TAMM v. ESTONIA
Inadmissible
Ants Kull;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Andres Tamm, is an Estonian national who was born in 1955 and lives in Kuressaare. He is represented before the Court by Mr L. Glikman, a lawyer practising in Tallinn. The respondent Government are represented by Ms M. Hion, Director of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a lawyer (advokaat) who practises law mainly in Kuressaare where he has established the Andres Tamm Law Firm, a private limited company (OÜ Advokaadibüroo Andres Tamm). On 1 August 2002 the applicant’s law firm concluded a rental agreement with OÜ H. Consulting, a private limited company, in respect of rooms at Sakala Street in Tallinn. The rooms were to be used by the law firm. On 25 August 2002 the applicant applied to the Board of the Bar Association (Advokatuuri juhatus) for authorisation to act as a member of the management board of OÜ H. Consulting, which had its registered office at Sakala Street in Tallinn. He also informed the Board of his intention to open a branch of his law office at the same address in Tallinn on 1 September 2002. On 5 May 2003 a criminal investigation was initiated in respect of tax offences related to a company, H. Inc, a client of the applicant. The applicant and his law firm as well as OÜ H. Consulting were among those involved in business transactions with H. Inc. On 24 September 2003 a police investigator interviewed the applicant as a witness. According to the applicant, he had had business transactions with H. Inc. In the record of the interview the applicant is not mentioned as a legal counsel of H. Inc. On 24 September 2003 the police investigator drew up a seizure order in respect of four documents concerning transactions between the applicant’s law firm and H. Inc. The documents were seized on the same date in Kuressaare, at an unspecified location. According to the seizure report the applicant voluntarily handed over the documents, making no statements or complaints. On 25 September 2003 the police investigator drew up a search warrant, approved by the Public Prosecutor’s Office, in respect of the premises of OÜ H. Consulting at Sakala Street in Tallinn. According to the warrant, the evidence collected in the criminal case of H. Inc referred to the possibility that documents and other items relevant for the criminal case might be found at OÜ H. Consulting at Sakala Street in Tallinn. The search was carried out on the same date. Several documents and letters and a laptop computer were seized. The applicant was present but did not state that the search and seizure concerned privileged lawyer-client information. On 26 September 2003 the police investigator drew up a further seizure order in respect of two specific accounting documents of the applicant’s law firm from 2 November 1999 and its accounting documentation for the whole of 1999. The documents were seized on the same date at the applicant’s law firm in Kuressaare in the applicant’s presence; the latter, according to the seizure report, gave the documents voluntarily to the investigator and made no statements or complaints. On 29 September 2003 the applicant lodged a complaint with the Public Prosecutor’s Office of Saaremaa and the police investigator. He argued that the search in his law office’s branch in Tallinn and the seizure of confidential legal documents and a computer as well as the seizures at his law office in Kuressaare had been unlawful as the investigator had not presented a court order authorising these measures. Such a court order had been required, since inviolable data carriers (puutumatud teabekandjad) related to the provision of legal services by a lawyer had been concerned. He noted that his state of health at the time when the search and seizure orders were executed had been such that he could not complain about the investigator’s activities. On 2 October 2003 the police investigator made two applications to the Tallinn City Court (linnakohus) in which he requested, under Article 145-1 of the Code of Criminal Procedure (Kriminaalmenetluse koodeks), judicial authorisation for the seizure from the applicant of the laptop computer and the 1999 accounting documents of the applicant’s law firm. In the request concerning the seizure of the computer, the investigator noted that on 25 September 2003 the police had searched the premises of OÜ H. Consulting at Sakala Street in Tallinn. Certain documents and a laptop computer had been seized, the latter having been securely sealed. The investigator had presumed that in the registered office of OÜ H. Consulting there could not be inviolable data carriers related to the provision of legal services. However, considering the applicant’s allegation that the seized data carriers could contain information related to the provision of legal services, the investigator requested the court to authorise the seizure. On 2 October 2003 the City Court authorised the seizure of the laptop computer. It held that, since the search had been performed in the premises of another private limited company (not a law firm), the investigator had had no reason to presume at the time of the search that the computer could contain inviolable information related to the provision of legal services by a lawyer. The computer had been packed and sealed and no unauthorised persons had examined its contents. In order for the investigator to find out whether the computer contained information required for the investigation of the criminal case, it was necessary for him to examine its contents. At the same time, it could not be ruled out that the computer might contain information protected by the lawyer’s professional confidentiality, which the investigator had the right to become aware of only if authorised by a court. Accordingly, the judge authorised, apparently with immediate effect, the seizure of the laptop computer from the applicant, relying on Article 145-1 § 2 of the Code of Criminal Procedure. The judicial decision bears the applicant’s signature to the effect that