CASE OF MEIMANIS v. LATVIA
Remainder inadmissible (Article 35-3 - Manifestly ill-founded;Ratione personae);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
George Nicolaou;Guido Raimondi;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä
5. The applicant was born in 1968 and lives in Riga. 6. He is currently on trial in criminal proceedings instituted on 30 December 2005 for an attempt to take a bribe, together with A.B. and A.S. At the time the applicant was the head of a division in the Economic Crime Bureau (Ekonomikas policijas birojs) in the Main Police Department in Riga (Rīgas galvenā policijas pārvalde). 7. According to the applicant, during his trial before the appellate court, he learned that an operational investigation (operatīvās uzskaites lieta) had been opened in respect of his co-defendant A.S. 8. According to the Government, on 27 December 2005 the operational investigation had been opened on the basis of information provided by a private person. On 28 December 2005 the relevant authority, the Bureau for the Prevention and Combating of Corruption (Korupcijas novēršanas un apkarošanas birojs – the “KNAB”), had informed the prosecutor’s office about this. On the same date, a Supreme Court judge had authorised the interception of A.S.’s telephone conversations and the prosecutor’s office had authorised an undercover operation (operatīvais eksperiments). On 29 December 2005 the Head of the KNAB had authorised the interception of A.B.’s telephone conversations on the basis of section 7(5) of the Law on Operational Activities, and they included conversations with the applicant. On 30 December 2005 the KNAB had informed the prosecutor’s office about the operational measures under the same provision. The Government did not adduce any evidence in this connection. 9. On 22 January 2009 a judge of the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta), in the context of the criminal proceedings against the applicant, requested information about the operational investigation. 10. On 18 February 2009 a specialised prosecutor, having examined the material in accordance with section 35(1) of the Law on Operational Activities, replied that the operational investigation had been opened on 27 December 2005. In respect of the applicant, no interception of telephone conversations had been carried out in the context of that operational investigation. However, she noted that “his conversations were recorded if he was speaking to [a person], whose conversations were intercepted in accordance with the Law on Operational Activities”. According to the applicant, he learned about this information during the appellate court hearing on 22 October 2009. 11. On 22 October 2009 the applicant requested the prosecution authorities to review the lawfulness of the operational measures which had been carried out and asked specific questions concerning these measures. 12. On 4 November 2009 the specialised prosecutor replied, among other things, that on 28 December 2008 an undercover operation had been approved on the basis of section 15(3) of the Law on Operational Activities in the context of the operational investigation to record the manner in which the sworn attorney A.S. would proceed upon receipt of 19,500 Latvian lati (LVL), to be handed over to the officials of the economic crime police, to find out whether he would continue arranging for a bribe and to ascertain his possible accomplices. She also noted that the domestic law did not provide for independent judicial supervision of operational activities; such supervision was carried out by the Prosecutor General and specially authorised prosecutors in accordance with section 35(1) of the Law on Operational Activities. Finally, she noted that the operational investigation measures in respect of the applicant and his co-defendants had not been illegal and that there had been no breaches of the general principles governing operational activities contained in section 4 of that Law. 13. On 6 November 2009 the applicant lodged a complaint about the specialised prosecutor’s reply. 14. On 27 November 2009 a higher-ranking specialised prosecutor rejected the applicant’s complaint. She referred to section 35(1) and section 5 of the Law on Operational Activities. By reference to section 7(5) the prosecutor also explained that the authorities had learned during the interception of telephone conversations of A.S. that an offence was being planned for 30 December 2005 – the act of arranging for and taking a bribe – which would also involve officials from the State Police. In order to prevent further participation of officials in corruption-related offences, a decision was taken to intercept the telephone conversations of A.B. on the basis of section 7(5) of the Law on Operational Activities. The competence of the prosecution authorities did not include examination of whether that or other provisions were compatible with the Latvian Constitution; these issues could be determined by the Constitutional Court. 15. The applicant lodged a further complaint with the Prosecutor General, which was rejected by a final decision of 29 December 2009. With reference to sections 35(1) and 7(5) of the Law on Operational Activities, it was reiterated that no breaches of that Law had been found. 