SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27968/03 by Natalja KUZMICKAJA against Lithuania

The European Court of Human Rights ( Second Section), sitting on 10 June 2008 as a Chamber composed of:

Françoise Tulkens , President,

Antonella Mularoni ,

Ireneu Cabral Barreto ,

Danutė Jočienė ,

Dragoljub Popović ,

Nona Tsotsoria ,

Işıl Karakaş , judges,

and Sally Dollé , Section Registrar ,

Having regard to the above application lodged on 25 August 2003 ,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Natalja Kuzmickaja , is a Lithuanian national who was born in 1971 and lives in Vilnius . Sh e was repr esented before the Court by Mr M. Paškevič , a lawyer practising in Vilnius . The Lithuanian Government were represented by their Agent, Ms Elvyra Baltutytė .

A. The circumstances of the case

The applicant was a shareholder in a company which owned a bar where she worked as a bartender.

The police received an anonymous tip that the applicant ’ s bar was selling inaccurate, reduced measures of alcohol. Consequently, on 23 April 2003 police officer AD, accompanied by two other officers, SP and AR, carried out a “test purchase” ( kontrolinis pirkimas ) of drinks at the bar. He posed as a regular private customer, in order to establish whether it was serving the correct quantities of alcohol offered by its menu. Having asked for two shots of 50 grams of brandy, the applicant served AD shots of 40 and 44 grams respectively.

On the same date police officer SP filed a record of an administrative offence, concluding that the applicant had thus defrauded the client (AD) in the amount of 0.96 Lithuanian Litas ( ‘ LTL ’ ; that is about 0.28 euros - ’ EUR ’ ).

On 11 June 2003 the Vilnius City Second District Court found the applicant guilty of the administrative offence of defrauding a customer (Article 163-1 of the Code of Administrative Offences). She was fined LTL 240 (about EUR 69.50). The court had before it by way of evidence, inter alia , the protocols of the offence and the “test purchase”, the testimony of the three police officers AD, SP and AR, and the explanations of the applicant.

On 18 July 2003 the Supreme Administrative Court rejected the applicant ’ s appeal against the lower decision, stating inter alia:

“The ‘ test purchase ’ is not an act of a forceful nature. Human rights are not restricted by such an action, and the information received in the execution thereof does not lose its value as evidence just because the execution of a ‘ test purchase ’ is not regulated [by law].”

B . The relevant domestic law and practice

According to the Government, the Code of Administrative Law Offences at the material time provided, insofar as relevant, as follows:

Article 163 -1 – defrauding buyers and clients

“Defrauding buyers or clients while weighing, thus increasing the fixed prices and tariffs of goods and services, failing to follow the requirements of the price references established in legal acts, or otherwise defrauding buyers or clients while selling them goods and providing services, shall be punished by a fine of 20 to 500 LTL, [ and ] employees of companies, including self-employed natural persons or officials, shall be punished by a fine of 100 to 1,000 LTL ... ”

Article 256 – evidence

“ Evidence in the case of administrative law offences is any factual data on the grounds of which [officials] determine the existence or non-existence of an administrative law offence, determine whether the offender may be held responsible for that violation and any other significant circumstances of the case, for the purposes of guaranteeing the right to a fair trial.

The factual data of the case is determined by the protocol of the administrative law offence, the photographs, the audio and visual records, the testimony of witnesses, the explanations of the aggrieved party and the offender, the protocol of the seizure of the goods and documents, and by any other documentation.”

According to the applicant, Article 314 of the Code on Administrative Law Offences at the material time provided that, if a person failed to pay an administrative fine, it could be levied on the individual ’ s personal property, or replaced by community service. If none of these alternatives were viable, administrative arrest of up to 30 days could be ordered. The place for such an arrest was to be fixed by the police authorities (Article 338 of that Code).

The Law on Police Activities at the material time provided, insofar as relevant, as follows:

Article 5 – police tasks

“ 1. The main tasks of the police shall be as follows:

i . the protection of human rights and freedoms;

...

iv. the prevention of criminal acts and other violations of law;

v. the detection and investigation of criminal acts and other violations of law; ...”

Article 20 – rights of the police officer when detecting or investigating a criminal act

“ 1. While investigating a criminal act or possessing information that such an act is being planned, is being carried out or has been carried out, the police officer shall, in the manner and on a basis established by legal acts, have the right:

i . to inspect the economic and commercial, as well as the financial or other activities of enterprises, agencies and organisations of all types, the state of protection of material valuables and goods, [and] the legality of their acquisition, production, utilisation and sale ...;

...

iii. to ... check measurements ...; to examine, review and seize ... samples of raw materials, products and goods [or] other items...;

iv. to obtain information and explanatory statements concerning criminal acts or violations from managers, officers and other persons materially responsible...;

...

vi. to enter the premises, agencies and organisations of all types during working hours...;

vii. within his [her] competence, to perform operational activities, investigate criminal cases ... and carry out any other activities provided for by laws and other legal acts.”

