CASE OF VEEBER v. ESTONIA (No. 1)
Preliminary objection allowed (ratione temporis);Preliminary objection allowed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
Georg Ress
9. The applicant was born in 1948 and lives in Tartu, Estonia. He is the owner of the company AS Giga, with a registered office in Tartu. The company has been involved in reconstructing the public heat supply of the city. 10. On 14 November 1995 the Tartu police initiated criminal proceedings against the head of the Energy Department of the Tartu City Government. The proceedings concerned the alleged abuse of his position in contracting a loan with the Ministry of Finance for reconstructing the city's heat supply in an amount higher than approved and guaranteed by the City Council. In the context of these criminal proceedings the Tartu Public Prosecutor (Tartu prokurör) approved a search of the applicant's company's premises on 14 November 1995 in order to determine whether there were any original bookkeeping documents which might provide information with regard to the unauthorised use of the loan. 11. On 15 and 20 November 1995 the Tartu police searched the company's premises and seized respectively 36 and 50 files of documents, which comprised practically all of the company's bookkeeping records from the years 1994 and 1995. The documents seized were recorded by the files and not individually. The applicant estimates that their total number amounted to approximately 10,000. All seized files were placed in a separate room in the Tartu Police Prefecture for examination by the State auditors, who were assisted by staff of the financial department of the Tartu City Government. 12. On 16 November 1995 the applicant filed a complaint with the Tartu Public Prosecutor alleging that the police search and seizure of documents had been unlawful. On 17 November 1995 he complained also to the State Public Prosecutor (Riigiprokurör), submitting that the wholesale nature of the seizure and the failure to make an individual record of the seized items were inconsistent with the requirements of Articles 139 and 140 of the Code of Criminal Procedure. 13. On 22 November 1995 the police informed the applicant that he was free to consult the seized documents at the police station for the continued activities of his company. 14. On 23 November 1995 the Tartu Public Prosecutor instructed the police to make a record of the individual characteristics of the seized documents and to return the documents irrelevant to the criminal investigation. 15. On 24 November 1995, in response to the applicant's complaint, the Tartu Public Prosecutor informed him of his instructions to the police to correct the deficiencies in the recording of documents and pointed out that the police had given the applicant access to the documents with the possibility of making photocopies. The prosecutor also stated that his action was open to appeal to the State Public Prosecutor. 16. On 27 November 1995 the applicant filed a complaint with the State Public Prosecutor. On the same day the police returned to the applicant's company three previously seized files. 17. By a letter of 30 November 1995 the Deputy State Public Prosecutor informed the applicant that he had examined the complaint. He noted that the searches had been approved by the prosecutor, but acknowledged that, due to the large number of documents, their recording had been deficient. He further noted that the Tartu Public Prosecutor had ordered the police to remove the shortcomings. He accepted the measures of the Tartu Public Prosecutor and the reply issued to the applicant on 24 November 1995. It was also noted that the applicant was free to use the documents during their examination by the State auditors. 18. On 10 January 1996 the applicant's company filed a complaint with the Tartu Administrative Court (Tartu Halduskohus) asking it to declare unlawful the measures of the Tartu City Council in connection with the inspection of the company's records as well as the police search and seizure of documents. 19. By a judgment of 13 September 1996 the Administrative Court dismissed both parts of the company's complaint. Regarding the impugned police acts the court found that, according to Article 3 § 2(3) of the Code of Administrative Court Procedure, it lacked competence to deal with complaints which fell under civil and criminal procedure. The Administrative Court could not interfere with criminal proceedings and examine the lawfulness of the acts of the bodies of preliminary investigation. 20. In an appeal against the judgment the applicant argued that the police had abused its powers and that its actions violated the provisions of the Code of Criminal Procedure, the Constitution and the Convention. 21. On 22 November 1996 the Tartu Court of Appeal (Tartu Ringkonnakohus) confirmed the lack of competence to review police actions in criminal proceedings. It held that in the administrative proceedings it could not be examined whether the police, in effecting the search and seizures, had acted contrary to the Code of Criminal Procedure, the Constitution or the Convention. According to Article 120 of the Code of Criminal Procedure, supervision over the lawfulness of measures taken by the police in the context of criminal proceedings rested with the public prosecutor, not with the administrative court. The Court of Appeal quashed in part the judgment of the first instance court and terminated the administrative proceedings in respect of the complaint concerning the police actions. 22. On 15 January 1997 the Supreme Court (Riigikohus) refused to grant the company leave to appeal. 23. In the meantime, on 23 October 1996, the police decided to return twelve previously seized files. The applicant refused in writing to accept them, stating that their seizure had not been documented and that the act of return did not describe each document individually. On 22 November 1996 these documents were sent to the Tartu City Court (Tartu Linnakohus), where the applicant's criminal case was pending (see paragraph 26 below). The applicant agreed to accept the documents in 1997. Of the 86 files seized from the applicant's company on 15 and 20 November 1995, 28 files have been returned to the company. The applicant estimates that at least 5000 – 6000 documents are still not returned. 