August 14, 2020
By Donatas Murauskas, Assistant Professor at Vilnius University Law Faculty
The European Court of Human Rights continues to deal with cases against Lithuania concerning equality of arms in trials. Earlier cases could be linked to the heritage of the Soviet rule and practices, recent cases are illustrations of increasing reliance on national security in (criminal) intelligence in discovering relevant facts to be used later in national proceedings. In all cases the law or state authorities limit possibilities of one party to challenge some of decisive or at least important evidence in judicial proceedings. The question arises every time – was the measure proportional or not?
In Dombo Beheer v. The Netherlands, the Court established a universal formula of ‘equality of arms’ applicable in both criminal and civil proceedings: each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent.
The Grand Chamber judgment in Regner v. the Czech Republic sets up the legal framework regarding non-disclosure of evidence. The European court ruled that ‘in carrying out that examination the Court will have regard to the proceedings considered as a whole and will determine whether the restrictions on the adversarial and equality-of-arms principles, as applicable in the civil proceedings, were sufficiently counterbalanced by other procedural safeguards’.
The Lithuanian ‘equality of arms’ cases began in 2002 when in Birutis and Others the applicants were sentenced for organizing riots in prison based on the statements of anonymous witnesses who were mostly other detainees. The Strasbourg Court, finding a violation of Article 6 §§ 1 and 3 (d) of the Convention, referred to its case-law that an applicant should not be prevented from testing the anonymous witness’s reliability and that no conviction should be based either solely or to a decisive extent on anonymous statements.
Later, the authorities adopted new Code of Criminal Procedure with relevant provisions aligned with the Convention standards. The Committee of Ministers adopted a final resolution on the execution of this judgment in 2004. The former Lithuanian judge of the European Court Danutė Jočienė underlines that the execution of this case is an example of direct impact of the Convention standards on the Lithuanian criminal law (Jočienė, p. 246).
Inciting criminal behavior
The Grand Chamber judgment of 2008 in Ramanauskas v. Lithuania opened the next chapter. It became one of the most cited cases against Lithuania. The major issue of this case was active involvement of police that incited criminal behavior of the applicant. The case also concerns important aspects regarding restrictions on the applicant’s access to evidence during the trial.
During the criminal trial, the applicant maintained that he had been incited to commit the offence. Based on the constitutional jurisprudence, the national courts, examining his criminal case, should have established why the police incitement had been arranged. This would allow the applicant to comment on reasons to initiate it. The reasons why the incitement had been applied on the applicant had never been revealed to him.
The applicant raised similar issues in another police incitement case, Malininas v. Lithuania, of 2008. The Strasbourg court concluded that the police involvement was not fully disclosed to the applicant, particularly regarding the purported suspicions about the applicant’s previous conduct. This again hindered the applicant in arguing his case.
‘Secret’ evidence compelled by law-enforcement authorities
In Gulijev v. Lithuania, the authorities decided to expel the applicant from Lithuania based on a State Security Department’s ‘secret’ file stating that he posed a ‘threat to national security and public order’. In 2008 the ECtHR found a violation of Article 8 of the Convention in Mr Gulijev’s case. Among other arguments the Court indicated that the Government had provided no objective materials verified by the domestic courts to demonstrate that the domestic authorities had good reasons to suspect the applicant of being a threat to national security.
In 2010 the Court adopted judgments in Pocius v. Lithuania and Užukauskas v. Lithuania. The Pocius case is an example where national courts simply refer to existing evidence without detailing it. The national courts examined the operational file and “written evidence” against the applicant, without further elaboration. The courts denied the applicant from accessing the operational file, compiled by law-enforcement authorities and used as evidence in his trial. The evidence was deemed to be essential in the applicant’s criminal case – the Strasbourg court concluded that the decision-making procedure did not comply with the equality of arms requirements. The Court concluded similarly in the Užukauskas case. Danutė Jočienė underlined that the Pocius and Užukauskas judgments sent a clear message to administrative courts as regards the prohibition to use ‘secret’ evidence in administrative cases (Jočienė, p. 249).
Was everything resolved lately?
In 2016 the European Court communicated Mr. Pukelis’ case to the Lithuanian government. The applicant argued that his private life had been restricted due to the imposition of preventive measures based on classified information which he did not have access to. This case again concerned the extent to which ‘secret’ information could justify restrictions on an individual in absence of opportunities to challenge such information in detail. Unfortunately, we did not receive a ruling by the European Court in this case. The case was struck out of the list as the applicant had failed to respond to the Court Registry’s letter.
In 2019 the Court declared application Zarubin and Others inadmissible. The applicants – employees of the Russian state media – arrived in Vilnius to participate in a high-level event that included Russian opposition members. Allegedly, they disrupted the event and engaged in provocations. The applicants were expelled from Lithuania and banned from re‑entering for one year because the domestic authorities concluded that their presence in Lithuania constituted a threat to national security. The national courts rejected the applicants’ appeal, referring to classified, declassified and publicly available information. The European Court acknowledged that the examination of the applicants’ case was thorough, satisfying, the conditions set, among others, in the Regner case.
