( verbavimas ), and (ii) in two ways ( būdai ) – exploiting the victims’ vulnerability, and engaging in deceit – that is, untruthfully promising a high rate of pay and disguising the real nature of the job. 30.     The Court of Appeal noted that, within the meaning of Article   147 of the Criminal Code, the purpose of the recruitment had been not only to obtain the victims’ agreement to engage in certain activities, but also to have the possibility of controlling the victim in the future. It was true that there had been cases in the past where a person had been convicted only in respect of recruitment (the Court of Appeal referred to the Supreme Court’s ruling no   2K-565-139/2015); nevertheless, even in such cases the aim of restricting the victims freedom, and of controlling and exploiting the victim still had to be proved. 31.     The appellate court acknowledged that the applicants had performed certain actions that had constituted objective elements of trafficking in human beings – namely, they had withheld certain information about the true nature of the work in question and had promised those women who had responded to the advertisement a high salary the level of which would depend solely on the number of hours worked. Indeed, the applicants’ recruitment of women to communicate with men online for pay had not appeared to constitute an invitation to enter an ordinary form of employment and could have raised suspicions that the victims might be exploited. Even so, a necessary element of trafficking in human beings was that it was contrary to human freedom, and involved the exertion of a certain malign influence on the victim in question (by means of violence, deceit, or exploiting that person’s vulnerability) that would allow that person’s will to be overcome and controlled or would render that person vulnerable to some form of exploitation in the future (the Court of Appeal referred to the Supreme Court’s ruling 2K-551-788/2015). 32.     Even though some of the victims had been vulnerable owing to serious financial and social problems, the material in the case file did not indicate that the applicants had taken advantage of that vulnerability. Nor did any of the case-file material indicate that the applicants had forced the victims to continue working after they had been initially working it of their own free will. Some of the women had taken up the work not because of any bad financial situation, but because they had wanted to live separately from their parents, or because of other circumstances. Those personal characteristics of the victims that the first-instance court had referred to – their naivety, an inability to properly assess the nature of the work, and other weaknesses – could not be considered as sufficient to amount to vulnerability. It was also important that the material in the case file did not allow a finding that the applicants had purposely ( kryptingai ) sought specifically vulnerable individuals, or that they had sought to recruit precisely only such persons. There was no basis for holding that the applicants had created a situation wherein the victims had had no other real or acceptable course of action other than to give in to abuse. 33.     Regarding the issue of deceit as an element of the crime of trafficking in human beings, such deceit could take the form of providing false information or remaining silent in respect of the truth. Deceit regarding an offer of employment or the conditions thereof was a typical element of trafficking in human beings, whereby the exploitation of the victim was disguised by some kind of “agreement” between the victim and the accused. Deceit, as a means to influence the victim, was a feature of “voluntary slavery”. The first-instance court had correctly stated that the applicants – neither in the job advertisement nor during the conversations that they had had with the women – had not provided the victims with full information regarding pay and the nature of the work, and the victims had therefore not been entirely capable of making an informed decision [regarding whether to take the job]. Yet the subsequent actions of which the victims had themselves spoken of in their testimony allowed the conclusion to be reached that their freedom of will de facto had not been breached because of certain circumstances not revealed to them beforehand. In other words, the victims’ freedom of will ( valios laisvė ) to choose to perform that work or not to had not been restricted: they had been able to freely decide themselves upon a course of action; indeed, four of the victims had immediately refused to work. It was true that the applicants had repeatedly ( pastoviai ) persuaded four other victims to work longer hours and to “show more skin” – otherwise the money that they had been given in advance to pay the rent would have to be returned; but even so, those four victims could still have refused to work. The women had not received any threats when they had decided to discontinue their work, and neither had they been intimidated into not changing their minds to leave. According to the Court of Appeal, the applicants’ demand for the return of the money and the computers, should the victims refuse to work, had been justified and had corresponded to the applicants’ expectations, for they had incurred certain expenses; moreover, the victims had been told of the conditions attached to the advance payment. 34 .     Under the Lithuanian Criminal Code, trafficking in human beings fell within the category of crimes against human liberty ( nusikaltimai žmogaus laisvei ). Liberty, as a protected value, was to be understood in two aspects: physical liberty, entailing a person’s freedom of movement; and liberty of will, which meant the possibility to choose a course of action ( pasirinkti elgesio variantą ). Control that would restrict freedom was usually manifested in the form of taking away identity documents, limiting possibilities to escape from the network of abuse, control of freedom of movement or control of daily life, obstructing social contacts, or imposing debt that had be repaid. In the applicants’ case, none of the victims had testified that the applicants had controlled their actions or daily lives. In the light of the factors noted above, the Court of Appeal considered that, even though there had been certain characteristics of a recruitment process in the applicants’ actions, in the applicants’ case the necessary objective element of the crime – namely, a breach (restriction) of the victims’ physical freedom, or freedom of will, as a result of which the victims could not have freely decided upon a course of action – had not been proved. 35.     