he has familiarised himself with it on 8 October 2003. It was not specified in the decision whether an appeal lay against it. In the second request, made on 2 October 2003, concerning the seizure of the law firm’s accounting documents, the investigator noted that the applicant had been requested voluntarily to hand over the documents specified in the seizure order, which he had done without objection. He had not disclosed during the seizure that the documents could include inviolable data carriers and since, according to the Bar Association Act (Advokatuuriseadus), the lawyer had to store data carriers related to the provision of legal services separately from other data carriers (section 44(1)(4)), the investigator had presumed that the seized accounting documents did not contain inviolable information. On 2 October 2003 the City Court granted this request as well, noting that since the seizure had concerned accounting documents of the law firm and it had not been immediately challenged by the applicant, the investigator had had no ground to presume, at the time of the search, that the seized accounting documents could contain inviolable information related to the provision of legal services by a lawyer. The seized documents had been packed and sealed and no unauthorised persons had examined their contents. In order for the investigator to find out whether the seized documentation contained information required for the investigation of the criminal case, it was necessary for him to examine its contents. At the same time, it could not be ruled out that the documents might contain information protected by the lawyer’s professional confidentiality, which the investigator had the right to become aware of only if authorised by a court. Accordingly, the judge authorised, apparently with immediate effect, the seizure from the applicant of the applicant’s law firm’s accounting documents from 1999, referring to Article 145-1 § 2 of the Code of Criminal Procedure. The judicial decision bears the applicant’s signature to the effect that he has familiarised himself with it on 8 October 2003. It was not specified in the decision whether an appeal lay against it. On 8 October 2003 the accounting documents and the computer – the packaging and seals not having been opened in the meantime – were returned to the applicant on police premises in Tallinn. The applicant requested that the documents seized at Sakala Street on 25 September 2003 also be returned, but the investigator refused. At the applicant’s request, it was stated in the report that the investigator had not accessed the content of the returned items or copied or opened them. Some hours later on the same date, still on police premises, the computer and the accounting documents were seized again. The applicant objected, arguing that both the computer and the accounting documents contained information related to the provision of legal services by a lawyer and they were therefore inviolable under the Code of Criminal Procedure. Only the Board of the Bar Association could assess whether the computer also contained other information. On 8 October 2003 the police investigator declared the applicant a tax evasion suspect. On 10 October 2003 the Public Prosecutor’s Office replied to the applicant’s complaint of 29 September 2003. It asserted that on 8 October 2003 the computer and documents had been returned to him; accordingly, his complaint was without substance. Nevertheless the applicant had voluntarily surrendered the accounting documents without arguing that they contained inviolable information and therefore the investigator had had no grounds not to seize the documents. At Sakala Street, a search had been carried out in respect of OÜ H. Consulting and not in respect of a law office. The Public Prosecutor’s Office noted that at the time it was replying to the applicant, the City Court’s rulings served as grounds for the seizure of the documents and the computer. In so far as the documents seized at Sakala Street were concerned, the Public Prosecutor’s Office was of the opinion that they did not relate to the provision of legal services by a lawyer but were items related to the business transactions of H. Inc. Therefore, the guarantees provided for under the Bar Association Act were not applicable and, accordingly, the search of the premises of OÜ H. Consulting and seizure of the documents had been lawful. On 13 October 2003 the applicant lodged a new complaint with the Public Prosecutor’s Office. He argued that the search and seizure carried out on 25 and 26 September 2003 could not be legitimised retroactively by the judicial rulings of 2 October 2003. He also asserted that the seizure executed on 8 October 2003 had been unlawful. The Code of Criminal Procedure was flawed as it did not set out the grounds on which a judge had to grant the investigator’s request and in which circumstances a request could be refused. He was of the opinion that lawyer’s privilege had been insufficiently protected. The applicant referred to the Supreme Court’s (Riigikohus) judgment of 22 December 2000, according to which search and seizure were measures in public law that restricted a person’s fundamental rights and freedoms. The Supreme Court had held that judicial review of such measures fell within the jurisdiction of administrative courts under Article 3 § 1 of the Code of Administrative Court Procedure (Halduskohtumenetluse seadustik). The applicant concluded that he had the right to judicial protection up to the “European Court”. On 23 October 2003 the Public Prosecutor’s Office replied that the Code of Criminal Procedure explicitly provided for a possibility of search and seizure in a law office, on the condition of judicial authorisation. In the case at hand such an authorisation had been granted and, accordingly, there was no ground for declaring the investigator’s activities unlawful. It was also emphasised that the seizure had not been aimed at obtaining information concerning the clients of the applicant’s law firm or at taking