Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Articles 1181, 1561, Item 5
of Article 267 and Article 3171 of the Republic of
Lithuania Code of Criminal Procedure with the
Constitution of the Republic of Lithuania
Vilnius, 19 September 2000
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Egidijus
Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas
Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of the petitioner-the Vilnius Regional
Court-judge Kristina Paleckaitė,
the representative of the party concerned-the Seimas of
the Republic of Lithuania-Gintaras Goda, a senior consultant to
the Law Department of the Office of the Seimas,
pursuant to Paragraph 1 of Article 102 of the Constitution
of the Republic of Lithuania and Paragraph 1 of Article 1 of
the Republic of Lithuania Law on the Constitutional Court, on
29 August 2000, in its public hearing conducted the
investigation of Case No. 25/99-9/99-35/99 subsequent to the
following petitions:
A petition submitted to the Court by the Panevėžys
Regional Court requesting to investigate if Item 5 of Article
267 and Article 3171 of the Republic of Lithuania Code of
Criminal Procedure were in conformity with Paragraphs 2 and 6
of Article 31, Paragraphs 1 and 2 of Article 109 and Paragraph
1 of Article 118 of the Constitution of the Republic of
Lithuania;
A petition submitted to the Court by the Šalčininkai Local
District Court requesting to investigate if Articles 1181,
1561, Item 5 of Article 267 and Article 3171 of the Republic of
Lithuania Code of Criminal Procedure were in conformity with
Paragraphs 2 and 6 of Article 31 of the Constitution of the
Republic of Lithuania;
A petition submitted to the Court by the Vilnius Regional
Court requesting to investigate if Paragraph 3 of Article 1561
of the Republic of Lithuania Code of Criminal Procedure was in
compliance with Paragraph 1 of Article 29 and Paragraph 2 of
Article 31 of the Constitution of the Republic of Lithuania,
and if Paragraphs 3 and 4 of Article 3171 of the Republic of
Lithuania Code of Criminal Procedure were in conformity with
Paragraph 2 of Article 31 and Paragraph 1 of Article 117 of the
Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
The petitioner-the Panevėžys Regional Court-was
investigating a criminal case. By its 19 April 1999 ruling, the
said court suspended the investigation of the case and appealed
to the Constitutional Court with a petition requesting to
investigate if Item 5 of Article 267 and Article 3171 of the
Republic of Lithuania Code of Criminal Procedure (hereinafter
referred to as the CCP) were in conformity with Paragraphs 2
and 6 of Article 31, Paragraphs 1 and 2 of Article 109 and
Paragraph 1 of Article 118 of the Constitution.
The petitioner-the Šalčininkai Local District Court-was
investigating a criminal case. By its 4 May 1999 ruling, the
said court suspended the investigation of the case and appealed
to the Constitutional Court with a petition requesting to
investigate if Articles 1181, 1561, Item 5 of Article 267 and
Article 3171 of the CCP were in conformity with Paragraphs 2
and 6 of Article 31 of the Constitution .
The petitioner-the Vilnius Regional Court-was
investigating a criminal case. By its 16 December 1999 ruling,
the said court suspended the investigation of the case and
appealed to the Constitutional Court with a petition requesting
to investigate if Paragraph 3 of Article 1561 of the CCP was in
compliance with Paragraph 1 of Article 29 and Paragraph 2 of
Article 31 of the Constitution, and if Paragraphs 3 and 4 of
Article 3171 of the CCP were in conformity with Paragraph 2 of
Article 31 and Paragraph 1 of Article 117 of the Constitution.
By the Constitutional Court decision of 9 May 2000, all
these petitions were joined into one case.
II
The requests of the petitioners are based on the following
arguments.
1. The petitioner-the Panevėžys Regional Court-points out
in its petition that Item 6 of Article 267 of the CCP provides
for the right of the accused to give questions to the victims
and witnesses, however, in cases of anonymous victims and
witnesses, the accused cannot exercise such a right. The
petitioner maintains that by the norms of Item 5 of Article 267
and Article 3171 of the CCP the principle of impartiality of
the court entrenched in Paragraph 2 of Article 31 of the
Constitution is violated and the right of the accused to a fair
trial is infringed.
Paragraph 6 of Article 31 of the Constitution provides
that from the moment of arrest or first interrogation, persons
suspected or accused of a crime shall be guaranteed the right
to defence, which is one of the guarantees of establishment of
truth in the case. Implementation of this right is a necessary
condition ensuring that an innocent person would not be brought
to criminal responsibility and convicted. Thus, in trial the
accused has to have an opportunity to give questions to the
witnesses.
In the opinion of the petitioner, the right to defence is
linked with the norms of Paragraphs 1 and 2 of Article 109 and
those of Paragraph 1 of Article 118 of the Constitution wherein
the functions of courts and public prosecutors are established,
as well as with the norm of Paragraph 2 of Article 31 of the
Constitution which guarantees that every indicted person shall
have the right to a fair and public hearing by an independent
and impartial court.
