CASE OF BOŽE v. LATVIA
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home;Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Síofra O’Leary
5. The applicant was born in 1958 and lives in Riga. 6. In May 2004 an official representing the Ministry of Health informed the State police authorities in writing that a private person – the applicant – was selling unlicensed pharmaceutical products via the internet. The products were advertised as medicines for the treatment of HIV, hepatitis C and cancer. The official mentioned that the Department for the Combat of Organised Crime (Organizētās noziedzības apkarošanas pārvalde) had established the applicant’s address, but that it had declined to launch an investigation on the grounds that a sample of the product sold by the applicant did not contain narcotic or other dangerous substances. Other departments of the State police had similarly refused to investigate the case. 7. An undercover investigation was carried out and on 11 June 2004 police officers responsible for investigating economic crime made a test purchase. They contacted the applicant via the email address indicated on the website that was advertising the pharmaceuticals products, and met him at a pizzeria near his home. After having bought a pack of ten bottles of one of the products for 50 Latvian lati (LVL) (about 70 euros (EUR)), the police officers informed the applicant about the test purchase which had been carried out. A record of the operation (pārbaudes akts), dated 11 June 2004 and signed by four police officers and the applicant, stated, inter alia: “given that company Baltijas elektronikas izstrādes has been registered at [the applicant’s] address, and that the applicant himself lives at that address, [the applicant] voluntarily agreed that the apartment be subjected to an inspection (apskate) and to show the tools used to fabricate the medicaments.” 8. Immediately after the test purchase, the same police officers carried out an inspection at the applicant’s apartment. Later, four police officers from the organised crime department, an expert and officers from the police press centre arrived. 9. During the inspection, the applicant explained that he was director of the company “Baltijas elektronikas izstrādes” and that the company was not connected with the production of medicines. He had been producing alleged medicines at home since the beginning of 2004, when several pharmaceutical companies in Latvia had refused to cooperate with him in the production of medical products for the treatment of HIV and hepatitis C. He alleged that he had sold about fifty packs of the alleged medicines. He admitted to being aware that the sale of medicines required a licence, but claimed that he did not have the means to obtain such a patent. 10. As a result of the inspection, which lasted five hours, a computer, a computer hard drive and items used in the production of the medicines (chemical substances, spare bottles and labels) were seized from the applicant’s apartment. The inspection was video-recorded and photographs were taken; the seized items were packed and sealed. The inspection record of 11 June 2014 listed everything which the police officers had observed during the inspection at the applicant’s three-room apartment, including the composition of the apartment, and detailed content of shelves and boxes, and of the fridge. 11. The above inspection record was written on a standard form with a pre-typed text according to which the inspection had been carried out under Articles 179-183 of the Code of Criminal Procedure. 12. A subsequent forensic examination concluded that there were no signs of narcotic or psychotropic substances in the seized items. The expert report concluded that the computer contained a massive volume of information, including on the production and distribution of the alleged medicines, as well as email correspondence, including communication with potential clients. 13. As a result, the police authorities instituted two sets of administrative offence proceedings under the Code of Administrative Offences on unlicensed business operations (see paragraphs 27-35 below) and on the sale of unlicensed pharmaceutical products (see paragraph 36 below). The first set of proceedings was remitted for examination by the State Revenue Service (Valsts ieņēmumu dienests – “the VID”), whereas the latter was remitted to the State Pharmacy Inspectorate (Valsts farmācijas inspekcija). 14. In June and July 2004 the applicant submitted various complaints to the State police authorities concerning the events of 11 June 2004. An internal inquiry by the Internal Security Office of the State Police (Valsts policijas Iekšējās drošības birojs) was completed on 26 July 2004. It concluded that there had been no violations of law in the conduct of the police officers who had carried out the test purchase and the subsequent inspection of the applicant’s apartment. 15. In addition, the Internal Security Office of the State Police refused to initiate criminal proceedings following a complaint lodged by the applicant about the theft by the police officers of weights from his apartment on 11 June 2004 (decision adopted on 25 November 2004), the alleged unauthorised conduct of investigative activities and false testimonies given by one of the police officers present during the inspection (decision adopted on 30 December 2009). 