16. On 29 June 2010 the applicant lodged an individual constitutional complaint with the Constitutional Court (Satversmes tiesa). He alleged that (i) section 7(5) of the Law on Operational Activities was incompatible with Articles 89 (protection of human rights) and 96 (right to private life) of the Constitution (Satversme) and also with Articles 8 and 13 of the Convention, and (ii) the first and second sentence of section 35(1) of the Law on Operational Activities were incompatible with Article 89 and the first sentence of Article 92 (right to a fair trial) of the Constitution and also with Article 6 § 1 and Article 13 of the Convention. 17. On 16 July 2010 the Constitutional Court initiated proceedings in case no. 2010-55-0106 with regard to the compatibility of section 7(5) of the Law on Operational Activities with Article 96 of the Constitution and Article 13 of the Convention and the compatibility of the first sentence of section 35(1) of that Law with Article 92 of the Constitution alone. The Constitutional Court rejected the remainder of the applicant’s complaint. 18. On 6 September 2010 a judge dismissed the applicant’s request, among other things, to see the case materials, since it was contrary to the procedure laid down in the Law on the Constitutional Court. It was for the judge to take the necessary steps to prepare a case for adjudication (lietas sagatavošana izskatīšanai) in accordance with section 22 of the Law on the Constitutional Court. He also referred to section 22(9), section 24 and 22(2)(1) of the Law on the Constitutional Court (see paragraphs 34-35 below) to explain that the parties were entitled to see the case materials after the decision concerning adjudication had been taken and that it was for the judge to decide which institutions or officials were to be requested to submit additional information or documents. 19. On 5 November 2010 the judge dismissed the applicant’s request to see the written submissions filed by the Latvian Parliament (Saeima) in the proceedings on the grounds that such request had already been dismissed given that these submissions formed part of the case materials. 20. On 2 December 2010 the applicant requested permission to see at least the judge’s preliminary opinion (atzinums par lietas sagatavošanu izskatīšanai) before the preparation of the case was completed and before the preparatory meeting had taken place. The applicant sought the possibility of expressing his opinion on the proceedings and, in particular, on whether or not the case could be decided by means of an oral procedure, which was his preference. 21. On 17 December 2010 the President of the Constitutional Court replied to the applicant that the parties could see the case materials only after the decision concerning adjudication had been taken. That decision had been taken on 14 December 2010. Consequently, the applicant could see the case material. As regards the possibility of the proceedings being conducted orally or in accordance with a written procedure, he explained that this issue was to be determined by the Constitutional Court in accordance with section 22(8)-(10) of the Law on the Constitutional Court. This issue was first to be considered by the relevant judge, then by the President of the Constitutional Court and, subsequently, by all other judges in the preparatory meeting. The parties could express their opinion on this matter after they had seen the case materials. 22. On 21 January 2011 the applicant filed an opinion with the Constitutional Court and noted, among other things, that the case could not be decided through a written procedure and that an oral hearing should be held. He admitted that the written procedure before the Constitutional Court as such did not infringe his rights to be heard, but submitted that it had to be examined in each particular case and that the court was not allowed to reject a request in connection with the gathering of evidence without examining its necessity, significance or procedural legal grounds. 23. On 25 January 2011, in a closed preparatory meeting, the Constitutional Court examined the case materials and found that the documents contained therein were sufficient for the purposes of examining the case by means of a written procedure (sections 22(10) and 281 of the Law on the Constitutional Court). On 26 January 2011 the applicant was informed about this decision and was given 15 days to see the case materials and to give his opinion in connection with them (section 281(2) of the Law on the Constitutional Court). The applicant used this possibility. 24. On 11 May 2011 the Constitutional Court delivered its ruling in case no. 2010-55-0106 and held that the contested legal provisions complied with the Constitution and the Convention. The relevant part reads as follows: “11. ... It follows from the case materials that, on 27 December 2005, the KNAB opened an operational investigation. Interception of the Applicant’s telephone conversations was carried out from 29 to 31 December 2005, that is, for three days under section 7(5) of the Law on Operational Activities (see Case materials, Vol. 1, pp. 85 – 86). There is no dispute that the Applicant also participated in the telephone conversations which were intercepted. ... 