CASE OF ŠANTARE AND LABAZNIKOVS v. LATVIA
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life)
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev
5. The applicants were born in 1960 and 1956 respectively and live in Riga. 6. On an unspecified date the Bureau for the Prevention and Combating of Corruption (“the KNAB”) received information concerning allegedly unlawful activities of officials of the State Pharmacy Inspectorate. Aiming to verify that information, the KNAB launched operational proceedings (operatīvā izstrāde). In the context of those proceedings the second applicant, who at that time was the owner of a chain of pharmacies in Latvia, was summoned to the KNAB to give statements about the activities of certain State officials supervising pharmaceutical matters in Latvia. 7. According to the document (uzziņa) prepared by the Supreme Court on 27 July 2012 and addressed to the Government, on 10 March 2005 an operational measure – the interception of the second applicant’s telephone conversations – had been authorised until 12 May 2005. The document was based on “the Supreme Court’s register of special proceedings (lietvedība) relating to classified State secrets for the year 2005, Volume 13, entry no 21264s of 19 March 2005”. 8. Upon being summoned by the KNAB, on 12 April 2005 the second applicant went to its offices, where he was questioned by two investigators, H. and J. Initially, he refused to cooperate and instead asked J. questions about his duties. 9. On 13 April 2005 the second applicant arranged a meeting with J. away from the KNAB’s offices. On the KNAB’s behalf, the meeting was organised as an undercover operation under section 15(3) of the Law on Operational Activities, and prior authorisation from a specially authorised prosecutor of the Prosecutor General’s Office was obtained. 10. On 13 and 14 April 2005 three meetings took place between the second applicant and J. During the second meeting, which was video and audio recorded by J., the second applicant offered J. a bribe in the amount of 50,000 Latvian lati (LVL) and monthly payments of LVL 1,000 in return for the cessation of any investigative activities concerning his business and the State officials connected with it. During the meeting the second applicant paid J. LVL 18,000 as a first instalment. 11. Meanwhile, the second applicant called the first applicant, who was a board member of the company he owned. He asked her to withdraw cash from the company’s account. He explained that the money would be spent on “protection”. Their phone conversations were intercepted and recorded. 12. The next day, the second applicant arranged another meeting, during which he gave the investigator LVL 27,000. On the same day he was arrested by KNAB officers. 13. After the second applicant’s meeting with J., on 13 April 2005 the KNAB instituted criminal proceedings for bribery. The second applicant was charged as a suspect. The charging decision was sent to the Prosecutor General’s Office so that the prosecution could commence. 14. On 22 April 2005 a prosecutor of the Prosecutor General’s Office questioned the second applicant. The second applicant pleaded guilty and stated that the payments had been intended to prevent further investigation into his business activities. 15. In a letter of 31 May 2005 the KNAB informed the supervising prosecutor at the Prosecutor General’s Office that the second applicant’s phone had been tapped in accordance with section 17(3) of the Law on Operational Activities “upon the authorisation of a judge of the Supreme Court”. The KNAB asked for the recordings to be included in the criminal case file. 16. On 2 June 2005 the Office of the Prosecutor brought a charge of aiding and abetting against the first applicant, and a charge of bribery against the second applicant. 17. On 30 June 2005 both applicants were questioned by a prosecutor of the Prosecutor General’s Office. The first applicant pleaded guilty. 18. On 12 July 2005, having studied the material in the criminal case file, the representative of the first applicant asked the prosecutor to disclose a document attesting to the lawfulness of the interception of the telephone conversations between both applicants. On the same day the supervising prosecutor dismissed that request, arguing that the decision to authorise interception of the telephone conversations of the applicant and other persons had been adopted under 17(3) of the Law on Operational Activities, and therefore was not a procedural document. Moreover, the document had been classified as a State secret. The prosecutor also argued that the existence of such authorisation had been confirmed by the KNAB, and that there were no grounds to question the validity of that confirmation. The first applicant did not appeal against that reply to a more senior prosecutor. 19. On 15 July 2005 the criminal case concerning both applicants was referred to a court. 20. It appears that on 18 October 2005 the representative of the first applicant sent a complaint about the activities of KNAB officials in relation to the phone tapping to the Prosecutor General’s Office. The prosecutor in charge replied that the phone tapping had been authorised by a judge of the Supreme Court, and that the KNAB had not infringed any provisions of the Law on Operational Activities. The prosecutor also stated that the information obtained as a result of the operational activities was open to assessment in the course of the criminal proceedings. The first applicant did not appeal against that reply to the Prosecutor General. 21. On 2 November 2005 the Riga City Vidzeme District Court, acting as a first-instance court and presided over by Judge B.T., acquitted the first applicant. The court found the second applicant guilty and gave him a suspended sentence of two years’ imprisonment. He pleaded guilty during the hearing, therefore the court proceeded without assessing the evidence. 22. On 8 November 2005 the prosecutor submitted an appeal contesting the acquittal of the first applicant, and asked for an immediate custodial sentence to be imposed in relation to the second applicant. He asked the appellate court to give a new judgment in respect of the parts of the original judgment which were contested. The second applicant submitted an appeal concerning the severity of his sentence. 23. Between 24 and 27 October 2006 the Riga Regional Court, acting as an appellate court, held several hearings during which the second applicant pleaded guilty. The representative of the first applicant submitted that the case file did not contain any information pertaining to the authorisation of the interception of phone conversations, which had been the main evidence against her. During the hearing, the prosecutor confirmed orally that judicial authorisation had been obtained. 24. On 31 October 2006 the appellate court adopted a judgment which upheld the prosecutor’s appeal and quashed the disputed parts of the lower court’s judgment. The appellate court found the first applicant guilty, giving her a suspended sentence of one year’s imprisonment. It also revoked the suspension of the second applicant’s prison sentence and he was taken directly to prison from the courtroom. The appellate court stated, inter alia, “the court recognises all the evidence in the criminal case as admissible, on the grounds that the factual information has been obtained and established (nostiprinātas) in line with procedure and in accordance with the order set out by law ...”. 25. In an appeal on points of law the first applicant argued that the tapped phone conversations should not have been admitted as evidence, as they had been obtained without proper authorisation. The second applicant submitted, inter alia, that the appellate court had not assessed the lawfulness of the phone tapping and had ignored the fact that the criminal case had contained no reference to any authorisation to carry out the above activity as prescribed by Article 176¹ of the Code of Criminal Procedure. In this regard, he also submitted that the appellate court had consequently failed to observe that interference in a person’s private life should be in accordance with the law, as required by Article 8 of the Convention. 26. On 19 January 2007 the Senate of the Supreme Court dismissed the appeal on points of law in open court. In response to the Article 8 complaint, the Senate stated that the phone had been tapped “in accordance with section 17 of the Law on Operational Activities, and not as a special investigative measure under Article 176¹ of the Code of Criminal Procedure”. 27. Meanwhile, during a judges’ conference on 4 November 2005, the Minister of Justice stated in her opening speech: “Today I would say that I, like the majority of you sitting in this hall, am powerless against the actions of our colleagues, which neither society nor I personally understand”. 28. A daily news report on 4 November 2005 mentioned that the minister had admitted to journalists that she had been referring to the judgment adopted by Judge B.T. in her speech (see paragraph 21 above): “Yes, I am not authorised to comment on particular cases where the adjudication is still pending, but I consider that I have the right to express an opinion on behalf of other judges who carry out their work honestly.”