CEDH · CASELAW;CLIN;ENG — 5 février 2008

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Lithuania [GC] - 74420/01 Judgment 5.2.2008 [GC] Article 6 Criminal proceedings Article 6-1 Fair hearing Conviction of the offence of bribery incited by the police: violation Facts : The applicant worked as a prosecutor. He submitted that he had been approached through a private acquaintance by a person previously unknown to him who was, in fact, an officer from a special anti-corruption police unit. The officer offered the applicant a bribe of USD 3,000 in return for a promise to obtain a third party’s acquittal. The applicant had initially refused but later agreed as the officer had repeated the offer a number of times. The officer informed his employers and in January 1999 the Deputy Prosecutor General authorised him to simulate criminal acts of bribery. Shortly afterwards, the applicant accepted the bribe from the officer. In August 2000 he was convicted of accepting a bribe of USD 2,500 and sentenced to imprisonment. The judgment was upheld on appeal. When dismissing the applicant’s cassation appeal, the Supreme Court noted that there was no evidence that the initial negotiations with the applicant had taken place on police instructions; that the authorities had been informed only after the applicant had agreed to accept the bribe and that, in authorising the officer’s further actions, they had merely joined in a criminal act which was already in progress. According to the Supreme Court, the question of incitement was of no consequence for the legal classification of the applicant’s conduct. Law : The national authorities could not be exempted from responsibility for the actions of police officers simply by arguing that, although carrying out police duties, the officers were acting “in a private capacity”. It was particularly important that the authorities should have assumed responsibility, as the initial phase of the operation had taken place in the absence of any legal framework or judicial authorisation. Furthermore, by authorising the officer to simulate acts of bribery and by exempting him from all criminal responsibility, the authorities had legitimised the preliminary phase ex post facto and made use of its results. Moreover, no satisfactory explanation had been provided as to what reasons or personal motives could have led the officer to approach the applicant on his own initiative without bringing the matter to the attention of his superiors, or why he had not been prosecuted for his acts during that preliminary phase. On that point, the Government had simply referred to the fact that all the relevant documents had been destroyed. The authorities’ responsibility was thus engaged for the actions of the officer and the applicant’s acquaintance prior to the authorisation of the bribery simulation. To hold otherwise would open the way to abuse and arbitrariness by allowing the applicable principles to be circumvented. The actions of the officer and the applicant’s acquaintance had gone beyond the mere passive investigation of existing criminal activity: there was no evidence that the applicant had committed any offences beforehand, in particular corruption-related offences; all the meetings between the applicant and the officer had taken place on the latter’s initiative; and, the applicant seemed to have been subjected to blatant prompting on the part of his acquaintance and the officer to perform criminal acts, although there was no objective evidence to suggest that he had been intending to engage in such activity. Throughout the proceedings, the applicant had maintained that he had been incited to commit the offence. Accordingly, the domestic authorities and courts should at the very least have undertaken a thorough examination of whether the prosecuting authorities had incited the commission of a criminal act. To that end, they should have established in particular the reasons why the operation had been mounted, the extent of the police’s involvement in the offence and the nature of any incitement or pressure to which the applicant had been subjected. That was especially important having regard to the fact that his acquaintance, who had originally introduced the officer to the applicant and who appeared to have played a significant role in the events leading up to the giving of the bribe, had never been called as a witness in the case since he could not be traced. The applicant should have had the opportunity to state his case on each of those points. However, the domestic authorities had denied that there had been any police incitement and had taken no steps at judicial level to carry out a serious examination of the applicant’s allegations. More specifically, they had not made any attempt to clarify the role played by the protagonists in the applicant’s case, despite the fact that the applicant’s conviction was based on the evidence that had been obtained as a result of the police incitement complained of. The Court noted the Supreme Court’s finding that, once the applicant’s guilt had been established, the question whether there had been any outside influence on his intention to commit the offence had become irrelevant. However, a confession to an offence committed as a result of incitement could not eradicate either the incitement or its effects. The actions of the officer and the applicant’s acquaintance had had the effect of inciting the applicant to commit the offence of which he had been convicted. There was no indication that the offence would have been committed without their intervention. In view of such intervention and its use in the impugned criminal proceedings, the applicant’s trial had been deprived of fairness. Conclusion : violation (unanimously). Article 41 – EUR 30,000 in respect of all damages.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes