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ECHR case: breach of justice by judges Alvydas Pikelis, Jurgita Mačionytė, Eligijus Gladutis, Jurgita Kolyčienė

Skundas Europos Žmogaus Teisių Teismui dėl Europos žmogaus teisių ir pagrindinių laisvių apsaugos konvencijos pažeidimų, už kuriuos atsakingi Lietuvos Aukščiausiojo Teismo teisėjai Alvydas Pikelis, Audronė Kartanienė, Eligijus Gladutis (byla Nr.2K-299-511/2020), Vilniaus apygardos teismo teisėjos Jurgita Mačionytė, Nida Vigelienė, Jurgita Kolyčienė (byla Nr.1A-27-574/2020) ir Vilniaus regiono apylinkės teismo teisėjas Rinaldas Adamonis (byla Nr.1-168-517/2019).

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European Court of Human Rights

Case of Šegžda v. Lithuania

Application no. 31936/21 introduced on 3June 2021

  1. In November 2011Mr Zigmantas Šegžda (hereafter “the applicant”) sold to Ms Sigita Jurgelevičienė (hereafter “the Victim” or “J.”) half of a land plot and a residential house. Thus the indicated property belongs to both the applicant and J. in equal parts. The applicant’s home address is Vilnius region, Republic of Lithuania. Since September 2011 J. has been residing in this house. The applicant and J. lived together outside marriage (i.e. out of wedlock) until the relationship between them broke down in 2013. From 2007 to December 3, 2014 the applicant resided in the Vilnius region, in his private house.
  1. On May 4, 2014, J. filed a complaint with the police. In this complaint she accused the applicant of beating her in their private residential house on May 4, 2014, causing her physical pain by pulling her by the hair.J. testified that the applicant was a member of her family. The applicant consistently claimed that J. was not a member of his family. On the same day, the police commenced criminal prosecution under Paragraph 2 of Article 140 of the Criminal Code of the Republic of Lithuania (hereafter “the Criminal Code”).  Paragraph 2 of Article 140 of the Criminal Code provides that any person who commits the act indicated in Paragraph 1 of this Article in respect of his close relative or family member shall be punished by community service or by restriction of liberty or by arrest or by a custodial sentence for a term of up to two years. Paragraph 1 of Article 140 of that Code provides that any person who, by beating or other violent actions, causes to a person physical pain or a negligible bodily harm or a short-term illness shall be punished by community service or by restriction of liberty or by arrest or by a custodial sentence for a term of up to one year.
  1. On June 18, 2014 J. submitted audio recordings (tape-recordings) of personal conversations (hereafter “the Recordings”) to the police. J. produced the Recordings on her own initiative. FromOctober 6, 2013 to  May  4, 2014, in the applicant’s private dwelling J. had been making the Recordings of the applicant’s purely private conversations by using a voice recorder. J. did not obtain the applicant’s consent to tape-record his private conversations. His personal conversations had been tape-recorded without the applicant‘s knowledge.
  1. On July17, 2014 apublic prosecutor Vida Bracevičienė (chief prosecutor Jolita Kančauskienė) commenced prosecution under Paragraph 2 of Article 145 of the Criminal Code (regarding the episode “intimidating the person by using mental coercion”). Paragraph 2 of Article 145 of the Criminal Code provides that any person who terrorizes a person by threatening to blow him up, to set him on fire or to commit another act dangerous to his life, health or property or who systematically intimidates the person by using mental coercion shall be punished by a custodial sentence for a term of up to four years.

On 17 July 2014, the public prosecutor Vida Bracevičienė (chief prosecutor Jolita Kančauskienė) passed a decision to charge the applicant with the crime -verbal intimidating his family member J. seven times in the period from October 6, 2013 to May 4, 2014 by using mental coercion.  However, in the present case the Victim did not file a complaint with a request to initiate a pre-trial investigation regarding this “crime”.  Subsection 6 of Paragraph 1 of Article 3 of the Code of Criminal Procedure of the Republic of Lithuania (hereafter “the CCP”) establishes that criminal prosecution shall not be commenced or, if already initiated, shall be discontinued if the criminal prosecution requires the complaint of the victim. Thus, in this case, the commencement of the criminal prosecution was unlawful for the latter episode.

