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SECOND
SECTION
CASE OF POCIUS v. LITHUANIA
(Application
no. 35601/04)
JUDGMENT
STRASBOURG
6 July
2010
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 Pocius v.
Lithuania,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Danutė
Jočienė,
András
Sajó,
Nona
Tsotsoria,
Kristina
Pardalos,
Guido
Raimondi,
judges,
and Stanley Naismith,
Deputy
Section Registrar,
Having
deliberated in private on 15 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35601/04) 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 Vidas Pocius (“the
applicant”), on 16 September 2004.
- The
applicant was represented by Mr E. Liutkevicius, a lawyer
practising in Kaunas. The Lithuanian Government (“the
Government”) were represented by their Agent, Ms E. Baltutytė.
- The
applicant alleged that the proceedings for removing his name from an
“operational records file” had been unfair in that the
principles of fairness and equality of arms had not been respected.
He invoked Article 6 § 1 of the Convention.
- On
11 December 2006 the Court decided to give notice of the
application to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in Kaunas.
- By
letter of 28 May 2002, Kaunas City Police informed the applicant
that his permits to keep and carry a firearm for defence purposes as
well as a hunting rifle had been revoked because on 19 April
2002 the applicant had been listed in an “operational records
file” (policijos operatyvinė
įskaita), a database
containing information gathered by law-enforcement authorities (see
paragraphs 24-26 in 'Relevant domestic law' below). The applicant was
informed that he was to hand in these firearms to the authorities and
would receive money for them.
- On
19 September 2002 the applicant requested the Kaunas City
District Court to order the removal of his name from the operational
records database. The applicant stated that he had only discovered
that his name had been so listed from the aforementioned police
letter.
- On
11 October 2002 the Kaunas City District Court refused the
applicant's request, finding that he should have brought his claims
before the administrative courts.
- The
applicant appealed to the Kaunas Regional Court, arguing that he had
never been informed of the reasons for the listing of his name in the
operational records file and requesting that it be removed. The
applicant also asked the court to order the police to provide him
with all the written materials concerning the listing of his name.
- On
21 October 2002 the Kaunas Regional Court found that it was
necessary to decide which court – of general or administrative
jurisdiction – was competent to hear the applicant's case.
- On
29 October 2002 Kaunas city police officials instituted criminal
proceedings on charges of theft when acting in an organised group
(Article 271 § 3 of the Penal Code). The applicant was charged
on 16 November 2002 and placed under house arrest.
- On
26 November 2002 the special chamber responsible for questions
of jurisdiction, composed of the judges of the Supreme Court and the
Supreme Administrative Court, decided that the applicant's case
should be examined by the administrative courts.
- On
27 March 2003 the applicant was charged with covering up a crime
committed by others (Article 295 of the Penal Code). In particular,
the investigators suspected that in October and November 2002 the
applicant had helped to hide stolen cars on the premises of the
company where he worked as the director. In his application the
applicant maintained that this was not a fresh charge against him but
a substitution for the previous charge of theft (see paragraph 11
above).
- On
27 May 2003 the Kaunas City District Court ordered that the applicant
be released from house arrest.
- On
29 May 2003 the Kaunas Regional Administrative Court allowed the
applicant's action, holding that the listing of his name in the
police file was contrary to the principles of the presumption of
innocence and the rule of law. Having reviewed the classified
materials submitted by the police, the court found no evidence
showing that the applicant had been engaged in any criminal activity.
The court also noted the absence of any accusatory judgment against
the applicant. On the contrary, testimony to his positive attributes,
submitted to the court by environmental protection agencies and
non-governmental associations, showed the applicant's goodwill and
dedication (principingumą) to protecting nature. For the
above reasons, the court ordered the Kaunas police officials to
remove the applicant's name from the operational records file.
- On
12 June 2003 the Kaunas police appealed. They contended that,
when listing the applicant's name in an operational records file, the
police had respected the applicable rules. In their appeal they
observed that the file had been submitted to the Kaunas Regional
Administrative Court and that the judges had acquainted themselves
with that information. Lastly, the police noted that criminal
proceedings on charges of theft had been pending and that the
applicant was one of the accused.
