FOURTH SECTION
\nCASE OF KRY\u017dEVI\u010cIUS v. LITHUANIA
\n(Application no. 67816\/14)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n11 December 2018<\/p>\n
FINAL
\n11\/03\/2019<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Kry\u017eevi\u010dius v. Lithuania,<\/strong><\/p>\n The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:<\/p>\n Ganna Yudkivska, President, Having deliberated in private on 23 October 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 67816\/14) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Lithuanian national, Mr DonatasKry\u017eevi\u010dius (\u201cthe applicant\u201d), on 10 October 2014.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr S. Avi\u017ea, a lawyer practising in Vilnius. The Lithuanian Government (\u201cthe Government\u201d) were represented by their Agent, Ms K. Bubnyt\u0117-\u0160irmen\u0117.<\/p>\n 3.\u00a0\u00a0The applicant alleged that he had been compelled to testify against his wife, contrary to Article 6 \u00a7 1 and Article 8 of the Convention. He also alleged that he had not been able to appeal to a higher court against thefine given to him for refusing to testify, contrary to Article 2 of Protocol No.\u00a07 to the Convention.<\/p>\n 4.\u00a0\u00a0On 11 October 2017 the application was communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1983 and lives in Palanga.<\/p>\n 6.\u00a0\u00a0On 22 November 2013 the director of company M. lodged a complaint with the Klaip\u0117da police, alleging that the applicant\u2019s wife, who had been providing accounting services to company M., had unlawfully transferred large amounts of money from that company\u2019s bank account to other companies. The directorclaimed that company M. had not obtained any services from those companies and that he had not pre-approved those transfers.<\/p>\n 7.\u00a0\u00a0On 25 November 2013 the Klaip\u0117da police opened a pre-trial investigation into allegations of embezzlement and falsification of documents, under Article 184 \u00a7 1 and Article 300 \u00a7 1 of the Criminal Code.The director of company M. was questioned as a witness and stated that in May 2012 he had entered into a contract for accounting services with company A.,of which the applicant was the director. In accordance with that contract, the applicant\u2019s wifehad begun providing accounting services to company M. In the beginning hehad been happy with her work, but later he had noticed certain bank transfers which appeared suspicious to him. One such suspicious transferhad been a payment of 120,000 Lithuanian litai (LTL) (approximately 34,750 euros (EUR)) to company A.<\/p>\n 8.\u00a0\u00a0On 4 December 2013the applicant\u2019s wife was granted the status of a \u201cspecial witness\u201d in the investigation;in line with the Code of Criminal Procedure (hereinafter \u201cthe CCP\u201d), she was questioned about her own possibly criminal activity and was exempted from liability for refusing to testify or giving false testimony (see paragraph27 below). She stated that all the transfers from company M.\u2019s bank account which she had carried out had been pre-approved by its director.She also stated that the transfer to company A. had been made by mistake, and the entire amount had been returned to company M. within a week.<\/p>\n 9.\u00a0\u00a0On 9 April 2014 the applicant was called as a witness. He refused to give testimony in relation to his wife\u2019s actions and the payment of LTL\u00a0120,000 received by company A. from company M.<\/p>\n 10.\u00a0\u00a0On 26 May 2014 a prosecutor from the Klaip\u0117da regional prosecutor\u2019s office gave the applicant a fine of LTL\u00a0650\u00a0(approximately EUR 188) for refusing to testify, as provided for in Article 163 of the CCP (see paragraphs 31 and 32below).<\/p>\n 11.\u00a0\u00a0The applicant lodged a complaint with a senior prosecutor. He argued that the status of a \u201cspecial witness\u201d was similar to that of a suspect, and therefore he should not have been compelled to testify against his wife, who had such status. He relied on Article 31 of the Constitution, which prohibits compelling a person to testify against his or her family members (see paragraph 18 below).<\/p>\n 12.\u00a0\u00a0On 9 June 2014 a senior prosecutor from the Klaip\u0117da regional prosecutor\u2019s office dismissed the applicant\u2019s complaint on the grounds that, in accordance with the CCP, only the family members of a suspect or an accused were exempt from liability for refusing to testify, but the CCP did not extend such a privilege to the family members of a \u201cspecial witness\u201d (see paragraph19 below).<\/p>\n 13.\u00a0\u00a0The applicant lodged a complaint with the Klaip\u0117da District Court, raising essentially the same arguments as those which he had raised before (see paragraph 11 above). He also asked the court to refer the matter to the Constitutional Court for a ruling on whether the CCP provisions which exempted the family members of a suspect or an accused from liability for refusing to testify, but not the family members of a \u201cspecial witness\u201d, complied with the Constitution.