SECOND SECTION
CASE OF STARKEVIČ v. LITHUANIA
(Application no. 7512/18)
 
JUDGMENT
 
Art 6 § 1 (civil) • Art 8 • Fair hearing • Private life • Interception of electronic communications and use of criminal conduct simulation model during criminal investigation against police officer and use of obtained information in disciplinary proceedings leading to his dismissal • Right to fair hearing not impaired • Relevant domestic law accessible and foreseeable • Persons carrying out a professional activity to proceed with a high degree of caution when pursuing their occupation and with special care in assessing risks entailed • Constitutional duty to properly investigate possible official misconduct and find liability where grounds exist to ensure accountability• Applicant afforded all procedural safeguards • Interference proportionate and necessary in a democratic society
 
STRASBOURG
29 March 2022
FINAL
 
29/06/2022
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Starkevič v. Lithuania,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Jon Fridrik Kjølbro, President,
 Carlo Ranzoni,
 Egidijus Kūris,
 Branko Lubarda,
 Jovan Ilievski,
 Saadet Yüksel,
 Diana Sârcu, judges,
and Stanley Naismith, Section Registrar,
Having regard to:
the application (no. 7512/18) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Edvin Starkevič (“the applicant”), on 5 February 2018;
the decision to give notice to the Lithuanian Government (“the Government”) of the complaints concerning the right to a fair hearing, right to the presumption of innocence and right to respect for private life, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 8 March 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case mainly concerns the applicant’s complaints about the right to a fair hearing and right to respect for his private life on account of the use of information obtained during a criminal investigation in subsequent disciplinary proceedings wherein the decision to dismiss him from the police was upheld. THE FACTS
2. The applicant was born in 1986 and lives in Vilnius. He was represented by Mr G. Danėlius, a lawyer practising in Vilnius. 3. The Government were represented by their Agent, Ms K. Bubnytė-Širmenė. 4. The facts of the case, as submitted by the parties, may be summarised as follows.
criminal investigation and the applicant’s dismissal from THE police
5. The applicant was a police officer. 6. In October 2015 the police arrested a certain V.M. on suspicion of burglary. He was held at the police detention facility in Vilnius and released several days later on condition that he periodically report to the police station. On 12 November 2015 V.M. informed the internal affairs division of the Vilnius county police headquarters (Vilniaus apskrities vyriausiojo policijos komisariato imuniteto skyrius – hereinafter “the internal affairs division”) that during his detention he had been approached by the applicant with a request to steal certain goods. Afterwards, on 25 October and 11 November 2015, V.M. had met the applicant, and other persons linked to the applicant, in public places – near a bus station and near a shop (see also paragraph 8 below). 7. On 12 November 2015 the internal affairs division opened a pre-trial investigation into suspected abuse of office (Article 228 § 2 of the Criminal Code, see paragraph 43 below). 8. Acting on the basis of V.M.’s statements, the police obtained records from a security camera near the shop, which confirmed V.M.’s meeting with the applicant and thus corroborated V.M.’s testimony. On the basis of a request by the internal affairs division of 13 November 2015, on 16 November 2015 a prosecutor asked the court’s permission to intercept the applicant’s electronic communications and conduct secret surveillance of him. The prosecutor reasoned that because of his job, the applicant was aware of criminal intelligence methods and tactics; he avoided detection of his criminal acts by only communicating with V.M. in person and choosing where and when they would meet, thus fully controlling the situation and events. The prosecutor also asked the court to authorise a criminal conduct simulation model and permit V.M., no more than twice, between 16 November 2015 and 13 January 2016, to agree to the applicant’s demands – for goods to be stolen and given to him in exchange for payment. Any such actions would be recorded. 9. On 16 November 2015 the Vilnius City District Court authorised the applicant’s secret surveillance, the interception of the applicant’s electronic communications and use of the criminal conduct simulation model, pointing out that he was a police officer and that an investigation of potential criminal acts under Article 228 § 2 of the Criminal Code would otherwise be particularly difficult. The authorisation was issued on the basis of Article 159 of the Code of Criminal Procedure (see paragraph 44 below). 10. The applicant met V.M. on 7 January 2016 at the police station when the latter went to present himself. As noted by the police, the applicant had not been assigned a task to meet V.M. or to perform with him any procedural actions. The second meeting took place on 8 January 2016 in a public place, when V.M. also met the applicant’s wife, I.S. V.M. delivered some of the goods – a bottle of whiskey – earlier requested by the applicant. The applicant was caught in flagrante delicto and arrested. 11. On 8 January 2016 the applicant was given a notice of suspicion (pranešimas apie įtarimą) indicating that he was suspected of abuse of office (under Article 228 § 2 of the Criminal Code): between 25 October 2015 and 8 January 2016 he, a police officer, acting in complicity with two other individuals, his spouse I.S. and a certain J.R, was believed to have asked a suspect in another criminal case, V.M., to illegally obtain certain goods – two handbags, two pairs of sports shoes and seven bottles of whiskey. 