Lt

On the provisions of the Code of Criminal Procedure concerning the manner of questioning of an anonymous witness

Case No. 25/99-9/99-35/99

 

 

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 Code of Criminal Procedure of the Republic of Lithuania with the Constitution of the Republic of Lithuania

 

Vilnius, 19 September 2000

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė

The court reporter—Daiva Pitrėnaitė

Judge Kristina Paleckaitė, acting as the representative of the Vilnius Regional Court, the petitioner

Gintaras Goda, a senior consultant to the Law Department of the Office of the Seimas, acting as the representative of the Seimas of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 29 August 2000, in its public hearing, considered case No. 25/99-9/99-35/99 subsequent to the following petitions:

The petition submitted to the Constitutional Court by the Panevėžys Regional Court requesting an investigation into whether Item 5 of Article 267 and Article 3171 of the Code of Criminal Procedure of the Republic of Lithuania 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;

The petition submitted to the Constitutional Court by the Šalčininkai District Local Court requesting an investigation into whether Articles 1181, 1561, Item 5 of Article 267 and Article 3171 of the Code of Criminal Procedure of the Republic of Lithuania were in conformity with Paragraphs 2 and 6 of Article 31 of the Constitution of the Republic of Lithuania;

The petition submitted to the Constitutional Court by the Vilnius Regional Court requesting an investigation into whether Paragraph 3 of Article 1561 of the Code of Criminal Procedure of the Republic of Lithuania was in compliance with Paragraph 1 of Article 29 and Paragraph 2 of Article 31 of the Constitution of the Republic of Lithuania, and whether Paragraphs 3 and 4 of Article 3171 of the Code of Criminal Procedure of the Republic of Lithuania 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 considering a criminal case. By means of its 19 April 1999 ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Item 5 of Article 267 and Article 3171 of the Code of Criminal Procedure of the Republic of Lithuania (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 District Local Court—was considering a criminal case. By means of its 4 May 1999 ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether 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 considering a criminal case. By means of its 16 December 1999 ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether 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 whether 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 petitions 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 means of 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 liability 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 District Local 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 an attempt to ensure the 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 themselves with the actual identification particulars. The accused may not find out these identification particulars. This 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 limited. 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 adversarial principle. Articles 269, 267 and 60 of the CCP provide for the rights of the legal counsel, the accused and the victim to familiarise themselves 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 himself 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 prevents the court trying 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. Upon the law-imposed limitation on the opportunities to objectively verify the testimony of witnesses, the probability of perjury is increased.

By means the procedure of questioning provided for in Paragraphs 3 and 4 of Article 3171 of the CCP, the 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 prevents the court remaining 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 and 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 themselves 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 should be regarded as 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. This means that the criminal procedure law does not permit resorting 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 any conditions for violating 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, it should be noted 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 either in the European Court of Human Rights or 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, the 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 impugned 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 for administering 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 the Interior 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 Chairperson 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 liability and convicted.

When the procedure for bringing persons to criminal liability and the imposition of penalties for crimes committed are being established, laws must also provide for the protection of the rights of the person charged with 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 a 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 insuring that the said person should have the right and opportunity to defend his rights. In a 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 the commission of a crime nor criminal punishment may be administered to anyone without a proper judicial procedure permitting the accused to familiarise himself 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 law, the 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 adversarial 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 liability as well.

3. It needs to be noted that in certain cases a witness or the victim might face threat if he gives truthful testimony, 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 an attempt to exert influence on the witness by any means.

In certain European states, in order to protect a witness or a victim from possible physical or psychological influence, their anonymity is permitted in criminal procedure.

In the jurisprudence of the European Court of Human Rights, the possibility of granting 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 judgments 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 the commission of a 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 judgment 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 the secrecy of identification particulars of the witness of the victim, the implementation of the right of the accused to defence becomes more complex. This 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 the 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 the consideration and use of their evidence neither limit 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 the 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 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 judgments and rulings.

2. The petitioners doubt whether the impugned 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 liability 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 choose 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 limitations on the right of the accused established in Item 5 of Article 267 of the CCP may be disclosed only upon the 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 may be permitted, in a limited manner, 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 for infringing 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 limited.

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, it should be concluded 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 limited, 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 the 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’s 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 before, 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. The prevention of the disclosure of state secrets is one of such bases.

Taking account of the arguments set forth above, the conclusion should be drawn 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 the 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 impugned norms are in compliance with the aforementioned articles of the Constitution.

Taking account of the arguments set forth, it should be concluded 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 an 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 familiarise themselves 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 familiarise himself 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 one to apply a uniform legal assessment to homogeneous facts and prohibits against any arbitrary assessment of essentially homogeneous facts. 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 (the Constitutional Court’s 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 before, 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, the classification of the identification particulars of a witness or a victim does not mean that the rights of the suspect or the defence are limited 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, it should be concluded 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 District Local 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, it should be concluded 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 District Local 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 the 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, it should be concluded 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 Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that Item 5 of Article 267 and Article 3171 of the Code of Criminal Procedure of the Republic of Lithuania, 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 limited 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 Code of Criminal Procedure of the Republic of Lithuania are in compliance with the Constitution of the Republic of Lithuania.

This ruling of the Constitutional Court is final and not subject to appeal.

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:

 

Egidijus Jarašiūnas      Egidijus Kūris       Zigmas Levickis

 

Augustinas Normantas      Vladas Pavilonis       Jonas Prapiestis

 

Vytautas Sinkevičius       Teodora Staugaitienė