Communicated on 27 January 2017

FOURTH SECTION

Application no. 36093/13 Anželika ŠIMAITIENĖ against Lithuania lodged on 27 May 2013

STATEMENT OF FACTS

The applicant, Ms Anželika Šimaitienė, is a Lithuanian national who was born in 1970 and lives in Pa š ilai č iai village in Vilnius region. She is represented before the Court by Ms A. Pūkienė, a lawyer practising in Vilnius.

A. The circumstances of the case

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

On 11 May 1995 the State President appointed the applicant to the position of judge of the Vilnius City Third District Court.

1. Criminal proceedings against the applicant

By a decree of 21 February 2006, the State President suspended the applicant from judicial duties and allowed to go forward a prosecution against her in connection with criminal charges of abuse of office (Article 228 of the Criminal Code) and forgery of documents (Article 300 of the Criminal Code). It was suspected that the applicant had committed those crimes whilst performing her duties as a judge in a case concerning the privatisation of an apartment.

By a judgment of 15 March 2010 the Kaunas Regional Court acquitted the applicant.

On 1 July 2011 the Court of Appeal discontinued the criminal case because prosecution had become time-barred. Despite this, the Court of Appeal noted that certain actions of the applicant “discredited the title of a judge, and caused serious non-pecuniary damage to the State, which corresponded to the crime of abuse of office under Article 228 of the Criminal Code”. The appellate court also held that the applicant “had forged” certain court documents.

By a judgment of 8 May 2012, the Supreme Court, sitting in a plenary formation of sixteen judges ( plenarin ė sesija ), concurred with the appellate court ’ s finding that the applicant ’ s prosecution was barred due to the statute of limitations. The Supreme Court nevertheless stressed that certain phrases in the Court of Appeal ’ s ruling had been in breach of the applicant ’ s right to presumption of innocence, for they could be understood as establishing that the applicant had been guilty of a crime. This had been an essential breach of criminal procedure. For that reason, the Supreme Court quashed the entire ruling of the Court of Appeal. The Supreme Court nevertheless considered that discontinuing a criminal case due to the statute of limitations, as provided for in Article 3 § 1 (2) of the Code of Criminal Procedure, did not in itself mean a person ’ s rehabilitation and could not be equated to a person ’ s acquittal.

2. The applicant ’ s removal from office and the civil proceedings for reinstatement and for unpaid salary

On 15 July 2010, whilst the criminal case against the applicant was still pending, the Prosecutor General wrote to the State President, stating that it was pertinent to consider ( tikslinga spr Ä™ sti ) whether the applicant had not in fact discredited the title of a judge through negligent performance of her duties.

On 16 July 2010 the applicant asked the State President to restore her to office.

On 29 March 2011 the president of the Vilnius City Third District Court appointed an internal investigation commission. The commission looked into how the applicant had performed her duties at that court and presented its conclusions on 26 April 2011. It appears that the commission held that the applicant had negligently performed her job in 2000-03. The applicant then challenged those conclusions before the Judges ’ Council, a body for self-government of judges.

By decree no. 1K-699 of 24 May 2011, the State President asked the Judges ’ Council for advice as to whether the applicant should be removed from office for having discredited the title of a judge.

To examine how the applicant had performed her duties, the Judges ’ Council ordered that an internal investigation be conducted by the Vilnius Regional Court. The president of the Vilnius Regional Court then formed a commission, made up of five judges of that court. The Vilnius Regional Court presented its report entitled ‘ On Examination of [the applicant ’ s] complaint and the reasonableness of the Vilnius City Third District Court ’ s conclusions of 26 April 2011 ’ . Once that report had been delivered, the Judges ’ Council held hearings on 6 June and 15 July 2011 at which the applicant was present.

On 15 July 2011 the Judges ’ Council recommended to the State President that the applicant be removed from of fice on the basis of Article 90 § 1 (5) of the Law on Courts. The recommendation by the Judges ’ Council was based on the internal investigation performed in spring 2011 by the Vilnius City Third District Court. The Judges ’ Council also relied on certain “supplementary information”, which the Vilnius City Third District Court provided by a letter of 25 May 2011. Lastly, the Judges ’ Council “[took] into account how the Court of Appeal [had] evaluated the applicant ’ s behaviour under Articles 228 and 300 of the Criminal Code in its ruling of 1 July 2011”.

On 18 July 2011 the State President passed decree no. 1K-764, removing the applicant from office, for having discredited the title of a judge. On the same day the State President ’ s office issued the following press release:

“[The] President ... has signed a decree by which, on the basis of the Constitution and the Law on Courts, and having taken into account the unanimous advice of the Judges ’ Council, has removed [the applicant] from judicial office of a judge of the Vilnius City Third District Court, for having discredited that office.