12. The same day the applicant wrote that “the essence of the notice of suspicion, which was given to me, is clear”, yet he denied the accusations. He also wrote that, as he was a suspect, he would refuse to testify. The notice indicated that the applicant had read it and that it had been “drafted correctly”. 13. On 11 January 2016 the prosecutor asked the Vilnius region police authority to temporarily remove the applicant from his duties. 14. On 21 January 2016 the prosecutor ordered the internal affairs division to have the applicant’s telephone records of 16 November 2015 to 13 January 2016 destroyed on the grounds that they did not contain any information pertinent to the pre-trial investigation. 15. On 24 January 2016 the police drew up a report stating that the mobile telephone numbers used by J.R. on 25 October 2015 and I.S. on 25 October and 11 November 2015 appeared to have also been used in certain locations at the times V.M. stated having met them and the applicant. 16. On 29 January 2016 the internal affairs division informed the applicant that a disciplinary investigation was being conducted on the basis of information that “he had possibly committed a crime under Article 228 § 2 of the Criminal Code”: from 25 October 2015 to 8 January 2016 he had demanded that a suspect, V.M., unlawfully acquire goods for him. It was noted in that misconduct notice (pranešimas dėl tarnybinio nusižengimo) that by such actions the applicant had damaged the prestige of the police as an institution and possibly discredited an officer’s name. He was asked to provide, by 5 February 2016, an explanation regarding the alleged disciplinary offence. It was also noted that he could submit evidence, explanations or lodge requests. The applicant signed the notice. 17. In connection with the disciplinary investigation, and following a request by the police’s representative by email on 1 February 2016, the same day the applicant wrote that, as regards his actions being assessed within the disciplinary proceedings, the police should rely on his testimony given within the pre-trial investigation. On 11 February 2016 the disciplinary proceedings were suspended pending the outcome of the criminal investigation. 18. On 14 July 2016 the applicant’s lawyer in the criminal proceedings received the pre-trial investigation file; he signed to confirm that he had received copies of the documents he wished to have. 19. On 27 July 2016 the internal affairs division received official information from colleagues that in his reports the applicant had never mentioned having communicated with V.M. 20. On 9 September 2016 the prosecutor discontinued the pre-trial investigation under Article 228 § 2 of the Criminal Code and held that there was no corpus delicti in the applicant’s actions: no serious pecuniary or non-pecuniary damage had been caused to the State or the police as an institution. His actions had not caused much public reaction, they had not disrupted the police’s work, and no individuals had been granted victim status in the criminal proceedings. It followed that his actions had not resulted in any significant damage to the State within the meaning of criminal law. 21. That being so, the applicant’s actions had contained elements of a disciplinary violation: they had not complied with the principles of good morals and raised the question of “whether such a person could continue to properly exercise police officer’s duties” (ar toks asmuo tinkamas eiti policijos pareigūno pareigas). This remained to be ascertained within the disciplinary proceedings, for criminal liability was ultima ratio means when it concerned breaches of public service-related legal acts. The prosecutor thus forwarded his decision to the police so that they could examine the matter of the applicant’s alleged disciplinary violation. As the basis for that decision, the prosecutor referred, among other things, to Article 214 of the Code of Criminal Procedure (see paragraph 44 below). 22. Regarding the evidence against the applicant, the prosecutor noted his refusal to testify during the pre-trial investigation. The prosecutor’s decision was therefore based on information obtained through the criminal conduct simulation model, the testimony of V.M. and other witnesses, including four police officers, CCTV recordings from security cameras located at the public places where V.M. and the applicant had met, the applicant’s and V.M.’s telephone conversations confirming that they had been in certain locations where they had met, and V.M. having recognised the applicant and I.S. from photographs. The prosecutor also referred to material evidence – the bottle of whiskey recovered on 8 January 2016. 23. The prosecutor’s decision indicated that it could be appealed against to a higher prosecutor within twenty days. The applicant lodged no such appeal. 24. On 26 October 2016 the internal affairs division asked the prosecutor, for the purposes of the ongoing disciplinary investigation, to permit access to the file of the discontinued pre-trial investigation. The prosecutor agreed to that request. 