SVĀRPSTONS AND OTHERS v. LATVIA
Inadmissible
André Potocki;Angelika Nußberger;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
1. The case originated in an application (no. 14976/05) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Latvian nationals, Mr Jānis Svārpstons (“the first applicant”), Mr Juris Ulmanis (“the second applicant”) and Mr Jānis Zips (“the third applicant”), on 29 March 2005. The applicants were represented by Ms J. Kvjatkovska, a lawyer practising in Riga. 2. The Latvian Government (“the Government”) were represented by their Agent, most recently Ms K. Līce. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The events leading up to the present application took place in the context of a transition in Latvia from analogue to digital terrestrial television broadcasting. 5. On 14 November 2002 a contract was signed between the Digital Latvian Radio and Television Centre (Digitālais Latvijas radio un televīzijas centrs – “the DLRTC”), a subsidiary company of the State nonprofit joint-stock company, the Latvian State Radio and Television Centre (Latvijas Valsts radio un televīzijas centrs – “the LVRTC”), and Kempmayer Media Ltd. (“KM”), a company registered in England and Wales, for implementation by the latter of the second phase of the digital terrestrial television broadcasting project. 6. In 2002 Kempmayer Media Latvia (“KML”), a subsidiary company of KM, was incorporated in Latvia. The applicants were at the material time board members of the KML. Subsequently, KM informed the DLRTC that its obligations under the contract of 14 November 2002 would be performed by KML, with KM only overseeing implementation of the project. 7. In August 2003 the DLRTC lodged a claim against KM with the International Court of Arbitration of the International Chamber of Commerce in Stockholm, seeking to invalidate the contract of 14 November 2002. 8. On 24 August 2006 that court ruled that, being a “mailbox” company, KM had never had the capacity to fulfil its contractual obligations. It was ordered to repay 6,976,737 United States dollars (USD) to the DLRTC. 9. On 1 September 2003 the Bureau for the Prevention and Combating of Corruption (Korupcijas novēršanas un apkarošanas birojs – “the KNAB”) opened an investigation into whether, in the context of the transition to digital terrestrial television broadcasting, State officials had abused their authority and failed to act. 10. The KNAB carried out various investigative actions including numerous searches. 11. On 24 October 2003, at the request of the KNAB, a judge of the Riga City Vidzeme District Court authorised the searches and seizures. 12. The judge’s decision authorising the searches and seizures was amenable to appeal before the Riga Regional Court (Rīgas apgabaltiesa) (see paragraphs 17-20 below). 13. On 27 October 2003 the KNAB searched KML’s business premises and the applicants’ residential premises. The search record indicated that numerous items were seized, such as the first applicant’s mobile phone and SIM card, the second applicant’s notebook, cassette tape, CDs, business card, the third applicant’s CDs, business cards, floppy disks, computers, computer hard drives, photographs and notes. 14. During the searches of their residential premises, the first and third applicants were also searched. 15. In October 2003 the applicants asked the KNAB and the Office of the Prosecutor General to return all the items and documents seized, in particular those of a personal nature and having no connection with the criminal case. 16. In November 2003 the applicants’ request to return the computers was refused because they contained information of evidential value. The KNAB indicated that the applicants could obtain a copy of the information stored on them and that the third applicant could recuperate certain items seized from his residential premises. Other items were being examined and would be returned if found to be of no evidential value. 17. On 3 November 2003 the applicants lodged complaints regarding the judge’s decision authorising the searches and seizures with the Riga Regional Court, arguing that it had been unsubstantiated and had not specified the items sought. They further contended that items unrelated to the criminal case had been seized from their residential premises. 18. On 11 November 2003 the Riga Regional Court dismissed the applicants’ complaints. 19. As regards the conduct of the searches, that Court noted that the actions of the investigating authority could be appealed against to the prosecution service, in accordance with Article 220 of the Criminal Procedure Code. That part of the applicants’ complaints fell outside the scope of the Regional Court’s competence and was therefore left unexamined. 20. This decision of the Regional Court was final. 21. On 15 November 2003 a prosecutor of the Office of the Prosecutor General dismissed the applicants’ complaints regarding the conduct of the searches and seizures. 22. On 3 December 2003 and 8 January 2004 the applicants’ further complaints to two higher levels of prosecutor were dismissed. The applicants’ opinion that certain seized items were of no relevance to the case was deemed without basis. Furthermore, since KNAB employees had had sufficient reasons to believe that the first and third applicants had been in possession of and were hiding items which were of relevance to the case, they could therefore be searched. 