<\/p>\n 14.\u00a0\u00a0On 9 July 2014 the Klaip\u0117da District Court dismissed the applicant\u2019s complaint and upheld the reasoning in the prosecutor\u2019s decision (see paragraph 12 above). It stated that the applicant\u2019s right not to testify against his wife would have been breached only if his wife had had the status of a suspect and not that of a witness. It also consideredthat the applicant\u2019s request to refer the matter to the Constitutional Court was \u201csubjective and legally unfounded\u201d.That decision was final and not open to any further appeal.<\/p>\n 15.\u00a0\u00a0Subsequently, the applicant lodged an appeal with the Klaip\u0117da Regional Court, but on 22 July 2014 that court refused to examine it, on the grounds that there was no provision for such an appeal in law. The applicant then lodged an application to reopen the proceedings with the Supreme Court, but on 23 September 2014 the court ruled that it had no authority to reopen proceedings concerning procedural penaltiesimposed underArticle\u00a0163 of the CCP.<\/p>\n 16.\u00a0\u00a0On 11 September 2014 the applicant was questioned as a witness in the pre-trial investigation. He stated that he was the director of company A., which provided accounting services to other companies. His wife worked as the financial director of company A., and from May to November 2012 she had provided accounting services to company M. The applicant stated that he had not knownhow or why LTL 120,000 had been transferred to the bank account of company A. He knew only that that entire amount had been returned to company M. within a week,in atransfer carried out by his wife.<\/p>\n 17.\u00a0\u00a0On 22 September 2014 the Klaip\u0117da regional prosecutor\u2019s office discontinued the pre-trial investigation on the grounds that no criminal offences had been committed. It appears that that decision was not appealed against and became final.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n A.\u00a0\u00a0Right to refuse to testify against one\u2019s family members and close relatives<\/strong><\/p>\n 18.\u00a0\u00a0The relevant part of Article 31 of the Constitution provides:<\/p>\n \u201cIt shall be prohibited to compel anyone to give evidence against himself or herself, or his or her family members or close relatives.\u201d<\/p>\n 19.\u00a0\u00a0Article 82 \u00a7 2 of the Code of Criminal Procedure (hereinafter \u201cthe CCP\u201d) provides:<\/p>\n \u201cThe family members or close relatives of a suspect or an accused can refuse to testify or to answer certain questions (neduotiparodym\u0173arbaneatsakyti \u012f kai kuriuospateiktusklausimus).\u201d<\/p>\n 20.\u00a0\u00a0Article 38 of the CCP defines family members as: (1) parents, adoptive parents, children, adopted children, siblings and their spouses, if theylive with the individual in question; (2)\u00a0a spouse, live-in partner, or person who is engaged to be marriedto the individual in question; (3)\u00a0a spouse\u2019s parents; (4)former spouses.<\/p>\n 21.\u00a0\u00a0Article 248 \u00a7 1 of the Criminal Code defines close relatives as parents, adoptive parents, children, adopted children, siblings, grandparents, and grandchildren.<\/p>\n 22.\u00a0\u00a0In its ruling of 19 September 2000, the Constitutional Court held:<\/p>\n \u201cArticle 31 of the Constitution contains a provision setting out that individuals cannot be compelled to give evidence against themselves or against their family members or close relatives. Criminal law allows a witness to refuse to testify on these grounds. However, in cases where such individuals [nonetheless choose to testify and] commit perjury, being aware that they have the right to refuse to testify, they may be held criminally liable.\u201d<\/p>\n 23.\u00a0\u00a0In its ruling of 4 June 2012, the Constitutional Court held:<\/p>\n \u201cArticle 31 of the Constitution enshrines the conceptsof \u2018family members\u2019 and \u2018close relatives\u2019expressisverbis. Even though these concepts are not identical, they may include the same persons.\u2018Close relatives\u2019 include people who are biologically related to each other to a certain degree, whereas \u2018family members\u2019 may include people who are biologically related to each other and people who are not thus related, such as spouses.<\/p>\n The [act of] striving for an open, just and harmonious civil society and a State under the rule of law, which is enshrined in the Preamble of the Constitution, as well as the prohibition on compellinga person to give evidence against himself or herself, or against his or her family members or close relatives, which is enshrined in Article\u00a031 [of the Constitution]expressisverbis, show that close relationsare very valuable and protected.