25. On 26 October 2016 the internal affairs division adopted a disciplinary investigation report (tarnybinio patikrinimo išvada) indicating that the applicant had been given a misconduct notice (see paragraph 16 above) under signature yet had failed to provide an explanation, instead asking the police to rely on his testimony given in the pre-trial investigation proceedings, in which he had in fact availed himself of his right not to testify. Accordingly, the report referred to the information in the pre-trial investigation file. The report held that the applicant’s actions, as described in the prosecutor’s decision, had been “contrary to the law” (priešingi teisei veiksmai) and had “had features of a crime” (turintys nusikalstamos veiklos požymių): the applicant, an officer whose duty it was to detect and prevent crime, had instead used his position for personal gain and encouraged another individual to break the law, even though before starting to serve in the police he had sworn an oath to respect and abide by the law, perform his duties honestly and defend the good name of an officer of the internal affairs system. The applicant had thus acted in breach of Article 25 § 1 (2) of the Law on the Police (see paragraph 47 below), points 4.6, 4.14 and 14.1 of the Lithuanian Police Officers’ Code of Ethics (see paragraph 48 below), as well as the fundamental principles of professional ethics, such as the absence of selfish motives, decency and exemplarity (nesavanaudiškumas, padorumas ir pavyzdingumas). Furthermore, such actions were classified as abuse of office under Article 2 § 13 of the Law on the Civil Service (see paragraph 49 below); they contradicted the interests of the police and their core values; they were also incompatible with the tasks and role of the police, as well as with a police officer’s status. The actions had been committed with “direct intent” (tiesiogine tyčia) and had not been haphazard. It also had to be borne in mind that the applicant’s wife, J.R. and V.M. had represented society, and the applicant’s actions had formed their impression of the police. Such actions by the police, when witnessed by civilians, or when they became known otherwise, formed a negative societal view of the police, as State officials, and tarnished the police’s prestige, destroying and compromising trust in them. 26. The report also referred to Article 2 § 5 of the Statute of Internal Service (see paragraph 46 below) to the effect that actions committed by an officer clearly undermining the police’s authority and compromising or destroying trust in the police amounted to discrediting an officer’s name. In the applicant’s case, the fact that his actions had been known only to certain individuals and had not been made public was not a basis to hold that he had not discredited an officer’s name, for making a violation public was not a precondition for such a finding (on this issue, the report referred to the Supreme Administrative Court’s ruling no. A13-465/2013, of 28 March 2013). 27. Lastly, under Article 62 § 1 (7) of the Statute of Internal Service, discrediting an officer’s name was an independent and separate basis for dismissal from service and was also in itself sufficient grounds for dismissal (see paragraph 46 below). Once it had been established that an officer’s name had been discredited, the Statute did not provide for any alternative solutions. Dismissal from service was a mandatory legal consequence and the officer’s previous work performance, behaviour or other circumstances were irrelevant. 28. On the basis of the disciplinary investigation report’s findings (see paragraphs 25-27 above), on 27 October 2016 the police dismissed the applicant from the police for discrediting an officer’s name, under Article 62 § 1 (7) of the Statute of Internal Service.
proceedings for reinstatement and unpaid salary
29. The applicant brought administrative proceedings seeking reinstatement and unpaid salary. His appeal was drafted by a lawyer. He asserted that the grounds for pre-trial and disciplinary investigations differed and that therefore he should have been provided with an opportunity to give an explanation and submit evidence, defend his name in disciplinary proceedings and prove the absence of guilt. He also asserted that the circumstances referred to in the disciplinary investigation report lacked concrete evidence as a basis. Lastly, the disciplinary violation should not have been based on evidence obtained via the criminal conduct simulation model, for those acts presented a different danger and also because restrictions on a person’s rights, such as the interception of communications, were disproportionate to the danger presented by a disciplinary violation. The applicant’s claim made no mention of a possible breach of the principle of the presumption of innocence. 30. The police authority – the defendant in the proceedings – responded that the disciplinary investigation report referred to the period during which the violations (pažeidimai) had been committed, the allegedly unlawful (neteisėti) actions of the applicant, the person linked to those actions (V.M.), and also indicated that the applicant had discredited an officer’s name. The applicant had thus “known perfectly well” the actions in connection with which the disciplinary investigation had been conducted. His defence rights had not been breached or made difficult to exercise, and he had chosen not to provide explanations, instead asking for his testimony given in the pre-trial investigation to be used (see paragraph 17 above). Furthermore, at the request of the applicant’s lawyer, the report had been given to him twice, and he had been twice requested to provide an explanation by 14 October 2016, yet he had still not provided one. Such tactics, aimed at avoiding disciplinary liability, could not be seen as a restriction of his defence rights. The Vilnius Regional Administrative Court
