I think that my case is unique in the Lithuanian judicial practice. The Lithuanian courts have punished me as a journalist not for what I have written specifically, but for the mode, how “some statistical reader” may understand my statements. I have become the criminal not for what I think, but for what “others probably think”.
The judicial duel with the resentful general Česlovas Jezerskas, previous candidate to the office of the President of Republic of Lithuania, shows that our judges do not already see any differences between public and private persons, do not understand, how the concepts “cooperated with KGB” and “was controlled by KGB” differ, and that besides the right to resent, there also exists the right to have the critical opinion about person attempting to get the highest office in the State, especially when the particular and not fictitious facts are used.
The judges of the Lithuanian Supreme Court Benediktas Stakauskas, Rimantas Baumilas and Viktoras Aidukas rejected the application of my defender Liudvika Meškauskaitė “due to clearly improper application of criminal law”.
I consider the ruling of the Lithuanian Supreme Court (LSC) a little strange. It does not explain in more detail, why the application of the “lawyer Liudvika Meškauskaitė defending the convict G. Visockas to renew the criminal case due to clearly improper application of criminal law” was rejected.
The ruling of the Lithuanian Supreme Court once more enlists the decisions of the juridical board of the 1st Circuit Court of Vilnius City presided by the judge of circuit court Valerijus Paškevič and judge of Vilnius District Court Stasys Lemežis, arguments of the lawyer L. Meškauskaitė, and it was indicated, in what particular cases the criminal cases are renewed. And that is all. I consider that the ruling lacks the main thing: it was not explained how, why, and on what basis I had offended retired general, previous candidate to the office of the President of Republic of Lithuania Česlovas Jezerskas, so that I was worth the status of the criminal and was punished with the fine of some 33 thousand litas.
Here I present the main arguments of the lawyer L. Meškauskaitė. Are not they understandable and are not they evident to our judges?
“In the criminal law the composition of the rime is the only ground for prosecution. The Criminal Code’s (CC) article 155 part 1 provides liability for the one, who has humiliated the person publicly by action, word or in written. Offensiveness means that actions or assessments clearly contradict the usual rules of behaviour and requirements of common human morality. The behaviour is considered offensive when the dignity of other person is injured grossly. The case law first of all connects the offence as the criminal activity specified in the CC art. 155, to the offensive humiliation of person, his honour and dignity, i.e. attempt to spurn the person. Thus the offence is executed only when it is attempted to humiliate another person. When the courts recognized the journalist G. Visockas guilty, according to the CC art. 155 p. 1, they evidently applied the criminal law improperly, because they determined the form of guilt of G. Visockas (direct intention) incorrectly. Therefore G. Visockas was proclaimed guilty wrongly because of having offended Č. Jezerskas and sentenced following the CC art. 155 p. 1. The activity of G. Visockas does not contain the composition of this crime.
The Constitution of the Republic of Lithuania protects the person’s right to have own beliefs and express them freely, to receive and spread information and ideas. The right to express the thoughts and beliefs freely is consolidated in the Convention for the Protection of Human Rights and Fundamental Freedoms, which (together with the European Convention of Human Rights (hereinafter ECHR) that explains and details it) is the constituent of the Lithuanian law. Therefore when the court was solving the issue f criminal liability for offence, it had to take the ECHR jurisprudence into account, as well.
The attention should be paid to the fact that according to the context of announcement of disputed statements and the statements themselves, it is evident that the journalist G. Visockas expressed the quoted ideas not as a categorical and unambiguous information about Č. Jezerskas, but left some doubt. Thus the thoughts stated by journalist G. Visockas could not be considered as offending Č. Jezerskas. The journalist did not humiliate and in no way tried to humiliate the victim by publishing the disputed statements in his article. As Č. Jezerskas was in a very high office in Lithuania at that time and was running for a president. G. Visockas as the journalist was right to think that certain personal characteristics of Č. Jezerskas should be highlighted.
The criminal law was applied evidently wrongly also because the courts departed from the formed practice of ECHR and LSC, and did not take the legal status of Č. Jezerskas into account. It is stated completely wrongly in the ruling of district court that in 2006 when the statements of journalist G. Visockas were published for the first time, Č. Jezerskas was a private person. Such conclusion of the court denies the concept of public person formed in the Lithuanian Law of public information, according to which public person is the State’s politician, judge, governmental or municipal officer, manager of political party and/or association, who is continuously participating in public or national activity due to the occupied office or character of his work.
Both in 2006 and in 2009 Č. Jezerskas was a public person. In 2006 he was the military agent of the Republic of Lithuania, thus his activity affected public issues. In 2009 Č. Jezerskas was running for president of the Republic of Lithuania and participated in the election campaign. In the democratic society, when tense political fight for the most important office in the State is going on, the journalist plays an important role of the guardian – he has an obligation to introduce the wide society to the personality of the candidate to the presidency not only by praising him, but also by revealing and presenting the negative features of the candidate for public discussion.