\u201d<\/p>\n 24.\u00a0\u00a0In its ruling of 12 April 2013, the Constitutional Court held:<\/p>\n \u201cThe guarantee provided for in Article 31 of the Constitution means that an individual may refuse to give evidence on the basis of which he or she, or his or her family member or close relative could incur criminal liability, [or] another type of legal liability if a possible sanction would amount to a criminal punishment owing to its nature and severity. However, the legal regulation established in Article\u00a031 of the Constitution may not be construed as meaning that an individual may not voluntarily (that is, without anybody compelling him or her to do so) give evidence against himself or herself, or his or her family members or close relatives…\u201d<\/p>\n 25.\u00a0\u00a0In its ruling of 26 June 2018 in criminal case no. 2K-225-689\/2018, the Supreme Court held:<\/p>\n \u201cArticle 82 \u00a7 2 of the CCP provides that the family members and close relatives of a suspect or an accused may refuse to testify or to answer certain questions. This provision of the CCP implements the prohibition enshrined in Article 31 of the Constitution on being compelled to testify against oneself or one\u2019s family members or close relatives. [That prohibition] means that there cannot be such legal regulation as would allow law-enforcement officials to require an individual to testify against himself or herself, or his or her family members or close relatives, and to apply sanctions in respect of an individualwhere he or she fails to comply with such a requirement. The prohibition enshrined in the Constitution is directed at State officials and does not regulate the actions of individuals who are being questioned.However, as already stated, that provision guarantees to the latter the right not to testify against themselves, their family members or close relatives. Such a right for individuals who are being questioned is also provided for in Article 82 \u00a7 2 of the CCP.<\/p>\n Although the right of the family members and close relatives of a suspect or an accused to refuse to testify or to answer certain questions is included in the section of the CCP entitled \u201cWitnesses, experts and specialists\u201d, in accordance with the prohibition enshrined in Article 31 of the Constitution, it must be concluded that such a right is granted not only to witnesses but also to other persons who are questioned in the course of criminal proceedings, irrespective of their procedural status \u2013 victims, suspects, accused. Article 45 of the CCP provides that a judge, a prosecutor or a pre-trial investigation officer must explain to those involved in criminal proceedings their procedural rights and ensure that they are able to avail themselves of those rights. Consequently, if an individual has to be questioned about his or her family members or close relatives, the right to refuse to testify or to answer certain questions must be explained to him or her, regardless of whether such an obligation is explicitly provided for in the CCP Article which regulates questioning at a particular stage of criminal proceedings.\u201d<\/p>\n B.\u00a0\u00a0Status of a \u201cspecial witness\u201d<\/strong><\/p>\n 26.\u00a0\u00a0Until 1 September 2007 Article 80 \u00a7 1 of the CCP provided that persons who might give testimony about their own possibly criminal activity could not be questioned as witnesses.<\/p>\n 27.\u00a0\u00a0An amendment to the relevant parts of the CCP was adopted on 28\u00a0June 2007 and entered into force on 1 September 2007. Since that date, Article 80 \u00a7 1 of the CCP has provided that persons who might give testimony about their own possibly criminal activity cannot be questioned as witnesses unless they agree to be thus questioned. Article\u00a082\u00a0\u00a7\u00a03 of the CCP provides that when such persons are questioned, they have the right to legal representation and to ask that they be granted status as a suspect, and they are exempt from liability for refusing to testify or giving false testimony.<\/p>\n 28.\u00a0\u00a0An explanatory report of 5 May 2007 accompanying thedraft of the above-mentioned amendment to the CCP stated:<\/p>\n \u201cArticle 80 of the CCP provides an exception allowing a person who might testify about his or her own possibly criminal activity to be questioned as a witness. Such an amendment is proposed because, in the course of pre-trial investigations,situations arise when, even after all procedural possibilitieshave been exhausted,the evidence is insufficient to have a personofficially recognised as a suspect, but it is nonetheless necessary to question him or her about circumstances relevant to the investigation. However, such a person cannot be questioned [as a witness] in accordance with the provisions of the Constitution and Article 80 of the CCP currently in force. The person\u2019s agreement to being questioned in this way would express his or her procedural willingness to cooperate with the authorities investigating his or her possibly criminal activity. Furthermore, such provisions would allow persons who have immunity from criminal prosecution in accordance with international law to be questioned, as well as persons in respect of whom the law requirespermission to be obtained from a competent institution (such as members of parliament or judges). The particularities related to questioning such persons are provided for in Article 82 \u00a7 3 of the CCP.