- On
23 July 2003 the Supreme Administrative Court quashed the lower
court's decision and returned the case for fresh examination. It was
noted that the lower court had erred in law and failed to consider
certain relevant evidence. The appellate court emphasised that, when
adopting a decision, the lower court had to evaluate all the evidence
which had been presented at the hearing and to determine which
circumstances had been established and which had not. In particular,
the lower court had not properly examined the circumstances relating
to the criminal proceedings on charges of theft and had failed to
evaluate the applicant's procedural position in them. The Supreme
Administrative Court stressed that it was indispensable to examine
all the circumstances relevant to the dispute over the listing of the
applicant's name in the operational records file.
- On
1 December 2003 the Kaunas Regional Administrative Court dismissed
the applicant's claim. The court admitted that a person listed in
police records could be negatively affected in a number of ways, for
example, he could lose the right to carry a firearm or face
restrictions when applying for certain jobs. However, the court noted
that having examined the “written evidence” in the case,
as well as having examined, in the judges' chambers, the operational
file on the applicant, the listing of the applicant's name in the
police file had been lawful and justified. Whilst acknowledging that
it had not been possible to disclose the operational file to the
applicant, the court noted, nevertheless, that the applicant had been
able to substantiate his claims by providing evidence or by asking
the court to obtain the relevant materials when it had not been
possible for him to obtain them himself. It concluded that he had not
adduced any proof in support of his claim that the listing of his
name in the operational file was unlawful.
- The
applicant appealed, noting the lower court's observation that the
listing of his name in the police file could entail negative
consequences for him. The applicant also submitted that he was an
inspector of nature protection (gamtos apsaugos inspektorius)
and that he had been attacked by poachers on numerous occasions.
Consequently, were the guns to be taken away from him, it would be
too dangerous for him to pursue that activity. Furthermore, the
applicant alleged that the gun was necessary for defending his family
– living in a remote and insecure rural area – and also
for his job, as he occasionally transported large sums of money from
his company's safe to the bank.
- The
applicant argued that he had had no access to the information which
had served as the basis for the listing of his name in the police
file. No reasons, except for theories (išskyrus prielaidas)
had been disclosed to him. Relying on the above, the applicant
submitted that his rights of defence had been breached and that the
file on him should be destroyed.
- On
24 March 2004 the Supreme Administrative Court dismissed the
applicant's appeal, upholding the reasoning of the lower court. It
noted that, “having evaluated the written evidence in the case
and the operational file [which under the Law on State Secrets could
not be disclosed to the defence], it had been possible to conclude
that the listing of the applicant's name in that operational file had
been reasonable and lawful”.
- On
28 June 2004 the criminal investigation in respect of the applicant
on account of suspected theft was discontinued due to statutory
limitations.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
21 of the Constitution provides that the dignity of a human being is
to be protected by law. Article 22 states that the private life of a
human being is inviolable and that information concerning it may be
collected only following a reasoned court decision and only in
accordance with the law. The law and the courts are to protect anyone
from any arbitrary or unlawful interference with his or her private
life or from encroachment upon his or her honour and dignity. Article
23 of the Constitution provides that property is inviolable and that
ownership rights are protected by law. Property may be taken only for
the needs of society in accordance with the procedure established by
law and must be fairly compensated. Under Article 30 of the
Constitution, a person whose constitutional rights or freedoms have
been violated has the right to apply to a court. Article 48 provides
that each human being may freely choose a job or occupation.
- Article
2 § 1 of the Law on Operational Activities (Operatyvinės
veiklos įstatymas) (as in force until 28 June 2002)
described “operational activities” as being intelligence
and counter-intelligence activities conducted by institutions and
authorised by the State to combat organised crime. Under Article 2 §
8 of the Law, an “operational records file” is the
data on individuals, events and other targets obtained during the
process of operational activities, with the intention of providing
information to operational entities.
- Under Article 4 of the Law, possible reasons for
commencing operational activities would be the existence of
preliminary information about a crime which was being planned or had
already been committed against the State, about another kind of
major crime, about an individual who was planning or who had
committed a crime, about an individual's links to a criminal
organisation, or about the activities of foreign intelligence
services.
- Article
13 of the Law provided:
Article 13. The Use of Information
“1.
Information obtained during the course of operations may be disclosed
during court proceedings with prior authorisation from the Prosecutor
General or the Deputy Prosecutor General designated by him. Use of
information obtained during the course of operations for purposes
other than those for which it was intended is prohibited.
2.