In the ECHR and LSC practice it is considered that the public person does not use the same protection range of honour and dignity as a private person. The public person must demonstrate higher degree of tolerance to the attention of press. It is acknowledged commonly that no absolute precision can be required from the press and journalists. All they have to do is to demonstrate fair behaviour, i.e. not to distort or conceal important information consciously.
According o the Code of Criminal Procedure (CCP) article 20 part 3, the person’s guilt maybe proven only using such evidence, which confirms or negates at least one circumstance affecting correct settlement of the case. It means that the person’s guilt for having committed crime cannot be based on probable or doubtful data. However when the were assessing evidence collected in the case, they recognized G. Visockas guilty, according to CC art. 155 p. 1 not on the ground of concrete and categorical data, but on the presumptions, i.e. probable considerations that the versions raised by the journalist about Č. Jezerskas could have made the ordinary reader doubt about the personality of that person. Such assessment of the case’s data is wrong, because following the law of criminal procedure, the particular data can be negated only by proving their wrongfulness by other particular data, and not by some considerations or presumptions.
The attention should be paid to the fact that in the general expertise conclusion of the Lithuanian language included in the material of the criminal case it was determined that it is impossible to see the obscene elements in the statements of the accused journalist G. Visockas, because the vocabulary satisfying the moral criteria is used. There have not been made any direct accusations against Č. Jezerskas, which could offend him. The article simply raises doubts, whether the applicant is a proper candidate for the office of the president of the Republic of Lithuania.”
Honestly, I had some hope that the LSC judges would take my case, because all the LSC explanations, what the public person is and what rights the journalist have while writing about public persons, are favourable for me, the correspondent, and not the candidate to the office of the Lithuanian President. However, in my particular case LSC acted on the contrary for some reason. LSC stated: “To reject the application of the lawyer L. Meškauskaitė defending the convict G. Visockas to renew the criminal case due to clearly improper application of criminal law.” In my opinion, such statement of the LSC judges B. Stakauskas, R. Baumilas and V. Aidukas contradicts the official public explanations of the LSC announced more than once about rights and duties if public persons and journalists. It is difficult to say why such double standards are applied.
It is only clear that from now the journalist may become the criminal in Lithuania not only for certain written words, but also for what “statistical reader could think after having read his article”. The freedom of press in Lithuania evidently starts limping. Let’s have a simple example. Some time ago the judge Stasys Lemežis, the same, who has sentenced me, got into car accident and refused testing his sobriety. Could you say, how the statistical readers could treat this fact if I wrote about it on my website www.slaptai.lt? I guess, in many different ways. Of course, there would be some, who would consider the judge S. Lemežis an absolutely fair, principled servant of Themis, who does not have any bad habits. However, there would also be some, who would think that by writing about this fact and presenting several different versions, I had offended and humiliated the judge on purpose. The precedent is already established – the case of resentful Č. Jezerskas who cries aloud that no unfavourable versions could be published, because the “bat of statistical reader” would be used. And this would result in one more criminal case against me and new financial expenditure, although the fact that the judge S. Lemežis was in care accident and refused to test his sobriety is not fictitious.
The decisions of the Lithuania Themis are becoming more and more strange and illogical. The paradoxical situation is created: the higher office the judge, who explains aspects of one or another case, occupies, the more illogical and complicated all the issues seem.
Moreover, I suspect that the judges, who have sentenced me, Valerij Paškevič and Stasys Lemežis were especially strict. I guess I was avenged for certain critical publications, a number of which have accumulated during twenty years of active work of journalist. The Lithuanian Themis in my person warned all the journalists: know your place. Be more fearful, cautious, amenable in the future, be afraid not to agree with the official versions, and do not loose the sense of self-censorship.
I am not the only one to have such evaluation of recent situation of interrelations between the justice and press. For example, such is the attitude of journalist Rytis Staselis, who could also be attributed to the statistical readers created by the judges V. Pašekvič and S. Lemežis. Let’s see the extract from is text about my duel with Č. Jezerskas: “In the other case I do not understand the motives, against whom the criminal case for defamation may be brought. And on the contrary – the civil lawsuit of private accusation for honour and dignity would seem more logical. Thus I think that in this case the defamation proceedings are implementation not of the justice, but of revenge.”
And here is the comment of one more journalist – statistical reader again – Tomas Čyvas: “Previous candidate to the office of the President Česlovas Jazerskas brought the lawsuit because of the aforementioned publications. In one of the publications that outraged him, which according Mr. Č. Jazerskas and judge V. Paškevič, it is supposedly possible to see the accusation of cooperation with Soviet security – KGB. G. Visockas did not write such a statement, and this was confirmed by the court. However, the servant of Themis (it is not clear whether he has used the same intoxication methods as the tellers of visions in Ancient Greece, Delphi) did not put the dot. He put the following text in the ruling: “in the context of all the examined publications and article the thought is imposed […] on the statistical Lithuanian reader and elector that Č. Jezerskas could have cooperated.” It is left only to raise the rhetorical question: is the judge V. Paškevič able to understand, who imposes, how imposes, why imposes and whether really imposes, and finally – on whom?