[The applicant] delayed cases concerning recovery of debts. She was also negligent and acted hastily when hearing cases about privatisation of apartments on terms beneficial to a private party, land restitution and other real-estate-related cases, relied on non-existent documents and perjurious testimony of witnesses.

The fact that [the applicant] forged documents and adopted unlawful and ungrounded decision which permitted the privatisation of an apartment on terms beneficial to a private party was acknowledged by the Court of Appeal on 1 July; however, because of the statute of limitations [that court] could not adopt a judgment of conviction.

Aiming to prevent such situations in the future, on the initiative of the State President amendments to the Criminal Code were passed, prolonging the time-limits for the statute of limitations so that persons who had committed crimes could not escape criminal liability.

The President has removed eight judges for having discredited the title of a judge. ’

The applicant asked her former employer the Vilnius City Third District Court to pay her the unpaid salary for the period from 21 February 2006 to 18 July 2011, but that court refused her request.

The applicant then started civil proceedings, challenging her removal from office and claiming her unpaid salary. The Court of Appeal decided that the Panev ėž ys Regional Court should hear her case as the court of first instance because the applicant ’ s civil claim concerned matters which had already been examined by the Vilnius Regional Court and therefore an impartial tribunal was required.

By a decision of 7 June 2012, the Panev ėž ys Regional Court dismissed the applicant ’ s civil claim. The court noted that the applicant had been suspended from office on 21 February 2006, but the judgement of conviction had not been adopted because the criminal proceedings had been terminated due to the statute of limitations. By a ruling of 8 May 2012 the Supreme Court held that terminating criminal proceedings due to the statute of limitations did not mean rehabilitation of a person; such a judgment could not be equated to a judgment of acquittal. The Panev ėž ys Regional Court therefore considered that in such a situation the absence of judgment of conviction did not mean that the applicant had been suspended from office without reason. Given that the applicant had not performed her judicial duties between 21 February 2006 and 18 July 2011, and that her suspension had not been declared unfounded, it would not have been just to award her unpaid salary for that period of time. The Panev ėž ys Regional Court also considered that “whilst she [had been] suspended from judicial duties, the applicant [had] not [been] prevented from working in another job; she could also have received other income”.

By a ruling of 28 November 2012 the Court of Appeal, its chamber being composed of three judges (A.J., R.N. and D.V.), upheld the lower court ’ s decision. The appellate court dismissed the applicant ’ s request for a hearing to be held. The case concerned questions of law, as opposed to questions of fact; therefore the case could be decided in written proceedings.

On the merits of the case the Court of Appeal found that the Panev ėž ys Regional Court had erred in holding that the applicant could have worked in another job whilst suspended from office. For the Court of Appeal, a suspended judge could work in another job only if he or she had been removed from office. The Court of Appeal nevertheless noted that before the criminal proceedings had been terminated by the appellate court on 1 July 2011, disciplinary proceedings had been opened in respect of the applicant. During those disciplinary proceedings it had been established that the applicant had performed her judicial duties negligently much before she had been suspended (in 2006). Therefore there was no reason to compensate the applicant for the salary which she had not received during her suspension and until her removal from office, in accordance with the State President ’ s decree of 18 July 2011. The Court of Appeal also considered that Article 47 § 3 of the Law on Courts established the presumption of innocence in respect of judges ’ , and such a presumption in respect of the applicant had been upheld when the criminal case had been discontinued because of the statute of limitations. However, discontinuing criminal proceedings because of the statute of limitations had not, as such, restored the applicant ’ s irreproachable reputation, which was a compulsory requirement for a person to be a judge. The State President therefore had been correct in passing the decree no. 1K-764for the applicant ’ s removal.

By a final ruling of 4 March 2013 the Supreme Court refused to examine the applicant ’ s appeal on points of law.

3. The promotion of two Court of Appeal judges to the Supreme Court

On 13 December 2012 the State President passed another decree asking the Judges ’ Council for advice – whether the Court of Appeal judge D.V. could be appointed to the Supreme Court. The Judges ’ Council agreed, and on 18 December 2012 the State President passed yet another decree, asking the Seimas to appoint D.V. to the Supreme Court. The Seimas appointed D.V. to the Supreme Court on 17 January 2013.

By a decree of 26 February 2012, the State President asked the Judges ’ Council for a recommendation – she intended to appoint the other Court of Appeal judge, R.N., to the Supreme Court. Having obtained the Judges ’ Council ’ s agreement, by another decree of 6 March 2013 the State President asked the Seimas to appoint R.N. to the Supreme Court. The Seimas appointed R.N. to the Supreme Court on 28 March 2013. One and a half year later, in December 2014, the State President asked the Seimas to appoint R.N. as the President of the Supreme Court, and the Seimas made such appointment that same month.

