CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 avril 2024

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margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-weight:normal; font-style:italic } .s55F67FD3 { margin-top:0pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s3970C00F { width:8.17pt; font:7pt 'Times New Roman'; display:inline-block } .sCD82236A { margin-top:14pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s320E5A8E { width:5.95pt; font:7pt 'Times New Roman'; display:inline-block } .sC47DA4E2 { margin-top:14pt; margin-left:18.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.51pt; font-family:Arial; text-transform:uppercase } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .sB6A7F5BF { width:17.54pt; display:inline-block } .s7E447BAE { width:130.42pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block } SECOND SECTION CASE OF SACHARUK v. LITHUANIA (Application no. 39300/18)   JUDGMENT   Art 6 § 1 (criminal) • Impartial tribunal • Conviction of Parliamentarian after the end of his term of office for voting for another parliamentarian who was absent with the latter’s identity card • Objectively justified doubts as to the impartiality of the Supreme Court upholding the applicant’s conviction, on account of one of its members having presided over the panel of that court in the first proceedings which quashed the Court of Appeal’s acquittal judgment and made findings prejudging his guilt • Legitimate fear that the judge in question might have already reached a preconceived view on the applicant’s guilt despite not being legally bound by the Supreme Court’s previous finding Art 7 • Nullum crimen sine lege • Conviction • Opening of a criminal prosecution against the applicant in line with Art   7 requirements • Authorities’ attitude towards practice of members of parliament voting for each other not amounting to a “conscious toleration” • Iterative instances of such voting, which violated domestic statutory law, not to be treated as a “tradition” • No discernible flagrant non-observance or arbitrariness in the application, albeit novel, of the relevant law to the applicant • Reasonable interpretation of relevant law and application “consistent with the essence of the offence” • No lack of clarity in the legislation or the domestic courts’ practice which did not allow the applicant to regulate his conduct • Foreseeable that the applicant’s acts would constitute an offence under the criminal law applicable at the material time   Prepared by the Registry. Does not bind the Court.   STRASBOURG 23 April 2024   FINAL   23/07/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sacharuk v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen , President ,   Jovan Ilievski,   Egidijus Kūris,   Saadet Yüksel,   Lorraine Schembri Orland,   Frédéric Krenc,   Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the application (no.   39300/18) 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 a Lithuanian national, Mr Aleksandr Sacharuk (“the applicant”), on 9   August 2018; the decision to give notice to the Lithuanian Government (“the Government”) of the complaints concerning the applicant’s right to an impartial tribunal and foreseeability of the applicant’s conviction; the parties’ observations; Having deliberated in private on 26 March 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the applicant’s complaint, under Article   6 §   1 of the Convention, that the Supreme Court panel which upheld his conviction had not been impartial. The applicant also complained, under Article   7, that his conviction had not been foreseeable. THE FACTS 2.     The applicant was born in 1977 and lives in Vilnius. He was represented by Mr E. Losis, a lawyer practising in Vilnius. 3.     The Government were represented by their Agent, Ms   K.   Bubnytė ‑ Širmenė. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s service as A member of the Seimas 5 .     The applicant was elected to the Seimas (the Lithuanian Parliament) and was its member between 18 November 2008 and 16 November 2012. It is noted on the Seimas’ internet page that from 2002 to 2007 the applicant was an inspector, commissioner inspector and then commissioner at the Criminal Police Bureau of Lithuania. In 2007 he voluntarily left the state Service and became an advocate. 6 .     On several occasions between 14 and 19   January 2010 he used the Seimas member’s identity card ( Seimo nario pažymėjimas , hereinafter also “parliamentary identity card”) of another member of the Seimas , L.K., to vote electronically instead of the latter during L.K.’s absence from the Seimas sessions. Later, it was established that L.K. had been on holiday in Southeast Asia at the time, without the Seimas ’ authorisation. 7 .     