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SECOND
SECTION
CASE OF
MILINIENĖ v. LITHUANIA
(Application
no. 74355/01)
JUDGMENT
STRASBOURG
24 June 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Milinienė v. Lithuania,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Antonella
Mularoni,
Jean-Paul
Costa, appointed to
sit in respect of Lithuania,
Ireneu
Cabral Barreto,
Dragoljub
Popović,
Nona
Tsotsoria,
Işıl
Karakaş,
judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 3 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 74355/01) 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, Ms Eglė Milinienė
(“the applicant”), on 20 April 2001.
- The
applicant was represented by Mr A. Liutvinskas, a lawyer practising
in Vilnius. The Lithuanian Government (“the Government”)
were represented by their Agents, Ms D. Jočienė and Ms E.
Baltutytė.
- The
applicant alleged that, in breach of Article 6 § 1 of the
Convention, she had been incited to commit an offence which she would
never have committed without the authorities' intervention.
- The
application was allocated to the Third Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the
Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1.
- On
1 November 2004 the Court changed the composition of its Sections
(Rule 25 § 1). This case was assigned to the newly composed
Second Section (Rule 52 § 1). Danute Jočienė, the
judge elected in respect of Lithuania, withdrew from sitting in the
case (Rule 28). The Government accordingly appointed Jean-Paul Costa,
the judge elected in respect of France, to sit in her place (Article
27 § 2 of the Convention and Rule 29
§ 1).
- By
a decision of 26 April 2005, the Court declared the application
admissible, in part.
- After
the Chamber had decided, after consulting the parties, that no
hearing was required (Rule 59 § 3 in fine), the parties
submitted their observations on the merits in writing.
THE FACTS
- The
applicant was born in 1964 and lives in Vilnius, where she formerly
worked as a judge.
I. THE CIRCUMSTANCES OF THE CASE
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
10 June 1998 the applicant was approached by SŠ, an
acquaintance, with whom, she alleged, she had merely discussed the
sale of her car. Unbeknownst to her, their conversation during that
meeting was secretly recorded by SŠ.
- On
16 June 1998 a special anti-corruption police unit of the Ministry of
the Interior (Specialiųjų tyrimų tarnyba, hereafter
referred to as the STT) received a complaint by SŠ that the
applicant had demanded a payoff, in the form of a new car, in return
for admitting and deciding SŠ's civil claim to declare null
and void the auction of his property.
- On
the same date the STT applied to the Deputy Prosecutor General,
requesting a “Criminal Conduct Simulation Model” (“the
model”) to be authorised for a period of one year. The STT
stated in the application:
“[T]he
STT received an application by [SŠ] concerning [the
applicant's] demand for a bribe in return for admitting his civil
action and ruling in [his] favour.
[The
applicant] ... guaranteed that the auction would be lifted by a court
decision taken by her. In return, [the applicant] asked for a good
car, to be bought by [SŠ] with his money.
With
a view to recording and discontinuing [the applicant's] unlawful act,
[SŠ] has agreed to collaborate with STT officers, and simulate
the following crimes: the buy-off and breach of currency and
securities regulations ... under Articles 284 and 329 of the
[Criminal Code].
[The
model] will be executed by STT officers by way of a separate
operational action plan.
Basis
- application by [SŠ].”
- On
17 June 1998 the model was authorised by the Deputy Prosecutor
General. The text of the model reiterated the wording of the STT
application of 16 June 1998.
- On
8 October 1998 the STT wrote a letter to the Prosecutor General,
informing him, as follows, about the facts established on the basis
of the conversations secretly recorded by SŠ with technical
equipment provided by the STT:
a) By
16 June 1998 SŠ had met the applicant three times: on 10 June
in her office; on 16 June at 11.30 a.m. again in her office; on 16
June at 5 p.m. in SŠ's car. In the course of their exchanges,
the applicant had demanded a bribe of 10,000 American dollars (“USD”)
in return for a favourable resolution of SŠ's civil dispute.