31. On 10 May 2017 the Vilnius Regional Administrative Court dismissed the applicant’s claim as unfounded. A hearing was held, and the applicant was represented by a lawyer. 32. Although the applicant contested V.M.’s in-court testimony alleging that the applicant had asked him to steal goods and sell them to him for less than the retail price, the court noted that the decision to dismiss the applicant from the police had been taken not just on the basis of that testimony, but also on the testimony of other people, which had been described in the prosecutor’s decision to discontinue the criminal proceedings. V.M.’s testimony had been considered against all the evidence gathered. The applicant’s inappropriate behaviour as an officer had been proven by evidence gathered during the disciplinary investigation and set out in the disciplinary investigation report. Besides, the applicant had not appealed against the prosecutor’s decision to discontinue the criminal proceedings, which meant that the applicant agreed with the circumstances described therein. 33. The court rejected the applicant’s suggestion that evidence gathered when using the criminal conduct simulation model within the criminal proceedings should not have been used during the disciplinary proceedings. In reaching that conclusion, the court referred to the Supreme Administrative Court’s practice on that matter (ruling no. A-4353-438/2016 of 15 September 2016). 34. 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 an officer’s name. The same actions, even if they did not contain all the constituent elements of a crime, could discredit an officer’s name, as had been the case. The consequences of the violations committed were obvious; they did not meet the existing moral norms and expectations which society had towards officers. The applicant’s actions had clearly undermined the authority of the internal service system and destroyed society’s trust in the police. They had sought to achieve aims opposite to those which society would expect of the police, such as the prevention of crime and prevention of violations of the law. Once it was established that a police officer’s name had been discredited, dismissal from the police force was the only sanction provided for in Article 62 § 1 (7) of the Statute of Internal Service (see paragraph 46 below). Besides, the applicant had not submitted any arguments to challenge the legal classification of his disciplinary violation. 35. As to defence rights, the misconduct notice of 29 January 2016 (see paragraph 16 above) had described the violation of which the applicant had been suspected. That information had clearly been sufficient for him to comprehend the violation of the law in question. Accordingly, he had been notified properly. Furthermore, as could be seen from the applicant’s emails of 1 February and 13 October 2016, he had refused to provide an explanation regarding the alleged disciplinary violation, instead asking for his testimony within the criminal proceedings to be used. This also demonstrated that the applicant had understood the essence of the violation in question. Lastly, the applicant had had a lawyer and the opportunity to provide explanations during the disciplinary proceedings but had not availed himself of that right or had any objective obstacles preventing him from contacting a lawyer to defend his rights. The Supreme Administrative CourtThe applicant’s and the police authority’s arguments

36. The applicant lodged an appeal on points of law, arguing, among other things, that V.M. had acted under the control of law enforcement officers, and that he had been provoked into committing a crime. Furthermore, the material obtained during the criminal conduct simulation model, authorised under Article 159 of the Criminal Procedure, should not have been used as a basis for his dismissal from service in the disciplinary proceedings. He had not challenged the lawfulness of the criminal conduct simulation model, for the only decision adopted in the criminal case had been the prosecutor’s decision to discontinue the criminal proceedings, which had been in his favour since it had been concluded that no crime had been committed. The applicant acknowledged having understood that the suspicions of having committed a disciplinary offence, the ongoing pre-trial investigation and disciplinary investigation had been “intrinsically linked” and based on the circumstances examined during that pre-trial investigation, and that “therefore, he had decided not to provide repeated statements and explanations” during the disciplinary proceedings. Lastly, the applicant pleaded that the prosecutor’s words regarding his ability to “continue to properly exercise police officer’s duties” (see paragraph 21 above) had been nothing but a subjective assessment (subjektyvus prokuroro vertinimas), which did not oblige the authorities to adopt a certain decision in disciplinary proceedings. The matter of the presumption of innocence was not mentioned in the applicant’s appeal. 37. In reply, the police authority pointed out that it had received the prosecutor’s permission to use the material from the pre-trial investigation within the disciplinary proceedings. It also referred to the Supreme Administrative Court’s case-law (ruling no. A-4353-438/2016 of 15 September 2016, and ruling no. A-1043-575/2017 of 3 January 2017) to the effect that information obtained via criminal intelligence measures, as reflected in pre-trial investigation decisions, was admissible evidence and could be lawfully used in disciplinary proceedings. Similarly, material gathered during the pre-trial investigation was admissible evidence when examining a disciplinary violation (the Supreme Administrative Court’s ruling no. A662-1444/2013 of 25 July 2013). In the case at hand, even if the information obtained via the criminal conduct simulation model had been removed from the disciplinary investigation material, the remaining facts, referred to in the prosecutor’s decision to discontinue the pre-trial investigation, would have been sufficient to hold that the applicant had discredited an officer’s name. The Supreme Administrative Court’s verdict