2. The petitioner-the Šalčininkai Local District
Court-points out in its petition that Article 1561 provides
that in cases of grave crimes a public prosecutor, and with his
consent-an investigator, in attempt to ensure security of the
witness or the victim, have the right to classify the family
names and other identification particulars of these persons. It
is only the investigators, prosecutors and judges participating
in the case that are entitled to familiarise with the actual
identification particulars. The accused may not find out these
identification particulars. It means that the right of the
person to be informed as to who is suing him and on the
evidence of what witness or victim the charge against him is
based upon is restricted. The accused may not know in what way
he is related to these witnesses or victims and whether these
persons do not have a reason to accuse him groundlessly. Thus
Article 1561 of the CCP violates both the right of persons to a
fair trial established in Paragraph 2 of Article 31 of the
Constitution and the right to defence established in Paragraph
6 of the same article. Articles 1181, 3171 and Item 5 of
Article 267 of the CCP regulate the enforcement of Article
1561, therefore, they conflict with the aforementioned
constitutional provisions as well.
3. It is pointed out in the petition of the petitioner-the
Vilnius Regional Court-that Paragraph 1 of Article 117 of the
Constitution stipulates that in all courts, the investigation
of cases shall be open to the public. Closed court sittings may
be held in order to protect the secrecy of a citizen's or the
citizen's family's private life, or to prevent the disclosure
of state, professional, or commercial secrets. The Constitution
does not provide for secret court sittings, however, the manner
of questioning an anonymous witness makes the court hearing
secret: the court questions the anonymous witness not only in
the absence of the public but also the participants of the
court proceedings.
Paragraph 1 of Article 29 of the Constitution provides
that all persons shall be equal before the law, the court, and
other state institutions and officers. It is established in
Paragraph 2 of Article 31 of the Constitution that every
indicted person shall have the right to a fair and public
hearing by an independent and impartial court. Article 265 of
the CCP provides that the rights of participants of trial are
equal and cases are tried according to the principle of
contention. Articles 269, 267 and 60 of the CCP provide for the
rights of the legal counsel, the accused and the victim to
familiarise with all documentation of the case, to take part in
the investigation of the case and participate during the
analysis of the evidence. However, Paragraph 3 of Article 1561
of the CCP provides that only the prosecutor has the right to
familiarise with the actual identity particulars of the
witness. He is thus set apart from the other participants of
the court proceedings.
In the opinion of the petitioner, the anonymity of the
witness bars the way to the court to try the case in a fair and
impartial manner as it prevents the court from becoming
convinced of the veracity of the testimony of the witness. It
is the relation of the witness to the accused and the victim
that is an important circumstance in the case which might have
decisive importance in establishment of credibility of the
evidence. On legal restriction of opportunities objectively to
verify the evidence of witnesses, the probability of perjury is
increased.
By the procedure of questioning provided for in Paragraphs
3 and 4 of Article 3171 of the CCP provisions of authenticity
of testimony are ignored, the source of information remains
anonymous and the testimony of the anonymous witness in trial
is virtually of an anonymous report level. By this the rights
of participants of court proceedings are infringed and this
also bars the way to the court to remain impartial and fair.
III
In the course of the preparation of the case for the
Constitutional Court hearing written explanations by G. Goda,
the representative of the party concerned-the Seimas-were
received.
1. The representative of the party concerned pointed out
that Articles 1181 and 1561 of the CCP virtually regulate the
procedure of granting anonymity to witnesses (victims). Article
1181 of the CCP provides for peculiarities of drawing up
records, while Article 1561 of the CCP provides for those of
the manner of conduct of interrogation. In essence, these
articles only mention that witnesses may be granted anonymity
and indicate as to how this anonymity granting should be
formalised. The fact of granting anonymity to witnesses
(victims) is not to be considered violation of any
constitutional norm if such anonymity granting to these persons
was reasonable.
The questioning of anonymous witnesses an victims in the
absence of the participants of trial would be senseless in case
the latter before or after such a hearing might be able to
familiarise with the identification data of the anonymous
persons. The fact that the identification data of the anonymous
persons may only be known for certain officials is to be held
an inseparable part of the regulation of granting anonymity to
witnesses and victims in criminal procedure.
2. Article 1561 of the CCP provides that granting
anonymity to a witness or victim is only possible in cases when
there exists imminent danger to the health or life of the
witness or victim. It means that the criminal procedure law
does not permit to resort to the means of anonymity granting
unrestrictedly.
3. Article 3171 of the CCP established the following
peculiarities of the use of testimony given by anonymous
witnesses: 1) the court is entitled not to summon the anonymous
person to the hearing, and to read orally his testimony given
during the pre-trial investigation (Paragraph 1 of Article 3171
of the CCP); 2) the court may summon such a person to the
hearing, however, in such a case it must either interrogate the
anonymous person in the absence of the participants of trial
(Paragraph 3 of Article 3171 of the CCP) or to interrogate him
in a non-public hearing, after creating acoustic or visual
barriers which would not enable the other participants of trial
to identify the person interrogated (Paragraph 4 of Article
3171 of the CCP). From the standpoint of human rights
protection, there are fewest reproofs as regards the norm of
Paragraph 4 of Article 3171 of the CCP. In certain cases,
however, the use of visual and acoustic barriers may pose
difficulties for the counsel for the defence and diminish the
credibility of evidence obtained by such means.