\u201d<\/p>\n 29.\u00a0\u00a0The relevant parts of recommendations on questioning a witness in line with Article\u00a080\u00a0\u00a7\u00a01 and Article\u00a082\u00a0\u00a7\u00a03 of the Criminal Code, adopted by the Prosecutor General on 9 January 2008 and amended on 4\u00a0September\u00a02011, provide:<\/p>\n \u201c1. Article 80 \u00a7 1 of the CCP allows a person who might give testimony about his or her own possibly criminal activity to be questioned as a witness during a pre-trial investigation, with that person\u2019s consent. This provision of the CCP has created a new type of witness who does not have a separate procedural title. In these recommendations, such a witness is referred to as a special witness.<\/p>\n 2. Article 80 \u00a7 1 of the CCP constitutes an exception to the prohibition on persons who might testify about their own possibly criminal activitybeing questioned as witnesses, and it has to be applied in especially rare cases.<\/p>\n …<\/p>\n 4. The purpose of this provision is to obtain… factual information which is essential for the investigation, so that the evidentiary value of that information is ensured without the person\u2019s rights being breachedand further procedural decisions may be adopted.<\/p>\n 5. The source of such factual information is the person whose procedural status is between that of a witness who has no [procedural interest in the outcome of the case] and that of a suspect.<\/p>\n …<\/p>\n 7. A person may be questioned as a special witness if there is evidence that there has possibly been criminal activity and that the acts in question have possibly been committed by a specific person, but there is insufficient evidence to grant that person the status of a suspect.<\/p>\n 8. If there is sufficient evidence to believe that there has been criminal activity and that the relevant acts have been committed by a specific person (irrespective of whether that person has already been questioned), the provisions of Article 80 \u00a7 1 and Article 82 \u00a7 3 of the CCP cannot be applied. In such situations, the prohibition on questioning such a person as a witness is applicable, and he or she may only be granted the status of a suspect.<\/p>\n …<\/p>\n 10. The prosecutor adopts a decision to question a person as a special witness either at that person\u2019s written request or with his consent [to be questioned in this way], or when the prosecutor determines … that the conditions set out in Article 80 of the CCP for questioning the person about his or her own possibly criminal activity are present.<\/p>\n …<\/p>\n 12. The prosecutor\u2019s decision to question a person as a special witness is presented to that person so that he or she may sign it. That decision must explain the rights, duties and liability of a special witness. A person may be questioned as a special witness only with his or her consent. Consent [to be questioned in this way] must be presented in writing and confirmed by the person\u2019s signature. If the person does not agree to be questioned about his or her own possibly criminal activity, that must likewise be indicated in writing and confirmed by his or her signature.<\/p>\n …<\/p>\n 15. … A special witness\u2019s request to be granted the status of a suspect does not bind the prosecutor … The prosecutor may grant such a person the status of a suspect, or order a pre-trial investigation officer to do so, only if there is sufficient evidence to establish a minimal likelihood that there has been criminal activity and that the acts in question have been committed by the person who has [asked to be recognised as a suspect] …<\/p>\n 16. If, during the questioning of a special witness,factual information is obtained [indicating] that there has been criminal activity and that the relevant acts have been committed by the person who is being questioned, after the questioning a decision must be made as to whether to grant that person the status of a suspect.