On 21   January 2010 the Seimas Ethics and Procedures Commission concluded that by “many times ( daug kartų ) deliberately vot[ing] for another Seimas member between 14 and 19 January 2010” the applicant had breached Article   111 §   4 of the Seimas Statute, which reads that Seimas members must vote in person and that the right to vote may not be transferred to another parliamentarian (see paragraph   62 below). He had also breached Article   4   §   1   (3) and (5) of the Code of Conduct for State Politicians – which provides that it is a parliamentarian’s duty to act honestly and decently (see paragraph   63 below) – and had caused damage to the Seimas ’ reputation and authority. The Commission proposed that, as a sanction for dishonest voting, under Article   20 §   2 of the Seimas Statute, the applicant should be given a warning ( įspėjimas ), which would be noted in the [Commission’s] hearing record. The Commission also concluded that the other parliamentarian, L.K., had breached Article   111 §   4 of the Seimas Statute by allowing the applicant to use his voting right. 8 .     On 12   May 2010 the Seimas Special Investigation Commission (hereinafter “the SSIC”), which had been formed to examine whether the actions of the applicant and L.K. were an impeachable offence, found to be well founded the accusation by (other) parliamentarians that the applicant, by using L.K.’s Seimas member’s identity card, had deliberately voted for the latter during Seimas sittings and had thus presumably breached the Seimas member’s oath and grossly violated the Constitution. That being so, the Commission held that it could not be established from the evidence gathered and assessed that the applicant and L.K. had had a prior agreement regarding the voting ( turėjo išankstinį susitarimą dėl balsavimo ) in order to cover up the latter’s absence from the Seimas sessions and in such a manner as to unlawfully obtain money from the State budget. The Commission also held that it could be concluded from the evidence that the applicant’s actions “had contained subjective elements of possible criminal acts” ( yra galimai nusikalstamų veikų subjektyvių požymių ), because he had known the requirements of the Constitution and the law, had not consciously followed them, had deliberately voted using L.K.’s Seimas member’s identity card and had deliberately sought those consequences – to register L.K. during the Seimas vote and “usurp the expression of L.K.’s will ” ( pasisavinti [L.K.] valios išreiškimą ) when voting. 9 .     On 13   May 2010 the SSIC asked the Prosecutor General’s Office to start a pre-trial investigation to determine whether the applicant had committed a crime under Articles   300 and 302 of the Criminal Code (see paragraph 59 below) in connection with his voting in the Seimas instead of L.K. 10 .     Having examined the material submitted, the Prosecutor General’s Office asked the Seimas to lift the applicant’s immunity from prosecution. The prosecutor referred to Article 3 § 1 (3) of the Code of Criminal Procedure, Article   62 §   2 of the Constitution and Article   22 §   3 of the Seimas Statute, which barred the opening of a criminal prosecution against the applicant without the Seimas ’ approval (see paragraphs 58, 60 and 62 below). 11 .     On 17   June 2010 the Seimas took a vote regarding the prosecutor’s request to lift the applicant’s immunity, with forty-six votes in favour, twelve votes against and twenty-eight parliamentarians abstaining. This meant that there were not enough votes to lift his immunity. 12 .     On 30   June 2010 the Prosecutor General’s Office refused to start a pre-trial investigation into the circumstances of the alleged criminal acts committed by the applicant, in the absence of authorisation from the Seimas to prosecute him. Even so, it was noted in the decision that there was information in the material provided by the SSIC indicating that the applicant had breached Article   18 §   1 and Article   111 §   4 of the Seimas Statute by unlawfully using another parliamentary identity card and thus having falsified the electronic votes. With these actions, the applicant had caused major damage to the State, given that the principles of the rule of law, lawfulness, justice, transparency and loyalty declared by it had been breached; the functions and activity of the Seimas , as a State institution, had been distorted; and the name of Seimas members had been discredited. Such actions by the applicant had contained elements of the offences set out in Article   228 §   1, Article   300 §   3 and Article   302 §   2 of the Criminal Code. 13 .     Impeachment proceedings based on the SSIC’s conclusions (see paragraph   8 above) were started. During the Constitutional Court proceedings, the applicant did not deny the fact that on 14 and 19   January 2010 he had voted using L.K.’s parliamentary identity card. However, he argued that the only sanction for that “infraction” ( pažeidimas ) was a warning, under Article   20 §   2 of the Seimas Statute. Neither the Seimas Statute nor any other laws provided for “any other penalties” ( kitos nuobaudos ) for dishonest voting in the Seimas . The applicant thus argued that the starting of impeachment proceedings against him amounted to application of a punishment not prescribed by law. 14 .     