any data carriers related to the provision of legal services. The seizure had related to a criminal case in which a possible tax offence committed by H. Inc had been investigated. Therefore, it had been necessary to gather information on persons who had had business relations with this company. It had been necessary to verify the applicant’s assertion that certain sums he had received from H. Inc had not been his personal income but had belonged to his law firm. On the basis of the above, the Public Prosecutor’s Office rejected the complaint. On 23 October 2003 the seized computer was examined on police premises in the applicant’s presence. The data on its hard disc were copied and the computer was returned to the applicant. On 10 November 2003 the investigator interviewed the law firm’s chief accountant as a witness. After a list of the seized accounting documents had been presented to her, she stated that the ledger and file no. 60 had not been included in the list. On 24 November 2003 the police investigator made two applications to the Tallinn City Court in which he requested, under Article 145-1 of the Code of Criminal Procedure, judicial authorisation for searches in the applicant’s law firm and at his home in Kuressaare in order to find the law firm’s ledger for 1999 and other important evidence in the criminal case. On 24 November 2003 the Tallinn City Court granted the requests, referring to Article 145-1 of the Code of Criminal Procedure. It noted that in the criminal case at hand the applicant was not acting as a lawyer, neither did he represent other legal persons’ interests (he was not a contractual representative) but he was himself a tax evasion suspect. In the City Court’s decision it was noted that an appeal could be lodged with the Tallinn Court of Appeal within five days. The decision was presented to the applicant on 25 November 2003. On the same date a search was conducted at the applicant’s home in Kuressaare. Two documents related to the criminal investigation were seized. On 24 May 2004 the applicant was charged with tax offences committed by him as the sole member of the management board and sole shareholder of the Andres Tamm Law Firm. According to the charges he had presented incorrect information to the tax authorities in his law firm’s tax return for 1999 and in other documents, evading payment of about 565,000 kroons (EEK; corresponding approximately to 36,000 euros (EUR)) in taxes. On 22 June 2004 the criminal case concerning the applicant was separated from the case concerning H. Inc. On 23 August 2004 the Public Prosecutor’s Office discontinued the criminal investigation in respect of the applicant. It was noted that the applicant had paid most of the outstanding taxes on behalf of his law firm, his guilt was negligible and there was no public interest in pursuing the case. The applicant undertook to pay the remaining taxes plus a lump sum of EEK 150,000 (corresponding approximately to EUR 9,600) into the public revenues. The seized documents were to be returned to the applicant after he had fulfilled the obligations imposed on him. On 28 April 2005 the accounting documents of the applicant’s law firm and the documents taken from Sakala Street were returned to the applicant. Article 15 of the Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) reads as follows: “Everyone whose rights and freedoms are violated has 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 legislation or procedure to be declared unconstitutional. The courts shall observe the Constitution and shall declare unconstitutional any law, other legislation or procedure which violates the rights and freedoms provided by the Constitution or which is otherwise in conflict with the Constitution.” The relevant provisions of the Code of Criminal Procedure (Kriminaalmenetluse koodeks), as in force at the material time, provided: “(1) Documents of notarial acts and other documents which contain confidential information on notarial acts and data carriers (teabekandjad) related to the provision of legal services by lawyers (advokaadid) shall be inviolable (puutumatud). (2) If the search of a notary’s office or law office or seizure therein concerns data carriers specified in paragraph 1 of this Article, the procedural act may be performed only on the basis of a ruling of a county or city court. (3) A notary or lawyer who is in the possession of documents specified in paragraph 1 of this Article shall be present during the search or seizure, or if this is not possible, another notary or lawyer who acts in the same office or provides legal services through the office shall be present during the search or seizure.” The relevant provisions of the Bar Association Act (Advokatuuriseadus), as in force at the material time, provided: “... (3) Data carriers (teabekandjad) related to the provision of legal services by a lawyer (advokaat) shall be inviolable (puutumatud). ... (5) A lawyer shall not be detained, searched or taken into custody in circumstances arising from his or her professional activities, except on the basis of a ruling of a county or city court. A law office through which a lawyer provides legal services shall also not be searched in circumstances arising from his or her professional activities.” “(1) A lawyer is required to: ... 