Following the authorisation of the model on 17 June 1998, SŠ
had been given money by the anti-corruption police. In the morning of
that day he had handed over USD 1,000 to the applicant and, in the
afternoon, he had given her a further USD 9,000, to be used by the
applicant for a new car. At a meeting in the evening of 17 June 1998,
the applicant had drafted SŠ's civil claim and had instructed
him on the future course of the proceedings. On 30 June 1998 the
applicant had further instructed SŠ on his case, whilst
assuring him of its favourable outcome.
b) On
11 September 1998 the applicant had asked SŠ to obtain new
winter tyres for her car. On 24 and 25 September 1998 the applicant
had informed SŠ that further payments might be required to buy
off certain judges of the higher court. On 28 September 1998 the
applicant had taken from SŠ a further bribe of USD 500 for the
winter tyres. On the same date she had obtained from him USD 1,000
for bribing higher judges. The applicant had thus taken a total of
USD 10,500 in personal bribes, as well as USD 1,000 to buy-off
certain higher court judges.
- The
STT also submitted that the case materials disproved any element of
undue instigation as the applicant had:
- recommended
a particular lawyer to SŠ for his civil case;
- drafted
his claim, assuring him of its favourable outcome;
- registered
SŠ's case in court and had personally undertaken to examine
it;
- bought
a new car after having received the bribe; and
- met
SŠ on a number of occasions on her own initiative, whilst
assuring him of the favourable outcome of his claim.
- On
9 October 1998 the applicant was apprehended in her office whilst
receiving a further USD 4,000 from SŠ. On the same date the
STT wrote a letter to the Prosecutor General, requesting the
applicant's prosecution, whereupon the Prosecutor General decided to
institute criminal proceedings against the applicant for accepting a
bribe (Article 282 of the Criminal Code as then in force).
- On
12 October 1998 the Prosecutor General applied to the Seimas
(Parliament), requesting that the applicant's judicial immunity be
lifted and that she be suspended from her functions pending the
outcome of the criminal case. It was noted in this connection that
the applicant had demanded and obtained a bribe from SŠ. On 5
November 1998 Parliament lifted the applicant's immunity. By a decree
of 10 November 1998, the President dismissed the applicant from her
position as a judge.
- SŠ
died on 12 April 1999.
- On
25 May 1999 the applicant was indicted for accepting a bribe in large
amounts (Article 282 paragraph 2 of the Criminal Code as then in
force), cheating (Article 274) and official malpractice (Article
285).
On 4 August 1999 the prosecution rejected the
applicant's request to discontinue the case. On 9 August 1999 the
case was transmitted to the Vilnius Regional Court, a judge of which,
on 17 August 1999, committed the applicant for trial on the above
counts.
- On
7 October 1999 the applicant requested the Vilnius Regional Court to
apply to the Constitutional Court to examine the compatibility of the
Operational Activities Act with the Lithuanian Constitution. In
particular, she claimed that the Act had not duly protected persons
from possible incitement by the investigating authorities to commit
offences. In addition, it was alleged that the power conferred upon
the prosecution under the Act to authorise the model - which
effectively allowed private persons like SŠ to imitate
criminal acts but avoid criminal liability - had gone beyond the
constitutional competence of the prosecutors. Consequently, the
authorisation of such models should only have been issued by courts.
She further claimed that a judicial authorisation should have been
required for certain intrusive measures under the Act such as the
secret recording of conversations.
- On
8 October 1999 the Vilnius Regional Court accepted the request and
applied to the Constitutional Court with a view to establishing the
compatibility of the Operational Activities Act with the
Constitution.
On 8 May 2000 the Constitutional Court found this
legislation to be generally compatible with the Constitution (see
Ramanauskas v. Lithuania, [GC], no. 74420/01, §
34).
- In
the course of the trial, the Vilnius Regional Court reclassified the
charge of cheating as an attempt to buy off State officials.