Information obtained during the course of operations may be used as
evidence in a criminal case in accordance with the formalities and
procedure established by the Code of Criminal Procedure.
3.
If, during the course of proceedings, information about an individual
obtained using special equipment is disclosed, the individual has the
right to lodge a complaint and contest the use of that information in
court, on the grounds that the information was obtained illegally. In
such instances the court has the right to disclose excerpts from the
reasoned authorisation request [to start an operational activity] in
order to prove the legality of that authorisation.”
- Article
17 § 1 (2) of the Law on the Control of Arms and Ammunition
(Ginklų ir šaudmenų kontrolės įstatymas)
provided at the material time that arms and ammunition could not be
acquired or possessed by a person who did not have an impeccable
reputation. According to Article 18 § 2 (5) of that Law, a
person was not regarded as having an impeccable reputation if his or
her name had been listed in an operational records file. Article 38
of the Law provided that, after a firearms licence had been revoked,
the arms and ammunition were to be taken from the person concerned
and sold through the Arms Fund (a State agency) or through other
companies authorised to sell them.
- Article
6 § 2 (4) of the Law on the Protection of Persons and Property
(Asmens ir turto saugos įstatymas) provides that a person
whose name is listed in an operational records file is not eligible
to work as a security officer.
- The
relevant part of the Law on Administrative Procedure (Administracinių
bylų teisenos įstatymas) provides as follows:
Article 57. Evidence
“1. Evidence in an administrative case is all
factual data found admissible by the court hearing the case and based
upon which the court finds ... that there are circumstances which
justify the claims and rebuttals of the parties to the proceedings
and other circumstances which are relevant to the fair disposal of
the case, or that there are no such circumstances ...
3. As a rule, factual data which constitutes a State or
official secret may not be used as evidence in an administrative
case, until the data has been declassified in a manner prescribed by
law.”
- In
the judgment of 4 September 2002 in case no. A10-786-02,
the Supreme Administrative Court stated, in so far as relevant to the
present case, that:
“as a rule, factual data which constitutes a State
or official secret may not be used as evidence in an administrative
case until it has been declassified (Article 57 § 3 of the
Law on Administrative Procedure). Therefore, in the absence of other
evidence, the [lower] court's reliance on solely written information
provided by the State Security Department which was marked as secret
had no legal basis”.
- On
15 July 2007 the Constitutional Court adopted a ruling on the
compatibility with the Constitution of Article 57 § 3 of the Law
on Administrative Procedure, and Articles 10 § 4 and 11 of the
Law on State Secrets. It ruled that no decision of a court could be
solely based on information which constituted a State secret and
which was not disclosed to the parties to the case. In the ruling
no. A822-326/2009 of 8 October 2009 the Supreme
Administrative Court confirmed the above principles.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the proceedings before the administrative
courts had been unfair in that the principle of equality of arms had
not been respected. He invoked Article 6 § 1 of the Convention,
which, in so far as is relevant, reads as follows:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair ... hearing ... by [a] ... tribunal...”
Admissibility
1. The parties' submissions
(a) The Government
- The
Government argued that Article 6 § 1 of the Convention was not
applicable to the proceedings at issue. They explained that
records in operational files served only as tools, mainly for the
prevention of crime and in certain situations to help investigate
them. Operational files contained information concerning events,
circumstances and persons. Data on a particular person could be
recorded in an operational file only in connection with investigative
activities carried out in respect of other persons. However, the fact
that certain operational activities had been carried out in respect
of a certain person did not mean that that person was suspected of
having committing a crime. Moreover, the mere listing of a person's
name in an operational file could not be equated with the legal
status of a suspect or official notification of an allegation that a
person had committed a criminal offence. Operational information was
to be considered only as certain preliminary information.
Consequently, it had to be declassified if the authorities wanted to
use it as evidence in criminal proceedings. Relying on the above, the
Government submitted that Article 6 § 1 of the Convention, under
its criminal head, was not applicable to the applicant's case.
- In
the alternative, the Government argued that contesting the lawfulness
and reasonableness of listing the applicant's name in the operational
records file under the administrative procedure could not be
considered a determination of his civil rights. The litigation at
issue had concerned an administrative dispute, a conflict between the
applicant and a public administrative body – the Police
Commissariat. The applicant had challenged before the domestic courts
the actions of State agents when carrying out one of the State's main
functions – guaranteeing public security and safety, and in
this particular connection the State institution had not been acting
as a private party. The State had a broad margin of discretion over
the exercise of the right to carry a gun. Moreover, an administrative
decision to grant or withhold such a licence did not directly affect
a person's property rights or lawful interests. For the Government,
the right to carry a gun was not to be considered as being equal to,
for example, the right to carry out certain professional activities.