  1. On December 3, 2014 the public prosecutorVida Bracevičienė (chief prosecutor Jolita Kančauskienė)charged the applicant with a criminal offense, that on May 2, 2014 the applicant allegedly threw a child’s shoe at his family member J. and hit on the forearm of her right hand, causing of physical pain. The applicant had been charged with a criminal offense under Paragraph 2 of Article 140 of the Criminal Code. However, the police authority or this prosecutor did not issue a resolution on commencing of the prosecution on the grounds of May 2, 2014 episode. The decision on starting of criminal prosecution does not exist in this episode of the present case. This decision shall contain a description of the place and time of commission of the offense or set of circumstances under which it was committed, a specification of the offense by defining it by law and stating of the relevant provision of the Criminal Code as well as reasons for which the criminal prosecution has started.  Thus the commencement of the criminal prosecution was unlawful.
  1. The Victim testified that the applicant had committed all alleged crimes at their common home. The applicant did not plead guilty to the offenses with which he had been charged. The applicant consistently argued for that J. and the applicant were not family members. In his conclusion of 5 May 2014, a specialist of the State Forensic Medicine Service indicated that after the incident on 4 May 2014, he did not find any objective bodily injuries to J. The specialist of that institution stated that “there are no clear areas of uprooted hair in the area of the occiput. No external injuries are visible in the right forearm at the indicated location.“

On December 3, 2014 the applicant was deprived of his liberty by detention on remand and held in prison for forty-nine days until January 21, 2015 inclusive (the judges Algimantas Valantinas, Renata Volodko, Dalia Zeniauskaitė, Saulius Jakaitis, Stasys Lemežis) On January 22, 2015 the applicant had been evicted from his private home by a public prosecutor’s order (public prosecutor Vida Bracevičienė, chief prosecutor Jolita Kančauskienė). Until now, J. lives together with her children in this house. The pre-trial investigation in the present case lasted for two years and eight months – until January 7, 2016.

  1. The trial took place on July 7, 2016 in the District Court of Vilnius Region (Chamber of Ukmergė town). The applicant pleaded “not guilty” to the criminal charges.The judge or the court Rinaldas Adamonis examined the Victim, three witnesses, three medical professionals and three forensic experts. Witnesses testified that they in effect did not see with their own eyes or hear the acts in question and they did not participate in the incidents that had been presented in a bill of indictment. The court ruled that the Victim’s audio recordings should be recognized as evidence. The court ruled that these audio recordings were obtained without a breach of the provisions of the CCP.  Article 20 of the CCP provides that evidence  in  criminal  proceedings  shall  include  material  obtained  in  the manner prescribed by law and evidence  may  be  only  such  material  which  is  obtained  by  lawful  means  and  may be verified by the acts provided for in this Code. The contested audio recordings in the present case were in effect the only evidence against the applicant and that the applicant’s plea of guilty was tendered only on the basis of the judge’s ruling that the evidence should be admitted.
  1. The playing of the audio recordings during the court hearings lasted for more than 12 months. Whereas these audio recordings were made before the commencement of the pre-trial investigation, the applicant argued for that the court violated the provisions of Paragraph 2 of Article 290 of the CCP by listening to these audio recordings. Paragraph 2 of Article 290 of the CCP provides that during developing of the evidence, audio or video recordings made during the pre-trial investigation shall be presented by playing it on the appropriate equipment.
  1. Whereas the Victim had made the Recordings of the applicant’s personal conversations during the nine-month period without the court’s permission and without the consent and the knowledge of the applicant, the applicant challenged the legality and admissibility of this evidence. This gives grounds for the exclusion of evidence. In the court proceedings, the applicant demanded that the Recordings must be excluded from the case. Whereas the Recordings had been made preceding the pre-trial investigation in the absence of prior authorization by a court, the provisions of Articles 159 and 160 of the CCP were violated. Paragraph 2 of Article 159 of the CCP provides that a pre-trial investigation judge must make ruling authorizing acts which imitate a criminal offense.

