KIBERMANIS v. LATVIA
Inadmissible
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev
1. The applicant, Mr Ivars Kibermanis, is a Latvian national who was born in 1960 and lives in Riga. He is represented before the Court by Mrs J. Kvjatkovska, a lawyer practising in Riga. 2. The Latvian Government (“the Government”) were represented by their Agent at the time, Mrs I. Reine, and subsequently by Mrs K. Līce. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 22 October 2004 the State Police instituted criminal proceedings for fraud, in particular for attempts to obtain by fraud the immovable property of a victim, K., by using fake cession contracts and carrying out other fraudulent activities, which had taken place, inter alia, at the bailiffs’ office where the applicant worked. 5. On 21 December 2004 a judge of the Riga City Latgale District Court authorised a search of the applicant’s office, limiting the seizure to: “... documents, contracts, letters, notices, and other documents concerning A.K., M.V., and E.M. for the period from 29 April 2004 until the material date”. 6. The search of the office was carried out on 22 December 2004, and the investigators seized two hard drives from the applicant’s and his assistant’s computers. The items were sealed and the search records do not reveal any complaints from the applicant with respect to the seizure. He nevertheless commented that the computers contained documents which under section 52 of the Bailiffs Law were not to be removed from the bailiffs’ office. 7. On 22 December 2004 the investigator ordered a technical expert report in order to find out whether the memory of the seized hard drives contained certain deleted documents: a cession contract dated 15 July 2004 and letters and other documents containing the names of four persons, A.K., E.M., and M.V. (all of whom at that time were suspects or accused in the same criminal proceedings), and I.K., the victim. On 27 December 2004 the hard drives were returned to the applicant. 8. On 23 December 2004 the applicant complained to the Office of the Prosecutor that the investigators had exceeded their powers by seizing the hard drives, since the judge’s search order had not authorised the seizure of anything but documents. He relied on Article 8 of the Convention, submitting that the search and seizure at his office had violated his right to respect for his private life and that of his clients in that the seized items had included two hard drives containing information relating to his private life and documents relating to his clients. Later he added the complaint that the seized objects had not been correctly sealed and were accessible to anyone. 9. On 29 December 2004 the applicant’s claim was dismissed. The prosecutor stated that the search had been conducted in accordance with section 52 § 4 of the Bailiffs Law, which in criminal proceedings concerning fraud authorised the seizure of documents from bailiffs’ offices, and that the search warrant must be interpreted as covering not only documents but also any other device containing the relevant documents. It added that the hard drives had not been seized, but only taken in order to extract from them the information the judge had authorised to be obtained. 10. The applicant submitted various similar complaints to higherranking prosecutors, claiming that during the search and seizure the investigating officer had been accompanied by an IT specialist who could have copied on the spot the necessary information from the hard drive, as the applicant had suggested. On 29 March 2005 a supervising prosecutor dismissed the complaint by contending that electronic documents which were stored in hard drives could be changed; therefore in the particular circumstances the seizure of the hard drives had been an appropriate decision, in that it would not have been possible to select the correct document without special knowledge. A similar conclusion was reached in the final decision of the Prosecutor General of 21 June 2005. 11. Meanwhile, on 3 May 2005 the applicant was charged with fraud. Subsequently the charges were amended, adding a charge of document forgery. In January 2006 the criminal case was sent to court in order for the adjudication to commence. 12. Following another complaint, on 3 February 2006 the Office of the Prosecutor General reiterated that the Prosecutor General had given a final decision on the complaints. Moreover, the applicant was reminded that the pre-trial criminal process had been terminated, therefore any future requests and submissions were to be addressed to the court. 13. On 23 March 2006 the applicant submitted to the investigating judge of the Riga City Latgale District Court a similar complaint to the one mentioned above about the allegedly unlawful seizure of the hard drives. The investigating judge noted that section 17 of the Criminal Procedure Law provided for a separation between the pre-trial criminal process and the trial, therefore the investigating judge could only have examined the complaints of alleged human-rights infringements during the pre-trial criminal process, that is before the criminal proceedings were referred to the Riga Regional Court for adjudication. Therefore, on 28 March 2006 the applicant’s complaint was dismissed owing to the fact that his criminal case had been sent to trial in January 2006 and the beginning of the adjudication had been set for 2 May 2006. 14. In September and November 2005 the applicant and his co-accused were asked to give voluntary voice samples to establish the authenticity of tapped telephone conversations between the two. They both refused and were subjected to compulsory voice sampling. On 24 November and 7 December 2005 the applicant was provided with copies of the material in the criminal case file. 15. On 5 December 2006 the Riga Regional Court convicted the applicant of fraud and sentenced him to five years’ imprisonment, which was suspended. The court relied on, inter alia, the telephone conversations between the applicant and the co-defendants which were tapped in 2004. 16. On various dates after the lower court’s judgment the applicant’s representative asked the Chairman of the Supreme Court and the appellate court to inform him whether the telephone tapping had been in accordance with the law, in particular whether it had been authorised by a judge. 17. On 1 June 2007 the Chairman of the Supreme Court refused to provide any information on grounds of State secrecy. On 31 August 2007 a judge sitting on the panel of the Criminal Cases Chamber of the Supreme Court (hereinafter “the appellate court”) told the applicant that she would herself ascertain whether the phone tapping of 2004 had been authorised by a judge. 18. On 15 May 2008 the appellate court quashed the lower court’s judgment in part and sentenced the applicant to six years’ imprisonment. The court referred to information received from the Bureau for the Prevention and Combatting of Corruption (KNAB) confirming that the phone tapping from 14 June to 14 November 2004 had been carried out after authorisation had been obtained from a judge of the Supreme Court. 