16. Contrary to what was indicated in the decisions adopted by the Internal Security Office of the State Police, the applicant did not appeal against those decisions to a higher official within the State police hierarchy. Instead, he submitted a new complaint to the Office of the Prosecutor General. The complaint was dismissed by a final decision of 29 December 2009 (see paragraph 25 below). 17. On 30 May 2005, following the internal inquiry, the Pre-trial Investigation Department of the State Police (Valsts policijas Galvenās Kriminālpolicijas pārvaldes Pirmstiesas izmeklēšanas pārvade) dismissed the allegations that the police officers had carried out a search of the applicant’s apartment on 11 June 2004. They concluded that the police officers had verified the facts about the alleged sale of pharmaceutical products. After the test purchase and with the permission of the applicant, they had inspected the legal address of the company “Baltijas elektronikas izstrādes” and had taken items in accordance with section 12(1)(23) of the Law on the Police, which authorised the examination of premises of legal entities (see Relevant domestic law section). The decision further stated that on arriving at the address of the company registered at the applicant’s apartment, the police officers had had no intention of drawing up an administrative offence record. The latter had been drawn up only after the examination of all the evidence seized during the inspection. According to the decision, the police officers had not carried out a search because all the seized items were easily visible and accessible. Therefore the Code of Criminal Procedure could not have been violated. The decision also stated that the applicant himself had not taken back the computer. The applicant did not appeal against the decision. 18. On various occasions the applicant complained to various branches of the Office of the Prosecutor, alleging that the “search” of his apartment on 11 June 2004 had been unlawful. He also requested that the seized items be returned to him. 19. According to information submitted by the Office of the Prosecutor General, between December 2004 and March 2012 the applicant complained to the Office of the Prosecutor General on sixty-two occasions in relation to the events of 11 June 2004, out of which the Office examined forty eight complaints. It appears that most of the complaints were related to various aspects of the administrative offence or criminal proceedings (see paragraphs 29-30 below). 20. On 17 November 2004 a prosecutor in charge of investigating financial end economic crimes replied to the applicant that the inspection of the applicant’s apartment, which was also the registered address of company “Baltijas elektronikas izstrādes”, had been carried out “in accordance with the law”, and that the items from the apartment had been seized, recorded and filmed in accordance with the provisions of the Code of Criminal Procedure. The prosecutor’s reply was amenable to appeal to a higher prosecutor. 21. On 13 January 2005 the applicant complained to the Office of the Prosecutor General that, inter alia, items from his apartment had been seized “without judicial authorisation”. 22. On 5 April 2005 the applicant was offered to receive back a computer hard drive seized in 2004. The computer was added to the materials of the criminal case. 23. On 27 April 2005 a supervising prosecutor ordered an internal inquiry into the conduct of the police officers at the applicant’s apartment and the seizure of items there on 11 June 2004. The prosecutor noted that the police had had no legal grounds on which to carry out an inspection of the applicant’s apartment, in that the Code of Administrative Offences did not provide for such a measure. The prosecutor also noted that the police officers had breached various procedural rules, notably Articles 168-178, 179 and 180 of the Code of Criminal Procedure. 24. On 25 August 2009 a prosecutor from the Office of the Prosecutor General dismissed the applicant’s request to institute criminal proceedings in respect of the conduct of the police officers. The decision stated that the police officers had carried out the investigative measure – an inspection of the applicant’s apartment – on the basis of Articles 179 and 183 of the Code of Criminal Procedure. Having concluded that there were no grounds to institute criminal proceedings, the police officers drew up an administrative offence record. The Prosecutor General’s Office recognised that the police officers should have remitted the administrative offence files to the court for adjudication, rather than to the VID. However, that omission had later been rectified by a supervising prosecutor (see paragraph 29 below). The decision stated that in any event, the statutory deadline for instituting disciplinary proceedings against the police officers had expired. 25. By a final decision of 29 December 2009 a supervising prosecutor from the Office of the Prosecutor General upheld the decision not to initiate criminal proceedings with regard to the conduct of the police officers on 11 June 2004. The decision stated that the police officers had conducted an inspection and seizure at the applicant’s apartment pursuant to sections 10(1)(6), 12(1)(4) and 12(1)(24) of the Law on the Police. 