Article 160 of the CCP provides that, at the request of the public prosecutor, a pre-trial judge may order the surveillance of a person if a video or audio recording or filming is to be made during the covert surveillance, this must also be provided for in the pre-trial judge’s order. Article 179 of the CCP establishes the conduct of investigative actions and recording of results: a report shall be drawn up in respect of each procedure of criminal proceedings, investigative actions shall be entered in a record, during the investigative actions audio and video recordings shall be made, the place and time of the investigative action and all persons involved in the investigative actions shall be entered in the report.

The applicant asserted that by recording the applicant’s private conversations without the permission (consent) and the knowledge of the applicant, the Victim possibly had committed a crime against the inviolability of a person’s private life. Paragraph 1 of Article 167 of the CCP provides that a person who unlawfully collects information about a person’s private life shall be punished by community service or by a fine or by restriction of liberty or by arrest or by a custodial sentence for a term of up to three years.

  1. In the court proceedings, the applicant argued for that his right to a fair trial had been violated – in the case at hand the Victim did not file a complaint with a request to initiate a pre-trial investigation under Paragraph 2 of Article 145 of the Criminal Code (regarding the episode of “intimidating the person by using mental coercion”) and the public prosecutor did not passed a decision to initiate a pre-trial investigation under the 2 May 2014 episode.Article 166 of the CCP provides that a pre-trial investigation is initiated upon receipt of a complaint, statement or report of a criminal offense; in the cases provided for in the CCP, the pre-trial investigation shall be initiated only in the event of a complaint by the victim; each case of the commencement of a pre-trial investigation shall be registered in accordance with the procedure established by the Prosecutor General of the Republic of Lithuania.
  1. On November 27, 2017, the court (the judge Rinaldas Adamonis) ordered a forensic phonoscopic information technology examination. On 19 March 2018, the expert report(the experts Pavel Krasovski, Jelena Devenson, Renata Konarskienė, Giedrius Mozūraitis, Vidmantas Vaitekūnas)of the Lithuanian Forensic Science Center concluded that the applicant’s voice and speech had been tape-recorded in the Recordings. Nonetheless, the forensic examination did not establish that the Recordings contained the voice of the Victim. The applicant testified that the Recordings contained the voices of people unfamiliar to him. The court proceedings lasted too long – two years and nine months – until May 31, 2019.
  1. On May 31, 2019 the applicant was sentenced by judge Rinaldas Adamonis to four months’ restriction of liberty under Paragraph 2 of Article 140 of the Criminal Code, to eight months’ restriction of liberty under Paragraph 2 of Article 140 of the Criminal Code and to one year and three months’ imprisonment under Paragraph 2 of Article 145 of the Criminal Code. The applicant was sentenced to  a final combined sentence to one year and six months’ imprisonment, suspending the execution of the sentence for a period of two years. The court ordered the applicant to pay the sum of EUR 298 to the Victim to compensate for property damage.The court ordered the applicant to pay the sum of EUR 3 000 to the Victim and EUR 1 500 to her juvenile daughter S.V.Š. for non-pecuniary damages. The Court ordered the applicant to pay to the Victim the sum of EUR 2 104 to compensate for her lawyers’ fees incurred.  The applicant was refrained from visiting his private house for a period of 2 years (see pages). As a result of the provisional measure and the sentence imposed, the applicant had been displaced from his private residential house for seven years, until 2021.
  1. On June 20, 2019 the applicant appealed to the Vilnius Regional Court on the ground that the court’s judgment infringed the applicant’s right to a fair trial: violated of the principle of admissibility of the evidence, failed to examine the reliability and sufficiency of the evidence, violated the in dubio pro reo principle, breached the right to respect for the applicant’s private and family life, his home.

On June 19, 2020 the Vilnius Regional Court (the judges Jurgita Mačionytė, Nida Vigelienė, Jurgita Kolyčienė) dismissed the applicant’s appeal against conviction but also overturned the part of the judgment granting the applicant’s daughter, S.V.Š., the sum of EUR 1 500 for non-pecuniary damage. On September 18, 2020 the applicant filed a cassation appeal with the Supreme Court of Lithuania (hereafter “the Supreme Court”). In his cassation appeal, the applicant challenged the judgment of the District Court of Vilnius Region (May 31, 2019) and the ruling of the Vilnius Regional Court (June 19, 2020) that domestic courts violated the applicant’s right to a fair trial, failed to adequately ensure the applicant’s right to respect for his private life and family life, and improperly concluded that the applicant is a member of the family of the Victim.