As it has not been established that the victims’ physical freedom had been restricted or that the applicants had bent them to their will, the applicants’ actions did not fall within the scope of Article   147 of the Criminal Code. Accordingly, the applicants were to be acquitted of trafficking in human beings. As to Article 147 1 of the Criminal Code 36.     The Court of Appeal found that the trial court had not properly reasoned the application of that provision in the applicants’ case: when a person was forced to perform unlawful activity, the perpetrators’ actions would be categorised under Article   147 of the Criminal Code as trafficking in human beings; in the event that the activity in question was not unlawful, it would be qualified under Article 147 1 . In the present case the applicants, using the victims’ services, produced pornography – an activity that could not be considered as lawful under Lithuanian law. The application of Article   147 1 to the applicants’ actions thus raised serious doubts. Besides, in order to qualify the actions as trafficking in human beings, or as the exploitation of forced labour or services, it was very important to establish the criterion of control that had restricted the liberty of the person in question. In the light of the arguments presented above (see paragraphs   28 and 34 above), precisely that element had not been established in the case. The applicants’ conviction under Article 147 1 §   1 therefore had to be quashed. As to Article 147 2 of the Criminal Code 37.     The Court of Appeal likewise held that the trial court had erred in applying that Article, which had been aimed at establishing the criminal liability of persons who had used the services of a trafficking victim. It would be therefore wrong to apply Article   147 2 to the applicants, since they were not the perpetrators ( subjektai ) of such criminal activity. The Court of Appeal thus acquitted the applicants of that crime. As to the remaining criminal acts 38 .     The Court of Appeal nevertheless upheld the applicants’ conviction under Article   215 § 1 (only in respect of the first applicant), Article   214 §   1, Article   309 § 1 and Article   233 §   1 of the Criminal Code (see paragraph 12 above). They were sentenced to ninety   days of arrest, but as they had already been in pre-trial detention since 2013, it was deemed that they had already served their sentence. The Supreme Court 39.     The prosecutor and one of the victims appealed, arguing, inter alia , that the Court of Appeal had wrongly assessed the issue of the victims’ alleged vulnerability, dependency and deceit. 40 .     By a final ruling of 27   November 2018 the Supreme Court overturned the appellate court’s verdict, found the applicants guilty of trafficking in human beings (Article   147 §   2), and sentenced them to five years of imprisonment. 41 .     The Supreme Court observed that the Court of Appeal, when examining the lawfulness and reasonableness of the trial court’s judgment, had undertaken an evaluation of evidence: it had questioned the eleven victims, and during that questioning had not established any other (previously unestablished) or additional circumstances; it had then in its ruling held that the witnesses’ testimony met the requirements of evidence, and that that testimony could therefore be relied on when establishing circumstances important to the case. However, the appellate court, not having refuted the veracity of victims’ testimony, had assessed it differently than had the first-instance court and had reached the opposite conclusion in respect of the applicants’ actions under Article   147 of the Criminal Code. 42 .     The Supreme Court found that (i) the Court of Appeal ruling had lacked analysis of other evidence that had been examined and assessed by the first-instance court, namely the telephone conversations and text messages, data relating to Skype conversations, and other written evidence, and (ii) that other evidence had not been compared with the victims’ testimony and no reasoning had been given as to why that other body of evidence had been disregarded. The Supreme Court accordingly concluded that, contrary to the Šiauliai Regional Court, the Court of Appeal, when acquitting the applicants, had assessed certain evidence separately from the evidence as a whole, without giving any explanation for why it had not relied on some of that evidence. For the Supreme Court, the Court of Appeal had made an essential breach of the standards of criminal procedure, related to the assessment of evidence and to the content of the appellate court’s judgment. Accordingly, the grounds on the basis of which the Court of Appeal had assessed the applicants’ actions under Article   147 §   2 of the Criminal Code differently than had the trial court could not be held to be well-founded. The constitutive elements of the crime of trafficking in human beings under Article   147 of the Criminal Code 43 .     Regarding the merits of the applicants’ conviction, the Supreme Court firstly observed that Article   147 §   1 of the Criminal Code specified different ways in which a person could be exploited: that could entail prostitution, pornography, or other forms of sexual abuse, forced labour or criminal activity ( nusikalstama veika ). For criminal liability to arise, only one such alternative type of action was sufficient. 44.     The Supreme Court then referred to its earlier case-law on the subject of trafficking in human beings, in which it had held that by its very nature the crime entailed various transactions in which the subject of the trafficking was a human being – for example selling, buying, recruiting, transporting a human being, and transactions concluded for the purpose of exploitation. A required characteristic of the crime was that it deprived a human of his or her freedom; that characteristic had to be linked to a certain malign form of influence exercised in respect of the victim, notably in the form of violence, deceit, or abusing the victim’s vulnerability, which allowed to that person’s will to be bent, that person to be controlled and involved ( įtraukti ) that person in exploitation (Supreme Court ruling 2K-173-693/2018). 45 .     Another indispensable element of the crime of trafficking in human beings was the restriction of the liberty of the person in question, which included the restriction of that person’s will. It was for that reason that Article   147 contained a provision regarding the person that controlled the victim: the fact of that such control was exerted was sufficient to hold that the freedom of the person in question had been breached. Restriction of liberty (or a breach thereof) did not have to amount to the complete impossibility on the part of the affected person to move or to decide on a course of action; it sufficed that that person by only partially so restricted. Moreover, whether or not the vic