SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 6788/02 by JÅ«ratÄ— LENKAUSKIENÄ– against Lithuania

The European Court of Human Rights (Second Section), sitting on 20 May 2008 as a Chamber composed of:

Françoise Tulkens , President, Antonella Mularoni , Ireneu Cabral Barreto , Vladimiro Zagrebelsky , Dragoljub Popović , András Sajó , judges, Ineta Ziemele , judge appointed to sit in respect of Lithuania , and Sally Dollé, Section Registrar ,

Having regard to the above application lodged on 1 February 2002,

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

Having regard to the decision on admissibility of 3 November 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, JÅ«ratÄ— LenkauskienÄ—, is a Lithuanian national, who was born in 1957 and lives in Kaunas . She ran a business supplying brokerage services.

The applicant was represented before the Court by Mr G. Zavtrakovas, a lawyer practising in Kaunas . The Lithuanian Government (“the Government”) were represented by their Agent, Ms Elvyra Baltutytė.

The facts of the case, as submitted by the parties , may be summarised as follows.

I. THE CIRCUMSTANCES OF THE CASE

On 29 December 2000 the Kaunas City District Court convicted the applicant of co nspiracy in forging an important official document (Articles 18 § 6 and 207 § 2 of the Criminal Code as then in force ). The court found inter alia that the applicant had agreed with SK, a police officer acting under cover pursuant to a “ c riminal c onduct simulation m odel” , in accordance with the Operational Activities Act 1997, to falsify a number of stamps on SK ’ s passport for a fee of 1, 2 00 Lithuanian lita s (“LTL”; about 350 euros [“EUR”]) . The simulation model, authorised by the Deputy Prosecutor General on the basis of information obtained by the police, had mentioned that the applicant was engaged in forging passports and visas and organising travel to the United States of America, for specific fees. It therefore authorised SK, over a period of a year, to obtain such forged documents from the applicant and her accomplices.

The District Court held that the applicant had conspir ed with other people, the co-defendants RB and GD , in this matter . The court examined the simulation model and its application in detail and questioned SK, who had also been questioned by defence counsel. Moreover, the court had taken testimony from the applicant and her co-defendants and admitted the secretly recorded conversations between SK, RB and the applicant, the legality of which had not been challenged by her. The applicant was sentenced to eighteen months ’ imprisonment and fines in a total of LTL 2,500 (about EUR 724).

O n 3 April 2001 the Kaunas Regional Court rejected the applicant ’ s appeal , holding inter alia that the lower court had objectively and thoroughly assessed the case, and that there was no proof that she had been incited to commit the offence.

On 8 May 2001 t he applicant submitted a cassation appeal, claiming inter alia that she had not committed a crime but had been provoked by SK. She asserted that SK had taken the initiative in telephoning her 15 times over a few weeks in early 1999 and exerting psychological pressure. As a result, the applicant had met him twice, but there was nothing in their conversations (secretly recorded by SK) to prove her criminal involvement. Newspaper articles, however, alleged that she was part of a group of people who forged visas, and had sentenced her before the trial was over.

On 26 June 2001 the Supreme Court declared the cassation appeal by the applicant inadmissible in a decision which included the following passage:

“ O nly the factual circumstances established by the courts from the evidence are contested in the cassation appeal . It must be noted that the applicant, while alleging that she did not commit the crime she was sentenced for, does not request that the case be discontinu ed, but that it be return ed for examination to the court of first instance, alleging that the pre-trial investigation was not thorough. Her allegation is merely a declaration as the appeal does not elaborate what specific circumstances were not examined by the court. The cassation appeal in essence is repeating the appeal claim, where it was also stated that the conclusions in the judgment d id not correspond to the factual circumstances in the case. The submissions presented in this claim were examined in detail by the court of appellate instance and a reasoned decision was adopted.”

On 27 June 2001 the applicant submitted a further cassation appeal on the same grounds. On 16 October 2001 that appeal was again declared inadmissible by the Supreme Court on the same basis as before. In both cassation appeals the Supreme Court had heard the prosecution and defence before reaching its decision.

It appears that at some point the applicant ’ s prison sentence was amnestied, although she did pay the fines.

II. RELEVANT DOMESTIC LAW A ND PRACTICE , AND RELEVANT INTERNATIONAL LAW

The relevant domestic law and practice, as well as the relevant international law, concerning police undercover activities and criminal conduct simulation models, ha ve been summarised in the judgment of 5 February 2008 in the case of Ra manauskas v. Lithuania ( [GC] no. 74420/01, §§ 31-37). Of particular note in that judgment is the description of the prosecuting authorities ’ power to authorise criminal conduct simulation models, following an application by the police under the Operational Activities Act 1997 ( ibid . § 32). The scope of this power has been developed by the case-law of the national courts, especially a Constitutional Court decision of 8 May 2002, in order to prohibit provocation or incitement by the police to commit an offence ( ibid § 34).

The r elevant provisions of the Code of Criminal Procedure ( Baud žiamojo proceso kodeksas ) read as follows :

Article 418 -1 (in force until 30 April 2003)

“The judgment or decision in force can be appealed against and examined at the cassation instance, if:

Article 382 (in force until 30 April 2003)

“The substantive bre a ches of the criminal procedur al law are such violat ions of the requirements of the Code [ of Criminal P rocedure] which ha ve impugned or restricted the rights of the parties to the case , or ha ve in any other manner precluded the court from examining the case thoroughly , and ha ve interfered with the adoption of a legitimate and well-founded decision.