  1. On March 23, 2021 the Supreme Court adopted a ruling that modified the decisions by the lower courts. The Supreme Court (the judges Alvydas Pikelis, Audronė Kartanienė, Eligijus Gladutis)reduced the final combined sentence to one year and three months’ imprisonment and reduced suspending the execution of the sentence to one year and six months. In paragraph 55 of the ruling (see page), the Supreme Court concluded that a first-instance court and an appellate court did not examine all the facts established in the case and incorrectly found that a negligible bodily harm was caused to a family member of the applicant. Accordingly the Supreme Court modified the legal classification of the two acts indicating that new legal classification of two acts under Paragraph 1 of Article 140 of the Criminal Code was applied.
  1. In paragraph 43 of the ruling (see the page), the Supreme Court concluded that the Recordings were not unlawfully obtained evidence. In paragraph 43 of the ruling, the Supreme Court accepted that the Recordings had been obtained in accordance with the requirements set out for evidence in Article 20 of the CCP. The Supreme Court, in principle, simply endorsed that the lower judge’s ruling to admit this evidence did not infringe the provisions of that Article, nevertheless, the Recordings had been made in the absence of prior authorization by an investigating judge.

In paragraph 40 of the ruling (see page) providing sufficient reasoning that „it is difficult, if not impossible, to collect data with the help of law enforcement,“ the Supreme Court accepted that the lower courts had failed to prove the applicant’s guilt. The Recordings of personal conversations were in effect the only evidence against the applicant in this case, and the applicant’s guilt was only established on the basis of the judge’s ruling to admit this evidence. The applicant asserts that by using in the proceedings the sole evidence obtained in breach of the applicant’s rights the domestic courts infringed the presumption of innocence.

  1. In paragraph 40 of the ruling, the Supreme Court concluded that the lower courts had not infringed the applicant’s right to respect for his private and family life: “Therefore, in such situations, where the victim, in order to protect his rights and legitimate interests, tape-records and submits to law enforcement institution recordings of conversations between himself and a culprit or other data collected by his own means not forbidden by the law, which confirm a criminal act of a culprit, as in the case at hand, that examined a case of violence in domestic environment, this situation is not considered to be a disproportionate infringement of the culprit’s right to respect for his private life protected in Article 8 of the Convention.“ (see page)
  1. In paragraph 55 of the ruling (see page), concluding that the lower courts incorrectly found that a negligible bodily harm have been caused to a family member of the applicant, however in paragraph 40 of the ruling and, at the same time, concluding that in this present case have been examined a case of violence in a family of the applicant (“violence in domestic environment”), the Supreme Court violated the applicant’s right to a fair trial.The applicant concludes that by staying in the applicant’s, who was not a family member of J., private dwelling and making the Recordings of the applicant’s personal conversations without his knowledge, and by submitting these recordings to the police, J. violated the applicant’s right to respect for private and family life, his home. Thus in the case at hand, by concluding that these audio recordings had been obtained without a breach of the provisions of law and  recording personal conversations, submitting them to the police did not infringed the applicant’s right to respect for his private and family life, the Supreme Court failed to ensure the applicant’s right to a fair trial.
  1. Article 407 of the CCP provides that no prosecution shall be commenced if a person commits the act indicated in Paragraph 1 of Article 140 of the Criminal Code. In this case the Supreme Court has held that the lower courts incorrectly found that a negligible bodily harm had been caused to a family member of the applicant. Whereas J. has not been a member of the applicant’s family (she did not live with him in common law/partnership), the pre-trial investigation has been commenced unlawfully in two episodes of the indictment.In this event, the Victim only had the right to bring a case on private charge under the provisions of Articles 407-408 of the CCP. Paragraph 2 of Article 248 of the Criminal Code describes that family members of the perpetrator shall be the parents/adoptive parents, children/adopted children, brothers, sisters and their spouses living together with him, also the spouse of the perpetrator or the person living with him in common law/partnership and parents of the spouse. In the Supreme Court’s decision, finding the applicant guilty, though the pre-trial investigation had been commenced unlawfully in two episodes under Paragraph 1 of Article 140 of the Criminal Code, has not been provided specific reasoning of its own concerning contradictions decisive for the outcome of this case. Accordingly, the applicant asserts that there has been a violation of the presumption of innocence.
  1. Paragraph 2 of the Article 166 of the CCP provides that each case of the commencement of a pre-trial investigation shall be registered in accordance with the procedure established by the Prosecutor General of the Republic of Lithuania. Article 167 of the CCP provides that the will of the victim must be clearly expressed in a separate procedural document – the complaint. If the public prosecutor is conducting the pre-trial investigation, he must address the victim, either by proposing to her that she lodge the necessary complaint or by making a demand (of the prosecutor).