24. On 4 December 1995, following the seizure of documents, the Tartu police initiated criminal proceedings against the applicant on the suspicion of having misused his official position in the company. On 22 March 1996 the applicant was formally charged with misusing his position as well as with tax evasion and falsification of documents, but on 28 June 1996 the charge concerning misuse of position was dropped. On 1 July 1996 a further charge of fraud was brought against the applicant. 25. On 31 October 1996 the preliminary investigation was complete and the case was sent to the Tartu City Court for trial. 26. By a judgment of 13 October 1997 the City Court convicted the applicant of the charges and imposed a suspended sentence of 3 years and 6 months' imprisonment. It did find that in seizing of documents from the applicant's company the preliminary investigation authorities had infringed upon the procedural requirements stipulated in Article 140 of the Criminal Code. In particular, they had seized documents which were not relevant as evidence in the criminal case, had failed to record the documents individually and had taken away entire files. This had hampered the preliminary investigation of the case as well as its examination by the court. 27. On 18 October 1997 the applicant lodged an appeal against the judgement with the Tartu Court of Appeal. He contended, inter alia, that the indiscriminate seizure of documents from his company AS Giga on 15 and 20 November 1995 violated his rights of defence since he was deprived of the opportunity to submit necessary documents which were in the hands of the police. 28. By a judgment of 12 January 1998 the Tartu Court of Appeal rejected the applicant's appeal on the procedure and upheld his conviction. As regards the procedure, it found that the seizure of documents was conducted in accordance with the requirements of Article 140 of the Criminal Code. The records contained a description of the seized files, their number and the number of pages therein. The documents were thus sufficiently individualised. 29. On 17 September 1998 the applicant lodged an appeal with the Supreme Court, challenging his conviction as well as the procedure, claiming that the manner in which the seizure had been carried out had adversely affected his defence rights. 30. On 8 April 1998 the Supreme Court upheld the judgments of the lower courts with regard to the applicant's conviction. It acknowledged that in effecting the seizure of documents the procedural norms were not strictly followed, but found that such infringement was not substantial and did not hinder the thorough, complete and objective examination of the case or prevent the court from rendering a lawful and substantiated judgment. It considered that a detailed description of documents in the record of seizure was necessary only when they were used as evidence in the criminal case. 31. Article 15 of the Constitution guarantees everyone whose rights and freedoms are violated the right of recourse to the courts. Everyone has the right, while his or her case is before the court, to petition for any relevant law, other legal act or measure to be declared unconstitutional. The courts shall observe the Constitution and shall declare unconstitutional any law, other legal act or measure which violates the rights and freedoms under the Constitution or which is otherwise in conflict with the Constitution. 32. Article 25 of the Constitution provides that everyone has the right to compensation for moral and material damage caused by the unlawful action of any person. 33. Article 26 of the Constitution stipulates that everyone has the right to the inviolability of private and family life. State agencies, local governments and their officials shall not interfere with the private or family life of any person, except in cases and pursuant to a procedure provided for by law in order to protect health, morals, public order, or the rights and freedoms of others, to prevent a criminal offence, or to apprehend a criminal offender. 34. Article 33 of the Constitution provides for the inviolability of the home. It stipulates that no one's dwelling, real or personal property under his or her control, or workplace shall be forcibly entered or searched, except in the cases and pursuant to procedure provided for by law to protect public order, health or the rights and freedoms of others, to prevent a criminal offence, to apprehend a criminal offender, or to ascertain the truth in criminal proceedings. 35. The law provides that the Public Prosecutor's office is an agency of the executive power, which is under the administration of the Minister of Justice and has the status of an independent agency. It supervises the lawfulness of the preliminary investigation in criminal cases as well as the lawfulness of the police activities. In the exercise of their duties public prosecutors are independent and act according to law and their convictions. 36. According to Article 3 § 2(3) of the Code, the Administrative Court is not competent to deal with claims and complaints which fall under civil and criminal procedure. Article 4 § 1(1) of the Code provides that the Administrative Court is competent to deal with appeals against the organs of the executive State power or the legal acts or action by one of its officials. 37. The Supreme Court has stated in respect of Article 4 § 1(1) of the Code that legal acts and actions by the State Public Prosecutor, as a Government official, can be appealed to the Administrative Court and, since an appeal against his/her decisions is not provided for in the Code of Criminal Procedure, control of such acts and action falls within the competence of the Administrative Courts. In exercising this function, the Administrative Court does not interfere with the criminal proceedings in question and does not exercise supervision over the lawfulness of the actions of the organs of preliminary investigation. The Administrative Court examines only whether the State Public Prosecutor dealt lawfully with the complaint submitted (decision of the Administrative Chamber of the Supreme Court of 3 November 1995, Riigi Teataja III 1995, 17, 217). 