CEDH · CASELAW;COMMUNICATEDCASES;ENG — 9 novembre 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left }   Communicated on 9 November 2016   FOURTH SECTION Application no. 55146/14 Kęstas RAMANAUSKAS against Lithuania lodged on 28 July 2014 STATEMENT OF FACTS The applicant, Mr Kęstas Ramanauskas, is a Lithuanian national who was born in 1966 and lives in Kaišiadorys. He is represented before the Court by Mr M. Zabita, a lawyer practising in Vilnius. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant worked as a lawyer in his own private practice. In December 2010 he received a call from L.D., who was a deputy head of Pravieniškės Correctional Facility. L.D. told the applicant that a prisoner, V.Š., wanted to meet him regarding release on probation. On 26 January 2011, the applicant met with V.Š. in L.D.’s office, without L.D. being present. The applicant told V.Š. that in order to be released on probation he would first have to be transferred to a unit with lighter security. V.Š. was told that the transfer would cost him 2,000 Lithuanian litai (LTL, approximately 579 euros (EUR)). During the conversation, the amounts of LTL 12,000 (approximately EUR 3,475) and LTL 15,000 (approximately EUR 4,344) were also mentioned as bribes for judges, to make sure V.Š would definitely be released on probation. V.Š. expressed doubts as to whether such sums would be enough and said that he had LTL   30,000 (approximately EUR 8,689). The applicant replied that that was too much and that he would try to negotiate on V.Š.’s behalf. V.Š. told the applicant that his friend, G.T., would meet him and give him the money. The conversation between the applicant and V.Š. was recorded on a voice recording watch owned by V.Š. After the conversation, V.Š. called G.T., told him that the applicant had requested a bribe, and asked him to inform the relevant authorities. G.T. informed the Special Investigation Service ( Specialiųjų tyrimų tarnyba , hereinafter “the STT”). The use of a “criminal conduct simulation model” (a kind of undercover police operation) was authorised on 31 January 2011 by the Vilnius City Second District Court. On the same day, the court also authorised taps on telephone conversations between the applicant, L.D., V.Š. and G.T. and covert surveillance of the applicant and L.D. On 1 February 2011 G.T. called the applicant and agreed to meet on 2   February 2011. They met in the applicant’s car and G.T. gave the applicant LTL 2,000 (approximately EUR 579), which had been given to G.T. by STT officers. V.Š. subsequently called the applicant a number of times to discuss how matters were proceeding. On 1 March 2011 V.Š. called L.D. and complained that he could not reach the applicant and asked for help in finding him. On 7 March 2011 the applicant went to see V.Š. and V.Š. subsequently called the applicant several times. They agreed that the applicant would not participate in the hearing before the court of first instance because there was little chance that V.Š. would be released on probation there. The applicant said he would write an appeal to the Kaunas District Court, where he could bribe the judges. V.Š. was not released on probation by the court of first instance and the applicant agreed to meet him so that V.Š. could sign an appeal. They met on 25 March 2011, and V.Š. signed blank pages, where the applicant said he would later write out an appeal. V.Š. also told the applicant that G.T. would give him LTL 30,000 (approximately EUR 8,689). On 29 March 2011 the applicant and G.T. met in the applicant’s car, where LTL 30,000 (approximately EUR 8,689) was given to the applicant so that he could secure V.Š.’s release on probation. The applicant was arrested by STT officers immediately afterwards and the money was found in the car. By a judgment of 18 July 2012 the Kėdainiai District Court found the applicant guilty of bribery of an intermediary and sentenced him to sixty   days in prison. The court found it established that G.T. had given the applicant bribes of LTL 2,000 (approximately EUR 579) and LTL 30,000 (approximately EUR 8,689) respectively during their meetings on 2   February and 29 March 2011, in return for a promise that the applicant would help in the proceedings for V.Š.’s release on probation. The applicant pleaded not guilty and stated that he had succumbed to undue pressure from V.Š. and G.T. He also stated that the money he had received was remuneration for his services as V.Š.’s lawyer. The applicant said that although no agreement on the provision of legal assistance had been concluded, he had intended to conclude one after the proceedings for V.Š.’s release on probation. The court’s conclusions were mainly based on the evidence given by V.Š., G.T., L.D., other employees of Pravieniškės Correctional Facility and on secret recordings of the applicant’s conversations. The court decided to return the voice recording watch to V.