Communicated on 2 July 2019

SECOND SECTION

Application no. 39300/18 Aleksandr SACHARUK against Lithuania lodged on 9 August 2018

STATEMENT OF FACTS

The applicant, Mr Aleksandr Sacharuk, is a Lithuanian national, who was born in 1977 and lives in Vilnius. He is represented before the Court by Mr E. Losis, a lawyer practising in Vilnius.

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

The applicant was elected to the Seimas (the Lithuanian Parliament), and was a member of it between 17 November 2008 and 16 November 2012.

Between 14 and 19 January 2010, on eleven occasions the applicant used the identity card of another parliamentarian ( Seimo nario pa ž ym ė jimas ), L.K., to vote electronically instead of the latter during the Seimas ’ session in L.K. ’ s absence. Later on it was established that L.K. had at that time been on holiday in South East Asia, without the Seimas ’ authorisation. The Seimas ’ Commission for Ethics and Procedures then held that the applicant ’ s actions had been in breach of Article 111 § 4 of the Statute of the Seimas, which stipulates that members of the Seimas vote in person and that the right to vote may not be transferred to another parliamentarian. The Commission considered that such actions had been damaging for the reputation and authority of the Seimas, and for that reason gave the applicant a warning, a sanction provided for in Article 20 § 2 of the Statute of the Seimas (see the Relevant domestic law part below).

Afterwards, some members of the Seimas asked the prosecutors to examine whether the applicant ’ s actions did not constitute crimes of forgery of a document, abuse of office and unlawful use of an official document. The prosecutor asked the Seimas to allow prosecution of the applicant, but the Seimas refused to lift his immunity. The prosecution thus could not proceed.

In October 2010 the Constitutional Court held that both the applicant and L.K. had breached the parliamentarian ’ s oath by, respectively, having used L.K. ’ s parliamentarian ’ s identity card and voted in his place, and by having missed the Seimas ’ hearings without justified reason. On the basis of the Constitutional Court ’ s conclusion, the Seimas then impeached L.K. The applicant, however, was not impeached because there were not enough votes for that in the Seimas.

In June 2011 the Seimas supplemented the Code of Criminal Procedure by a new Article 3 2 , to allow prosecution of those persons who had lost their immunity (see the Relevant domestic law part below).

On 20 November 2012, after the applicant ’ s term as a member of the Seimas had come to an end, the prosecutors opened a criminal investigation against him on the aforementioned charges. The applicant states that bringing criminal proceedings against him was motivated by his earlier choice not to act in favour of certain Lithuanian business entities that held sway over some high-ranking prosecutors. He notes that he pleaded this fact during the proceedings before the Constitutional Court and, later, during the criminal proceedings, but with no success. The applicant also notes that those connections had come to light in 2018, when a report was made public by the State Security Department.

By a judgment of 20 July 2015, the Vilnius Regional Court acquitted the applicant. That judgment was upheld by the Court of Appeal on 23 May 2016. The courts took into account the conclusions of the Seimas ’ Commission for Ethics and Procedures to the effect that as of February 2001 there were a number of occasions on which members of the Seimas would vote in the place of other members and that such actions used to be considered as merely a disciplinary breach. The Commission merely recommended the parliamentarians not to pursue such a practice in the future. The courts considered that the applicant ’ s actions had not been so dangerous as to attract criminal liability. Those actions had not caused major damage to the State or its institutions. The courts underlined that not every breach of the law had to be criminalised; moreover, the applicant ’ s actions had already been condemned by the Seimas ’ Commission for Ethics and Procedures, which had given him a warning. The applicant also had not sought to cause serious damage to the State. After the fact of the voting had come to light, no one had asked that new voting take place in the Seimas regarding those laws that had been adopted when the applicant had voted in the place of L.K.

The prosecutor lodged an appeal on points of law, and on 20 December 2016 the Supreme Court, in a chamber of three judges presided by judge D.B. and in oral proceedings, quashed the ruling of the Court of Appeal and returned the case to that court for a fresh examination. The Supreme Court held, among other things, that the appellate court had erred in applying the criminal law norms to the applicant, since existing practice of voting in the place of others in the Seimas had nothing to do with whether such actions were criminal or not. The Supreme Court was also not persuaded by the lower courts ’ conclusions that the applicant ’ s actions had not been of so little danger as to merit merely disciplinary liability. The court gave particular attention to the Constitutional Court ’ s conclusion which highlighted the damaging actions of L.K. and the applicant.

On 5 June 2017 the Court of Appeal found the applicant guilty of abuse of office and of having unlawfully used an official document. He was given a fine. The Court of Appeal also dismissed the applicant ’ s complaint about the alleged breach of his legitimate expectation not to be prosecuted and legal certainty given the legislative change of 2011 permitting his prosecution after his mandate had expired. A mere change in procedural legislation did not mean a breach of the applicant ’ s rights. The Court of Appeal also established that when the applicant had voted in the place of L.K. in January 2010 the Seimas ’ agenda had not been known in advance, and therefore the applicant could not have been representing L.K. ’ s will when voting with the latter ’ s parliamentarian ’ s identity card. Furthermore, the applicant had been voting in the place of L.K. so that the latter would not be financially sanctioned for having missed the Seimas ’ hearings, since deductions from salary were to be made for hearings missed without justified reasons. Lastly, the Court of Appeal held that by his actions the applicant had caused damage to the authority of the Seimas. The charges of forgery of document were dropped as time-barred.