3) maintain a list of matters in which the lawyer acts as a representative; 4) store data carriers related to the provision of legal services separately from other data carriers in his or her possession. ... (2) In the provision of legal services, a lawyer shall not acquire the rights of his or her clients.” “(1) A lawyer shall provide legal services through a law office. ... (6) Another undertaking ... shall not operate in a law office...” “(1) A company of lawyers (advokaadiühing) shall engage in no other area of activity than the provision of legal services. ...” According to sections 12(7-1), 27(1)(4) and 36(1)(8) of the Bar Association Act, a lawyer may be a member of the management board of a company only when authorised by the Board of the Bar Association. In a judgment of 22 December 2000 (case no. 3-3-1-38-00), the Supreme Court, sitting in plenary session in order to ensure the uniform application of the law, dealt with complaints lodged with an administrative court by two companies on whose premises search and seizure of documents had been carried out by police and tax officers with the approval of the Public Prosecutor’s Office. The first- and second-instance administrative courts had rejected the complaints, finding that they were not authorised to review the lawfulness of measures taken in the context of a criminal investigation. However, the Supreme Court found for the appellants, quashed the lower courts’ decisions and referred the case to the Tallinn Administrative Court for examination on the merits. It held: “19. ...[T]he Supreme Court en banc finds it necessary to note, firstly, that Articles 13, 14 and 15 of the Constitution and Article 13 of the European Convention on Human Rights give rise to the right to an effective remedy. The European Court of Human Rights has observed that according to Article 13 an effective remedy means a remedy which is as effective as possible (see Klass and others v. Germany, judgment of 6 September 1978, Series A, No 28, p 31 § 69). The Court has also said that if a person alleges that his or her Convention rights have been violated, he or she should have a remedy before a national authority in order both to have his or her claim decided and, if appropriate, to obtain redress (see Klass and others, cited above, § 64; Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000XI; and Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 96, ECHR 2000XI). It cannot be a prerequisite for the application of Article 13 that the Convention be in fact violated. Effective remedy must be guaranteed to everyone who claims that his rights and freedoms under the Convention have been violated (see Klass and others, cited above, § 64). 20. Postponement of a review of the legality of an investigative activity infringing fundamental rights and freedoms of persons until the judicial hearing of a criminal matter cannot be regarded as an effective remedy, because the hearing may take place years after the investigative activity was conducted. The harm caused by the violation of fundamental rights and freedoms may essentially increase or redress may become impossible by that time. Furthermore, the court hearing a criminal case has no right to decide on compensating the damage caused by an investigative activity. The possibility cannot be excluded that a criminal matter never reaches a court, or that an investigative activity infringes the fundamental rights and freedoms of a person who is not a party to a proceeding and therefore cannot seek judicial protection from violation of his or her rights and freedoms. ... 24. Search of a dwelling, possession or place of work and seizure of documents are acts of public law, which infringe fundamental rights and freedoms of persons. According to Article 3 § 1 (1) of the Code of Administrative Court Procedure adjudication of disputes in public law falls within the jurisdiction of administrative courts. According to the special clause of paragraph 2 of the same Article adjudication of disputes in public law for which a different procedure is prescribed by law does not fall within the jurisdiction of administrative courts. As the Code of Criminal Procedure prescribes that appeal against the referred measures may be filed only with a prosecutor, then judicial review of such measures falls within the jurisdiction of administrative courts, pursuant to the general clause of Article 3 § 1 of the Code of Administrative Court Procedure; that is why the administrative court should not have refused to hear the complaints on the substance. Any person whose fundamental rights and freedoms are violated by a procedural act is entitled to file a complaint with a prosecutor or an administrative court. The Supreme Court en banc considers it necessary to note that the duty of an administrative court is not to review the necessity and expediency of an investigative activity or look into the question whether the information obtained can be used as evidence in criminal proceedings. The task of an administrative court is to review whether a person’s fundamental rights and freedoms were infringed by a procedural act.” In a judgment of 6 January 2004, the Supreme Court sitting in plenary session (case no. 3-3-2-1-04) dealt with a request to reopen the domestic administrative court proceedings related to unlawfulness of search and seizure executed in respect of the applicant’s company after a finding of a violation by the Court in the case of Veeber v. Estonia (no. 1) (no. 37571/97, 7 November 2002). The Supreme Court noted, referring to its judgment of 22 December 2000, that it was within the administrative courts’ jurisdiction to examine on the merits complaints against the actions of the police. It held that the violation of Article 6 § 1 of the Convention on account of an administrative court’s failure to examine the complaint lodged with it also constituted a violation of Article 15 of the Constitution. In case the legislature had not provided for an effective and seamless mechanism for the protection of fundamental rights, the judicial power had to ensure, proceeding from Article 14 of the Constitution, the protection of fundamental rights. The Supreme Court referred the case to a first-instance administrative court for a new examination. In subsequent proceedings the Tartu Administrative Court and the Tartu Court of Appeal delivered judgments on the merits of the case (judgments of the Tartu Administrative Court were delivered on 30 September 2004 (case no. 3-15/04) and 17 April 2006 (case no. 3-05-528) and those of the Tartu Court of Appeal on 30 December 2004 (case no. 2-3-326/2004) and 29 June 2006 (case no. 3-05-528)). The proceedings resulted in a declaration of unlawfulness of search and seizure measures taken by the police and an award of compensation.