ECtHR: No entrapment in case of Lithuanian lawyer convicted of bribery

Kęstas Ramanauskas is a Lithuanian national who was born in 1966 and lives in Kaišiadorys. He worked as a lawyer in his own private practice.

In January 2011 a prisoner at Pravieniškės Correctional Facility contacted the Special Investigation Service (STT) as he had been approached by the prison’s deputy head and told that it was possible, with the help of a “friend”, to be released on probation on payment of a bribe. The prisoner had then been introduced to Mr Ramanauskas, who offered to secure his release and explained the costs involved.

Subsequent conversations were covertly recorded by the prisoner, and he also reported these conversations to the STT. In January 2011 it sought judicial authorisation for the prisoner and an acquaintance to proceed with the offer of a bribe, and for further covert surveillance.

Mr Ramanauskas subsequently reiterated his intention to assist the prisoner and in February 2011 he received 2,000 LTL (around £510) from the acquaintance. He was arrested in March and charged with bribery following his receipt of a further 30,000 LTL (around £7,660). He denied the charges, alleged an act of provocation against him and said the money was for his services as the prisoner’s lawyer. He was convicted in July 2012 and sentenced to 60 days in jail. The court found, in particular, that the simulation of criminal conduct had been applied within court-approved limits.

Mr Ramanauskas appealed against his conviction on the grounds of undue pressure and the use of unauthorised surveillance equipment. The appeal was dismissed, but the custodial sentence was replaced by a fine. He made an unsuccessful appeal to the Supreme Court and had an application to reopen proceedings turned down, although his fine was reduced.

Relying on article 6 § 1 of the ECHR (right to a fair hearing by an independent and impartial tribunal), the applicant complained that he had not had a fair trial in the determination of the criminal charge against him. In particular, he stated that he had been incited to commit the offence of taking a bribe, for which he had been sentenced by the domestic courts.

The Court noted that it had set out the principles concerning the issue of entrapment in an earlier case involving Mr Ramanauskas (Ramanauskas v. Lithuania, application no. 74420/01), where it found that although the applicant had taken a bribe, there had been unlawful entrapment and a violation of article 6.

In the new complaint it was not in dispute that the situation fell in the category of entrapment cases. Under its case-law, undercover operations per se did not interfere with the right to a fair trial, and the presence of clear, adequate and sufficient procedural safeguards set permissible police conduct aside from entrapment. The substantive test for entrapment involved asking whether the investigation had remained “essentially passive”, following objective suspicions of criminality, or whether instead there had been incitement to commit an offence that would otherwise not have been committed.

The Court found that the prosecuting authorities had only instructed the prisoner and his acquaintance on the actions they could perform after the prisoner had made his initial report to the STT. Furthermore, the covert recordings had shown that Mr Ramanauskas himself had explained that it was possible to bribe judges, including the specific amounts to be paid. The money that the applicant had accepted was clearly not remuneration for bona fide legal services, and he had made no attempt to report the prisoner to the authorities, despite later accusing him of incitement.

The Court also noted that the case did not involve undercover police work as such, but rather the acts of a private individual acting under police supervision. Allegations by Mr Ramanauskas that the prisoner had previously worked as a police agent were found to be unproven and irrelevant.

In conclusion, the Court found no signs of wrongdoing in the prosecuting authorities’ conduct of the operation and that, on balance, they may be said to have “joined” the criminal activity rather than to have initiated it. No incitement to commit an offence had taken place, and therefore the use of the evidence obtained during the operation against Mr Ramanauskas had not breached article 6 § 1.