By a final ruling of 13 February 2018 the Supreme Court ’ s chamber of three judges, with judge D.B. now as the reporting judge, having examined the case in oral proceedings, dismissed the applicant ’ s appeal on points of law. The Supreme Court established that the applicant, who had legal education, knew that his actions when using L.K. ’ s parliamentarian ’ s identity card were unlawful and that he had consciously chosen to behave in that manner. Moreover, wrongful practice of such delegated voting in the Seimas did not make the applicant ’ s actions legal. Lastly, after the legislative amendments of June 2011, it was not against the law to start criminal proceedings against the applicant, once he was no longer a member of the Seimas.

The Code of Criminal Procedure reads:

Article 58. Grounds for recusal

“2. A judge may not take part in the proceedings and freshly examine the same case if:

1) he or she has taken part in those criminal proceedings as a pre-trial investigation officer, prosecutor or advocate;

2) if he or she has decided questions of the suspect ’ s arrest...;

3) if he or she has adopted a judgment in the first instance court, the judge may not freshly examine that case in appellate or cassation instance, nor examine the same case in the first instance court if his or her judgment was quashed;

4) if he or she has adopted the judgment in the appellate instance court, the judge may not examine that case in the cassation court;

5) if he or she has adopted the judgment in the cassation court, he or she may not take part when the case is being decided on appeal ( jeigu jis priÄ—mÄ— sprendimÄ… kasacinÄ—s instancijos teisme, negali dalyvauti nagrinÄ—jant tÄ… bylÄ… apeliacine tvarka );

6) if a judge has taken the decision in the appellate or cassation instance court, he or she may not decide that case at the first instance court.”

On 21 June 2011 the Seimas supplemented the Code of Criminal Procedure with Article 3 2 . The provision came into force on 1 September 2011, and reads as follows:

Article 3 2

“2. After all possible actions of criminal procedure have been performed and there is no authorisation of a competent institution to start criminal proceedings against a person or when a person has immunity from prosecution, criminal proceedings must be discontinued. Criminal proceedings may be reopened when there is an authorisation of a competent institution to bring criminal proceedings against a person or if he or she otherwise loses immunity from prosecution...”

The Statute of the Seimas at the time of the applicant ’ s voting in the Seimas on 14-19 January 2010 read:

Article 20. Warning to a Member of the Seimas

“2. ...Warnings to a Member of the Seimas for a public threat to colleagues, for an insult of a Member of the Seimas or a group thereof, for dishonest voting or for the refusal to carry out the recommendation of the Commission for Ethics and Procedures regarding the avoidance of the conflict of interest shall be immediately recorded in the minutes.

3. The warning which is recorded in the minutes of the sitting shall be administered on the recommendation of the chair of the Seimas sitting or the Commission for Ethics and Procedures, without debate and by a simple majority of the Members of the Seimas participating in the voting.

4. A Member of the Seimas to whom administration of such warning is proposed, shall have the right to explain himself to the Seimas ... prior to the voting.”

Article 111. Voting Methods and Procedure

“4. The Members of the Seimas shall vote in person. The right to vote may not be transferred to other persons.”

COMPLAINTS

The applicant claims a breach of Article 6 § 1 of the Convention on account of the fact that the same judge – judge D.B. – decided his case twice. This had deprived him of the right to be judged by an impartial tribunal.

Referring to Article 6 § 1 of the Convention, the applicant also complains that the criminal proceedings were started against him on political grounds and also after the change in the Code of Criminal Procedure, which permitted prosecution of former member of the Seimas. He claims that this breached the principle of legitimate expectations, since at the time he had committed the incriminated acts there had been no legal avenue to open a criminal case against a member of the Seimas after the latter ’ s refusal to allow prosecution and even after the parliamentarian ’ s term of office expired.

Under Article 7 § 1 of the Convention the applicant further complains that his conviction had no legal basis, since his actions – voting in the place of another member of the Seimas in that member ’ s absence – was merely following the Seimas ’ “tradition”. In his words, until then, this used to be not-so-rare practice in the Seimas, and it was only in his discriminately singled-out case that he had to bear criminal responsibility. Such actions became criminal only on 5 June 2017, when the Court of Appeal found him guilty. The applicant also mentions that according to the video recordings from the Seimas hall, between 14 and 19 January 2010 not only he, but twelve other members of the Seimas, had voted in the place of others. However, they had not been subjected to criminal liability. The applicant claims that this was unjustifiably ignored by the criminal courts in his case, after it was returned for a fresh examination by the Supreme Court. The applicant further states that his actions, although they were in breach of the Statute of the Seimas, were not of a corrupt nature, or of a nature unrelated to his activities of a parliamentarian. He further points out that the parliamentarian whose card he had used for voting – L.K. – has never been prosecuted, and only had the procedural status of a witness in the applicant ’ s criminal case.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to an impartial tribunal, under Article 6 § 1 of the Convention, on account of the fact that one of the judges of the Supreme Court, judge D.B., decided the applicant ’ s case twice – on 20 December 2016 and on 13 February 2018 (see Marguš v. Croatia [GC] , no. 4455/10, § § 84-86, ECHR 2014 (extracts), with further references)?

The applicant is requested to provide documents to support his statement that he challenged judge D.B. ’ s impartiality when his case was heard the second time by the Supreme Court.

2. Was the applicant ’ s conviction foreseeable and in accordance with the requirements of Article 7 of the Convention (see Del Río Prada v. Spain [GC], no. 42750/09 , § § 81-90, ECHR 2013, and Rohlena v. the Czech Republic [GC], no. 59552/08, § § 50-53, ECHR 2015 , as well as the case ‑ law mentioned therein)? The Court refers, in particular, but not exclusively, to the applicant ’ s complaints that he was prosecuted after the amendments to the Code of Criminal Procedure, and that he was the first parliamentarian who had ever been convicted for having voted in the place of another member of the Seimas, this having been the “tradition” or working practice in that institution beforehand.