Fortunately (for the scholars, not for the Government), 2020 brought new cases, including communications on the administration of evidence in Lithuanian courts.
The case AmberCore DC and Arcus Novus v. Lithuania, communicated in February 2020, raises important issues on withholding evidence from private persons on public interest grounds. Both applicants are enterprises working in the field of telecommunication services. They belong to SatGate group which provides satellite communication services. Around 2012, the companies initiated a project to build the biggest data storage facility in Lithuania. They applied to the authorities for the necessary permits.
Arcus Novus is the sole shareholder of AmberCore. In order to attract more investments for the data storage facility project, Arcus Novus decided to increase the share capital of AmberCore in 2015. In 2016, the Commission [for the Assessment of Conformity of Potential Participants to National Security Interests] declared that the increase of shares was unlawful. The Commission referred to the Law [on Enterprises and Facilities of Strategic Importance to National Security and Other Enterprises of Importance to Ensuring National Security].
The Law designates economic sectors important to national security. This includes information technologies and telecommunications – the sector where the applicants are active. The Commission ensures that the Law is complied with and gathers information from law-enforcement authorities. Some information could be classified as happened in this case. The Commission mandate extends to situations where a person aims to acquire shares or other rights in companies or facilities in sectors important to national security.
The Commission grounded its decision to block the increase of share capital of AmberCore on the classified information of the State Security Department. The Commission stated that Arcus Novus is owned by four Russian citizens and one of them used to work as a director of a Gazprom-related company. Based on a State Security Department report, the Commission indicated that working in a Gazprom-related company means that he had worked in companies that were linked to the Russian Government and were controlled by the Federal Security Service (FSB) of the Russian Federation. The Commission described that the data storage facility could serve as a communication link between the European Union and the FSB.
The national courts upheld the Commission decision. They relied on classified and public information. The first instance court indicated that publicly available information and not classified information adduced to the casefile by the SSD was sufficient for the Commission to reach its conclusion that the applicant companies failed to meet the requirements of the Law.
Do we need ‘secrecy’ at all?
The Strasbourg Court raises several questions with the Government regarding the AmberCore DC and Arcus Novus case. Among them, the applicability of Article 6 § 1 civil head in this case and whether the proceedings were adversarial. It appears from the communication that the applicants’ claim that the unsuccessful outcome of national proceedings hindered them from further development of the data storage facility. The European Court also frames the jurisdictional question regarding the application of Article 6 § 1 in its civil head as if the outcome of the proceedings blocked the applicants from their plans to develop this center, asking whether Article 6 is applicable “to the administrative court proceedings in which the applicant companies challenged the Commission’s decision not to issue them the permit to construct the data storage facility”. It appears from the national proceedings that the Commission decision only limited the increase of the share capital of one of the companies – one of the ways to attract more investment for the development of the project but not the sole one.
Even in this context, the case raises new aspects of curtailing person’s rights on ‘national security’ considerations. It dives deeper into the land of current dangerous practices of some states trying to influence other states and their societies. At the same time, it raises once again the never-ending discussion on margin of appreciation of member states to deal with their national security.
In the Regner judgment the Grand Chamber decided that a thorough overview of classified evidence ensured that the national proceedings complied with Article 6 § 1 of the Convention, even though the applicant had had no opportunity to view such evidence. In his blog post, Andrea Preziosi discusses this case as an example of the European Court refraining from carrying out a complex and delicate balancing exercise when national security is at stake.
The Strasbourg Court refers to the controversial Regner judgment in the AmberCore DC and Arcus Novus communication, asking about the scope of publicly available evidence in the applicants’ proceedings. In contrast to the Regner case, the national authorities provided a summary of the findings in the AmberCore DC and Arcus Novus.
Reading the communication made me think of actual importance of ‘secrecy’ for national authorities in this case. The Lithuanian authority based its conclusion on the interpretation of two facts – the citizenship of the shareholders and the former employer of one of them. Was it crucial to maintain information classified in this decision? Is there anything more in the State Security Department report that was not exposed by the Commission?
The European Court judges approved the need to preserve the confidentiality of classified documents in the Regner case (§ 155). The Czech courts relied on the argument that the disclosure of information “could have had the effect of disclosing the intelligence service’s working methods, revealing its sources of information or leading to attempts to influence possible witnesses”. That was considered satisfactory for the European judges. But the same reason could be applied almost in all situations where an intelligence authority is the source of some information. For these reasons I hope that the AmberCore DC and Arcus Novus case provides the opportunity for the European Court to develop stricter standards regarding the use of classified information in a fair trial context.