Communicated on 25 May 2020 Published on 15 June 2020

SECOND SECTION

Application no. 7512/18 Edvin STARKEVIČ against Lithuania lodged on 5 February 2018

STATEMENT OF FACTS

The applicant, Mr Edvin Starkevič , is a Lithuanian national, who was born in 1986 and lives in Vilnius. He is represented before the Court by Mr G. Danėlius , a lawyer practising in Vilnius.

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

The applicant was a police officer.

In November 2015 the authorities opened a criminal investigation on suspicion of abuse of office (Article 228 § 2 of the Criminal Code). A criminal conduct simulation model was authorised in respect of the applicant.

On 8 January 2016 the applicant was presented with a notice of suspicion regarding the criminal charges of abuse of office. It was suspected that the applicant had asked a suspect in criminal proceedings, V.M., to steal some goods from a shop for him– two female handbags, two pairs of sneakers and a bottle of alcohol.

On 29 January 2016 disciplinary proceedings were opened against the applicant concerning the same actions which were already the subject of the criminal investigation. The disciplinary proceedings then were suspended, awaiting the outcome of the criminal case.

The criminal proceedings were discontinued on 9 September 2016, when the prosecutor held that there was no corpus delicti in the applicant ’ s actions. In particular, no serious damage had been caused to the State or the police, as institutions. The prosecutor noted, however, that the applicant ’ s actions could have merited disciplinary liability. The criminal investigation was based on information obtained via the criminal conduct simulation model, V.M. ’ s and other witnesses ’ testimony, video surveillance recordings from a private security company, and records of the applicant ’ s and V.M. ’ s telephone conversations.

Having resumed the disciplinary proceedings, on 27 October 2016 the police dismissed the applicant from service, for having discredited the name of an officer (Article 62 § 1 (7) of the Statute of Internal Service). The internal investigation report stipulated that the applicant ’ s actions “had features of a crime”, and that he had acted for “personal gain” and “with direct intent”. The applicant ’ s actions had also been against the requirements of ethics, applicable to police officers.

The applicant started administrative court proceedings, claiming reinstatement and unpaid salary.

By a decision of 10 May 2017 the Vilnius Regional Administrative Court dismissed the applicant ’ s claim as unfounded. Although the applicant had challenged V.M. ’ s testimony given in the courtroom in the administrative court, the court noted that the decision to dismiss the applicant from the police force had been taken not only on the basis of V.M. ’ s testimony, but also of other evidence – the testimony of other persons, which had been described in the prosecutor ’ s decision to discontinue the criminal proceedings. The court also pointed out that the applicant had not appealed against the prosecutor ’ s decision to discontinue the criminal proceedings, which, in the court ’ s view, meant that the applicant agreed with the circumstances established therein.

The Vilnius Regional Administrative Court then referred to the evidence collected during the criminal conduct simulation model. The dismissed the applicant ’ s suggestion that evidence gathered when using the criminal conduct simulation model within the criminal proceedings could not be used during the disciplinary proceedings. In reaching that conclusion the Regional Court relied on the Supreme Administrative Court ’ s practice on that matter (ruling no. A-4353-438/2016 of 15 September 2016). The Regional Court also pointed out that once it had been established that a police office had discredited the officer ’ s name, dismissal from the police force was the only sanction established in Article 62 § 1 (7) of the Statute of Internal Service. The court held that the fact that the applicant had not been brought to justice under Article 228 § 2 of the Criminal Code did not negate his unlawful actions, which amounted to discrediting the officer ’ s name. The same actions, “even if they did not have all the constitutive elements of a crime”, could discredit the name of the officer, as was the case. Lastly, the court pointed out that the applicant had had a lawyer and a possibility to provide explanations during the disciplinary proceedings but had not availed himself of the latter right.

The applicant appealed, arguing, among other things, that V.M. had acted under the control of law enforcement officers, and that the applicant had been provoked into committing a crime. He also pleaded that the materials obtained during the criminal conduct simulation model, which in his case had been applied under the rules of the Code of Criminal Procedure, and not under the Law on Criminal Intelligence, could not be used as a basis for his dismissal from service in disciplinary proceedings. The applicant submitted that he had had no possibility to contest the lawfulness of the criminal conduct simulation model, because the only decision adopted in the criminal case was the prosecutor ’ s decision to discontinue the criminal proceedings, which was in the applicant ’ s favour. Moreover, the latter decision had been in the applicant ’ s favour to the greatest extent possible, since the criminal proceedings had been discontinued as it was established that no crime had been committed.

In reply, the police argued that they had received the prosecutor ’ s permission to use the materials from the pre-trial investigation within the disciplinary proceedings.

By a final ruling of 1 September 2017 the Supreme Administrative Court dismissed the applicant ’ s appeal. The court held that there had been sufficient evidence against the applicant, not including that obtained when using the criminal conduct simulation model. Moreover, the testimony of V.M. had been corroborated by other evidence gathered during the criminal investigation – the video recordings from a private security company and the data from a mobile phone operator.

The Constitution reads:

Article 22

“Private life shall be inviolable.

Personal correspondence, telephone conversations, telegraph messages, and other communications shall be inviolable.

Information concerning the private life of a person may be collected only upon a justified court decision and only according to the law.

The law and courts shall protect everyone from arbitrary or unlawful interference with his private and family life, as well as from encroachment upon his honour and dignity.”

Article 33

“Citizens shall have the right ... to enter on equal terms the State Service of the Republic of Lithuania. ...”

The Code of Criminal Procedure reads:

Article 162. Using information in other criminal cases

“Information about a person ’ s private life, gathered in the criminal case during pre-trial investigation when using the procedural measures mentioned in this Code may be used in another criminal case only with a higher prosecutor ’ s agreement...”