As summarised in the Constitutional Court’s conclusion of 27   October 2010 (see paragraph   15 below), during the impeachment proceedings before it, the applicant’s lawyer had also pleaded that the violation committed by the applicant had not been the first such violation: the Seimas Ethics and Procedures Commission had more than once considered cases where votes had been cast instead of absent members of the Seimas , but impeachment had not been initiated in any of these cases. The lawyer pleaded as follows: “The Conclusion of the [SSIC] established not only that there had been cases at the Seimas when members of the Seimas , using the [identity cards] of other members of the Seimas , had voted instead of the latter at the sittings of the Seimas , but also that violations of the individual mandate of a Seimas member and those of the single vote had been known to both the governing body of the Seimas and the Seimas Ethics and Procedures Commission, a structural unit of the Seimas competent to react accordingly and submit recommendations to the Seimas in order to prevent such violations being committed in the future (paragraph 4 of Chapter II of the reasoning part of the Conclusion of the [SSIC]). Thus, not only has this practice found its way into the Seimas that members of the Seimas continually cast votes instead of members of the Seimas absent during the sittings of the Seimas , more often than not, instead of even more than one member, [there is] also a certain reaction of the Seimas towards such cases. Meanwhile, the Conclusion of the [SSIC] provides neither reasoning nor arguments as to why the violation by this member of the Seimas is exceptional. A different assessment of the actions of individual members of the Seimas would offend against the principle of equality of persons before the law, the court and other State institutions, as well as the principle of justice, as the dangerousness of the violation would be judged not by the violation itself and its dangerousness, but “by personality”. The voting instead of the member of the Seimas [L.K], by using his [parliamentary identity card] did not have any influence upon the voting results, as the decisions of the Seimas were passed by a great plurality of votes; therefore, this did not lead to any significant, let alone severe consequences.” 15 .     On 27   October 2010 the Constitutional Court presented the conclusion, whereby it held that both the applicant and L.K. had breached the parliamentary oath and grossly violated the Constitution by the applicant having used L.K.’s parliamentary identity card and on 14 and 19   January   2010 having “deliberately” ( sąmoningai ) voted in his place eight times, and by L.K. having gone on a trip abroad and because of this having failed to attend, without justifying the reason, the plenary sittings of the Seimas which had taken place on 13, 14, 19, 20 and 21   January 2010, and the sittings of the Seimas Committee on Health Affairs which had taken place on 15 and 20   January 2010 (see also paragraph   64 below). 16 .     As specified by the Government, given that during impeachment proceedings the final decision concerning removal from office belongs to the Seimas , on 11   November 2010 the Seimas voted on the proposal to annul the applicant and L.K.’s Seimas member’s mandates for grossly violating the Constitution and breaching the Seimas member’s oath. In order for the mandate to be annulled, eighty-five   votes, that is, no less than three-fifths of the votes of the total number of Seimas members, were necessary. The votes for annulment of the applicant’s mandate were as follows: eighty votes in favour, twenty-four against, thirteen   abstentions and thirteen damaged. The applicant thus preserved his mandate. The Seimas annulled L.K.’s mandate with eighty-nine votes in favour. criminal proceedings against the applicant Criminal charges against the applicant 17 .     In June 2011 the Seimas supplemented the Code of Criminal Procedure with a new provision, Article 3 2 , to allow prosecution of persons who had lost their immunity (see paragraph   61 below). 18 .     On 16 November 2012 the newly elected Seimas gathered for its first sitting, which resulted in the end of the applicant’s term of office as a member of the Seimas . 19 .     On 20   November 2012 the Prosecutor General’s Office, referring to Article   169 §   1 of the Code of Criminal Procedure (see paragraph   60 below), annulled the decision refusing to start a pre-trial investigation (see paragraph   12 above) and started one: the applicant’s term of office as a Seimas member had ended, meaning that he had lost his immunity and the Seimas ’ authorisation to prosecute him was no longer necessary, that is to say, the grounds which had made criminal proceedings impossible had ceased to exist. The Prosecutor General’s Office thus opened a criminal investigation against the applicant regarding the criminal charges under Article   228 §   1, Article   300 §   3 and Article   302 §   2 of the Criminal Code. The applicant’s acquittal by the Vilnius Regional Court and the Court of Appeal 20 .     