13. The Applicant and the Ombudsman argue that the restriction of rights established in section 7(5) of the Law on Operational Activities is unclear. It is impossible to understand the meaning of ‘to prevent’. Nor can it be understood what preconditions need to be fulfilled in order to take operational measures under the special procedure where immediate action is required. Therefore, the restriction of rights established in the above-mentioned legal provision has not been provided for by a properly adopted law (see Case materials, Vol. 1, pp. 7 – 8, and Vol. 3, pp. 4648). ... 13.2. The Applicant argues that the provisions of section 7(5) of the Law on Operational Activities must be applied only when necessary to prevent serious or especially serious crimes. Consequently, the operational measures contained in this provision cannot be performed for the purpose of detecting (atklāt) a criminal offence. ... The first sentence of section 7(5) of the Law on Operational Activities provides that ... operational activities may be carried out to react immediately to threats of criminal offences as referred to in this provision and [that] corresponding operational measures [may be taken] to prevent these offences. However, the fact that detection of criminal offences has not been mentioned expressis verbis in section 7(5) of the Law on Operational Activities, does not exclude the obligation to observe the purpose of operational activities. [The Constitutional Court] can agree with the arguments of Parliament and the KNAB, namely, that when carrying out activities mentioned in section 7(5) of the Law on Operational Activities, a criminal offence can be prevented and detected as well. When taking operational measures to prevent criminal offences, some [other] criminal offence may also be detected. For instance, in the case of the taking of a bribe, operational measures may prevent a criminal offence, as well as identifying the persons involved in giving such a bribe. Therefore, it can be concluded that the term ‘to prevent’ in section 7(5) of the Law on Operational Activities includes not only prevention of crime, but also detection of other criminal offences. 13.3. ... [The Constitutional Court] does not agree with the opinion by the Ombudsman that section 7(5) of the Law on Operational Activities is unclear as it fails to establish preconditions which are necessary to allow immediate action to be taken in the form of operational measures under the special procedure. Section 7(5) of the Law on Operational Activities establishes two preconditions which allow ... operational measures. First, section 7(5) of the Law on Operational Activities enumerates specific circumstances ... Operational measures may be taken when required to prevent acts of terrorism, murder, banditry, riots, or other serious or especially serious offences. They are permissible also in circumstances of a real threat to the life, health or property of an individual. [The Constitutional Court considers that] this enumeration ... is exhaustive and sufficiently precise. Consequently, it excludes any possibility of operational measures under the special procedure in relation to the prevention of such criminal offences which are not indicated in the legal provision. Second, operational measures ... may be taken ... only when an immediate action is required. Interpreting this legal provision in conjunction with section 17(3) of the Law on Operational Activities, [the Constitutional Court] concludes that covert interception of non-public conversations is allowed only when [there is] reliable information (pamatotas ziņas) about persons’ involvement in a criminal offence, as well as a threat to important interests of the State, its security or defence. Consequently ... operational measures ... may be taken if [there is] reliable information regarding the involvement of an individual in a criminal offence. Section 7(5) of the Law on Operational Activities provides for an exceptional procedure, namely, it allows ... immediate operational measures to be taken because any delay might significantly influence their results. Taking into account the seriousness of the offences referred to in section 7(5) of the Law on Operational Activities, it is important to provide a timely and effective response to prevent all threats related to such crimes. Section 7(5) of the Law on Operational Activities establishes the preconditions for its application [with sufficient precision]; consequently, the restriction on the fundamental rights has been established by law. ... 17. The Applicant indicates that section 7(5) of the Law on Operational Activities does not provide an obligation ... to receive approval by a judge in cases where operational measures are terminated within ... 72 hours (see Case materials, Vol. 1, pp. 26 – 27). 17.1. Sections 7(2) and 7(3) of the Law on Operational Activities establish two procedures for taking operational measures, namely, under the general and special procedures. Such classification is closely related to the nature of operational measures and their impact on the fundamental rights of persons. In the cases established in section 7(5) of the Law on Operational Activities, operational measures must be taken under the special procedure as they significantly impinge on the fundamental rights of persons. The Constitutional Court considers that the grammatical wording of section 7(5) of the Law on Operational Activities [does not clearly indicate] whether it is necessary to obtain approval by the President of the Supreme Court or a specially authorised judge in cases when operational measures are terminated within ... 