Nor did it affect a person's possessions.
- On
this latter point, the Government submitted that it did not follow
from Article 38 of the Law on the Control of Arms and Ammunition that
the listing of a person's name in an operational records file and the
subsequent possibility of his or her firearm being taken would be
acts amounting to an interference with that person's property rights
by the State. Once a licence to carry a gun had been revoked, the gun
was to be temporarily kept by the police. The subsequent sale of the
gun was to be for a reasonable price and the money received was to be
given to the person concerned. As a result, a person would receive
fair compensation and no determination of his or her civil rights
would be at issue.
- Relying
on the above, the Government asserted that the applicant's complaint
under Article 6 of the Convention was inadmissible ratione
materiae. In the alternative, the Government submitted that the
complaint was manifestly ill-founded.
(b) The applicant
- The
applicant did not expressly articulate whether Article 6 § 1 of
the Convention applied to his case. Nonetheless, he submitted that,
as a result of his name being listed in the operational records file,
he had experienced intense humiliation and was emotionally
distressed. He also argued that, because of the public suspicion that
he was involved in alleged, unnamed criminal activities, whilst at
the same time being denied any information about the basis of those
suspicions or the opportunity to defend his good name, his chances of
communicating with others as well as the opportunity to seek work
were severely reduced. The applicant also noted that on 8 May
2002 the police had urged him to hand in his firearms. For the
applicant, the revocation of his licence to keep firearms, which were
his rightfully acquired property, and their forced collection to be
sold to other individuals, could be equated with restrictions upon
the owner.
2. The Court
(a) Applicability of Article 6 § 1
- The
Court will first consider whether Article 6 § 1 of the
Convention applies under its civil head. In this connection the Court
reiterates that, according to the principles laid down in its
case-law (see, for instance, Kerojärvi v. Finland,
19 July 1995, § 32, Series A no. 322;
Gülmez v. Turkey, no. 16330/02, § 28, 20 May 2008),
it must first ascertain whether there was a dispute (“contestation”)
over a “right” which can be said, at least on arguable
grounds, to be recognised under domestic law, irrespective of whether
they are also protected under the Convention. The dispute must be
genuine and serious; it may relate not only to the existence of a
right but also to its scope and the manner of its exercise; and the
outcome of the proceedings must be directly decisive for the right in
question.
- As
regards the first of the above-mentioned criteria, that the dispute
must concern a right which arguably exists under national law, it
should further be reiterated that Article 6 § 1 does not
guarantee any particular content for those civil rights in the
substantive law of the Contracting States: the Court may not create
through the interpretation of Article 6 § 1 a substantive right
which has no legal basis in the State concerned (see Fayed v. the
United Kingdom, 21 September 1994, § 65, Series A no.
294 B).
- Turning
to the question of whether an arguable claim existed in the present
case, the Court shares the Government's view that the State
authorities enjoy a wide margin of discretion in assessing whether
the applicant was eligible for a firearms licence. Nonetheless, for
the reasons outlined below, the Court finds that the revocation of
that licence and the subsequent judicial proceedings to determine the
lawfulness and reasonableness of the listing of his name in the
operational records file, even though they had been conducted in
accordance with the administrative procedure, had an effect upon the
applicant's civil rights.
- The
Court recalls that the applicant's firearms licence was revoked
because an operational records file, compiled by police officers and
containing data on the applicant's alleged risk to society, had been
opened. The applicant attempted, albeit unsuccessfully, to obtain
that information from the police, with the help of the courts, and to
challenge its validity before the domestic courts. There can be
little doubt that such information had an impact on the applicant's
reputation, which merits protection under Lithuanian law (see
paragraph 23 above) and falls within the scope of Article 8 of the
Convention (see, for example, Fayed v. the United Kingdom,
cited above, § 67-68; Chauvy and Others v. France,
no.
64915/01, § 70, ECHR 2004-VI).
