CASE OF MALININAS v. LITHUANIA – Application no. 10071/04 (2008)

Facts: In 2003 the Applicant, together with his accomplice, was convicted by the Kaišiadorys District Court of attempted drug dealing in large quantities. The court established that the offence had been disclosed using a “Criminal Conduct Simulation Model” which had been authorized for use by the Prosecutor General on 29 May 2002. The Court found that the Applicant was caught selling psychotropic drugs to an undercover agent, V., under the model.

The trial court concluded that the use of the model in the case had been lawful. The court acknowledged that Mr Malininas’ conduct from the beginning had been influenced by Officer V and added that it had not been established that the applicant had sold or tried to sell drugs to anyone other than this officer.  The Applicant was convicted of the attempted offence and sentenced to three years and six months’ imprisonment.

Mr Malininas appealed. On 10 June 2003 the Kaunas Regional Court upheld the conviction, considering that the Applicant was guilty of a completed offence, not a mere attempt. The Applicant’s sentence was increased to nine years’ imprisonment. Afterwards, the Applicant lodged a cassation appeal, but it was dismissed by the Supreme Court. However, the Applicant’s conviction was again re-classified as an attempt to sell drugs in large quantities, but the sentence of nine years’ imprisonment was retained.

Issue: The case was brought to the Court to decide whether there was a violation of Article 6 § 1 (right to a fair trial).

Holdings: Yes, there had been a violation of Article 6 § 1 (right to a fair trial). The Applicant had also invoked an infringement of Article 8 of the Convention, however, the Court had limited its examination to Article 6.

Court’s Rationale: The Court had taken the following considerations into account: there was no evidence that the applicant had committed any drug offences beforehand. No objective, judicially-verified materials have been presented to the Court to demonstrate that the authorities had good reason to suspect the applicant of drug-dealing or of being pre-disposed to commit such an offence until approached by Officer V. The Court noted that the Applicant had been incited to commit the offence by the undercover police officer. Furthermore, in the recent case the Court concluded that there was an apparent instigation to commit a criminal act by intensively offering a significant sum of money in exchange for the supply of a large amount of drugs. Finally, the first instance court recognised the decisive role played by the police. The above mentioned arguments, in the Court’s view, “extended the police’ role beyond that of undercover agents to that of agents provocateurs” and concluded that the initiative came not from the Applicant but from the agents provocateurs.

Just satisfaction: The Applicant was awarded 1,710 Euros for costs and expenses.

Dissenting opinion: The judgment contains the dissenting opinion of Judge Cabral Barreto.

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