- On
22 September 2000 the Vilnius Regional Court convicted the applicant
of accepting a bribe in large amounts (Articles 282 paragraph 2 of
the Criminal Code as then in force), attempting to buy off State
officials (Articles 16 and 284) and official malpractice (Article
285). She was acquitted of cheating (Article 274). The applicant was
sentenced to four years' imprisonment, banned from State service for
five years, and had her property confiscated. The court based the
conviction mostly on the recordings made by SŠ when
implementing the model, finding that she had promptly accepted a
bribe from him of USD 10,000 on 17 June 1998 and then a further USD
500 on 28 September 1998. On 28 September 1998 she had obtained from
SŠ another USD 1,000 with which to bribe certain higher court
judges in order to ensure the favourable outcome of his case on
appeal. It was established that, in return for the bribe, the
applicant had drafted SŠ's civil claim (as of the evening of
17 June 1998), had made the necessary arrangements to be appointed as
the judge in his case, and had started examining it. The court did
not find that the USD 4,000 obtained by the applicant from SŠ
on 9 October 1998 had been used for any criminal purpose. She was
therefore acquitted of any offence in respect of this money.
- As
regards the applicant's allegations of incitement, the court held as
follows:
“The
acts of [SŠ] as a whole are not considered to be a provocation
because he acted under [the model] authorised in accordance with the
law[.] From his application [of 16 June 1998] it appears that he
applied to the law enforcement authorities alleging, in his opinion,
unlawful actions on the part of [the applicant]. ... The case
contains no objective evidence of close or intimate relations between
[SŠ and the applicant], or that she had been intimidated [by
SŠ] ...
[T]he
model was authorised on 17 June 1998, while [SŠ] applied to
the officers on 16 June 1998[;] and on the same day he taped his
meeting with [the applicant] by a voice recorder given by the
officers ... This recording constitutes proper evidence, in that it
was made in order to collect and verify the preliminary information
about the crime ... On 17 June 1998, [only after] the STT officers
had properly verified the preliminary information about [the
applicant's] criminal intentions and [following] the authorisation of
the model in accordance with the law, [SŠ] “joined”
the continuing, but not completed, offences of the applicant ... .
The chamber considers that [SŠ] did not overstep the limits
established by [the] model.”
- The
court excluded from the incriminating evidence against the applicant
the transcript of a secretly taped telephone conversation between her
and SŠ at 9 a.m. on 16 June 1998, as it had been obtained
without the appropriate judicial authorisation. However, the court
found no domestic unlawfulness in the admission as evidence of the
remainder of SŠ's recorded conversations with the applicant.
- Upon
the applicant's appeal, on 23 November 2000 the Court of Appeal
amended the lower judgment, quashing the applicant's conviction for
official malpractice, but upholding her conviction for accepting a
bribe and the attempted buy-off. The sentence of imprisonment
remained unchanged. The Court of Appeal confirmed the exclusion from
the evidence of the recording of the early morning telephone
conversation of 16 June 1998. However, the court ruled that the
secret recording by SŠ of his other conversations with the
applicant, and the rest of the evidence subsequently collected in
implementing the model, had been lawful, there being no signs of
incitement to commit the offences.
- The
applicant submitted a cassation appeal in which she alleged the
unlawfulness of the recordings of her conversations with SŠ
obtained between 10 June 1998 and 9 October 1998, and the improper
use of those recordings as evidence to support her conviction. The
applicant also complained that SŠ and the authorities had
entrapped her into committing offences upon which she had not been
ready to embark. In this respect, the applicant complained that the
authorities had had no good reason to suspect her of contemplating
taking a bribe, as her meeting with SŠ on 10 June 1998 had
only attested to their discussion about her intention to sell her
car. She stated that, in his application to the STT of 16 June 1998,
SŠ had seriously distorted the facts. The applicant alleged
that, in executing the model, the authorities had exceeded its scope
by paying a much more significant amount of money than had been
required to obtain her conviction for bribery. She claimed that all
the investigative actions by SŠ and the authorities should
have been discontinued upon her receiving the first instalment of USD
1,000 in the morning of 17 June 1998. The subsequent payments had
served only to inflate the impugned criminal act (accepting a bribe)
out of all proportion, and to obtain the commission by her of a
further crime (the attempted buy-off of higher court judges) which
had not been foreseen when authorising the model.