By a judgment of 20   July 2015, the Vilnius Regional Court acquitted the applicant of all three criminal charges. That judgment was upheld by the Court of Appeal on 23   May 2016. The courts had regard to the Seimas Ethics and Procedures Commission’s conclusion that as of 27   February 2001 there had been a number of occasions when Seimas members would vote not only for themselves, but also in place of other members of the same coalition or same political group ( politinė frakcija ). The Commission would regard such actions as a disciplinary offence and a breach of Article   20 §   2 of the Seimas Statute. The Commission would merely recommend to the Seimas members in question not to pursue such a practice and not to commit such “infractions” ( nusižengimus ) in future, and not to discredit the name of Seimas members. Moreover, Article   20 §   2 of the Seimas Statute, as in force at the time the acts had been performed, also provided that “for dishonest voting a warning to a parliamentarian could be recorded in the minutes of the Seimas hearing” ( už nesąžiningą balsavimą į posėdžio protokolą Seimo nariui gali būti įrašomas įspėjimas ). Given those considerations, the appellate court concluded that the trial court had reasonably relied on the testimony of the applicant and other witnesses, some of whom were members of the Seimas belonging to the same political group and who confirmed that, within that political group, it had been agreed that members would vote “unanimously” ( vieningai ) in the Seimas plenary sessions. Similarly, it was “settled practice” to vote for a member of the same political group if he was not present at the Seimas hearing and provided that [the other parliamentarians] had his Seimas member’s identity card; there was no need to obtain that parliamentarian’s prior agreement on the vote. For the appellate court, and contrary to what had been suggested by the prosecutor, such an expression of the will of another member of the same political group could not damage the interests of the latter member or cause him any kind of harm. The Court of Appeal also held that, contrary to the prosecutor’s suggestion, there was no evidence in the case allowing it to be concluded that the applicant and L.K. had had an agreement that the former would vote for the latter so that the latter would retain his salary. 21 .     The courts also considered that the applicant’s actions had not been so dangerous as to attract criminal liability. They had not caused major damage to the State or its institutions; not every breach of the law had to be criminalised. Moreover, the applicant’s actions had already been condemned by the Seimas Ethics and Procedures Commission and he had been given a warning. He had not sought to cause major damage to the State or a natural or legal person, and the prosecutor’s statements regarding major damage to the State and the Seimas , as a State institution, were not persuasive. No civil claim had been lodged in that case. According to the applicant, he had voted with the full knowledge of L.K. and their political group, and there was no evidence to disprove that statement. After the voting incidents had come to light, no one had asked for a new vote to take place in the Seimas regarding the laws that had been passed when the applicant had voted in place of L.K. Thus, no legally significant consequences or major damage had been caused to the State or L.K. The applicant’s actions had not been aimed at altering the decisions taken by the Seimas or at providing false information about the position of the Seimas member whose identity card had been used to vote. Nor had the actions been aimed at demeaning the Seimas ’ authority or otherwise causing major damage to the State or its institutions. Witness statements confirmed that there was an unwritten rule for members of a political group to vote unanimously, and such a manner of expressing the position of another member of the same political group could not breach that member’s interests or cause him harm. 22 .     Further, it had not been established that the applicant had understood that he was committing actions which would attract criminal liability. The courts noted that the applicant had understood that he was committing a disciplinary violation that could attract a warning ( įspėjimas ) under the Seimas Statute. They also observed that, according to the applicant, he had been unaware that a member of the Seimas could be prosecuted for such acts. 23 .     Lastly, both courts noted that evaluation of the applicant’s actions by other State institutions could not serve as an unconditional basis for considering those actions criminal. The other institutions’ conclusions had to be assessed together with the entire [criminal] case file when the question of criminal liability was being assessed. The conclusions were not decisive in establishing the applicant’s criminal liability. Besides other important documents, it was important to take into account both the Constitutional Court’s conclusion regarding the applicant’s actions, as well as the Seimas ’ decision adopted when deciding whether to allow his prosecution (see paragraph   11 above), because that decision “was linked to the Seimas members’ position when assessing the dangerousness of the applicant’s actions and the possibility of considering them criminal”. The Supreme Court’s remittal of the case for fresh examination 24 .     