Communicated on 20 September 2017

FOURTH SECTION

Application no. 69717/14 Vida JANUÅ KEVIÄŒIENÄ– against Lithuania lodged on 23 October 2014

STATEMENT OF FACTS

The applicant, Ms Vida Januškevičienė , is a Lithuanian national, who was born in 1955 and lives in Vilnius.

A. The circumstances of the case

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

On 25 October 2007 the applicant was served with the official notice that she was suspected of fraud committed in an organised group, in the capacity of an organiser, as set forth in Articles 24 § 4 and 182 § 2 of the Criminal Code. It was suspected that the applicant, as the leader of the organised group consisting of her, ÄŒ.M. , I.R., D.L., T.F., S.P., O.J., A.J. and other individuals, and as the individual in charge of several companies designed to cover up criminal activity, had falsified invoices and other accounting documents issued under the name of those companies and thereby helped multiple other companies, including company D., company A. and company S., appropriate large a mounts of money in unpaid value ‑ added tax.

1. Criminal proceedings against V.D. and company D.

On 18 December 2009 the Vilnius Regional Court convicted company D. and its director V.D. of several counts of fraud, appropriation of property of high value, fraudulent accounting and falsification of documents, as set forth in Articles 182 § § 1 and 2, 183 § 2, 222 § 1 and 300 §§ 1, 2 and 3 of the Criminal Code. The court found that V.D. had used falsified documents to show that company D. had acquired services from other companies, thereby reducing the company ’ s official profits and the amount of value ‑ added tax due from the company to the State budget. V.D. had pleaded guilty to all the charges.

The first part of the judgment, which described the charges against the accused as presented in the indictment, alleged that in respect of each charge V.D. had acted with common intent with a group of accomplices ( vieninga tyčia bendrininkų grupe ), consisting of Č.M. , the applicant, I.R., D.L., T.F., S.P., O.J., A.J. and others.

The descriptive part of the judgment, in which the court assessed the evidence submitted to it, stated:

“[V.D.] acquired from [D.L., I.R., the applicant, and Č.M. ] falsified ... invoices and other accounting documents which included knowingly untrue information that [company D.] had bought advertising services from the aforementioned company. The falsified documents were included in the accounting balance of [company D.], the money was taken from [company D. ’ s] account in cash, part of it was paid to [D.L., I.R., the applicant, and Č.M. ] for providing the falsified documents and the remaining was used for the various needs of [company D.].”

The applicant did not have any procedural status in these proceedings. She claims that she did not know about them until she was presented with an indictment against her in April 2014 (see below).

2. Criminal proceedings against V.S., R.N., V.B., company A. and company S.

On 4 June 2012 the Kaunas Regional Court convicted V.S. and R.N. of several counts of fraud, appropriation of property of high value, fraudulent accounting and falsification of documents, as set forth in Articles 182 §§ 1 and 2, 183 § 2, 222 § 1 and 300 §§ 1 and 3 of the Criminal Code. The court found that V.S. and R.N., who were directors of company A. and company S., respectively, had used falsified documents to show that their companies had acquired services from other companies, thereby reducing the companies ’ official profits and the amount of value-added tax due f rom them to the State. V.S. and R.N. partly confessed to the charges against them.

In the same judgment the court also acquitted V.B. (director of another company), company A. and company S. of similar charges for lack of evidence.

The first part of the judgment, which described the charges against the accused as presented in the indictment, alleged that in respect of each charge each of the accused had acted with common intent with a group of accomplices ( vieninga tyčia bendrininkų grupe ), consisting of Č.M. , the applicant, I.R., D.L., T.F., S.P., O.J., A.J. and others.

The descriptive part of the judgment, in which the court assessed the evidence submitted to it, did not refer to the applicant or other alleged accomplices.

The applicant did not have any procedural status in these proceedings. She claims that she did not know about them until she was presented with an indictment against her in April 2014 (see below).

3. Criminal proceedings against the applicant

On 17 April 2014 the Prosecutor General drew up indictments against the applicant, Č.M. , I.R., D.L., O.J. and A.J. It alleged that the applicant, as the leader of the organised group consisting of her, Č.M. , I.R., D.L., O.J. and A.J., and as the individual in charge of several companies designed to cover up criminal activity, had falsified invoices and other accounting documents issued under the name of those companies and thereby helped multiple other companies appropriate over 6,000,000 Lithuanian litai (LTL, approximately 1,700,000 euros (EUR)) in unpaid value-added tax. The indictment stated that the evidence against the applicant included, inter alia , the evidence in the criminal case against V.D. and company D. and the criminal case against V.S. and R.N. (see above). The applicant was charged with fraud, appropriation of property, legalisation of property obtained through criminal activity and falsification of documents committed in an organised group, in the capacity of an organiser or abettor, as set forth in Articles 24 §§ 4 and 6, 25 § 3 , 182 § 2, 183 § 2, 216 § 1 and 300 § 3 of the Criminal Code.

The case was transferred to the Vilnius Regional Court for examination on the merits. According to the latest information submitted by the applicant to the Court in July 2017, the criminal proceedings against her are still pending before the first-instance court.

B. Relevant domestic law and practice

Article 255 § 1 of the Code of Criminal Procedure provides that a court examines a case only in respect of those accused and those criminal acts which have been referred to it for examination.

In its review of the domestic cour ts’ case-law, issued on 25 June 2009, the Supreme Court concluded that the requirement for a court to examine a criminal case only in respect of those accused who had been referred to it for examination, set forth in Article 255 § 1 of the Code of Criminal Procedure, did not prohibit the court from examining whether acts of third parties complied with the law, to the extent necessary for determining the criminal responsibility of the accused. However, a judgment could not include any phrases ( nuosprendyje negali būti formuluočių ) which established third parties ’ guilt of criminal acts, except for individuals who had already been convicted or exempted from criminal responsibility.

Article 312 § 1 of the Code of Criminal Procedure provides that an appeal against a judgment can be submitted by a prosecutor, a convicted person, a person in respect of whom a case has been discontinued, their defence counsel or legal representative, a victim or his or her representative.

COMPLAINTS

The applicant complains under Article 6 § 2 of the Convention that the Vilnius Regional Court ’ s judgment of 18 December 2009 and the Kaunas Regional Court ’ s judgment of 4 June 2012 unambiguously stated that she had committed various criminal activities as part of an organised criminal group, despite the fact that she had not been the accused in those proceedings. She als o complains under Article 6 § 3 (b), (c) and (d) that she had no possibility to defend herself in those proceedings. Without invoking any specific provision of the Convention, she further submits that, in line with domestic law, she did not have any possibility to appeal against the aforementioned judgments.

QUESTIONS TO THE PARTIES

1. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case, in view of the parts of judgments adopted in the criminal proceedings against other individuals and companies which concerned the applicant ’ s alleged participation in an organised group engaged in fraud, appropriation of property, falsification of documents and related criminal offences (see Karaman v. Germany , no. 17103/10 , §§ 42-43 and 64-71, 27 February 2014, and Navalnyy and Ofitserov v. Russia , nos. 46632/13 and 28671/14 , §§ 103 ‑ 105, 23 February 2016)?

2. Did the applicant have at her disposal an effective domestic remedy for her complaint under Article 6 § 2, as required by Article 13 of the Convention?

The parties are requested to inform the Court about the latest developments in the criminal proceedings against the applicant and to submit any judgments adopted in those proceedings. They are also requested to submit the final judgments in the criminal proceedings against V.D. and company D. and the criminal proceedings against V.S., R.N., V.B., company A. and company S.