- On
13 March 2001 the Supreme Court amended the appeal judgment, but
upheld the conviction for accepting a bribe and the attempted buy-off
of higher court judges. The applicant's sentence remained unchanged.
In reply to the applicant's allegations of incitement, the Supreme
Court stated inter alia:
“The recording of the conversation of 10 June 1998
... attests that [SŠ] asks [the applicant] to accept his suit
and declare the auction null and void ... The applicant, albeit not
eagerly, agrees to take the case, asking [SŠ] to sell her car.
[SŠ] presented this recording to [the STT] together with his
application, stating that [the applicant] demands a bribe ... This
was the initial information about the preparation of the offence
(Article 4 paragraph 1 of the Operational Activities Act, hereinafter
the OAA). Since that [information] was insufficient to undertake
operational steps, the STT officers decided to verify it (Article 4
paragraph 2 (2) of the OAA). For this purpose, on 16 June 1998 [SŠ]
was given a recorder to tape secretly his [next] conversation with
[the applicant]. It was established during the verification that the
applicant has for some time intended to get a newer car ... She ...
asked [SŠ] to sell the car in her possession, and buy a newer
car with the money received. [SŠ] explained to the applicant
[the] difference between the value of her present car and the desired
car ... [whilst] offering to cover the price difference with his own
money, in return for [the applicant] admitting his civil action ...
and deciding it in his favour ... The applicant agreed with this
proposal, i.e. the preliminary information on [the applicant's]
readiness to accept a bribe was confirmed. The cassation arguments
that [the applicant] was provoked into commit the crime are
unsubstantiated. The above circumstances confirm that [the applicant]
had wanted to take a bribe, in that she immediately accepted the
offer without any outside pressure. The recordings also confirm that
on 16 June 1998 [SŠ and the applicant] agreed upon the
specific object of the bribe, a car ... costing 10,000 US dollars.
The specific agreement about the bribe corresponds to the preparatory
stage of a crime provided for in Article 282 of the Criminal Code.
The criminal conduct simulation model was only approved the next day,
on 17 June 1998. Therefore [the authorities] “joined” the
crime already being committed, in conformity with the decision of the
Constitutional Court of 8 May 2000. ... [While the interests of SŠ]
in applying to file the action ... to a familiar judge was unlawful,
... this fact does not invalidate the criminal conduct simulation
model, which served to protect the more important general interest of
preventing someone who has accepted a bribe to work as a judge ... .
An offer to accept a bribe cannot be considered to be active pressure
to commit an offence, which is not allowed by Article 8 paragraph 1
(3) of the OAA, and which would contradict the Constitutional Court's
decision of 8 May 2000 ... The criminal conduct simulation model [as
authorised in this case] confirms that its limits were defined not by
a number of actions, but by specifying the Articles of the Criminal
Code establishing criminal responsibility for the simulated offences
... On 17 June 1998 the STT officers could not discontinue the
execution of the model because it was necessary to establish if the
applicant would keep her word - if she were to admit [SŠ's]
action [on her case docket] and decide it in favour of the plaintiff.
The qualification of [the applicant's] actions depended on her future
conduct: had [she] refused to examine the case, her act would have
been classified not under Article 282 paragraph 2, but under Article
274 paragraph 3 of the Criminal Code (obtaining property in large
amounts by deception). Nor were the confines of the model exceeded in
terms of time, in that [it] had been authorised for a year ... The
evidence collected in the course of executing the model ... confirm
that [the applicant] was indeed trying to keep the promise given to
[SŠ]: she accepted (without the knowledge of the court
president) and rectified [his] draft civil claim, gathered favourable
evidence, consulted her mother [a lawyer] on this question, and
discussed the questions raised by [SŠ's] civil case even
during her holidays.”