Following an appeal on points of law lodged by the prosecutor, on 20   December 2016 a three-judge panel of the Supreme Court, composed of Judges D.B. (presiding judge), A.K. and V.P. (reporting judge), quashed the ruling of the Court of Appeal in an oral hearing and remitted the case to it for fresh examination. 25 .     The Supreme Court noted that Article   302 of the Criminal Code established criminal liability for seizing or, without having legal grounds, acquiring or using a document. However, neither the first-instance court nor the appellate court had given answers to that main question on which the decision as regards the charge brought under Article   302 of the Criminal Code rested – whether the applicant had lawfully obtained and kept L.K.’s parliamentary identity card. Those courts had instead reached conclusions by referring to the testimony of the applicant and other witnesses that voting in place of another parliamentarian was an “established practice” in the Seimas . For the Supreme Court, “acknowledgement that there was such a practice did not eliminate its dangerousness or criminal nature, because it had nothing to do with the elements of the crime set out in Article   302 of the Criminal Code”. 26.     As to Article   300 of the Criminal Code (forgery of a document), that provision protected such values as the authenticity of documents and information contained therein. Any inscription containing information about an event or action, made on paper or electronically, was considered to be a document. The Court of Appeal had been correct in acknowledging that the registration and voting records of Seimas members were considered documents. 27 .     Despite this, when acquitting the applicant under Article 300 of the Criminal Code, the first-instance and appellate courts had paid much attention to the “settled practice” ( nusistovėjusi praktika ) in the Seimas of voting for another member of parliament. Those two courts, referring to the testimony of the applicant and other witnesses, had concluded that such actions would often take place, and that no one had faced prosecution. The first-instance and appellate courts had thus concluded that they saw nothing dangerous in such actions, and that such actions could be examined by the Seimas Ethics and Procedures Commission with disciplinary liability possibly being applied. The applicant had likewise understood having committed a disciplinary violation for which only a warning could be applied under the Seimas Statute (see paragraphs 20-22 above). 28 .     The Supreme Court noted that the prosecutor had disputed that conclusion of the lower courts and stated that the illegal practice in the Seimas of voting for another member of the Seimas not participating in the Seimas sitting did not in itself eliminate the criminal nature of the applicant’s actions. The Supreme Court’s chamber then “agreed with that argument of the prosecutor’s cassation appeal and considered that the assessment of the evidence was very one-sided and unlawful, as the mission of a member of the Seimas , and the wording of the Constitution of the Republic of Lithuania, the Seimas Statute and Article 300 of the [Criminal Code] had not been taken into account.” The lower courts’ arguments could not refute a person’s understanding that an action that he was performing was dangerous. The Supreme Court considered that “thus far” ( iki šiol ) not a single member of the Seimas had faced prosecution ( nepatrauktas baudžiamojon atsakomybėn ) for unlawful voting, not because it was not dangerous or not criminal, but because the law-enforcement institutions had not been informed of a single such case. 29 .     The Supreme Court also held: “Article   111 §   4 of the Seimas Statute unconditionally ( įsakmiai ) stipulates that the Seimas members shall vote in person and that the right to vote may not be transferred to other persons. Thus, neither the Seimas Statute nor other legal acts in force in the Republic of Lithuania allow some members of the Seimas to vote for other members of the Seimas . This is what happened in this case – registration and voting for another person who did not participate in the Seimas sitting. It follows that objectively, documents were forged...” 30 .     The Supreme Court then turned to the first-instance and appellate courts’ findings that where actions, such as facts not corresponding to the reality being entered into a document, could not breach a person’s rights, or cause him or her or the State major consequences, they were not considered dangerous within the meaning of criminal law and therefore did not attract criminal liability (see paragraphs 20 an 21 above). For the Supreme Court, that theory was correct in principle. Despite this, the lower courts’ finding that voting for another person was merely an innocent action that could not breach a natural or legal person’s rights or cause those persons or the State major consequences, “raised doubts for the panel” ( teisėjų kolegijai kelia abejonių ), which the Court of Appeal had not dispelled. The Seimas was the highest institution of State power, which decided the most important matters of the State. Practice showed that more than once, owing to a “negligent attitude” ( aplaidus požiūris ) towards the process of passing laws, legislation had been passed that caused confusion and “a significant negative response by society” ( didelį neigiamą rezonansą visuomenėje ), and those laws therefore had to be amended (although this was not the case here). The Supreme Court’s ruling read: “The panel of judges was not convinced by the lower courts’ reasoning that A.   