23. On 20 February 2004 the Prosecutor General dismissed the applicants’ complaints with final effect. 24. On 12 March 2004 the applicants and KML lodged a complaint with the Constitutional Court (Satversmes tiesa), challenging the compliance of Articles 220 and 222 of the Criminal Procedure Code (procedures for lodging complaints about the actions of an investigating authority and for a prosecutor’s decision on such a complaint) with Article 92 of the Constitution (right to a fair trial), Article 96 of the Constitution (right to respect for private life, home and correspondence) and Articles 6, 8 and 13 of the Convention. 25. They maintained that an investigating authority’s actions could not be the subject of an appeal before a court. A review of those actions by the prosecution service could not be equated to a review by a “court” within the meaning of Article 92 of the Constitution. They further complained in a general manner that their right to respect for private life, home and correspondence had been violated on the grounds that the intervention was not based on law. 26. On 16 April 2004, a panel of three judges of the Constitutional Court, by relying on Section 20 of the Constitutional Court Law, refused the initiation of constitutional proceedings insofar as it concerned Article 96 of the Constitution and Articles 8 and 13 of the Convention. They held that that part of the complaint did not comply with the criteria provided by Section 19² of the Constitutional Court Law (see paragraphs 29-32 below). In particular, the applicants had not sufficiently demonstrated in the complaint how their fundamental rights under those provisions had been infringed. This decision was final. 27. On 11 October 2004 the Constitutional Court handed down its judgment in relation to the remainder of the applicants’ complaint. It found that the impugned statutory provisions, namely Articles 220 and 222 of the Criminal Procedure Code, complied with Article 92 of the Constitution. The Constitutional Court also held that the prosecution service may be regarded as an effective and available legal remedy within the meaning of Article 13 of the Convention and that the absence of an appeal to a court does not in itself give rise to a breach of Article 6 or 13 of the Convention. As a result, it dismissed the applicant’s complaint. 28. Article 92 guarantees the right to a fair trial (see Čalovskis v. Latvia, no. 22205/13, § 71, 24 July 2014). Article 96 enshrines the right to respect for private life, home and correspondence (see Mentzen v. Latvia (dec.), no. 71074/01, ECHR 2004-XII). 29. Section 18 paragraph 1 part 4 of the Constitutional Court Law provides that an application to the Constitutional Court regarding the initiation of constitutional proceedings must, among other criteria, contain legal reasoning (juridiskais pamatojums). 30. Pursuant to section 19², in addition to the above-mentioned requirements, an individual constitutional complaint must include justification as to how the applicant’s fundamental rights as defined in the Constitution have been infringed upon, and show that all available remedies have been used. 31. Section 20 sets out the grounds on which the panel examining the constitutional complaint may refuse to initiate a case. Section 20 (5) (3) provides that, when examining applications, the panel dealing with the application may refuse to initiate a matter if the application does not comply with the requirements specified in Sections 18 or 19-19³ of the Constitutional Court Law. When examining a constitutional complaint, the panel may also refuse to initiate a case where the legal reasoning included in the complaint is evidently insufficient to satisfy the claim (section 20(6)). 32. For further details regarding the Constitutional Court Law see Meimanis v. Latvia, no. 70597/11, §§ 31-38, 30 June 2015. 33. The provisions of the Criminal Procedure Code applicable at the time of the national proceedings ceased to be in force on 1 October 2005. The provisions governing the procedure for complaints regarding the actions of an investigating authority provided as follows. 34. Article 220 provides that a suspect, accused and other persons may lodge complaints with a prosecutor about the actions of an investigating authority. 35. Article 221 provides that the prosecutor supervising the investigation shall decide on a complaint within ten days of receipt. A higher-ranking prosecutor shall decide on a complaint within ten days, or thirty days if a further inquiry or information is necessary in order to decide [it]. The complainant shall be informed of the outcome. If the complaint is dismissed, the prosecutor shall provide reasons as to why the complaint was considered unfounded and explain the appeal procedure. The investigating authority and complainant may appeal against the prosecutor’s decision concerning the complaint to a higher-ranking prosecutor. 36. Under Article 222 complaints about the actions of a prosecutor shall be submitted to a higher-ranking prosecutor and decided in accordance with the procedure laid down in Articles 220 and 221 of the Criminal Procedure Code.