One ought to apply the mode of questioning provided for in
Paragraph 3 of Article 3171 of the CCP in a rather cautious
manner. Generally, it is not necessary to abandon this norm as
it does not create conditions to violate the Convention for the
Protection of Human Rights and Fundamental Freedoms
(hereinafter also referred to as the Convention). In case the
said norm is abandoned, the institute of granting anonymity to
witnesses would lose sense altogether. The fact of granting
anonymity to the witness does not mean unavoidable violation of
the Convention. The case-law of the European Court of Human
Rights as well as the experience of European states shows that
it is possible to base oneself on the testimony of anonymous
witnesses as only one piece of evidence, however, in a criminal
case such evidence may not be decisive nor may it be the only
piece of evidence.
While investigating Paragraph 1 of Article 3171 of the
CCP, one is to note that, unlike the Convention, the
Constitution does not have a direct consolidation of the right
of the suspect to give questions to the witnesses in the case.
However, the right of the suspect to give questions to
witnesses is an integral element of the right of the suspect to
defence which is guaranteed by the Constitution. The right to
defence is implemented through particular actions, while giving
questions to witnesses is only one of such actions. Paragraph 2
of Article 31 of the Constitution, as well as the Convention,
guarantees the right to a fair trial.
In the opinion of the representative of the party
concerned, it is groundless to maintain that granting anonymity
to witnesses might violate the principle of independence and
impartiality of judges and courts. From this aspect, the issue
of granting anonymity to witnesses is not considered neither in
the European Court of Human Rights nor in individual European
states. Granting anonymity to witnesses does not violate the
constitutionally established separation of functions of courts
and the prosecutor's office.
4. According to the representative of the party concerned,
the principle of public trial of cases which is established in
Paragraph 2 of Article 31 and Paragraph 1 of Article 117 of the
Constitution is not absolute as it is provided in Paragraph 1
of Article 117 that closed (i.e. non-public) court sittings may
be held in order to prevent the disclosure of state secrets.
The classified identification particulars of a witness or a
victim are a state secret, therefore trials of the cases where
these anonymous persons have to be interrogated in closed
sittings are in conformity with the Constitution. Paragraph 1
of Article 6 of the Convention also provides for an opportunity
to hold closed court sittings in certain cases. The Convention
does not contain a final list of such possible cases-it merely
establishes that cases may be investigated in a non-public
manner and also in cases when, in the opinion of the court,
this is strictly necessary in special circumstances where
publicity would prejudice the interests of justice.
5. The disputed norms of the CCP are not linked with the
regulation established in Paragraph 1 of Article 29 of the
Constitution, i.e. granting anonymity to witnesses and victims
does not violate the principle of equality of persons,
therefore any doubts regarding the conformity of regulation of
granting anonymity to the aforesaid persons in criminal
procedure with this constitutional norm are groundless. By
granting anonymity to the persons, one attempts to create
necessary conditions to administer justice in criminal legal
proceedings.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations concerning
the arguments of the petitioner were received from Č. K.
Blažys, Minister of Internal Affairs of the Republic of
Lithuania, K. Pėdnyčia, Prosecutor General of the Republic of
Lithuania, S. Švedas, Vice-minister of Justice, Dr. K. Stungys,
Dean of the Law Faculty of the Law Academy of Lithuania, Dr. P.
Ancelis, Dean of the Police Faculty of the Law Academy of
Lithuania, J. Vasiliauskas, Vice-dean of the same faculty, A.
Bugelevičienė, Deputy Chairman of the Lithuanian Bar Council,
Assoc. Prof. Dr. J. Rinkevičius who works at the Department of
Criminalistics and Criminal Procedure of the Law Faculty of
Vilnius University, Dr. K. Jovaišas, a senior research fellow
at the Division of Criminological Research of the Law
Institute, J. Misiūnas, the chief specialist, Head of the
Division of Information and Methods of the Law Institute, and
the senior specialist P. Ragauskas who works at the same
institute.
V
In the Constitutional Court hearing the judge Kristina
Paleckaitė, a representative of the Vilnius Regional Court,
virtually reiterated the arguments set down in the petition of
the Vilnius Regional Court.
In the Constitutional Court hearing the representative of
the party concerned G. Goda virtually reiterated the statements
set down in his written explanations to the Constitutional
Court.
The specialists-G. Švedas, Vice-minister of Justice, and
V. Rimkus, a senior commissioner at the Law Service of the
Police Department-spoke at the court hearing.
The Constitutional Court
holds that:
I
1. Criminal procedure laws must provide for such a
procedure of criminal case proceedings which might create
pre-conditions for speedy and thorough detection of crimes and
persons that committed them, to imprison culprits and, by
applying respective penal laws properly, to punish them justly.
An innocent person may not be brought to criminal
responsibility and convicted.