COMPLAINT S

Under Articles 6 and 13 of the Convention, t he applicant com plained that the proceedings had been unfair in that she had been incited into committing an offence by police officers by way of a “test-purchase” which was not regulated by domestic law. The applicant further complained that the policemen and the courts had wrongly established the facts of the case as she had duly served the requisite quantities of alcohol.

THE LAW

Under Article 6 of the Convention, t he applicant com plained that the proceedings had been unfair in that she had been incited into committing an offence by police officers by way of a “test-purchase” which was not regulated by domestic law. The applicant further complained that the policemen and the courts had wrongly established the facts of the case as she had duly served the requisite quantities of alcohol.

Article 6 of the Convention provides as follows in its relevant part:

“ 1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ”

The applicant also invoked Article 13 of the Convention which guarantees the right to a remedy for a Convention breach. However, the Court considers that the applicant ’ s complaint under this provision essentially amounts to a challenge to the outcome of her case, but this Court is not another level of jurisdiction for such an appeal. It is thus proposed to limit the examination of the case to the foregoing Article 6 § 1.

The Government contended that Article 6 § 1 of the Convention was not applicable in the present case which, in their view, did not involve the determination of a criminal charge (cf. Engel and Others v. the Netherlands , judgment of 8 June 1976, Series A no. 22, § 82). The applicant committed an administrative offence and was fined, but the sanction was more to protect the public from malpractice than to punish the applicant. They submitted that the fine could not be converted into a sentence of imprisonment in default and was minor in nature, amounting to a mere 20% of the average monthly wage at the time (cf. Ziliberberg v. Moldova , no. 61821/00, § 34, 1 February 2005 ). Thus the administrative offence did not extend to the criminal sphere. Consequently, the application was incompatible ratione materiae , within the meaning of Article 35 § 3 of the Convention.

The applicant contested these arguments. She maintained, inter alia , that her conviction was clearly criminal in nature, given the punitive element of the fine, which she submitted could ultimately be converted into a prison sentence in default under Article 314 of the Code of Administrative Law offences (see “The relevant domestic law and practice” above). Moreover, the Government had cited Article 20 of the Law on Police Activities in their observations to the Court concerning the lawful powers of the police to investigate criminal acts (not administrative offences). The fine represented a heavy financial penalty for her, the equivalent of a whole month ’ s salary at the time, the company ’ s balance sheet showing that the bar was highly unprofitable. The concept of a criminal charge should not therefore be limited to offences proscribed by the Criminal Code, but should be extended to administrative law offences, as in the present case.

The Court recalls that the applicability of Article 6 falls to be assessed on the basis of the three criteria outlined in the aforementioned Engel judgment ( §§ 82 and 83; see also Jussila v. Finland [GC], no. 73053/01, § § 30-31, ECHR 2006 ):

- the definition of the offence in domestic law;

- its nature; and

- the nature and degree of severity of the penalty that the person concerned risked incurring .

The Court notes in the present case that the offence of defrauding a customer is proscribed by the Code on Administrative Law Offences, not the Criminal Code. However, the definition in domestic law is not decisive ( Kadubec v. Slovakia , judgment of 2 September 1998, Reports of Judgments and Decisions 1998 ‑ VI, § 51 ). In the Court ’ s view, the nature of the offence clearly had criminal connotations and the fine had deterrent and punitive aspects, particularly in view of the ultimate severity of the possible consequences of a failure to pay, as pointed out by the applicant. The Court concludes, therefore, that the offence of defrauding a customer fell within the criminal sphere and that Article 6 is applicable in the present case.

The Government next submitted that the applicant had had a fair hearing. She had had a full opportunity to challenge the evidence and put forward her case. The courts had made a thorough examination of the evidence as a whole, including the testimony of the police officers involved and the applicant ’ s explanations. The test purchase had been a lawful means of collecting evidence, the regulation and assessment of which was a matter for the domestic authorities. Accordingly, the application was manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention.