- The Supreme Court also found that the recordings made
by SŠ had been properly admitted as evidence, and that the
unlawfully-obtained evidence (the secretly taped telephone
conversation of 16 June 1998; paragraph 26 above) had been rightly
excluded from the case. That decision was final.
- On
an unspecified date the applicant was released from prison after
having completed her sentence.
II. RELEVANT DOMESTIC LAW AND PRACTICE, AND RELEVANT
INTERNATIONAL LAW
- The
relevant domestic law and practice, as well as the relevant
international law, have been summarised in the judgment of 5 February
2008 in the case of Ramanauskas
v. Lithuania ([GC] no.
74420/01,
§§ 31-37).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant alleged that she had been incited to commit an offence, in
breach of Article 6 § 1 of the Convention, which provides,
insofar as relevant, as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
tribunal ...”
- The
Government submitted that the Court was not competent to deal with
the applicant's complaints in that they related mostly to questions
of fact and the application of domestic law, thus amounting to
“fourth instance” issues. The Government contended that,
in any event, there had been no provocation of the applicant by the
authorities, and no breach of Article 6 in the execution of the
criminal conduct simulation model in the present case. They stressed
that SŠ had approached the authorities with a complaint about
the applicant's allegedly unlawful conduct. Thereafter the model had
been authorised in order to secure the general interest, on the basis
of the preliminary information submitted by SŠ about the
applicant's demand for a bribe. In authorising and implementing the
model, the authorities had only sought to “join” the
criminal acts which had been contemplated and controlled by the
applicant. The applicant's active steps in drafting SŠ's civil
claim, undertaking to examine it in court and promising to bribe
higher court officials, showed that she would have committed the
crimes even without SŠ's or the authorities' intervention. No
threats or other form of undue pressure had been exerted by the
authorities. The fact that the applicant was a law enforcement
official only aggravated her guilt, since she had been well aware of
the unlawfulness of her actions. In sum, there had been no incitement
to commit a crime.
- The
applicant claimed that there had been a breach of her right to a fair
hearing in view of the authorisation and implementation of the model
used against her. She stated that the model had been used in
contravention of domestic law. She further stated that the initial
information submitted by SŠ to the authorities on 16 June 1998
had been insufficient to suspect her of being susceptible to bribery.
The authorisation of the model in her case had thus served to create
evidence of a fresh offence, rather than to investigate an offence
which she had been predisposed to commit. She stated that, as a
result, she had been entrapped into committing the crime of accepting
a bribe set up by SŠ and the authorities. Furthermore, the
inducements provided by the model had not been properly structured,
in that the initial payment and acceptance by her of USD 1,000 would
have been enough to arrest her and discontinue her unlawful actions
as indicated in the model. Instead, the authorities had allowed her
to continue until she had accepted USD 10,500 in personal bribes and
committed a further crime (the attempted buy-off of higher court
judges). The applicant submitted that the impugned crimes would not
have been committed without the authorities' intervention. She
complained about the domestic courts' failure to give an adequate
answer to the question of the authorities' responsibility for her
entrapment. The applicant concluded that she had thus been denied a
fair hearing, in breach of Article 6 § 1 of the Convention.
- The
Court recalls its recent Ramanauskas judgment (loc. cit.,
§§ 49-74) in which it elaborated the concept of
entrapment in breach of Article 6 § 1 of the Convention, as
distinguished from the use of legitimate undercover techniques in
criminal investigations, in respect of which there must be adequate
safeguards against abuse. It established that its function under
Article 6 § 1 is to review the quality of the domestic
courts' assessment of the alleged entrapment and to ensure that they
adequately secured the accused's rights of defence, in particular the
right to adversarial proceedings and to equality of arms (Edwards
and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98,
§§ 46-48, ECHR 2004-X). In this respect, the Court's
examination is not of the “fourth instance” nature
challenged by the Government.