When the procedure for bringing persons to criminal
responsibility and imposition of penalties for crimes committed
is being established, laws must also provide for the protection
of the rights of the person charged of the commission of a
crime. In its 11 May 1999 ruling, the Constitutional Court
noted that "guaranteeing the protection of the rights of
individuals, one has to pay heed to the fundamental principles
of the state under the rule of law which require that
jurisdictional and other law applying institutions be unbiased
and independent, that they attempt to establish the objective
truth and that they pass their decisions on the basis of law
only. This is only possible when the proceedings are public,
the parties to the proceedings enjoy equal rights, while the
pleadings in court, especially those regarding the rights of
individuals, are decided by ensuring that the said person
should have the right and opportunity to defend his rights. In
the state under the rule of law the right of an individual to
defend his rights is unquestionable". Thus a person may not be
recognised guilty of commission of crime nor criminal
punishment may be administered to anyone without proper
judicial procedure permitting the accused to be familiarised
with everything he is being charged with and on what basis the
charges against him are founded, as well as allowing him to
prepare and present evidence for the defence. This must be
assured by norms of criminal procedure which must be in
conformity with the constitutional principles of lawfulness,
equality before the law and court, impartiality of courts and
judges, and those of public and fair investigation of cases.
The participants of trials-the public prosecutor, the accused,
the defence, the victim and his/her representative, the civil
plaintiff and the civil respondent and their
representatives-must be guaranteed by laws equal rights to
present evidence, to take part in the investigation of the
evidence and to submit pleas. Cases must be investigated on the
basis of the contention principle.
2. While issues of criminal liability of a person are
being decided, collection and assessment of evidence are
important. In criminal procedure, along with the other
evidence, in order to substantiate the charge of a crime
committed, testimony of witnesses and victims is of great
importance. Credibility of such testimony is a necessary
condition in order to avoid unjust or unreasonable conviction
of a person.
Any person may be summoned to act as a witness in a
criminal case in case there is information that he knows
certain circumstances linked with the case. As a witness, the
person may be questioned about the facts identifying the person
of the accused and the victim, their interrelations, as well as
relation of the witness to the accused and the victim.
Everyone summoned to witness in court must appear in court
and give his testimony regarding everything that is known to
him in the case and correctly to answer all the questions given
to him by the participants of the proceedings. The duty of the
witness to testify and tell the truth in a criminal case is
also assured by the fact that criminal liability is provided in
case such a duty is not performed. Liability is also provided
for the victim in case he presents false evidence. Article 31
of the Constitution contains a provision that persons cannot be
compelled to give evidence against themselves or against their
family members or close relatives. In penal laws there are
norms permitting the witness to refuse to testify on such
basis. In cases when such persons, being aware that they have
the right to refuse to testify, but, however, if they
subsequently commit perjury, they may be brought to criminal
responsibility as well.
3. It needs to be noted that in certain cases a witness or
the victim might face threat if he gives truthful evidence,
therefore at present in various countries diverse measures are
provided in order to protect witnesses from unlawful influence:
opportunities are created to change the place of residence,
name, job or by means of plastic surgery to change the face
etc. As a rule, penal laws provide for criminal liability for
such a crime as attempt to exert influence on the witness by
any means.
In certain European states, in order to protect a witness
or the victim from possible physical or psychological
influence, their anonymity is permitted in criminal procedure.
In the jurisprudence of the European Court of Human Rights
a possibility to grant anonymity to a witness or the victim is
in essence not questioned, however, an exceptional character of
the evidence of anonymous witnesses or victims is emphasised,
as well as attention is paid to the other conditions which must
be followed while making use of the testimony of anonymous
witnesses and victims as evidence in criminal cases in the
course of substantiating judgements of conviction. This is
linked with the requirements set down in the Convention for the
Protection of Human Rights and Fundamental Freedoms.
Paragraph 1 of Article 6 of the Convention contains the
right of individuals to a fair hearing, while Paragraph 3 of
Article 6 provides for the guarantees of rights to defence of
the person charged with a criminal offence. One of such rights
is contained in Paragraph 3 (d) of Article 6 of the Convention,
which is a requirement that the indicted person has the right
to examine or have examine witnesses against him and to obtain
the attendance and examination of witnesses on his behalf under
the same conditions as witnesses against him.
The European Court of Human Rights in the case of Lüdi v.
Switzerland (European Court of Human Rights, judgment of 15
June 1992, series A No. 238) paid attention to the circumstance
that neither the accused nor his counsel had at any time during
the proceedings an opportunity to question the undercover
agent. The Court qualified it as a violation of Paragraph 3 (d)
of Article 6 of the Convention. In the opinion of the Court, it
would have been possible to carry out questioning of the
undercover agent so that the suspect and his counsel might have
questioned the undercover police agent and that the anonymity
of the agent would have been preserved.
In the case of Doorson v. the Netherlands, the European
Court of Human Rights held that there was no violation of the
right to a fair hearing expressed in Article 6 of the
Convention in the criminal proceedings where anonymous
witnesses were questioned by an investigating judge who was
aware of their identity, while the counsel was present and was
put in a position to ask the witnesses questions, and when the
culpability of the accused of commission of crime was
reiterated by evidence from other sources (European Court of
Human Rights, Case of Doorson v. the Netherlands, Reports
1996-II).