The applicant contended that she had been wrongly convicted on the evidence unlawfully obtained by incitement to commit the offence on the part of the police officer AD (cf. Teixeira de Castro v. Portugal , judgment of 9 June 1998, Reports 1998 ‑ IV ). However, police powers in relation to administrative offences were not regulated. Thus there were no guarantees against potential abuse in the implementation of secret methods (cf. mutatis mutandis under Article 8 of the Convention Kopp v. Switzerland , judgment of 25 March 1998, Reports 1998-II, §§ 62-75). The lack of regulation of police activity in this area contravened the fundamental obligations of the Lithuanian Government under Article 1 of the Convention.

Moreover, the applicant alleged that the courts had failed to observe the principle of equality of arms in assessing the evidence which was heavily weighted in favour of the police case. Instead of two other police officers, AD should have used impartial witnesses to the procedure in order to ensure its lawfulness. In addition, she had submitted expert written evidence to the domestic courts that her alcohol measuring glass had complied with the norms, whereas that of the police had not been so certified.

The Court repeats that it is not its task under the Convention to act as a court of appeal, or a so-called court of fourth instance, from the decisions taken by domestic courts. It is the role of the latter to interpret and apply the pertinent rules of procedural and substantive law. Furthermore, it is the domestic courts which are best placed to assess the credibility of witnesses and the relevance of evidence to the issues in the case (see, amongst many authorities, the decision of 5 September 2002 in the case of Timofeyev v. Russia , no. 58263/00). Instead, the Court ’ s function is to examine compliance with Article 6 in the light of the impugned proceedings as a whole.

The Court has examined the applicant ’ s complaint that the police had no lawful authority to proceed with the test purchase because such transactions were not regulated by the domestic law, as mentioned by the Supreme Administrative Court in her case. She contended that the evidence thus obtained should therefore have been declared inadmissible. However, the Court finds that, although the method of unregulated test purchases and the resultant evidence may give rise to certain criticism, it cannot conclude that the lack of detailed regulation for the specific purchase in the present case rendered the police action illegal or arbitrary. Under the Law on Police Activities, the police had general powers to detect, investigate and gather appropriate evidence about criminal acts. Moreover, as the applicant had herself argued, despite the characterisation as an administrative law offence, the charge against her - defrauding a customer – was of an inherently criminal nature. Furthermore, the admissibility of that evidence at the applicant ’ s trial was primarily a matter for the domestic courts to determine.

Nor does the Court find that the applicant was incited into committing the offence in a manner contrary to Article 6 § 1 of the Convention, as understood by its case-law. The Court has condemned certain police acts of incitement in the past when the whole context was illegal, for example police involvement in drug dealing (the aforementioned Teixeira de Castro v . Portugal case ) or the forgery of official documents ( LenkauskienÄ— v. Lithuania , ( dec . ) no. 6788 /0 2 , 20 May 2008), where, but for their authorised undercover roles, the police officers involved would have been guilty of criminal offences themselves. However, in the present case, Officer AD lawfully purchased a drink at the applicant ’ s bar, as any ordinary citizen might have done. It was the applicant who, according to the findings of the domestic courts, then behaved illegally by serving him a smaller quantity than that ordered. Such a police role does not strike the Court as an abusive or arbitrary technique in the investigation of suspected criminal behaviour (cf. mutatis mutandis , Eurofinacom v. France ( dec .), no. 58753/00, ECHR 2004 ‑ VII) .

Moreover, the Court finds the present case distinguishable from other applications involving test purchases conducted by third parties acting at the behest of the police in illegal drug dealing (cf. Vanyan v. Russia , no. 53203/99, 15 December 2005 ; Khudobin v. Russia , no. 59696/00, §§ 128-137, ECHR 2006 ‑ ... (extracts) ). Again, the Court places emphasis on the fact that, in the present case, the police officer ’ s test purchase was a lawful, banal act to which the applicant apparently responded in an illegal manner.

Finally, the Court has examined the applicant ’ s complaint that the domestic courts neglected the principle of equality of arms in her case. However, the Court does not find this claim to be substantiated . The Court reiterates that it was for the domestic courts to assess the admissibility, objectivity and credibility of the evidence in the present case. The applicant had an opportunity to challenge this evidence and the manner in which it was obtained. She was able to complain of incitement and to question the police officers involved and the accuracy of their evidence about the test purchase. Finally, she was afforded the possibility of explaining the circumstances of the case from her point of view.

In the light of the above considerations, the Court concludes that the present case does not disclose any appearance of a violation of Article 6 § 1 of the Convention, and that it should be rejected, therefore, as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4. Accordingly, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.

For these reasons, the Court unanimo usly,

Declares the application inadmissible.

Sally Dollé Françoise Tulkens Registrar President