I consider the decision of the judges of the Supreme court Benediktas Stakauskas, Rimantas Baumilas and Viktoras Aidukas not to resume the criminal case brought against me by private accusation especially scandalous. This case was evidently wrongly examined by the judges of the 1st Circuit Court of Vilnius City and Vilnius District Court, in the opinion of lawyer Liudvika Meškauskaitė. Why scandalous? The judges of the Supreme Court did not condescend to explain the official letter seriously, why it was refused to review my case. However, all of us have heard considerations that the court decisions have to be understandable to the society. Thus I was punished for “alien thoughts” and it was not even explained properly, why I was punished.
If my case was the only one, I could say hat it was some ill-fated coincidence or misunderstanding. However, the number of strange court decisions in Lithuania has been constantly growing. In recent years I have familiarized myself closer to the cases of previous voluntary soldier Mykolas Dūdonis, Chechnian Hadijat and Malik Gataevs, previous militiaman of Riga’s OMON Konstantin Michailov, and Eglė Kusaitė accused of terrorism. I did not only got familiar with the, but also wrote about them. How much suspicious mess is here!
The member of the European Parliament Leonidas Donskis, director of the Institute of Civil Society Darius Kuolys and director of the Institute of Monitoring of Human Rights Henrikas Mickevičius have publicly spoken in recent conference that the State Security Department (SSD) does not perform analytical work, but creates criminal cases and organizes prosecution of the Lithuanian residents (manifested by the cases of E. Kusaitė and the Gataevs). Whereas the courts do not perform independent judicial tests and judicial control of law enforcement, but simply service the secret services and prosecutors. In the opinion of these politicians, lawyers and cultural agents, who have organized this special conference, the secret services, law enforcement and courts in Lithuania have grown into one structure that puts the freedoms of citizens into hazard, although they should be independent and accountable to society.
Let us think and get over. The woman has already been punished in Lithuania because when she was writing the comment on Internet, she used figurative expression about “naked butt and nettles”. If we thought in sane mind, she neither encouraged, stimulated or invited for violence. And she had no intention to use violence either. And she had no intention to impose her will on potential abusers. She simply expressed critical attitude about the ones, who treat themselves as “persons of other sexual orientation”. However, the fine was specific. I guess, this fact clearly shows that there are less and less differences between Lithuanian and for example Russian justice.
The Lithuanian Supreme Court has marked in its practice that the public person des not use the same protection of honour and dignity as a private person. Therefore sharp and strict criticism of public person is allowable, and the public person must endure and tolerate the published information about him that is not necessarily accurate, and which could be regarded as the violation of honour and dignity of the private person. In this case it is necessary to assess the purpose of the data spread and behaviour of the person, who has prepared them to spread public information. When the person, who has spread data, acts honestly with the aim to inform society about the public person and his activity with regard to such questions, which the society is entitled to know, then the inaccuracies of information or aggressive criticism does not serve as a basis to apply the responsibility for that person”. This extract is from the official letter of previous inspector of journalists’ ethics Romas Gudaitis, who analyzed the provisions of the Supreme Court.
Theoretically the Supreme Court is for the freedom of press. But how is it really?
When the Supreme Court rejected my case, it demonstrated clearly that they do not want to involve in the disputes with the judges of lower instances, who ignore their explanations. Although the Supreme Court was the one to response very favourably in its recommendations about activity of the journalists: the public persons must be tolerant even to angry, sharp and not always accurate criticism, because absolute accuracy and objectiveness cannot be demanded from the journalists.
However, the Lithuanian reality is different. In some cases the explanations of the Lithuanian Supreme Court have little value, because they are not mandatory for all the judges. To be more precise, the explanations of the Supreme court cannot be regarded seriously, because the circuit and district courts follow their own provisions, what rights, duties and privileges the public persons and journalists criticizing them have. And these provisions are getting more and more unfavourable to the Lithuanian guild of the brothers of the quill.
Under one of my articles published in lrytas.lt, the comments have already appeared, where the authors encourage to prohibit the possibility to comment the decisions of courts, which have already entered into force. Let us think. Until now it has been considered that it is not advisable to comment the behaviour of judges until the case is being examined, because you will be suspected that the publications are affecting the fair, principled, but sensitive judges. Now it is invited to prohibit commenting the decisions, which have already entered into force. So when would it be possible to analyze the verdicts of the judges? The answer is evident – never. Thus there are less and less differences between Lithuanian and Russian justice.
So I lost the duel with the retired general, previous candidate to the office of President Č. Jezerskas in Lithuania. It is still difficult to understand, why I have lost it. However, not everything is lost yet. The last hope remains – Strasbourg. Bt until I receive the answer from Strasbourg, I will be imprisoned, because the monetary penalty appointed by Vilnius District Court is too heavy for a journalist, who receives minimal salary. I have a right to pay one fine… by sitting in jail or lockup. I am going to use this possibility. The necessary applications to court and bailiffs will be sent in the near future.
In the photo: journalist Gintaras Visockas.
2011.06.06