The principles which ought to be observed in the course of
assessment of lawfulness of the testimony given by anonymous
witnesses were laid down by the European Court of Human Rights
in the case of Van Mechelen and others v. the Netherlands
(European Court of Human Rights, Case of Van Mechelen and
others v. the Netherlands, Reports 1997-III). The resort to
anonymous witnesses may be justifiable when this is necessary
to preserve their interests and if this, in case of testimony
of anonymous witnesses, does not deprive the right of the
accused to a fair hearing and generally to a just investigation
of the case. The defendant must be given an opportunity to
question the witnesses against him, as the anonymity of
witnesses restricts the opportunities of the defence to
question the credibility of the witness, or to present
arguments concerning his animosity or prejudice towards the
accused. These restrictions must be "sufficiently
counterbalanced by the procedures followed by the judicial
authorities". In addition, the testimony given by anonymous
witnesses may not be the only and decisive evidence
substantiating the judgement of conviction.
Thus, it is recognised in the jurisprudence of the
European Court of Human Rights that in certain cases the use of
anonymous witnesses does not violate the Convention.
Recommendation No. R (97) 13 of the Committee of Ministers
of the Council of Europe to member states concerning
intimidation of witnesses and the rights of the defence, which
was adopted on 10 September 1997, pays heed to the fact that,
while respecting the rights of the defence, witnesses should be
provided with alternative methods of giving evidence which
protect them from intimidation resulting from face to face
confrontation with the accused. However, where available and in
accordance with domestic law, anonymity of persons who might
give evidence should be an exceptional measure. Where the
guarantee of anonymity has been requested by such persons
and/or temporarily granted by the competent authorities,
criminal procedural law should provide for a verification
procedure to maintain a fair balance between the needs of
criminal proceedings and the rights of the defence. The defence
should, through this procedure, have the opportunity to
challenge the alleged need for anonymity of witness, his
credibility and origin of knowledge.
4. Protection of human rights is entrenched in the
Constitution, i.e., human life (Article 19), inviolability of
the person (Article 25), inviolability of property (Article 23)
etc. Thus the witness or the victim who gives his testimony
must be properly protected by measures established in laws from
any unlawful influence.
Alongside, it is in the interest of society and the state
that the case of any indicted person be investigated in a fair
manner. The Constitution guarantees that every indicted person
shall have the right to a fair and public hearing by an
independent and impartial court (Paragraph 2 of Article 31). He
must have the right to defend himself from the charge. Due to
secrecy of identification particulars of the witness of the
victim, the implementation of the right of the accused to
defence becomes more complex. It means that in the norms of
criminal procedure providing for the procedure of granting
anonymity to witnesses and victims and that of presentation of
their testimony, the aforementioned rights must be coordinated.
The Constitutional Court notes that anonymity of witnesses
and victims is permissible only as an exceptional measure in
cases when it is necessary to assure their security and when
the procedure of questioning anonymous witnesses and victims in
a court hearing and consideration and use of their evidence
neither infringe nor deny the constitutional right of the
indicted person to defence and a fair investigation of the
case.
5. The petitioners doubt whether the norms of the CCP
regulating establishment and investigation of testimony given
by anonymous witnesses or victims in court are in compliance
with the Constitution.
II
On the compliance of Article 3171 of the CCP with
Paragraphs 2 and 6 of Article 31, Paragraphs 1 and 2 of Article
109, Paragraph 1 of Article 117, Paragraph 1 of Article 118 of
the Constitution and that of Item 5 of Article 267 of the CCP
with Paragraphs 2 and 6 of Article 31, Paragraphs 1 and 2 of
Article 109, and Paragraph 1 of Article 118 of the
Constitution.
1. Article 3171 of the CCP entitled "Peculiarities of
Questioning of Witnesses or Victims When Their Identification
Particulars are Classified" provides:
"In cases when the identification particulars of a witness
or a victim have been classified during the pre-trial
investigation, the court may decide not to summon such a person
to the court hearing and to read orally his testimony given
during the pre-trial investigation.
Having recognised that it is necessary to question the
witness or victim in court, the court shall commission the
officer who has classified the identification particulars of
the said person, to organise the appearance of the said person
in court in such a manner that secrecy of his identification
particulars might be preserved.
The court shall question such persons in the absence of
the participants of trial. In such cases the testimony of the
person questioned shall be entered into official records by one
of the judges.
In cases when the court decides to question an anonymous
witness or victim in a court hearing, the court may do so in a
non-public hearing after it has created acoustic or visual
barriers for the other participants to the judicial proceedings
so that they would not be able to determine the identity of the
person questioned."
Article 267 of the CCP entitled "Rights of the Accused in
Trial" provides that the accused has the right:
1) to obtain, within the time period established by the
law, a copy of the indictment and in cases provided for in
Article 259 of the same Code also a copy of the ruling of the
procedural sitting of the court and that of the decision of the
judge to refer the case to trial;
2) to have the legal counsel;
3) to submit requests;
4) to challenge the judge, public prosecutor, secretary of
the hearing, interpreter, expert or specialist;
5) to take part in the investigation of all the evidence
save the cases provided for in Article 3171;
6) to give questions to the witnesses, experts,
specialists, other suspects, as well as the victim, civil
plaintiff and civil respondent and their representatives;
7) at any point during questioning in trial to present his
explanations regarding the circumstances of the case considered
in court and to give his opinion about requests submitted by
the other participants of trial.
8) in cases when the legal counsel is absent, to take part
in the pleadings;
9) to appeal to the court by last address;
10) to give remarks regarding the official record of the
court hearing;
11) to lodge appeals against the court judgement and
rulings.