- Likewise,
the Court observes, with reference to its case-law, that when
information about a person's life, including, inter alia, his
criminal record, is systematically collected and stored in a file
held by agents of the State, this information falls within the scope
of “private life” for the purposes of Article 8 § 1
of the Convention (see Rotaru v. Romania [GC], no.
28341/95, §§ 43-44, ECHR 2000-V; Amann v. Switzerland
[GC], no. 27798/95, §§ 65-67, ECHR 2000-II; Leander v.
Sweden, 26 March 1987,
§ 48, Series A no. 116). The
Court further notes that Article 22 of the Lithuanian Constitution
guarantees the protection of a person's private life.
- The
Court cannot rule out the possibility, albeit theoretical, that the
listing of the applicant's name in the operational records file could
have resulted in restrictions on him entering certain private-sector
professions or otherwise earning a living, thereby again affecting
his private life
(see Sidabras and DZiautas v. Lithuania,
nos. 55480/00 and 59330/00,
§§ 47-50, ECHR 2004-VIII).
Indeed, as can be seen from Lithuanian legislation (see paragraph 28
above), certain professions, such as that of security officers, are
not accessible to persons who have been the subject of operational
investigations. In this respect the Court notes Article 48 of the
Lithuanian Constitution, which provides that each person is free to
choose a job or occupation.
-
Lastly, the Court notes the applicant's argument that the revocation
of his firearms licence had meant that he was obliged to hand in the
guns which he already owned to the State authorities for disposal,
albeit in exchange for money (see paragraph 6 above). There can be
little doubt that this involved an interference with another civil
right, guaranteed both by Article 23 of the Lithuanian Constitution
and Article 1 of Protocol No. 1 to the Convention, that is to
say, the right to the protection of property.
- In
the light of the above, the Court finds that Article 6 § 1 is
applicable to the impugned proceedings under its civil head.
Consequently, the Government's objection that the applicant's
complaint is incompatible ratione materiae must be dismissed.
- Having
regard to its conclusion in the preceding paragraph, the Court does
not find it necessary to determine whether the criminal limb of
Article 6 § 1 of the Convention was applicable in
the present case to the proceedings before the Lithuanian courts.
(b) Other observations
- The
Court finds that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- If
the Court were to find Article 6 § 1 of the Convention
applicable to the present case, the Government argued that the
applicant's right to a fair hearing had been limited in a
proportionate manner. Whilst conceding that, for a hearing to be
fair, proceedings should be adversarial, the Government submitted
that the guarantees of Article 6 § 1 were not of an absolute
nature and that the entitlement to the disclosure of relevant
evidence was not an absolute right. Consequently, it was permissible
for the right to equality of arms to be restricted when certain
guarantees were proportionately limited in order to achieve
legitimate aims.
- The
Government submitted that the Lithuanian courts had carefully
reviewed the circumstances of the case. On the basis of all the
collected evidence, including the classified information, the courts
had taken into account the fact that criminal proceedings had been
instituted against the applicant and they had adopted reasoned
decisions finding that the data on the applicant had been lawfully
recorded in the operational file. The applicant had been able to
submit evidence, present his arguments, make submissions and
participate in the decision-making process as far as had been
possible without revealing to him the classified material, whose
secrecy the courts had sought to maintain in the public interest. The
Government stressed that the applicant had not complained that the
Lithuanian courts had not been impartial or objective. As to the
information in the operational records file, it had constituted a
State secret. The interest in protecting State secrets was paramount.
Consequently, it had been legitimate not to disclose that information
to the applicant in the course of the judicial proceedings.
Nonetheless, the fair-balance principle had been maintained, given
that non-disclosure had been chosen in order to protect the proper
administration of justice and to guarantee existing public needs and
the safety of Lithuanian society. The State had had the legitimate
aim of maintaining the secrecy of police criminal investigation
methods, whilst at the same time ensuring that the courts themselves
had been able to assess all the relevant materials in the course of
the judicial proceedings in order to adopt a lawful and reasoned
decision. In sum, a fair balance had been maintained between the
general interests of society and the applicant's fair trial
guarantees, in that the principle of equality of arms had been
compromised in proportion to the aims sought.