19. Following an appeal on points of law by the applicant on 16 December 2008 the Senate of the Supreme Court quashed the appellate court’s judgment in part (on the counts of bribery and fraud) and sent it to the appellate court. The remainder of the judgment (in respect of document forgery) took effect. 20. On 9 September 2009 the appellate court delivered a judgment in the quashed part. The applicant submitted an appeal on points of law against the judgment in which he did not raise the Article 8 complaint later invoked before the Court. 21. In January and February 2009 the applicant asked the Chairman of the Supreme Court and the Office of the Prosecutor General respectively to provide information on whether there had been a judge’s authorisation for the recording of his telephone conversations. On 19 February 2009 the Office of the Prosecutor General confirmed that the tapping of the applicant’s telephone conversation was based on authorisation by a judge of the Supreme Court, as required by Article 7 (4) and Article 17 of the Law on Operational Activities. 22. The final judgment in the part which had been quashed was delivered on 2 March 2010, when the Senate of the Supreme Court terminated the criminal proceedings, finding that there had been an incorrect interpretation of the substantive norms of the Criminal Law. 23. Section 168 provides, inter alia, that a search may be conducted only on the basis of a judicial decision. 24. Pursuant to section 172, an investigator or prosecutor is strictly limited to seizing only documents which may have direct relevance to the [criminal] case in question. 25. Section 220 provides that complaints about the actions of the investigating authorities may be submitted to a prosecutor. 26. Section 222 provides that a complaint about the actions of a public prosecutor may be submitted to a higher prosecutor. 27. Section 40 provides that an investigating judge is the judge assigned by the chairperson of the district (city) court for a specific term in relation to each case and in accordance with the procedure specified by law, to supervise the observance of human rights in criminal proceedings. The powers of the investigating judge depend on the stage of the criminal proceedings. 28. Section 41 provides that during a pre-trial investigation and criminal prosecution an investigating judge has, inter alia, the duty of reviewing the conduct of the procedural activities. The same section provides that during the pre-trial investigation and criminal prosecution an investigating judge has the right to familiarise himself with all the material in the criminal case in respect of which the complaint has been received. He or she also has the right to request additional information about criminal proceedings where special investigative actions are being conducted, as well as to determine the terms for the performance of the special investigative actions. At this stage the investigating judge is authorised to apply a procedural sanction for the non-execution of duties or the non-observance of procedures during pre-trial criminal proceedings. He or she can propose that officials who are authorised to perform criminal proceedings are to be held liable for infringements of human rights committed in the carrying out of criminal procedural activities. 29. Section 41 (2) provides that from the moment the criminal case has been committed to trial, and before the adjudication of the case has commenced, the investigating judge has a duty to decide on the application of an accused in relation to the amending or revocation of security measures and the proposal of a public prosecutor in relation to the selection or amendment of a security measure. 30. The Office of the Prosecutor is a judicial institution which independently carries out supervision of the observance of law within the scope of its competence as determined by law. Its role is, inter alia, to supervise the work of investigative institutions and the investigatory operations of other institutions. 31. The relevant provisions are set out in the Court’s judgment in the case of Meimanis v. Latvia, no. 70597/11, §§ 26-30, 21 July 2015, in particular: “Section 5 provides: “If an individual believes that a body carrying out operational activities (operatīvās darbības subjekts) has infringed his lawful rights and freedoms, he or she is entitled to lodge a complaint with the prosecutor, who shall conduct an examination and issue a conclusion (atzinums) concerning the lawfulness of the contested actions of the official of the body carrying out operational activities (operatīvās darbības subjekta amatpersona), or the individual may bring an action before the court. Section 35 provides: “(1) The Prosecutor General and prosecutors specially authorised by him shall be responsible for monitoring (uzraudzība) the conformity of operational activities with the law. For the purposes of monitoring they shall be entitled to consult such documents, materials and information, at any stage of the operational activities, as are available to the investigating body (operatīvās darbības iestāde). Secret information and its sources shall be revealed only to the Prosecutor General, or to the prosecutors specially authorised by him with the permission of the head of the investigating body. (2) In order to take a decision with respect to operational measures which require approval by a judge, the judge shall be entitled to consult those documents, materials and information available to the investigating body on which the necessity for the operational measure, according to the special method, is based. Secret information and its sources shall be revealed to the judge only with the permission of the head of the investigating body.”” 32. On 11 May 2011 the Constitutional Court delivered its ruling in case no. 2010-55-0106. It found that the regulatory framework included in section 35 of the Law on Operational Activities referred to a monitoring mechanism for operational activities that must be assessed in conjunction with the right of a person to protection of his or her infringed rights. By relying on sections 35 and 5 of the above legislative act (see paragraph 31 above), the Constitutional Court concluded that the Prosecutor General and specialised prosecutors reviewed operational activities and, on the basis of the results of such a review, provided an opinion on the lawfulness of operational activities. However, the effective regulatory framework also established judicial supervision, including subsequent scrutiny. Consequently, the Constitutional Court did not agree with the argument raised by the applicant in the constitutional proceedings that the effective regulatory framework failed to provide independent subsequent scrutiny in respect of operational measures. For a more detailed review see Meimanis, cited above, § 24.