The judge who examined the appeal in the Supreme Court, examined the case on appeal on points of law. Conviction for lack of impartiality of the court
JUDGMENT
Sacharuk v. Lithuania 23.04.2024 (app. no. 39300/18)
SUMMARY
The case concerned Mr Sacharuk’s conviction in 2017 of abuse of office and of unlawful use of an
official document because he had used another parliamentarian’s identity card to vote in parliament
on his behalf.
The Court found in particular that the Supreme Court had not freshly examined the case in its
second set of proceedings brought against Mr Sacharuk. As a result, his concern that the judge who
sat on the bench in both sets of proceedings might have a preconceived view of his guilt had been
legitimate, and his doubts as to the impartiality of the Supreme Court had been justified. Therefore,
his request for that judge to be replaced should have been accepted.
At the same time, Mr Sacharuk could have foreseen that his acts would constitute an offence under
the criminal law applicable at the time. The Court could not discern any flagrant non-observance or
arbitrariness in the application of the law in question.
PROVISIONS
Article 6 par. 1
Article 7
PRINCIPAL FACTS
The applicant, Aleksandr Sacharuk, is a Lithuanian national who was born in 1977 and lives in Vilnius.
He was a member of the Seimas (the Lithuanian Parliament) from November 2008 to
November 2012.
In January 2010, during a session of the Seimas, Mr Sacharuk voted several times on behalf of
another parliamentarian, who was on holiday abroad, using that parliamentarian’s Seimas member’s
identity card, although according to the Seimas statute, members had to vote in person and the right
to vote was not transferrable. The Seimas Special Investigation Committee (SSIC), formed to
examine whether Mr Sacharuk and the parliamentarian in question were guilty of serious
misconduct, asked the Prosecutor General to carry out a pre-trial investigation in May 2010.
When the Prosecutor General’s Office asked the Seimas to lift Mr Sacharuk’s political immunity in
order for them to be able to investigate, the number of votes in favour were not sufficient. In the
subsequent decision not to start a pre-trial investigation, it was noted that, based on information
provided by the SSIC, Mr Sacharuk’s actions had contained elements of criminal offences.
Proceedings for serious misconduct were subsequently initiated. During the Constitutional Court
proceedings, Mr Sacharuk argued that, under the Seimas statute, the only sanction for such an
infraction should be a warning, and that there was no legal basis for serious misconduct
proceedings. His lawyer also pointed out that the Seimas Ethics and Procedures Commission had already considered similar cases, but proceedings for serious misconduct had not been initiated in
any of them. He pleaded that casting votes for absent parliamentarians from one’s coalition or
political group had become general practice in the Seimas.
Nevertheless, the Constitutional Court concluded that both Mr Sacharuk and the parliamentarian in
question had breached their parliamentary oath and had grossly violated the Constitution, the latter
for missing plenary government sessions without justification. However, as the final decision
concerning removal of office fell to the Seimas, and the necessary number of votes in favour of
annulling Mr Sacharuk’s mandate was not obtained, Mr Sacharuk preserved his mandate. In
contrast, the other parliamentarian’s mandate was annulled.
Mr Sacharuk remained a member of the Seimas for the whole of his four-year term. Once his term in
office was over, and he no longer had political immunity, criminal proceedings were opened.
The Vilnius Regional Court acquitted Mr Sacharuk on 20 July 2015, and that judgment was upheld by
the Court of Appeal in May 2016. The courts acknowledged the Seimas Ethics and Procedures
Commission’s conclusion that, as of 27 February 2001, there had been a number of occasions when
Seimas members would vote in the place of other members of the same coalition or same political
group. Witness statements confirmed that there was an unwritten rule for members of a political
group to vote unanimously and that voting in place of another parliamentarian was established
practice.
Nevertheless, an appeal on points of law lodged by the Prosecutor in December 2016 led to the
Supreme Court quashing the ruling of the Court of Appeal and the case being examined again. In
June 2017, the Supreme Court in turn convicted Mr Sacharuk of abuse of office and of having used
an official document illegally. He was fined 1,882 euros.
Following the lodging of an appeal on points of law in September 2017, a three-judge panel was
formed to examine the case in an oral hearing. During the hearing, Mr Sacharuk asked for the panel
to be changed on the ground that one of the judges had already examined his criminal case as the
presiding judge of the Supreme Court panel the year before. That request was dismissed. The reason
given was that the mere fact that that judge had participated in the previous cassation proceedings
did not constitute a legal basis for raising doubts as to her impartiality. Mr Sacharuk’s appeal was
dismissed in a final ruling in February 2018, with the Supreme Court finding that the arguments that
voting for absent colleagues in the Seimas had been “settled practice” and did not merit criminal
liability were unfounded.
THE DECISION OF THE COURT…
Article 6 § 1
The Court noted that Mr Sacharuk had exercised his right to request that Judge D.B. be removed
from the panel because she had already examined his criminal case. However, the cassation court
had dismissed his request on the grounds that he had not submitted any concrete evidence as to
why Judge D.B. might be biased.
The Court found that during the second round of proceedings no new facts had been introduced to
enhance the assessment of the facts made during the first round of proceedings. It therefore
concluded that the Supreme Court’s first ruling judgment contained findings that prejudged the
question of Mr Sacharuk’s guilt in the subsequent proceedings. Moreover, the Supreme Court’s
second ruling contained similar language to the first, showing that that court, for the main, had not
undertaken a fresh examination of his case.
Although the Government argued that there had been no formal grounds for Judge D.B.’s recusal,
the Court observed that, under Article 58 § 1 (4) of the Code of Criminal Procedure, a judge may be
removed from a case on the basis of any circumstances which could reasonably raise doubts as to his
or her impartiality. The Court concluded that Mr Sacharuk’s concern that Judge D.B. might have a
preconceived view of his guilt was legitimate, and that his doubts as to the impartiality of the
Supreme Court, on account of Judge D.B. being part of the panel for the second ruling, had been
justified. There had therefore been a violation of Article 6 § 1 of the Convention.
Article 7
The Court noted that the core of Mr Sacharuk’s arguments under Article 7 consisted in maintaining,
first, that the domestic courts had unjustifiably extended the reach of the criminal law to his case,
given that his actions when voting for his fellow parliamentarian had been consistent with the
“tradition” in the Seimas to vote for other members of the same political group, and, secondly, that
he had been discriminated against because his conviction had been exceptional and thus arbitrary.
The Court accepted Mr Sacharuk’s claim that his criminal case had had no precedents, as the Seimas
Commission had never before decided to refer the matter of the breach of the principle of a single
vote to a prosecutor for investigation within criminal proceedings. Nonetheless, it found that the
opening of a criminal prosecution against Mr Sacharuk had not violated Article 7. It also agreed with
the Supreme Court’s argument that, in criminal proceedings, a court had to follow the letter of the
law, rather than “wrongful practice or precedents contrary to the law”. The Court could not discern
any flagrant non-observance or arbitrariness in the application of the law in question to the
applicant. Mr Sacharuk could have foreseen that his acts would constitute an offence under the
criminal law applicable at the time. There had accordingly been no violation of Article 7 of the
Convention.
Just satisfaction (Article 41)
The Court held that the finding of a violation of Article 6 § 1 of the Convention constituted in itself
sufficient just satisfaction for any non-pecuniary damage sustained by the applicant. Moreover, as
he had not made a claim for costs and expenses, no amount was awarded in that respect.
