Communicated on 9 December 2020 Published on 11 January 2021

SECOND SECTION

Applications nos. 28186/19 and 29092/19 Vilandas JASUITIS against Lithuania and Darius Å imaitis against Lithuania lodged on 22 May 2019 and 27 May 2019 respectively

SUBJECT MATTER OF THE CASE

The applicants had hired a number of women to work as models. They were supposed to communicate with the clients over the Internet. The applicants signed contracts with the women and provided some of them with computers, video cameras and other equipment, which they had been lacking. All the women worked in Lithuania, some from their own apartments. The applicants paid the women money in cash or by bank transfer.

On 16 January 2017 the Å iauliai Regional Court found the applicants guilty of trafficking in human beings (Article 147 § 2 of the Criminal Code), of exploitation for forced labour or services (Article 147 1 § 1), of use of a person ’ s forced labour or services (Article 147 2 § 1). The applicants were also found guilty of several other criminal acts, such as forgery of means of payment; the applicants do not contest before the Court the lawfulness of those convictions.

By a ruling of 22 February 2018 the Court of Appeal acquitted the applicants of trafficking in human beings, of exploitation for forced labour or services, and of use of a person ’ s forced labour or services. The Court of Appeal held that there was no evidence that the applicants would have searched for women who were vulnerable because of their social position, that the applicants had disclosed, during their first conversation with the women, the nature of their future job, that the women had not received any threats when they decided to discontinue such work or had been discouraged from leaving that job. Moreover, none of the victims had testified that the applicants would have controlled their actions or daily lives. The applicants also had no keys from the victims ’ apartments and almost never visited the victims. The Court of Appeal also held that certain character traits, such as naivety, of the victims, which had been pointed out by the first instance court, was not sufficient to constitute vulnerability. The Court of Appeal further held that there was no evidence to hold that the applicants had created such a situation where the victims had no other choice but to give in to the applicants ’ will. Referring to the Council of Europe Convention on Action against Trafficking in Human Beings, the Court of Appeal underlined that the essential object of the crime of trafficking in human beings was person ’ s freedom. In the present case, however, the victims ’ mental or physical freedom to choose to take up that job had not been breached.

By a final ruling of 27 November 2018 the Supreme Court overturned the appellate court ’ s verdict, found the applicants guilty of trafficking in human beings (Article 147 § 2 of the Criminal Code), and sentenced them to five years of imprisonment. The Supreme Court referred to the first instance court ’ s finding that the victims had been of young age, with “little work experience”, “gullible” and “lightheaded”, wishing to make “easy money”, which made them vulnerable. The Supreme Court also noted that although the applicants did not exercise control over the victims or did not restrict their choice how to behave, they nevertheless suggested to the victims to work more intensively, to make more money, which, for the Supreme Court, still showed that the applicants exercised certain control over the victims ’ freedom of choice. Lastly, the Supreme Court considered the fact that, having understood the nature of the job, four of the victims refused to take such a job was irrelevant, since the crime of trafficking in human beings was considered to have taken place from the moment the perpetrator took the actions, but not from the moment when harm materialised.

At the same time, the Supreme Court upheld the applicants ’ acquittal of exploitation for forced labour or services (Article 147 1 § 1) and of use of a person ’ s forced labour or services (Article 147 2 § 1).

Under Article 7 § 1 of the Convention the applicants complain that their conviction for trafficking in human beings was not foreseeable. They argue that the Supreme Court had interpreted Article 147 § 2 of the Criminal Code, which clearly frames what trafficking in human beings is, in an expansive and unforeseeable manner. The applicants argue, firstly, that the Supreme Court erred as to the question what is victim ’ s dependency and vulnerability. Secondly, it had erred in interpreting the notion of deceit. Thirdly, the Supreme Court was wrong in its interpretation of notions of control over the victims ’ freedom. On this last point the applicants underline that, under Article 147 § 2, the victim must be exploited under conditions of slavery or similar to slavery, the element which had been plainly absent in the present case, and the element which was not reflected on in any of the court decisions convicting the applicants.

QUESTIONS TO THE PARTIES

Did the act of which the applicants were convicted constitute a criminal offence of trafficking in human beings, under Article 147 § 2 of the Criminal Code, at the time when it was committed, as envisaged by Article 7 of the Convention (see Žaja v. Croatia , no. 37462/09, §§ 90-92, 4 October 2016, and the case-law cited therein)?

Was the Å iauliai Regional Court ’ s and the Supreme Court ’ s interpretation of the crime of trafficking in human beings, so as to cover the applicants ’ acts (see Siliadin v. France , no. 73316/01, §§ 121-24, ECHR 2005 ‑ VII, Rantsev v. Cyprus and Russia , no. 25965/04, §§ 146-51 and 272-82, ECHR 2010 (extracts), and S.M. v. Croatia [GC], no. 60561/14, §§ 276-303, 25 June 2020 ) , compatible with Article 7 of the Convention?

In particular, having regard to the definition of the notion of “trafficking in human beings” in Article 147 § 2 of the Criminal Code , has Å iauliai Regional Court ’ s and the Supreme Court ’ s interpretation complied with the principle of nullum crimen sine lege , as guaranteed by Article 7?

Was the applicants ’ conviction for trafficking in human beings foreseeable?

Has there been a violation of Article 7 of the Convention?