B. Relevant domestic law

The Code of Criminal Procedure at the relevant time read:

Article 3. Circumstances when criminal proceedings are not possible

“1. Criminal proceedings may not be started, and ongoing criminal proceedings must be terminated:

1) if no criminal act has been committed;

2) if criminal responsibility is barred due to the statute of limitations;

...

2. If the circumstance mentioned in point 1 (1) of this Article becomes known during the examination of the case in court, the court shall terminate criminal proceedings and adopt a judgment of acquittal.”

The Law on Courts ( Teism ų į statymas ) at the relevant time read:

Article 47 . Immunity of a judge

“...

3. If a judge is suspected of or charged with a crime, he or she may be suspended from judicial duties by the Seimas [the Lithuanian Parliament], or – between the Seimas ’ sessions – by the State President. The judge is suspended from duties until the court judgement in a criminal case takes effect. If a judge is declared innocent, his or her duties are restored and he or she is repaid the salary for the period when he or she was suspended from office [ jei teisėjas pripažįstamas nekaltu, jo įgaliojimai atnaujinami ir jam sumokamas atlyginimas už įgaliojimų sustabdymo laiką ].

...”

Article 48. A judge ’ s work and activity outside the court ( Teisėjo darbas ir veikla ne teisme )

“ 1. A judge may not take up other duties to which he or she may have been elected or appointed, or work in business or other private enterprises or companies, except for pedagogical or creative activities [ išskyrus pedagoginę ar kūrybinę veiklą ] ...”

Article 90. Removal of a judge from office

“ 1. A judge may be removed from office in these cases:

...

5) if the title of judge has been discredi ted through his or her conduct.”

COMPLAINTS

The applicant complains that she did not have a fair hearing by an independent and impartial tribunal, as provided for in Article 6 § 1 of the Convention, when her civil claim was decided by the Court of Appeal. She argues that two of the three judges of the Court of Appeal who heard her civil case against the State President were partial and, in return of the ruling in the State President ’ s favour, soon thereafter were proposed by the State President for promotion to a higher judicial body – the Supreme Court. The applicant states that one of the two judges, D.V., had worked at the Court of Appeal less than a year, and had no prior judicial experience. Another judge, R.N., also had been a judge less than one year. The applicant also notes that the advisors who represented the State President in her civil case further presented the candidatures of judges R.N. and D.V. to the Seimas. In this context the applicant argues that the Court of Appeal was unfair and committed a number of procedural violations when hearing her civil claim against the State President ’ s decree for her removal from the office of a judge.

Under Article 6 § 2 of the Convention the applicant complains that even though the criminal case against her was discontinued, the civil courts later refused her claim for reinstatement and for unpaid salary on the grounds that discontinued criminal proceedings did not amount to acquittal. As a result, she has had to bear the same consequences as if she had been convicted, which was in breach of her right to presumption of innocence.

The applicant further complains under Article 1 of Protocol No. 1 to the Convention that she did not receive a salary for the period when the criminal proceedings were ongoing, and until her removal from office by the State President ’ s decree of 18 July 2011, although she had not been declared guilty of a crime.

QUESTIONS TO THE PARTIES AND REQUEST FOR INFORMATION

1. Has there been a violation of the applicant ’ s right to an independent and impartial tribunal under Article 6 § 1 of the Convention, taking into account the applicant ’ s arguments that the Court of Appeal was partial when hearing her civil case, and that two of the three Court of Appeal judges, R.N. and D.V., were promoted to the Supreme Court soon after the Court of Appeal dismissed the applicant ’ s civil claim (see the general principles set out, inter alia , in Morice v. France [GC], no. 29369/10 , ECHR 2015 )?

2. Has there been a violation of Article 6 § 2 of the Convention on account of the fact that the civil courts refused the applicant ’ s claim for unpaid salary, even though she had not been convicted by a criminal court (see, mutatis mutandis , Silickienė v. Lithuania , no. 20496/02 , 10 April 2012 )?

3. Has there been a violation of Article 1 of Protocol No. 1 to the Convention because the civil courts refused the applicant ’ s civil claim for her unpaid salary?

Could the applicant, as a judge who was suspended from office, have worked in another job during her suspension?

4. The parties are requested to submit the following documents:

a) the Vilnius City Third District Court ’ s conclusions of 26 April 2011;

b) the Vilnius Regional Court report ‘ On examination of [the applicant ’ s] complaint and the reasonableness of the Vilnius City Third District Court ’ s conclusions of 26 April 2011 ’ ;

c) the Judges ’ Council recommendation of 15 July 2011 to remove the applicant from office.

5. The applicant is requested to submit the documents in support of her complaint that the Court of Appeal committed a number of procedural violations.