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Upon hearing a cassation case on accepting as evidence data acquired during operational investigation, a plenary session of the Criminal Division of Supreme Court of Lithuania has noted that it is necessary to maintain a fair balance between the need of detecting a criminal act and ensuring inviolability of a person’s private life.

The Supreme Court of Lithuania (SCL) holds that, in order to protect a person from being submitted to an arbitrary and unjustified restriction of their right to privacy, measures for collecting confidential information about criminal acts being planned, being, or having been committed, including those provided for in the Law on Operational Activity (LOA), the use of which are likely to interfere with the private life of a person, may be applied exclusively on the grounds established in the law and following the procedure established in the law following a reasoned court judgment made by taking in regard the requirement of proportionality.

The plenary session stated that operational (criminal reconnaissance) actions can lawfully be performed exclusively within the existence of a concrete basis established in the law, i.e. to collect information not indiscriminately but only about a particular criminal act as specified in the law, and executed exclusively for the purpose of collecting data about such an act.

In addition, it is underlined in the ruling of the Supreme Court that ‘data acquired when performing secret monitoring of the content of information transmitted via telecommunication networks and giving reasons to suspect presence of other criminal activity committed by the person which do not fall under the category of criminal acts, in respect of which actions of operational investigation concerned could be performed under the LOA, taking in regard failure to also conform to other rules established in the law for the use of that information in criminal proceedings of another case, may not be acknowledged as evidence pursuant to the Code of Criminal Procedure and they may not be relied upon when hearing the criminal case.’

The plenary session noted that upon refusing to accept as evidence data acquired by such means, it is necessary to decide whether other evidence is sufficient to state that a person concerned has committed an offence. A new independent pre-trial investigation may be initiated on the basis of the information acquired in this manner and other data collected to support the information acquired.

In the case under review, it was decided to overturn the ruling passed by a judicial panel of the Criminal Division of Panevėžys Regional Court and remit the case for retrial at the appeal instance.

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

The ruling is published in the website of the Supreme Court of Lithuania http://www.lat.lt. (Case No. 2K-P-94-895/2015) – please credit when citing or otherwise making use of data from this website.