2. The petitioners doubt whether the disputed norms of
Article 3171 of the CCP are in compliance with Paragraphs 2 and
6 of Article 31 of the Constitution.
Paragraph 2 of Article 31 of the Constitution provides:
"Every indicted person shall have the right to a fair and
public hearing by an independent and impartial court." Thus,
the principle of the right of persons to a fair trial is
entrenched in the Constitution. This principle means, inter
alia, that the court must unconditionally follow the
constitutional principles and the requirements of laws
establishing them as regards the equality of the parties of
criminal proceedings before the law and the court, and be
impartial and independent. These are the most important
pre-conditions ensuring that the circumstances of the case be
investigated thoroughly, completely and objectively and the
truth be established, as well as that penal laws be applied
correctly.
Paragraph 6 of Article 31 of the Constitution provides:
"From the moment of arrest or first interrogation, persons
suspected or accused of a crime shall be guaranteed the right
to defence and legal counsel." The right to defence of
individuals guaranteed in this constitutional norm presupposes
the fact that they must be ensured sufficient procedural means
to defend themselves from charges against them and they must be
given guarantees that they have an opportunity to make use of
such means. The right to defence is one of the conditions
necessary for fair investigation of cases. By guaranteeing the
right of individuals to defence preconditions are created to
justly punish everyone who has committed a crime, as well as to
ensure that no innocent person be brought to criminal
responsibility and convicted.
3. Article 3171 of the CCP provides for the following
peculiarities of investigation of testimony given by anonymous
witnesses or victims in judicial proceedings: 1) the court may
decide not to summon such a person to the court hearing and to
read orally his testimony given during the pre-trial
investigation (Paragraph 1 of Article 3171 of the CCP); 2) the
court may summon the anonymous witness to appear in court,
however, in such a case the court shall question such a person
in the absence of the participants of trial (Paragraphs 2 and 3
of Article 3171 of the CCP); 3) the court may question an
anonymous witness or a victim in a non-public court hearing,
after it has created acoustic or visual barriers for the other
participants to the judicial proceedings so that they would not
be able to determine the identity of the person questioned
(Paragraph 4 of Article 3171 of the CCP).
Thus, Article 3171 of the CCP provides for the discretion
of the court to chose one of the aforesaid alternatives.
4. Item 5 of Article 267 of the CCP provides that the
accused has the right to take part in the investigation of all
the evidence save the situations provided for in Article 3171
of the CCP. Thus the restrictions of the right of the accused
established in Item 5 of Article 267 of the CCP may be revealed
only upon elucidation of the content of the legal regulation
consolidated in Article 3171 of the CCP.
The Constitutional Court notes that Item 5 of Article 267
of the CCP is worded in a legally deficient manner as the
content of the legal regulation established therein is not
clear. Therefore Item 5 of Article 267 of the CCP may be
construed in various ways. For instance, according to the norm
of the said item, the accused, in a restricted manner, may be
permitted to participate in the investigation of the testimony
given by an anonymous witness or victim, or he may be
prohibited from such participation. Such legal regulation is
not in line with the universally recognised principle of legal
certainty and creates preconditions to infringe the right of
the accused to defence and to a fair trial.
5. Paragraph 1 of Article 3171 of the CCP provides for the
right of the court to decide not to summon a person the
identification particulars whereof have been classified to the
court hearing and to read orally his testimony given during the
pre-trial investigation. In such a case the right of the
accused to give questions to the anonymous witness or victim or
to question credibility of their testimony is restricted.
Paragraphs 2 and 3 of Article 3171 of the CCP provide for
another right of the court, i.e. to question an anonymous
witness or victim in court. The procedure for appearance of
such persons in court and their questioning is established
therein. Under Paragraph 3 of Article 3171 of the CCP, the
court may question the anonymous witness or victim in the
absence of participants of trial. In such a case the right of
the accused to give questions to the anonymous witness or
victim or to participate in other ways in the investigation of
the testimony given by them is not guaranteed.
Under Paragraph 4 of Article 317 of the CCP, an anonymous
witness or a victim may be questioned in a non-public hearing
upon creation of acoustic or visual barriers for the other
participants to the judicial proceedings so that they would not
be able to determine the identity of the persons questioned.
The questioning of the anonymous witness or victim is carried
out by the court. In this case the right of the accused to give
questions to the anonymous witness or victim is not guaranteed
either.
Taking account of the arguments set forth, one is to
conclude that Item 5 of Article 267 of the CCP and Article 3171
of the CCP to the extent that they do not guarantee the right
of the accused to give questions, either in person or through
the court, to an anonymous witness or victim, and due to this
his right to participate in the investigation of evidence is
restricted, infringe the right of the accused to defence and
fair investigation of the case. This conflicts with Paragraphs
2 and 6 of Article 31 of the Constitution.
6. In the opinion of the Vilnius Regional Court,
Paragraphs 3 and 4 of Article 3171 of the CCP conflict with
Paragraph 1 of Article 117 of the Constitution.