38. Under Article 22(3) of the Code, the public prosecutor exercises his powers independently and is guided only by law. 39. According to Article 120 paragraph 1 of the Code supervision of the lawfulness of activities of the organs of preliminary investigation rests with the public prosecutor. Under paragraph 2 of this Article the public prosecutor has the power, inter alia, to annul the unlawful and unfounded orders of investigators, to give written instructions to the investigators, to approve searches and to remove a investigator from further investigation if the investigator has acted unlawfully. Paragraph 3 provides that the written instructions of the Prosecutor are binding on the authorities carrying out preliminary investigation. 40. Under Articles 182 and 183 of the Code, complaints regarding the activities of the police investigator and the police examiner are submitted to the public prosecutor whose decisions and actions concerning the complaints can be appealed against to the higher level public prosecutor. 41. Article 139 of the Code stipulates that if an investigator has sufficient reason to believe that in a certain room, location or in a person's possession there might be items of significance to a criminal case he conducts a search to find them. A search may be conducted on the basis of the decision of an examiner or investigator and only upon the authorisation of the public prosecutor or his deputy. If an investigator knows the exact location of an item, which is of significance to a criminal case, he conducts the seizure of that item. 42. According to Article 140 of the Code, an investigator, in performing a search and a seizure, can take away only those items and documents which are relevant to a criminal case. Each seized item and document must be entered in a record indicating their exact amount, format, weight and individual characteristics. 43. Sub-chapter 4 of Chapter 2 of the Code deals with the protection of personal rights. It cites specifically defamation (Article 23), protection of private life (Article 24) and protection of a person's name (Article 25). Article 24 paragraph 1 of the Code provides that a person has the right to demand termination of a violation of the inviolability of his or her private life and to demand compensation for moral and material damage caused thereby. Paragraph 2 lists 6 acts which constitute a violation of the inviolability of private life, if performed without legal basis or against a person's will. These acts include a) entry into the dwelling or onto the property of a person; b) search of a person or of objects in his or her possession; c) use of a person's manuscripts, correspondence, notes or other personal documents or information. Paragraph 3 stipulates that a court may also declare that an act not indicated in section 2 violates the inviolability of a person's private life if the intrusion is effected without a legal basis or against the person's will. Article 26 of the Code states that, in cases provided for by law, a person may also demand termination of the violation of his or her personal rights which are not specified in Articles 23 to 25 as well as compensation for moral and material damage caused thereby. 44. According to Article 112 of the Code, measures for the protection of civil rights include: a) recognition of rights; b) elimination of violations and prevention of further violations; c) restoration of the situation that existed prior to violation; d) compensation for damage. 45. Article 172 paragraph 2 of the Code provides that moral damage caused to a person shall be compensated for by the person who caused the damage. The latter person is released from the obligation to compensate for moral damage if the person proves that he or she is not at fault for causing the damage. Paragraph 3 of this Article states that if there has been a violation of personal rights, a court will decide on the basis of the facts of the case whether the violation caused any moral damage. Paragraph 4 stipulates that in determining the amount of compensation, a court shall take into account the extent and nature of the caused moral damage as well as the degree of fault of the person who had caused the damage. 46. In a civil case between two individuals concerning eviction from a residence, in which the plaintiff had asked the competent civil court to declare his eviction unlawful, the Tallinn Court of Appeal held that in so far as the applicant's action concerned the alleged violation of personal rights, his claim fell to be considered under the General Principles of the Civil Code. The Housing Act was not relevant in deciding on an action concerning the protection of personal rights. Although the request of the applicant to declare his eviction unlawful was not a civil claim which would fall under Article 112(2) of the above Code, the question of lawfulness of the impugned measure was relevant in determining whether there had been a violation of personal rights (judgment of the Tallinn Court of Appeal of 7 September 2000, case no. II-2/829/00). 47. In a case which concerned an action for damages against the Government in connection with a search by the police of the applicant's home and the seizure of personal objects, the Tallinn Court of Appeal found that the claim fell to be considered under Article 24 of the General Principles of the Civil Code. It held however, that there had been no violation of the inviolability of the applicant's private life within the meaning of Article 24 as the search and seizure had been lawful under Articles 139 and 140 of the Code of Criminal Procedure (judgment of the Tallinn Court of Appeal of 1 July 1999, case no. II-2/637/99). 48. In a case concerning a compensation claim for moral damage suffered as a result of the unlawful acts of the police, which included a search of the plaintiff's personal belongings on suspicion of shoplifting, the Tallinn Court of Appeal found that the plaintiff's personal rights had been violated and ordered the Government to pay damages. The court relied, inter alia, on Article 25 of the Constitution and Articles 24 (2), 26, and 172 (2) and (3) of the General Principles of the Civil Code (judgment of the Tallinn Court of Appeal of 20 February 2001, case no. II-2/253/2001). 49. The civil courts have also considered claims of violation of personal rights presented, inter alia, in connection with unlawful detention and conviction, opening of prisoners' correspondence and defamation.