72 hours. 17.2. In order to determine the content of section 7(5) of the Law on Operational Activities, it must be interpreted in conjunction with other provisions of the same section regulating operational measures to be taken under the special procedure. Section 7(5) of the Law on Operational Activities contains a reference to section 7(4) setting out the operational measures to be taken under the special procedure. These measures, including monitoring of correspondence and covert interception of non-public conversations, must be taken with the approval of the President of the Supreme Court or a specially authorised judge. Although section 7(5) of the Law on Operational Activities provides for exceptional circumstances where ... immediate action may be taken, it also establishes the obligation ... to obtain the approval of the President of the Supreme Court or a specially authorised judge for operational measures under section 7(4). Already when the draft of the Law on Operational Activities was being drawn up ... the need to receive a judge’s approval was emphasised in cases where operational measures would be taken under the special procedure (see Case materials, Vol. 1, pp. 171 and 173). The third sentence of section 7(5) of the Law on Operational Activities indicated that the operational measures had to be discontinued where no approval by a judge was obtained. According to the KNAB, this indication confirms that a judge’s approval must be sought only in cases where operational measures have not been terminated within ... 72 hours (see Case materials, Vol. 3, pp. 45). However, the Ministry of Justice and the Ombudsman indicate that such an interpretation ... would not comply with the essence of the Constitution (see Case materials, Vol. 3, pp. 48 and 54 – 55). Section 7(5) of the Law on Operational Activities contains no reference to the fact that no approval by the President of the Supreme Court or a specially authorised judge is necessary for operational measures to be taken under section 7(4) in the event that it is planned to terminate them within ... 72 hours. Consequently, [the Constitutional Court] cannot agree with the opinion by the KNAB that a judge’s approval does not have to be obtained if operational measures are terminated within ... 72 hours. ... 17.3. ... Consequently, section 7(5) of the Law on Operational Activities provides that a prosecutor must always be informed of the operational measures taken; this provision also obliges ... [the seeking of] approval by the President of the Supreme Court or a specially authorised judge. The restriction established in section 7(5) of the Law on Operational Activities must be regarded as the most lenient measure for fulfilling the legitimate aim because monitoring by a prosecutor and subsequent judicial scrutiny of the lawfulness of operational measures ensures effective protection of the rights of persons. 18. ... It is not possible to agree with the Applicant’s statement to the effect that the infringement of his right is greater than the benefit gained by society. By means of a lawful restriction of a person’s right to respect for his or her private life, the State helps to combat crime and permits ... immediate reaction to threats of criminal offences that are particularly dangerous for society, serving to prevent them and identifying the persons involved. When intercepting non-public conversations in the cases established in section 7(5) of the Law on Operational Activities, the protection of public safety is ensured. Consequently, operational measures taken to prevent criminal offences referred to in section 7(5) of the Law on Operational Activities must be regarded as proportionate and compliant with Article 96 of the Constitution only if approval by the President of the Supreme Court or a specially authorised judge has been obtained irrespective of the time when the operational measures are terminated. 19. The Applicant indicates that the [prosecutor’s office] cannot be regarded as an effective remedy in respect of his rights within the meaning of Articles 8 and 13 of the Convention (see Case materials, Vol. 1, pp. 17 – 18). The Constitutional Court has already established in its case-law that [an application to] the prosecutor’s office in Latvia may be regarded as an effective and available remedy, because the status and the role of the prosecutor in the supervision of law secures independent and impartial review of cases in compliance with Article 13 of the Convention (see Judgment of 11 October 2004 by the Constitutional Court in the case No. 2004-06-01. Para 19). In the present case it is necessary to examine whether section 7(5) of the Law on Operational Activities provides a person with protection compliant with Article 13 of the Convention in cases where the right to the inviolability of private life and correspondence guaranteed in the Convention is infringed. The Constitutional Court concludes that section 7(5) of the Law on Operational Activities establishes circumstances ... where operational measures may be taken immediately, as well as the procedure in accordance with which this has to be notified to a prosecutor and approval by a judge is to be obtained. However, this provision is not related to the right to an effective remedy under Article 13 of the Convention. Consequently, the compliance of section 7(5) of the Law on Operational Activities with Article 13 of the Convention must be assessed in conjunction with the first sentence of section 35(1) of that Law, the latter establishing a mechanism for monitoring operational measures and being contested by the Applicant as to its compliance with Article 92 of the Constitution. 