Paragraph 1 of Article 117 of the Constitution provides:
"In all courts, the investigation of cases shall be open to the
public. Closed court sittings may be held in order to protect
the secrecy of a citizen's or the citizen's family's private
life, or to prevent the disclosure of State, professional, or
commercial secrets." Thus the principle of public investigation
of cases in court is consolidated in this article. Alongside,
Paragraph 1 of Article 117 of the Constitution provides that
under certain circumstances closed court sitting may be held,
and the list of such circumstances is pointed out. One of such
circumstances is prevention of disclosure of state secrets.
In Article 16 of the CCP the constitutional principle of
public trial is particularised. Situations are pointed out
therein when non-public trials are possible. Investigation of a
case when there is an anonymous witness or victim is one of
such situations. It needs to be noted that it is provided in
Paragraph 3 of Article 1561 of the CCP and Item 8 of Paragraph
1 of Article 5 of the Republic of Lithuania Law on State and
Official Secrets that "classified identification particulars of
an anonymous witness or victim" shall be a state secret.
It needs to be noted that the notion "non-public" employed
in the CCP is identical as to its meaning to the notion
"closed" employed in the Constitution.
Paragraph 3 of Article 3171 does not point out the
character of the hearing at all. It is established therein as
to what actions the court must perform after it decides to
question an anonymous witness or victim in court, and it is
also provided therein that the testimony of the person
questioned is entered into official records of trial.
Paragraph 4 of Article 3171 of the CCP provides that that
court may question an anonymous witness or victim in a
non-public hearing. As mentioned, it is provided in Paragraph 1
of Article 117 of the Constitution that closed court sittings
may be held in case there are the bases consolidated in the
Constitution. Prevention of the disclosure of state secrets is
one of such bases.
Taking account of the arguments set forth above, one is to
draw a conclusion that Paragraphs 3 and 4 of Article 3171 of
the CCP are in compliance with Paragraph 1 of Article 117 of
the Constitution.
7. The Panevėžys Regional Court doubts whether Article
3171 of the CCP is in conformity with Paragraphs 1 and 2 of
Article 109 and Paragraph 1 of Article 118 of the Constitution.
The court grounds its doubt on the fact that the norm of
Paragraph 6 of Article 31 of the Constitution guaranteeing the
right of persons to defence is linked with the norms of
Paragraphs 1 and 2 of Article 109 and Paragraph 1 of Article
118 of the Constitution wherein the functions of courts and
public prosecutors are established.
Paragraphs 1 and 2 of Article 109 of the Constitution
provide:
"In the Republic of Lithuania, the courts shall have the
exclusive right to administer justice.
While administering justice, judges and courts shall be
independent."
Paragraph 1 of Article 118 of the Constitution provides:
"Public prosecutors shall prosecute criminal cases on behalf of
the State, shall carry out criminal prosecutions, and shall
supervise the activities of the interrogative bodies."
It is clear from the analysis of the norms of Article 3171
of the CCP that they are designed to regulate questioning of an
anonymous witness or victim, meanwhile Paragraphs 1 and 2 of
Article 109 and Paragraph 1 of Article 118 of the Constitution
establish the matters of competence of courts and public
prosecutors. Thus Article 3171 of the CCP regulates relations
of a different character than those in the norms of Paragraphs
1 and 2 of Article 109 and Paragraph 1 of Article 118 of the
Constitution, therefore the disputed norms are in compliance
with the aforementioned articles of the Constitution.
Taking account of the arguments set forth, one is to
conclude that Article 3171 of the CCP is in compliance with
Paragraphs 1 and 2 of Article 109 and Paragraph 1 of Article
118 of the Constitution.
III
On the compliance of Paragraph 3 of Article 1561 of the
CCP with Paragraph 1 of Article 29 of the Constitution and that
of Article 1561 of the CCP with Paragraphs 2 and 6 of Article
31 of the Constitution.
1. Article 1561 of the CCP entitled "Classification of the
Identification Particulars of a Witness or a Victim" provides:
"A public prosecutor, as well as an investigator with the
consent of the public prosecutor, in attempt to assure security
of a witness or a victim, has the right to classify their name
or other identification particulars. For this matter a decision
shall be drawn up which shall be kept separately from the case,
together with a special annex to the record of investigation
proceeding.
The investigation proceedings regarding the said persons
are carried out in accordance with the common rules of this
Code with the exception that without either the prosecutor or
the investigator no one might learn the identity particulars of
the witness or the victim who takes part in the investigation.
The classified identification particulars of these persons
shall be a state secret. Only the investigators, prosecutors
and judges taking part in the case have the right to be
familiarised with the actual identification particulars of the
said persons. For the disclosure of the classified data, they
shall be held liable pursuant to Article 73 of the Republic of
Lithuania Criminal Code."
2. In the opinion of the Vilnius Regional Court, Paragraph
3 of Article 1561 of the CCP is in conflict with Paragraph 1 of
Article 29 of the Constitution because of the fact that
Paragraph 3 of said Article 1561 of the CCP provides that only
one person participating in the proceedings has the right to be
familiarised with the actual identification particulars of the
said anonymous persons, which is the prosecutor, who is given
priority over the rest of the participants of the proceedings,
thus the rights of other persons participating in the
proceedings are not taken account of.