38. By a final ruling of 1 September 2017, the Supreme Administrative Court dismissed the applicant’s appeal. The court referred to an earlier ruling, given by an enlarged chamber, namely that of 9 June 2015 (case no. A-1554-662/2015), where it had held that an officer should be properly informed of suspicions linked to the possible discrediting of an officer’s name, so that defence rights were guaranteed. In the case at hand, the misconduct notice contained information about the duration of the violation, the applicant’s allegedly unlawful actions and the person linked to those actions. The notice also referred to the undermining of the prestige of the institution and the possible discrediting of an officer’s name. A notice with such content was sufficiently informative, complying with internal investigation procedures and the applicant’s rights. The applicant’s choice not to provide explanations had been his own method of defence and could not be seen as improper action on the part of the police during the internal investigation. 39. As to the legal meaning (teisinė reikšmė) of the prosecutor’s decision to discontinue the pre-trial investigation, that decision had been an official document, adopted in compliance with the rules of the Code of Criminal Procedure. The facts and assessment of the law, as stated in that document, could be contested only within criminal proceedings, under the rules of the Code of Criminal Procedure. The valid prosecutor’s decision had constituted proof in the administrative case and had to be assessed under the general rules of evidence, as set out in Article 56 §§ 1, 2 and 6 of the Law on Administrative Proceedings (see paragraph 51 below). 40. In the light of the foregoing, the first-instance court had not breached the rules for the assessment of evidence when holding that the applicant had been lawfully dismissed from the police. After all, there had been sufficient evidence against him without it being necessary to rely on that obtained via the criminal conduct simulation model. Specifically, V.M.’s testimony had been consistent, the circumstances referred to had entirely corresponded to other evidence referred to in the decision to discontinue the pre-trial investigation, namely the video recordings from a private security company and data from a mobile telephone operator; thus there was no legal basis to refute the objectivity of V.M.’s testimony.
proceedings for DAMAGE DUE TO SUSPENSION
41. On 4 July 2017 the applicant lodged a civil claim for unpaid salary for the period 11January to 29 September 2016 following his temporary removal from office. 42. By a decision of 3 November 2017 the Vilnius City District Court dismissed that claim as unfounded. The applicant’s removal from office had been the consequence of his own actions, which had led not only to his removal from office, but also to his dismissal. It transpires that the applicant did not appeal against the above-mentioned decision. RELEVANT LEGAL FRAMEWORK AND PRACTICE
43. The Criminal Code reads:
Article 228. Abuse of office
“1. A civil servant or a person equivalent thereto who abuses his or her official position or exceeds his or her authority, where this results in significant damage to the State ... shall be punished by a fine, arrest or up to five years’ imprisonment. 2. A person who commits the act provided for in paragraph 1 of this Article for material or other personal gain, in the absence of characteristics of bribery, shall be punished by a fine or up to seven years’ imprisonment ...”
44. The relevant provisions of the Code of Criminal Procedure, at the material time (the version of 16 September 2016), provided:
Article 159. Authorisation to simulate criminal acts
“1. A prosecutor, upon receiving information that a person has been asked to commit or participate in the commission of a crime, may apply to a pre-trial investigation judge requesting permission for that person to simulate criminal acts in order to identify the perpetrators ... 2. To authorise the simulation of criminal acts, the pre-trial investigation judge must adopt an order specifying:
1) the person authorised to simulate criminal acts;
2) the person with respect to whom such acts are to be performed;
3) information concerning the criminal activity of the person with respect to whom such acts are to be performed;
4) the specific acts allowed to be performed;
5) the desired result;
6) the duration of the acts. 3. When simulating criminal acts, provoking a person to commit a crime is prohibited...”
Article 212. Termination of the pre-trial investigation
“1. The pre-trial investigation shall be terminated:
1) where during the pre-trial investigation it becomes evident that the circumstances provided for in Article 3 ... of this Code [that the act, having elements of a crime or criminal offence, has not been committed] exist ...”
Article 214. Procedure for termination of the pre-trial investigation
“1. In the cases provided for in Article 212 §§ 1 and 2 of this Code, the pre-trial investigation shall be terminated by a decision of the prosecutor ...
... 4. The decision referred to in 1 paragraph of this Article may be appealed against by lodging a complaint with the superior prosecutor ...

Article of the Convention at issue: Article 8
Outcome: no_violation