The Law on Criminal Intelligence ( Kriminalinės žvalgybos įstatymas ), reads:

Article 19. Using the information obtained during criminal intelligence

“3. Criminal intelligence information about an act with the characteristics of a corruption related criminal act may, with the consent of a prosecutor, be declassified by decision of the head of the principal criminal intelligence institution and be used in an investigation into [...] misconduct in office.”

The Statute of Internal Service ( Vidaus tarnybos statutas ), insofar as relevant, at the material time read:

Article 26. Disciplinary offences and their imposition

“1. Disciplinary sanctions are imposed for disciplinary offences. A disciplinary sanction shall be imposed taking into account ... the information provided in the cases and according to the procedure referred to in [...] th e Law on Criminal Intelligence ...”

In the ruling of 18 April 2019, on the use of criminal intelligence information in investigating misconduct in office of corrupt nature, replying to requests for interpretation by the administrative courts, the Constitutional Court held that Article 19 § 3 of the Law on Criminal Intelligence, and Article 26 § 1 of the Statute of Internal Service were in compliance with the Constitution. The Constitutional Court held:

“the right of a person to privacy, guaranteed under of Article 22 §§ 1-4 of the Constitution (which are interrelated and should be interpreted in conjunction with one another), including the right to respect for private life and for its inviolability, as well as the right to the inviolability of personal correspondence, telephone conversations, and other communications, is not absolute. Under the Constitution, inter alia , Article 22 thereof, and the constitutional principle of the State under the rule of law, any person, thus, including a State servant/official, committing criminal or other acts that are contrary to law, for instance, misconduct in office, must be aware that such his/her actions will trigger an appropriate reaction from the authorised State institutions, meaning that a violation of the law (whether being committed or already committed) may lead to coercive measures lawfully and reasonably enforced by the State, where those coercive measures will not only have a certain effect on the conduct of that person, but also interfere with his/her private life. A person who has committed a criminal or another act that is contrary to law, including misconduct in office, or has otherwise breached the interests protected by law, or has inflicted damage on individuals, the society, or the State should not and must not expect that his/her private life will be protected in the same way as the private life of persons who do not violate laws or who act in the public interest. ...

... if the application by the State of the relevant coercive measures, established by law, to a State servant/official or another person, in particular designated for the investigation of criminal acts, does not reveal the characteristics (as they have not been proved) of the body of a crime, but detects the characteristics of other possibly committed acts that are contrary to law, among others, misconduct in office, including that of a corrupt nature, which are incompatible with the requirements stemming from the Constitution for State servants/officials, or identifies State servants/officials who allegedly committed them, State institutions and officials have the duty to properly investigate such violations of law and, when justified, to bring the said State servants/officials to responsibility under the law, among others, by using, in ... accordance with the procedure established by law, information collected secretly by other State institutions about them, which discloses the aforementioned alleged violations of law. Such use of this information for investigating misconduct in office is based on constitutionally important objective of protection of public interest; it aims to protect the interests of the State, of State service, and of all society, to prevent corruption in State service, to strengthen the credibility and responsibility of State service and every State servant/official, and to guarantee that only such persons hold positions of State servants (including statutory positions) who meet high requirements established by law, who are loyal to the State of Lithuania, and who are of good repute.” (Summary of the ruling by the Constitutional Court)

COMPLAINTS

The applicant complains under Articles 6 § 1 and 8 of the Convention that the data collected employing the criminal conduct simulation model was later used to prove his disciplinary offence.

The applicant argues that, under Lithuanian law, data gathered during criminal proceedings may not be used for establishing less dangerous offences, that is, disciplinary offences. In this connection he refers, among other legal provisions, to Article 162 of the Code of Criminal Procedure, and to the Supreme Court ’ s case-law. The applicant argues that the use of the information gathered during the pre-trial investigation in the subsequent disciplinary proceedings had no basis in law.

Further, the applicant complains that there has been a breach of Article 6 § 2 of the Convention on account of the fact that the internal investigation report pursuant to which he was dismissed contained phrases normally common to criminal proceedings, leaving the impression that his actions had been criminal. This was notwithstanding the fact that the criminal case against him had been discontinued.

QUESTIONS TO THE PARTIES

1. Has there been a violation of Article 6 § 1 of the Convention on account of the fact that during the disciplinary proceedings against the applicant the authorities relied on the materials from the criminal investigation against the applicant?

What specifically, if any, was the evidence, other than the materials from the applicant ’ s criminal investigation and the materials obtained during the criminal conduct simulation model, on the basis of which the applicant was dismissed following the disciplinary proceedings?

2. Has there been a violation of Article 6 § 2 of the Convention, in view of the references to the applicant ’ s criminal case and related statements made by the authorities in the disciplinary proceedings against the applicant (see Šikić v. Croatia , no. 9143/08, § § 52-56, 15 July 2010, and Kemal Coşkun v. Turkey , no. 45028/07, § § 41-43, 51 and 52, 28 March 2017, and the case-law cited therein )?

3. Has there been an interference with the applicant ’ s right to respect for his private life on account of the fact that information obtained during the criminal investigation against him was used during the disciplinary proceedings which led to his dismissal?

If so, was the interference “in accordance with the law” (see Blaj v. Romania , no. 36259/04, § 126, 8 April 2014, Dragojević v. Croatia , no. 68955/11, § § 80-83, 15 January 2015, and Terrazzoni v. France , no. 33242/12, § 45, 29 June 2017 )? What was the legal basis of the criminal conduct simulation model applied in respect of the applicant?

Did the interference pursue a legitimate aim and was it “necessary in a democratic society” (see Drakšas v. Lithuania , no. 36662/04, § 54, 31 July 2012 )?

Has there been a violation of Article 8 of the Convention ?