The judgment shall be annulled if:

Article 427 (in force until 30 April 2003)

“The persons listed in article 425 of this code have a right to be acquainted with the cassation appeal and the other material s in the case before the court.

The court of cassation examines th e cases at a public hearing, exc e p t the cases foreseen in Article 16 of this C ode.

On the appointed date , the President of the P anel opens the court hearing and announces which case, whose cassation appeal and against which court decision or judgment , will be examined. Further , the President verifies who appears at the hearing and if the perso ns named in A rticle 425 of this C ode were informed about the hearing date. T he President then announces the composition of the court and asks the persons present if there are any requests for the removal of any judges. Such requests are determined pursuant to the procedure set out in A rticles 29- 32 of this C ode.

At the start of the hearing in a case , a judge o n the P anel can point out that the cassation appeal does not raise any grounds for cassation , as set out in A rticle 418 (1) of this C ode, and thus the cassation appeal should be left un examined. The President of the P anel then asks the opinion of the persons present at the hearing. The reafter, the court leaves the room to deliberat e, where upon [the court] can decide to adopt the decision to leave the appeal unexamined and to discontinue the judicial process. Such a decision is announced to the persons present at the hearing.

If a t the start of the hearing there were no grounds to leav e the appeal unexamined , or if during the deliberations [the court] decided to continue with the hearing, the cassation appeal is then examined in essence.

The President of t he P anel asks the persons present if there are any requests. The court adopts a decision regarding th o se requests.

One of the judges announces the essence of the case and the content of the judgment or decision and of the cassation appeal.

After th is announcement by a judge, the public prosecutor, counsel and the persons convicted or acquitted, their legal representative s , the victim and his representative s have a right to make oral submissions . First to speak is the appellant . After the explanations of the parties to the case, the court gives the floor to the convicted or acquitted person , their counsel or legal representative s .

Having examined the case, the court leaves the room to deliberat e . After adopting its decision , the court returns to the hearing room and the President of the P anel or another judge announces the resolution reached and explains the reasons . The reasoned decision is written up and signed by all members of the P anel not later than 7 days after the adoption of the decision.

If, after the case had been examined by the cassation court, the convicted person has to be released from detention, the decision shall be written and signed on the same day.

The protocol shall be written at the court hearing.”

COMPLAINTS

Under Article 6 of the Convention , the applicant complained that she had been the victim of incitement by the State authorities, acting through SK, and that she had thus been unfairly convicted of forgery. She claimed that the evidence against her had been unlawful and should not have been admitted at trial, and that the courts had not been impartial. In her various submissions, the applicant briefly referred to an allegedly negative media campaign against her. The applicant further complained that the Supreme Court had not examined her cassation appeals, disregarding her allegations of provocation set out in her petitions of 8 May and 27 June 2001.

THE LAW

The applicant complained that she had been incited to commit an offence by SK, a police officer acting under cover, an offence which she would never have committed without his intervention. She also complained of the procedure and outcome of her case before the domestic courts, as well as a negative media campaign. She invoked Article 6 of the Convention, which provides, insofar as relevant, as follows:

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

The Government primarily contended that the applicant had failed to exhaust domestic remedies in due and proper form, as required by Article 35 § 1 of the Convention. They submitted that she had raised no points of law in her cassation appeals, but only factual matters which could not be reviewed in cassation (Articles 382 § 1 and 418-1 of the Code of Criminal Procedure applicable at the material time). In particular, she had not contested the lawfulness of the authorisation of the c riminal c onduct simulation m odel . Her cassation appeals had thus been dismissed, but only after hearing the prosecutor and the explanations of the applicant and her counsel.

The Government pointed out that a cassation request is a special form of appeal limited to points of law, after two lower jurisdictions have fully examined the case in all its aspects. Consequently, a cassation appeal could only be based on questions related to the application and interpretation of law and not on factual arguments. They contended that a mere allegation that the applicant had been provoked into committing an offence did not constitute a substantial question of law requiring an examination in cassation. The Supreme Court had twice conducted a thorough examination of the applicant ’ s cassation request but found it to be inadmissible.

The applicant disagreed, stating that the authorities had provoked her into committing the offence, and that she had thereafter been denied the right to have her complaints examined by the Supreme Court. She concluded that Article 6 of the Convention had thus been breached in her case.

When declaring the case admissible on 3 November 2005, the Court had joined this preliminary objection to the merits of the application. However, now that the Court has had a full opportunity to examine the case, it has become persuaded by the Government ’ s argument that the applicant failed to exhaust her cassation appeal effectively, in due and proper form. Her cassation petitions to the Supreme Court challenged the factual basis of her conviction and raised no clear legal issues as to the use of criminal conduct simulation models, or reliance on incitement or provocation by undercover agents. She was therefore solely responsible for the limited examination of her case by the Supreme Court and, consequently, cannot complain of a denial of access to court. The applicant followed a similar factual approach in her application to the Court and her subsequent submissions.

Pursuant to Article 35 § 4 of the Convention, the Court may declare an application inadmissible at any stage of the proceedings, even at the post-admissibility stage. Accordingly, the Court now concludes that the applicant failed to exhaust domestic remedies and that the case must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court , by a majority ,

Declares the application inadmissible.

Sally Dollé Françoise Tulkens Registrar President