Sacharuk’s actions lacked legal significance and could, at best, attract disciplinary liability. The provisions of the Seimas Statute, which provide that Seimas members are discussed by the Seimas Ethics and Procedures Commission for unfair voting, do not eliminate the operation of the Criminal Code in this area. Lithuanian law provides for criminal liability only for forgery of a document (Article 300 of the [Criminal Code]). The laws of the Republic of Lithuania do not provide for any other type of liability for forgery of documents. The Seimas Statute has no priority over the Criminal Code. Those aspects had not been taken into account by the first-instance and appellate courts.” 31 .     Regarding the applicant’s acquittal under Article   228 of the Criminal Code (abuse of office), the Supreme Court held that the Court of Appeal had failed to indicate which powers had been exceeded by him. It was therefore meaningless to examine the question of the consequences of his actions. The Supreme Court added that the appellate court had “one-sidedly examined the prosecutor’s arguments” regarding the absence of any element of major damage in the applicant’s actions when voting for L.K., and had not taken into account the Constitutional Court’s findings of 27   October 2010 as regards compliance of the applicant’s actions with the Constitution, wherein it had been held that a Seimas member’s mandate was individual (see paragraph   64 below). New verdict by the Court of Appeal 32 .     On 5   June 2017 the Court of Appeal found the applicant guilty of abuse of office, under Article   228 §   1 of the Criminal Code, and of having unlawfully used an official document, under Article   302 §   1. He was given a fine of 1,882 euros. The criminal proceedings under Article   300 §   1 of the Criminal Code were discontinued as time-barred. 33.     The court firstly dismissed the applicant’s complaint that, based on the legislative change of 2011 – the introduction of Article 3 2 of the Code of Criminal Procedure (see paragraph 61 below) – there had been a breach of the principle of legitimate expectations and of the right to legal certainty not to be prosecuted. For the court, a mere change in procedural legislation did not mean that there had been a breach of the applicant’s rights. When the prosecutor’s decision to refuse to start the pre-trial investigation had been adopted (in 2010), the question of the applicant’s guilt had not been addressed (see paragraph   12 above). The prosecutor’s decision to refuse to start the pre ‑ trial investigation could not therefore be compared to a decision to terminate the investigation making the criminal proceedings impossible on the same grounds. 34 .     Regarding the characterisation of the applicant’s actions under Article   302 §   1 of the Criminal Code (unlawful seizure and use of a document), the use of a document in the absence of a legal basis for doing so could be considered as active actions of the accused. Besides, a parliamentary identity card was an official document which provided its holder with certain rights and duties, so that a member of the Seimas could be identified and his presence in the Seimas hearings and voting could be controlled. 35 .     Regarding the facts, the Court of Appeal noted that when the applicant had voted in place of L.K. in January 2010, the Seimas agenda had not been known in advance, before L.K. had left Lithuania. Accordingly, the applicant could not have been representing L.K.’s will when voting with the latter’s parliamentary identity card. The applicant’s repeatedly voting in place of L.K. demonstrated his direct intent: he had realised the dangerous nature of the criminal act and had wished to act in that way. The applicant’s criminal act had been clearly in breach of the law and his oath, and had demonstrated an intentional abuse of his duties as a member of the Seimas . His testimony ‑ that he did not realise that he had committed a criminal act and considered that such conduct was only in breach of the Seimas Statute and could only be addressed by the Seimas Ethics and Procedures Commission and only be punished by way of disciplinary proceedings – was nothing more than his interpretation and attempt to avoid criminal liability. Such conduct could not be justified by a lack of attention or being distracted during the Seimas sittings either. The applicant had a law degree, life experience and professional experience at the Seimas . He would therefore have realised the gravity of his actions and their being contrary to the law. Lastly, the Court of Appeal held that it had not assessed the witness testimony of other members of the Seimas , or the records of the Seimas Ethics and Procedures Commission’s hearings, pursuant to which other members of the Seimas had in the past received disciplinary measures “for similar infractions” ( už panašius pažeidimus ): the mere fact that disciplinary liability had been applied to other persons did not eliminate criminal liability for a person whose actions were dangerous and contrary to the law. 36 .     