- The
applicant submitted that the restriction on his having access to the
operational records file had not been proportionate. The domestic
courts had based their decisions on classified information which had
not been disclosed to him. Instead of evidence, the applicant had
been presented with mere assumptions. As to the criminal charges
against him, the applicant argued that, in their appeal of 12 June
2003, the police had misled the court by stating that he had been
charged with a serious crime. The police, who had themselves
investigated the case of theft, had been well aware of the fact that
on 27 March 2003 the theft charge had been replaced by a lesser
accusation of covering up a crime. Moreover, when submitting the
appeal, the police had also been aware that his house arrest had been
lifted on 27 May 2003. The Supreme Administrative Court had
failed to consider any of this, despite the fact that the applicant
had submitted documents – a copy of the amended decision
regarding the charges (pakeisto kaltinimo kopiją) and a
copy of the decision to release him from house arrest.
2. The Court's assessment
- The
Court reiterates that, according to its case-law, the principle of
equality of arms – one of the elements of the broader concept
of a fair hearing – requires each party to be given a
reasonable opportunity to present his or her case under conditions
that do not place the litigant at a substantial disadvantage
vis-à-vis the opponent (see, among many other
authorities, Kress v. France [GC], no. 39594/98, § 72,
ECHR 2001 VI). It also implies, in principle, the opportunity
for the parties to have knowledge of and discuss all evidence adduced
or observations filed with a view to influencing the court's decision
(see Fretté v. France, no. 36515/97, § 47,
ECHR 2002 I).
- However,
the Court notes that the entitlement to disclosure of relevant
evidence is not an absolute right. In any court proceedings there may
be competing interests, such as national security or the need to
protect witnesses at risk of reprisals or keep secret police methods
of investigation of crime, which must be weighed against the rights
of the defence. In some cases it may be necessary to withhold certain
evidence from the defence so as to preserve the fundamental rights of
another individual or to safeguard an important public interest.
However, only such measures restricting the rights of the defence
which are strictly necessary are permissible under Article 6 §
1. Moreover, in order to ensure that a person receives a fair trial,
any difficulties caused to the defence by a limitation on its rights
must be sufficiently counterbalanced by the procedures followed by
the judicial authorities (see, mutatis mutandis, Jasper v.
the United Kingdom [GC], no. 27052/95, § 52, 16
February 2000).
- In
cases where evidence has been withheld from the defence on public
interest grounds, it is not the role of this Court to decide whether
or not such non-disclosure was strictly necessary since, as a general
rule, it is for the national courts to assess the evidence before
them. In any event, in many cases, including the present, where the
evidence in question has never been revealed, it would not be
possible for the Court to attempt to weigh the public interest in
non-disclosure against that of the accused in having sight of the
material. It must therefore scrutinise the decision-making procedure
to ensure that, as far as possible, the procedure complied with the
requirements to provide adversarial proceedings and equality of arms
and incorporated adequate safeguards to protect the interests of the
accused (ibid., § 53). Taking into account the circumstances of
the present case, in which the applicant had contested being
implicated in criminal activities, as a ground for listing his name
in the operational records file, the Court considers that the above
principles could also be applied to the proceedings before the
Lithuanian administrative courts.
- Turning
to the instant case, the Court observes that the Government do not
dispute the fact that the content of the operational records file, on
the basis of which the courts found against the applicant, was never
disclosed to him. The Court is not insensitive to the goals which the
Lithuanian law-enforcement authorities pursued through their
operational activities. Likewise, the Court shares the Government's
view that documents which constitute State secrets may only be
disclosed to persons who possess the appropriate authorisation.
However, the Court notes that Lithuanian law and judicial practice
provide that such information may not be used as evidence in court
against a person unless it has been declassified, and that it may not
be the only evidence on which a court bases its decision (see
paragraphs
29-31 above).
- It
appears that the undisclosed evidence in the present case related to
an issue of fact decided by the Lithuanian courts. The applicant
complained that his name had been listed in an operational records
file without proper reason and asked the courts to consider whether
the operational file on him should be destroyed. In order to conclude
whether or not the applicant had indeed been implicated in any kind
of criminal activity, it was necessary for the judges to examine a
number of factors, including the reason for the police operational
activities and the nature and extent of the applicant's participation
in alleged crime. Had the defence been able to persuade the judges
that the police had acted without good reason, the applicant's name
would, in effect, have had to have been removed from the operational
records file. The data in the operational file were, therefore, of
decisive importance to the applicant's case (see, albeit with regard
to criminal proceedings, Lucà v. Italy, no. 33354/96, §
40, ECHR 2001 II).