26. Meanwhile, in August 2009 and again in August 2010 the applicant claimed compensation for non-pecuniary damage from the Office of the Prosecutor General on the basis of the alleged unlawful activities of police officers on 11 June 2004. On 15 September 2009 the claim was dismissed and the applicant was informed that it was open to him to institute civil damages proceedings. On 29 October 2010 the same prosecutor dismissed the applicant’s claim for damages with respect to the seized items. The applicant appears to have appealed against that decision to the administrative courts. The Court has no further information on the outcome of the proceedings. 27. On 20 September 2004 the VID held the applicant liable for committing the administrative offence of unlicensed business activities – manufacturing of pharmaceutical products. He was fined LVL 200 (about EUR 300) and the items he had used in manufacturing the pharmaceutical products were confiscated. On 11 August 2004 the items were destroyed. 28. The applicant appealed against the decision to the administrative courts and to the Office of the Prosecutor. 29. On 7 October 2004 the Office of the Prosecutor of Financial and Economic Offences established that the impugned actions of the applicant had amounted to a criminal offence under section 207 of the Criminal Law, and therefore instituted criminal proceedings. On the basis of the prosecutor’s instruction, on 11 October 2004 the VID revoked their decision to hold the applicant liable for an administrative offence. 30. Following the pre-trial investigation in the criminal case, in which the applicant was questioned as a witness, on 26 June 2006 the criminal proceedings were terminated owing to lack of evidence that a criminal offence had been committed, and the materials, including the items seized from the applicant’s apartment, were remitted to the VID for the initiation of administrative offence proceedings. 31. Subsequently, on 21 July 2006 the VID adopted in substance an identical decision to that adopted after the first attempt to institute administrative offence proceedings (see paragraph 27 above). 32. The applicant appealed against the decision to the VID and later to the administrative courts, seeking revocation of the allegedly unlawful decision. Among other things, the applicant complained that an unlawful search and seizure had been carried out at his home on 11 June 2004. He claimed compensation for non-pecuniary damage in the amount of LVL 5,000 (about EUR 7,140), and later increased the claim to more than a million lati. 33. On 11 December 2008 the District Administrative Court dismissed the appeal. It noted that, within the powers vested in the State police under section 18(2) of the Law on the Police, in June 2004 police officers had inspected the applicant’s apartment in the course of criminal proceedings. Therefore the activities carried out prior to the institution of the administrative offence proceedings fell outside the administrative courts’ competence. The court nevertheless analysed the information concerning the alleged unlawful conduct of the police officers and concluded that there were no grounds to question the legality of the police officers’ conduct. 34. The applicant submitted a further appeal in which he argued, inter alia, that the evidence had been obtained unlawfully and therefore it could not be admitted in the administrative offence proceedings. 35. On 15 April 2010, by a final decision, the Regional Administrative Court upheld the VID’s decision. At the same time it varied the lower court’s finding that the police officers had carried out the contested measure as part of criminal proceedings. The appellate court relied on the outcome of the police internal inquiry into the lawfulness of the police officers entering the applicant’s apartment and seizing evidence. The court noted that the police officers had acted pursuant to section 12(1)(23) of the Law on the Police (see paragraph 40 below), which vested police officers with powers to inspect company premises, and section 10(1)(6) and (7), which provided that police officers had a duty to prevent and terminate administrative offences (see paragraph 37 below). As a consequence, the appellate court did not find that any of the evidence had been obtained unlawfully. On the merits, the Regional Administrative Court established that the applicant had carried out an unlicensed business activity, i.e. the manufacturing of pharmaceutical products, with an aim of receiving income. The court came to this conclusion by analysing the applicant’s activities, such as him setting up a web site, communication with potential clients via emails and setting a price. Accordingly, it was concluded that the applicant was rightly fined. It was also noted that the fine was the lowest possible for an individual person. 36. On 15 September 2004 the State Pharmacy Inspectorate fined the applicant under Article 46¹, second paragraph, of the Administrative Offences Code in the amount of LVL 500 (about EUR 700) for selling unauthorised pharmaceutical products (see paragraph 51 below). The decision was upheld at three levels of the administrative jurisdiction and came into force in June 2009.