As regards the characterisation of the applicant’s actions under Article   228 of the Criminal Code (abuse of office), the main criterion which differentiated disciplinary liability from criminal liability was the criterion of major damage, and non-pecuniary damage could arise from discrediting the authority of State institutions. The appellate court then referred to the Constitutional Court’s conclusions of 27   October 2010 and noted that the applicant, a State politician and member of the Seimas – to whom high professional and ethical requirements applied – had violated, among other, Article   9 §   1 of the Seimas Statute and Article   4 §   1   (3) and Article 4 § 1 (5) of the Code of Conduct for State Politicians (see, respectively, paragraphs   62 and 63 below). It followed that the applicant had abused his office and discredited the authority of Seimas members as well as that of the Seimas , all of which had caused major non-pecuniary damage to the State. 37 .     Lastly, when imposing a fine on the applicant, the court noted that he had no prior convictions and had not been punished for any administrative ‑ law violations. After the criminal acts in question and until the adoption of the Court of Appeal’s judgment, he had not committed any other crimes. Furthermore, the criminal proceedings had lasted too long – more than seven years – because of which the right to a trial within reasonable time had been breached. Referring to the social and preventive purpose of the punishment, the Court of Appeal concluded that the aim of the punishment in the applicant’s case would be achieved by imposing a fine of an amount less than the average fine provided for by law. Proceedings before and the final ruling by the Supreme Court The applicant’s appeal on points of law 38.     In an appeal on points of law lodged on 4   September 2017, the applicant argued, among other things, that both during the pre-trial investigation and court proceedings he had been unable to challenge the prosecutor’s decision of 20   November 2012 (see paragraph   19 above). Even though after the pre-trial investigation had been opened, the charges had not been immediately brought against him. He should have been given the opportunity to become acquainted with the prosecutor’s decision and the right to appeal against it, yet that had not been done. 39.     On the merits, the applicant argued that criminal liability had been applied to him and his actions considered dangerous and in breach of the constitutional principle that all persons are equal under the law. He referred to the existing practice in the Seimas where similar or identical actions by other members of the Seimas had only been assessed as procedural violations of the Seimas Statute or as disciplinary violations. The applicant was convinced that his actions had not been so dangerous as to be considered a crime. 40 .     On 26   September 2017 the Supreme Court selection panel ( atrankos kolegija ) accepted his appeal on points of law for examination. The case was scheduled to be examined in an oral hearing. Three judges – A.R., D.B. and A.A. – signed that ruling. Impartiality of Judge D.B. 41 .     On 7   November 2017 Judge V.P., who was then ad hoc Chair of the Criminal Cases Division of the Supreme Court, formed a three-judge panel – G.J.-G. (the presiding judge), D.B. (reporting judge) and T.Š. – to hear the applicant’s case. 42.     During the hearing of 13   December 2017, the applicant asked that the panel be changed on the grounds that one year earlier Judge D.B. had already examined his criminal case as the presiding judge of the Supreme Court panel (see paragraph   24 above). With the applicant’s consent, the examination of his request was postponed until 9   January 2018, as requests had been received by the court to postpone the examination of the case because his lawyer and the prosecutor could not be present. 43 .     At the oral hearing of 9   January 2018 before the Supreme Court panel consisting of Judges G.J.-G. ( presiding judge ), T.Š. and D.B., the applicant’s lawyers reiterated his request to remove Judge D.B. on the basis of her involvement when the case was first decided on 20   December 2016 (see paragraph   24 above). The applicant’s lawyers referred to Article   58 of the Code of Criminal Procedure (see paragraph   60 below) and pointed out that the previous ruling by the Supreme Court panel, when Judge   D.B. had been the presiding judge, had “contained some rather strong statements” as to how the first-instance and appellate courts had evaluated the applicant’s acts under criminal law, that for the Supreme Court such an evaluation had been incorrect, and that therefore the case had then been transferred to the appellate court for fresh examination. Given that the legal assessment had already been made by the Supreme Court, for the sake of objectivity, the composition of the Supreme Court’s chamber should be changed. One of the applicant’s lawyers also referred to Article   58 §   2 of the Code of Criminal Procedure, stating that as that provision did not explicitly set out such grounds, the applicant’s request to remove the judge was based on general grounds, as the list of grounds was not exhaustive. 