- More
importantly, as can be seen from the decisions of the Lithuanian
courts, the information contained in the operational records file was
deemed to be essential evidence of the applicant's alleged danger to
society. The Court notes that on numerous occasions the applicant
asked for the information to be disclosed to him, even in part.
However, the domestic authorities - the police and the courts -
denied his requests. Whilst, before dismissing the applicant's case,
the Lithuanian judges did examine, behind closed doors and in their
chambers, the operational records file, they merely presented their
conclusions to the applicant. It was not, therefore, possible for the
applicant to have been apprised of the evidence against him or to
have had the opportunity to respond to it, unlike the police who had
effectively exercised such rights (see, mutatis mutandis,
Gulijev v. Lithuania, no. 10425/03, § 44, 16 December
2008).
- As
for the other evidence against the applicant, the Court cannot
speculate whether on 27 March 2003 the applicant was charged
with a new criminal offence of covering up a crime or whether this
was a substitution for the previous charges of theft (see paragraph
13 above). It notes, nevertheless, that on 23 July 2003 the Supreme
Administrative Court pointed out that it was necessary for the lower
courts to examine the circumstances relating to the theft proceedings
and to evaluate the applicant's procedural position in that regard
(see paragraph 17 above). However, it transpires from the subsequent
decisions of the Lithuanian courts that they failed to elaborate on
those charges and did not devote a single sentence of their decisions
to them. The Court notes that, in its decision of 1 December
2003, the Kaunas Regional Administrative Court stated that, besides
the operational file, it had examined “written evidence”
against the applicant, without further elaboration. The same was true
for the Supreme Court's decision of 24 March 2004, which merely
mentioned “written evidence” against the applicant,
without any further explanation.
- In
conclusion, therefore, the Court finds that the decision-making
procedure did not comply with the requirements of adversarial
proceedings or equality of arms, and did not incorporate adequate
safeguards to protect the interests of the applicant. It follows that
there has been a violation of Article 6 § 1 in the present case.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Invoking
Article 6 § 1 of the Convention, the applicant further
complained that the length of the proceedings before the Lithuanian
courts had been excessive. In this connection, the Court notes that
the proceedings were initiated on 19 September 2002 and ended
one and a half years later, on 24 March 2004 (see paragraphs 7 and 21
above). In such circumstances, the Court finds that the length of the
proceedings in issue did not exceed the “reasonable time”
requirement of Article 6 § 1 of the Convention. It follows that
this complaint should be dismissed as manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
- Lastly,
the applicant alleged that the Lithuanian courts had failed to
examine additional evidence, that they had erred in law, and that the
court decisions had lacked reasoning. The applicant relied on Article
6 § 1 of the Convention.
- However,
the Court finds that these complaints have been addressed and
examined above when deciding whether the applicant had had a fair
hearing. Consequently, the Court finds that there is no need to
examine their admissibility or merits.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 100,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage. Pecuniary damage had been caused by the
compulsory surrender of his firearms. The non-pecuniary damage had
been caused by being suspected of criminal activities, having been
denied any information about the basis of those suspicions, and
having been denied the opportunity to defend his good name.
- The
Government contested these claims as unsubstantiated and excessive.
- In
the light of the parties' submissions and the material in the case
file, the Court notes that the applicant has failed to submit any
documentation in support of his claim for pecuniary damage.
Consequently, the Court rejects it. However, the Court
considers that the applicant may be considered to have suffered some
non-pecuniary damage as a result of the breach of his rights which
cannot be compensated by the Court's finding of a violation alone.
Nevertheless, the amount claimed is excessive. Making its assessment
on an equitable basis, as required by Article 41 of the Convention,
the Court awards the applicant the sum of EUR 3,500.
B. Costs and expenses
- The
applicant did not submit any claims for costs and expenses.
Consequently, the Court makes no award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the applicant's complaint concerning
the fairness of the proceedings (in relation to the operational
records file) admissible and the complaint about the length of court
proceedings inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Declares that it is not necessary to examine the
admissibility and merits of the remainder of the applicant's
complaints under Article 6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,500
(three thousand five hundred euros) in respect of non-pecuniary
damage, plus any tax that may be chargeable, which sum is to be
converted into the currency of the respondent State at the rate
applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 6 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Deputy
Registrar President