<\/p>\n 17. When new relevant information is obtained … the person who has been questioned as a special witness may be questioned as an [ordinary] witness, or he or she may be granted the status of a suspect …<\/p>\n …<\/p>\n 20. Procedural penaltiesmay be ordered and other investigative measures may be carried out in respect of a special witness in the same way as with an [ordinary] witness or any other persons, subject to the exceptions provided for in Article\u00a083\u00a0\u00a7\u00a7\u00a02 and 4 of the CCP … A special witness cannot be granted anonymity …<\/p>\n 21. [A special witness] cannot be held liable under Article 83 \u00a7\u00a7 2 and 4, that is for failing to appear when summoned by a pre-trial investigation officer, a prosecutor or a court, or for refusing to testify;procedural penalties provided for in Article 163 of the CCP cannot be applied in respect of him or her. [A special witness] cannot be held liable for giving false testimony under Article 235 of the CCP, so he or she is not warned about such liability before being questioned. Such a person can be brought [before a pre-trial investigation officer, a prosecutor or a court] under Article 142 of the CCP. [A special witness] cannot be subjected to remand measures (kardomosios priemon\u0117s) and he or she cannot be compelled to testify against himself or herself; however,he or she can be given procedural penalties provided for in Article 163 of the CCP for failing to comply with the lawful orders of a pre-trial investigation officer, a prosecutor, a pre-trial investigation judge or a court, or for interfering with the investigation or examination of a criminal case.<\/p>\n 22. The above-mentioned legal provisions should be applied in cases in which a pre-trial investigation is carried out in order to determine whether there has been criminal activity, as well as in cases in which the circumstances of the criminal activity under investigation are not sufficiently clear \u2013 for example, possible violations of road traffic safety or vehicle use regulations; violations committed by managers or other authorised persons in enterprises, institutions and organisations; cases of abuse of office or failure to carry out official duties; breaches of work safety regulations; cases of medical negligence; as well as cases in which the possible perpetrators have not been identified. The above-mentioned legal provisions may also be applied when it is necessary to question persons whose criminal prosecution requires that permission be obtained from a competent institution\u2013 State officers and civil servants in respect of whom the law provides limitations as regards opening a pre-trial investigation, and so on.\u201d<\/p>\n 30.\u00a0\u00a0In its ruling of 31 January 2017 in criminal case no.\u00a02K\u201155\u2011699\/2017, relying on its previous case-law (the ruling of 23\u00a0June\u00a02009 in criminal case no. 2K-255\/2009 and the ruling of 16\u00a0June\u00a02015 in criminal case no. 2K-348-303\/2015), the Supreme Court held:<\/p>\n \u201cArticle 80 \u00a7 1 of the CCP provides that persons who are to give testimony about their own possibly criminal activity cannot be questioned as witnesses unless they agree to be thus questioned, in line with the conditions provided for in Article 82 \u00a7\u00a03 of the CCP … In accordance with the emerging case-law of the [Supreme Court], … the prohibition on compelling someone to testify against himself or herself will be violated if a person who is questioned as a witness is in fact suspected of having committed a criminal offence but for some reason has not been recognised as a suspect in line with the CCP. Testimony which has been obtained in violation of Article 80 \u00a7 1 of the CCP cannot be accepted as evidence … under the CCP. Whether submitting questions to a witness can be regarded as compellinga person to testify against himself or herselfmust be decided in accordance with the circumstances of each case.\u201d<\/p>\n C.\u00a0\u00a0Liability of witnesses<\/strong><\/p>\n 1.\u00a0\u00a0Liability for refusing to testify without good reason<\/em><\/p>\n 31.\u00a0\u00a0Article 83 \u00a7 2 of the CCP provides that a witness who, without good reason, does not appear when summoned by a pre-trial investigation officer, prosecutor or court, or refuses to testify without lawful grounds, can be punished in accordance with Article 163 of the CCP. The latter provision establishes that persons who fail to comply with the lawful orders of a pre\u2011trial investigation officer, a prosecutor, a pre-trial investigation judge or a court can be punished by a fine or detention of up to one month.<\/p>\n 32.\u00a0\u00a0In line with Article 163 \u00a7\u00a7 1 and 2 of the CCP, a fine may be ordered by a prosecutor, a pre-trial investigation judge or a court. At the material time, the maximum fine which could be ordered under that provision was LTL\u00a03,900 (approximately EUR\u00a01,130).<\/p>\n 33.\u00a0\u00a0In line with Article 163 \u00a7 2 of the CCP, detention may be ordered by a pre-trial investigation judge or a court, eitheron their own initiative or at the request of a prosecutor.<\/p>\n
\nPaulo Pinto de Albuquerque,
\nFarisVehabovi\u0107,
\nEgidijus K\u016bris,
\nCarlo Ranzoni,
\nGeorges Ravarani,
\nP\u00e9terPaczolay, judges,
\nand MarialenaTsirli, Section Registrar,<\/p>\n