44 .     The Supreme Court panel then adopted a protocol decision dismissing the applicant’s request to remove Judge   D.B. The panel stated that Article   58   §   2 of the Code of Criminal Procedure did not set out such grounds for removal as those referred to by the applicant’s lawyers. In the absence of any other allegations of Judge D.B.’s partiality, the panel saw that the mere fact that she had participated in the previous cassation proceedings did not constitute a legal basis for raising doubts as to her impartiality from the point of view of subjective and objective tests. The Supreme Court’s ruling on the merits 45.     By a final ruling of 13 February 2018, the three-judge panel of the Supreme Court, in which Judge D.B. was now the reporting judge, dismissed the applicant’s appeal on points of law, having examined the case in an oral hearing. 46 .     As to the lawfulness of the opening of the criminal proceedings on 20   November 2012 (see paragraph   19 above), the Supreme Court referred to Article   169 §   1 of the Code of Criminal Procedure: the prosecutor, once information had been received that the applicant, whilst a member of the Seimas , had possibly committed a criminal act, had not only had grounds but had been obliged to start pre-trial investigation, which he had done. It was essentially mandatory to do so. The basis for opening the pre-trial investigation had been written information from the SSIC (see paragraph   9 above). Immunity, which the applicant had enjoyed while he was a Seimas member, had only been an obstacle to investigating the elements of the crime at that time, since in those proceedings the elements of the crime had been inseparable from naming the subject of the crime ( nusikaltimo subjekto ) – the specific person – the Seimas member. The applicant’s argument that his criminal prosecution had been contrary to Article 62 of the Constitution (see paragraph   58 below) was unfounded. 47.     Regarding the crimes of which the applicant had been convicted, the Supreme Court firstly referred to a civil servant’s duty to act honestly, transparently and in compliance with the principle of the rule of law. Members of the Seimas , as one of the three main State institutions, and as elected representatives of the nation, had to comply with the requirements applied to their activities with particular precision. 48.     As far as Article   228 of the Criminal Code (abuse of office) was concerned, the main provisions had been in force: persons were held criminally liable only where actions committed by them had been prohibited by the criminal law in force at the time they had been committed, provided that the persons had been found guilty, and provided that at the time the criminal acts had been committed it had been possible to expect those persons to behave in compliance with the law. In a democratic State based on the rule of law, it was presumed that each person – be it a representative of a State authority or merely a citizen – “had to comply with a common pattern of behaviour” ( privalo laikytis pripažintų elgesio modelių ) and be responsible for improper actions “notwithstanding whether or not he knew the levels of legal liability that were at stake” ( nepriklausomai nuo to, žino jis ar ne gresiančios teisinės atsakomybės lygmenis ). For its part, the legislator, by establishing levels of legal liability and prohibiting dangerous actions, essentially warned persons to refrain from committing criminal acts. Ignorance of the law did not release a person from liability. 49 .     The Supreme Court then turned to the applicant’s arguments that such voting in the Seimas had been “settled practice” ( susiklosčiusi praktika ), which merited another type – not criminal – liability, given that other members of the Seimas would also vote in a similar fashion but had not faced prosecution. For the Supreme Court, such statements by the applicant showed that he had realised that his actions were “contrary to the law”. In the present case, the question of responsibility concerned a Seimas member, a representative of the State institution which passed laws, and was related to actions through which a Seimas member directly implemented his constitutional rights and duties. Accordingly, a well-understood and intentional breach of the law had taken place. The appellate court, when drawing a conclusion as to the applicant’s guilt, had entirely reasonably had regard to his experience as a member of the Seimas , his duties and his university legal education. Thus, the applicant’s statements that he did not realise that his actions would be assessed as dangerous and subject to criminal liability, and his declared expectation that his actions would be assessed less strictly, wer