Paragraph 1 of Article 29 of the Constitution provides:
"All persons shall be equal before the law, the court, and
other State institutions and officers." The principle of
equality of all persons is established by these constitutional
norms. This principle must be followed in the course of
enactment and application of laws, as well as in administration
of justice. This principle obligates to legally assess
homogeneous facts in a uniform manner and prohibits to
arbitrarily assess essentially homogeneous facts in a varied
manner. This is the principle of a formal legal equality. This
constitutional principle does not deny the fact that different
legal regulation may be established in respect to categories of
certain persons that are in different situations
(Constitutional Court rulings of 24 January 1996 and 8 May
2000).
The prosecutor and the defence carry out different
functions, therefore the contents of their rights are not
identical. Their legal situation is different, too. However, as
mentioned, as participants to criminal procedure, they have the
right to present evidence, take part in their investigation,
submit requests etc.
It needs to be noted that in itself classification of the
identification particulars of a witness or a victim does not
mean that the rights of the suspect or the defence are
restricted in such proceedings.
Nor are there grounds to maintain that the prosecutor
enjoys an exceptional procedural position due to the fact that
he is aware of the identification particulars of the witness or
the victim.
Taking account of the arguments set forth, one is to
conclude that Paragraph 3 of Article 1561 of the CCP is in
compliance with Paragraph 1 of Article 29 of the Constitution.
3. In the opinion of the Vilnius Regional Court and the
Šalčininkai Local District Court, there are doubts if Article
1561 of the CCP is in conformity with Paragraphs 2 and 6 of
Article 31 of the Constitution.
Deciding these issues, one has to note that Article 1561
of the CCP provides for the right of either the prosecutor or
the investigator to make the witness or victim anonymous, as
well as for the procedure of such anonymity granting and
peculiarities of the actions of pre-trial investigation. As
held in the present ruling, the institute of anonymous witness
or victim is possible in criminal procedure only as an
exceptional measure provided the right of the accused to
defence is guaranteed. Therefore in itself granting anonymity
to a witness or victim does not violate the principle
established in the Constitution that the case must be tried
publicly and justly (Paragraph 2 of Article 31 of the
Constitution) and that everyone has the right to defence
(Paragraph 6 of Article 31 of the Constitution).
Taking account of the arguments set forth, one is to
conclude that Article 1561 of the CCP is in compliance with
Paragraphs 2 and 6 of Article 31 of the Constitution.
IV
On the compliance of Article 1181 of the CCP with
Paragraphs 2 and 6 of Article 31 of the Constitution.
Article 1181 of the CCP entitled "Peculiarities of records
of investigation proceedings and those of court hearings in
cases when the identification particulars of witnesses or
victims are classified" provides:
"A witness or a victim whose identification particulars
have been classified shall be referred to by a pseudonym in the
record of investigation proceedings as well as all the other
documents in the case. The actual identification particulars
are entered into a special annex to the record of investigation
proceedings which shall be kept separately from the
documentation of the case.
In cases of classification of the identification
particulars, the record of investigation proceedings shall be
drawn up and signed by the official who has performed the said
procedure. After each procedural action of investigation
proceedings, it shall be noted in the special annex to the
record of investigation proceedings that the witness or victim
are familiar with the record of investigation proceedings. He
shall confirm this by his signature.
The facts not connected with the circumstances to be
proved as provided for in Articles 71 and 73 of this Code,
which, however, help to identify the identity of the person who
has taken part in the action of investigation proceedings,
shall not be entered into the records of investigation
proceedings."
The Šalčininkai Local District Court is of the opinion
that Article 1181 of the CCP conflicts with Paragraphs 2 and 6
of Article 31 of the Constitution.
Article 1181 of the CCP provides for the procedure of
drawing up records of court hearings in cases when the
identification particulars of witnesses or victims are
classified. The norms of this article are designed to
implementation of other norms, i.e. those linked with granting
of anonymity to a witness or victim.
It needs to be noted that it is pointed out in Paragraph 3
of Article 1181 of the CCP that the facts not connected with
the circumstances to be proved as provided for in Articles 71
and 73 of the CCP from which, however, it might be possible to
trace the identity of the anonymous person shall not be entered
into the records. Everything connected with the event of the
crime, charge against the accused, size of the damage inflicted
by the crime, and other circumstances, must be written down in
such a manner so that only the identity of the person giving
the testimony might not be traced. Thus, the norms of Article
1181 of the CCP virtually do not restrict the right of the
accused to know what he is charged with, nor deny his
constitutional right to defence and a fair trial.
Taking account of the set forth, one is to conclude that
Article 1181 of the CCP is in compliance with Paragraphs 2 and
6 of Article 31 of the Constitution.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55, and 56 of the
Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court has passed the following
ruling:
1. To recognise that Item 5 of Article 267 and Article
3171 of the Republic of Lithuania Code of Criminal Procedure to
the extent that they do not guarantee the right of the accused
to give questions to an anonymous witness or victim, and due to
this his right to participate in the investigation of evidence
is restricted and his right to defence and fair investigation
of the case is infringed conflict with Paragraphs 2 and 6 of
Article 31 of the Constitution of the Republic of Lithuania.
2. To recognise that Articles 1181 and 1561 of the
Republic of Lithuania Code of Criminal Procedure are in
compliance with the Constitution of the Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.