However, in paragraph 31 of the ruling, the Supreme Court acknowledged the fact that complaint of J. did not exist in the case: „… the pre-trial investigation under Paragraph 2 of the Article 145 of the Criminal Code has been commenced and conducted in the absence of the victim’s separate complaint in which she would have made a specific request to charge Mr.Zigmantas Šegžda with the criminal offense under this article.“

Paragraph 3 of the Article 145 of the Criminal Code provides that a person shall be held liable for the acts provided for in paragraphs 1 and 2 of this Article only under a complaint filed by the victim or when pre-trial investigation is initiated upon establishing signs of domestic violence.

Whereas the Supreme Court has held that J. has not been a member of the applicant’s family (there have not been established any “signs of domestic violence”), the requirement to initiate the  pre-trial investigation in the absence of the Victim’s complaint is not applicable/valid  under Paragraph 3 of the Article 167 of the CCP. Accordingly, in the absence of the victim’s complaint in this case the public prosecutor had no authorization to initiate the criminal proceedings.

Nevertheless, in Paragraphs 31and 47 of the ruling, the Supreme Court in contradiction to Paragraph 55 of the ruling of its own (this ruling found that J. was not a family member of the applicant), held that, based on the assumption that in effect there have been established “signs of domestic violence”, there has been a ground to initiate the pre-trial investigation in the absence of the Victim’s complaint under Paragraph 2 of the Article 145 of the Criminal Code (regarding  the episode “intimidating the person by using mental coercion”).

Moreover, the applicant claims that in the Supreme Court’s decision finding an applicant guilty, though the pre-trial investigation has been commenced unlawfully (“the absence of a complaint of J.”; there have not been established “signs of domestic violence”) under Paragraph 2 of Article 145 of the Criminal Code (regarding the episode of “intimidating the person by using mental coercion”), has not been provided sufficient reasoning of its own.

Moreover, the Supreme Court further did not give reasoning of its own on the contradiction set out in between statements in Paragraphs 31and 47 of the ruling (“as in the case at hand, which examined a case of violence in domestic environment”) and in Paragraph 55 of the ruling (“J. was not a family member of the applicant”). Therefore, the applicant considers that, in this part of the case at hand, domestic courts did not satisfy the requirements of fairness as required by the law.

  1. In the appeal to the Vilnius Regional Court, the applicant claimed that neither the police authority, nor the public prosecutor passed the decision on commencement of the pre-trial investigation on the grounds of the “May 2, 2014 episode – throwing a child’s shoe.” The decision on starting criminal prosecution under this episode does not exist in the present case. Therefore the pre-trial investigation was unlawful and the continuation of the criminal proceedings in respect of the episode in question (“throwing a child’s shoe”) violated Paragraph 3 of the Article 166 of the CCP.

Moreover, the Supreme Court ignored this specific, pertinent and important point raised by the applicant in his cassation appeal. The applicant asserts that in the ruling the Supreme Court failed to give any reasons for rejecting the point regarding the absence of the decision on starting of the pre-trial investigation on the grounds of the “May 2, 2014 episode”. Thus in this case domestic courts did not satisfy the requirements of fairness as required by the law.

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