- In
particular, the Court held as follows at § 55 of the
Ramanauskas judgment:
“Police
incitement occurs where the officers involved – whether members
of the security forces or persons acting on their instructions –
do not confine themselves to investigating criminal activity in an
essentially passive manner, but exert such an influence on the
subject as to incite the commission of an offence that would
otherwise not have been committed, in order to make it possible to
establish the offence, that is, to provide evidence and institute a
prosecution (see Teixeira
de Castro v. Portugal,
[judgment of 9 June 1998, Reports of Judgments and Decisions
1998-IV], ... p. 1463, § 38, and, by way of contrast,
Eurofinacom
v. France (dec.),
no. 58753/00, ECHR 2004 VII).”
- To
ascertain whether or not the police confined themselves to
“investigating criminal activity in an essentially passive
manner” in the present case, the Court has regard to the
following considerations. There was no evidence that the applicant
had committed any offences beforehand, in particular
corruption-related offences. However, the initiative in the case was
taken by SŠ, a private individual, who, when he understood
that the applicant would require a bribe to reach a favourable
outcome in his case, complained to the police. Thereafter the police
approached the Deputy Prosecutor General who authorised and followed
the further investigation within the legal framework of a criminal
conduct simulation model, affording immunity from prosecution to SŠ
in exchange for securing evidence against the suspected offender.
- To
the extent that SŠ had police backing to offer the applicant
considerable financial inducements and was given technical equipment
to record their conversations, it is clear that the police influenced
the course of events. However, the Court does not find that police
role to have been abusive, given their obligation to verify criminal
complaints and the importance of thwarting the corrosive effect of
judicial corruption on the rule of law in a democratic society. Nor
does it find that the police role was the determinative factor. The
determinative factor was the conduct of SŠ and the applicant.
To this extent, the Court accepts that, on balance, the police may be
said to have “joined” the criminal activity rather than
to have initiated it. Their actions thus remained within
the bounds of undercover work rather than that of agents
provocateurs in possible breach of Article 6 § 1 of the
Convention (cf. the aforementioned Teixeira
de Castro
v. Portugal judgment,
§§ 31- 39; Sequeira
v. Portugal, (dec.),
no. 73557/01, ECHR 2003 VI).
- Nevertheless,
there will only be compliance with Article 6 § 1 of the
Convention if the applicant was able to raise effectively the issue
of incitement. In this respect, the Court notes that the applicant
was able to put clear entrapment arguments before the domestic courts
(see in particular paragraph 28 above). However, the Court observes
that a reasoned response was given to them, particularly by the
Supreme Court in its rejection of her cassation appeal (extracts
quoted above at paragraph 29). As the Court has already noted, there
were clearly good reasons to commence the investigation after SŠ
had contacted the police. It was established that SŠ had no
special relationship with the applicant, from which can be inferred
that he had no ulterior motive in denouncing the applicant (see
paragraph 25 above and the extract from the first instance judgment).
The model had been lawfully conceived and put into action. Moreover
it had been adequately supervised by the prosecution, even if court
supervision would have been more appropriate for such a veiled system
of investigation.
- The
Court reiterates that it cannot determine the applicant's dispute as
to the findings of fact by the domestic courts. It suffices to note
that the applicant had a full opportunity to challenge the
authenticity and accuracy of the evidence against her. Indeed she
made no specific complaint to the Court of a lack of adversarial
proceedings or a denial of equality of arms (see a contrario the
aforementioned case of Edwards and Lewis v. the United Kingdom,
§ 46; Shannon v. the United Kingdom (dec.), no. 67537/01,
ECHR 2004 IV).
- In
the light of the foregoing considerations, the Court finds that there
has been no violation of Article 6 § 1 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of Article 6 § 1 of
the Convention.
Done in English, and notified in writing on 24 June 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise
Elens-Passos Françoise Tulkens
Deputy Registrar President