Š. By the same judgment of 18 July 2012 the Kėdainiai District Court found L.D. guilty of abuse of office and of forgery of document that allowed V.Š. to be transferred to a unit with lighter security, and ordered L.D. to pay a fine of LTL 12,480 (approximately EUR 3,614). The applicant lodged an appeal, arguing that the provisions of domestic law had been applied incorrectly, that he had succumbed to undue pressure from V.Š. and G.T. and that V.Š. had used unauthorised measures, the voice recording watch, which he was not allowed to have in prison. The applicant also stated that L.D. had overseen the matters relating to V.Š.’s transfer to a unit with lighter security and that there was no evidence that the applicant had tried to bribe L.D. The applicant also stated that he had never named any specific person in the courts whom he would have bribed because he had not intended to perform such an action. He had only talked to V.Š. about the outcome of the proceedings for release on probation because V.Š. had called him constantly. On 13 June 2013 the Panevėžys Regional Court held that V.Š. had purchased the watch for his personal use and that the provisions of domestic law did not directly prohibit the use of such equipment in prison. The court also held that the initial contact between V.Š. and the applicant had been arranged by L.D., that V.Š. had not known the applicant before and had not had any motive to incite him to commit a crime. The court also found that no agreement on the provision of legal services had been concluded between the applicant and V.Š. and that the applicant’s argument that he had intended to conclude one later had been dismissed as an attempt to mitigate his situation. On the basis of audio recordings, the court also observed that the applicant had been the first to say that he could settle the matter for money. The court also found that there had been no incitement and that the authorities had not put any active pressure on the applicant to commit an offence. Lastly, the court reclassified the applicant’s offence and ordered him to pay a fine of LTL 65,000 (approximately EUR 18,825). By the same judgment the Panevėžys Regional Court dismissed L.D.’s appeal. The applicant lodged an appeal on points of law. He again argued that he had been incited to commit an offence, that V.Š., as a prisoner, had not been allowed to have voice recording equipment and that he had been provided with that equipment by the STT. The applicant also alleged that he had not actually taken LTL 30,000 (approximately EUR 8,689) from G.T., but that G.T. had left the money in the applicant’s car. On 28 January 2014 the Supreme Court dismissed the applicant’s appeal on points of law. The court held that the finding of the applicant’s guilt had not been based solely on the evidence obtained from V.Š.’s watch. The court observed that L.D. had suggested the applicant as a lawyer because the applicant knew the prosecutors and judges dealing with V.Š.’s case and that L.D. had not incited the applicant to take bribes. By the same judgment the Supreme Court left L.D.’s appeal on points of law unexamined because he raised new arguments that he had not raised before the appellate court. B.     Relevant domestic law The Criminal Code applicable at the material time punished the act of bribing an intermediary (Article 226) . Article 159 § 1 of the Code of Criminal Procedure provided that a prosecutor who had received information that a person had been asked to commit a crime or participate in one could ask an investigating judge to authorise a criminal conduct simulation model. Article 159 § 3 provided that it was prohibited to incite a person to commit an offence in the course of a criminal conduct simulation model. Article 6 § 5 of the Law on Operational Activities provided that units carrying out operational activities were prohibited from provoking people into committing criminal offences. Provocation is pressure, active incitement or instigation to commit a criminal act by restricting a person’s freedom of action, where that results in committing or attempting to commit a criminal act which the person had not planned to commit before. Annex no.   1 to the Code for the Execution of Sentences at the material time read that the prisoners were prohibited from having voice recording devices. COMPLAINT The applicant complains under Article 6 § 1 of the Convention that he was incited to commit an offence, for which he was found guilty and sentenced by the domestic courts.       QUESTION TO THE PARTIES Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular, was the applicant incited to commit the offence of taking a bribe, for which he was sentenced by the domestic courts (see, for example, Ramanauskas v. Lithuania [GC], no.   74420/01, §§ 49-61, ECHR 2008)?   The Government are requested to inform the Court, whether V.Š. has been released on probation and if so, to provide relevant copies of the decisions of the domestic courts.