20. The Applicant indicates that the first sentence of section 35(1) of the Law on Operational Activities fails to comply with Article 92 of the Constitution because it has no legitimate aim and it is not necessary in a democratic society. The provision fails to establish a procedure according to which the supervision and monitoring of performance of operational measures would be carried out. In the monitoring of operational measures, the first sentence of section 35(1) of the Law on Operational Activities confers on the prosecutor’s office a broad margin of appreciation (see Case materials, Vol. 1, pp. 20 – 21). 21.1. ... The Constitutional Court has already concluded in paragraph 17 above that [there is] an obligation to request, in any event, the approval of the President of the Supreme Court or a specially authorised judge in relation to operational measures. Consequently, the legislature has established such a regulatory framework for operational measures that requires not only monitoring by a prosecutor but also judicial supervision or at least subsequent judicial scrutiny of the lawfulness of the measures taken and their compliance with the requirements of the law. 20.2. ... The Constitutional Court has already indicated in its case-law that the prosecutor’s office, as a judicial institution, has a twofold nature. On the one hand it is a single, centralised three-level institutional system, under the management of the Prosecutor General, but – on the other – prosecutorial functions are carried out independently and solely by officials of the prosecutor’s office, that is, the individual prosecutors (see Judgment of 20 December 2006 by the Constitutional Court in the case No. 2006-12-01, Para 12.2). ... As to the taking of operational measures referred to in section 7(4) of the Law on Operational Activities, in cases established in section 7(5), ... a prosecutor, that is, the Prosecutor General or specialised prosecutors, must be notified within ... 24 hours (see Kavalieris A. Operatīvās darbības likuma komentāri. Rīga: Raka, 2002, pp. 26). Consequently, the Prosecutor General or specialised prosecutors also supervise the lawfulness of operational measures. Pursuant to section 22(2) of the Law on Operational Activities, operational proceedings (operatīvā izstrāde) are opened by a decision approved by a head or deputy head of the operational activities authority and a prosecutor is informed about this. Consequently, operational measures established in section 7(5) of the Law on Operational Activities ... must be notified to the Prosecutor General or a specialised prosecutor. The Constitutional Court indicates that in the event of receipt of such notice, the public prosecutor must monitor the compliance of the investigative operational measures with the requirements of the law, thus ensuring the observance of the rights of the person concerned. 20.3. The Applicant indicates that the possibility of securing protection for one’s rights is limited in cases where one’s telephone calls are intercepted (see Case materials, Vol. 1, pp. 10, 13, 18 and 22). ... It follows from the afore-mentioned that the Prosecutor General and specialised prosecutors review operational activities and, based on the results of such review, provide an opinion on the lawfulness of operational activities ... Review is necessary for the Prosecutor General and specialised prosecutors to ensure that operational measures have been lawful. However, the effective regulatory framework also establishes judicial supervision, including subsequent scrutiny. Consequently, [the Constitutional Court does not] agree with the opinion that the effective regulatory framework fails to provide independent subsequent scrutiny in respect of operational measures. Pursuant to section 29(3) of the Law on Operational Activities, if in the course of operational activities the rights and interests of persons have been unlawfully infringed and damage has been caused, the obligation of the relevant officials (prosecutor or court) shall be to restore such rights and to compensate for or avert the inflicted pecuniary and non-pecuniary damage in accordance with the law. Consequently, it can be concluded that the Law on Operational Activities establishes the responsibility of the officials of [the relevant body] in the case of any infringement of fundamental rights. ... Consequently, the investigating authority and the court ensure the review of the admissibility of information obtained by means of operational measures. However, the Prosecutor General and specialised prosecutors, by monitoring the conformity of operational activities with the law, as well as the court in carrying out subsequent scrutiny, ensure effective protection of a person’s rights. ...”