CASE OF LEAS v. ESTONIA
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms);Non-pecuniary damage - award
Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
6. The applicant was born in 1943 and lives in Lemsi. 7. On 31 May 2005 criminal proceedings were initiated in respect of the applicant, mayor of the rural municipality (vallavanem) of Kihnu at the material time. He was suspected of demanding bribes (pistise võtmine) under Article 293 § 2 of the Penal Code (Karistusseadustik). Supposedly, he had invited L., a representative of OÜ G., a private limited company, to participate in a call for tenders for renovation work on port buildings and on the local museum. Allegedly, he had proposed to ensure the success of OÜ G.’s bids in return for ten per cent of the sum of the transactions being paid to him after the receipt by the company of the municipality’s pre-payment. 8. On 3 June 2005 a prosecutor gave an authorisation (jälitustoimingu luba) (authorisation LÄRP 16/273) for covert surveillance of the applicant. The authorisation was for one day’s surveillance and was valid from 6 to 10 June 2005. 9. According to a surveillance report dated 7 June 2005, covert surveillance of the applicant had been carried out on the same day. The applicant had met L., who had given him a plastic bag which he had put into his pocket. A video recording of the event was appended to the surveillance report. 10. On 9 June 2005 the prosecutor gave another authorisation for the application of surveillance measures in the criminal case, but apparently no measures were applied on the basis of that authorisation. 11. On 10 June 2005 the President of the Tallinn City Court authorised wiretapping, covert observation and audio recording of the applicant’s conversations with L. The authorisation was for ten days’ surveillance and remained valid until 10 July 2005. 12. According to a surveillance report dated 12 July 2005, undercover audio recordings of conversations between the applicant and L. had been made on 14 and 29 June and 5 July 2005. The audio recordings and extracts of the transcripts of the conversations were attached to the surveillance report. 13. On 5 July 2005 the applicant and L. were arrested by the police while they were meeting in the applicant’s car. Their arrest was video recorded. The recording showed that a plastic bag containing 85,000 kroons (EEK) (approximately 5,430 euros (EUR)) and a bank receipt made out to OÜ G. were found in the glove compartment of the applicant’s car. 14. The applicant denied the charges. He was kept in pre-trial custody until 21 July 2005. L., who was charged with paying bribes and O. (the manager of OÜ G.), who was charged as an accessory, pleaded guilty and were not taken into custody. 15. On 25 July 2005 the prosecutor refused to give the applicant access to the information collected as a result of the application of the surveillance measures because doing so could prejudice the criminal proceedings or give rise to a criminal offence. 16. On 2 January 2006, after the applicant had been acquainted with the criminal case file, he asked the public prosecutor to have the prosecutor’s and judge’s decisions authorising the application of surveillance measures attached to the criminal case file so that the lawfulness of the surveillance activities could be assessed. On 12 January 2006 the prosecutor replied that the authorisations for the surveillance activities were kept in the surveillance file (jälitustoimik) and were not to be included in the criminal case file: only the surveillance reports, together with appendices, were to be included in the latter file. 17. From 18 to 21 April 2006, the prosecutor drew up an indictment. According to the charges set out therein, the applicant had invited L. to participate in a call for tenders for renovation work on port buildings and, on another occasion, on the local museum. The applicant had asked for, and had received, EEK 45,000 kroons (EUR 2,880) and EEK 85,000 (EUR 5,430), respectively, for ensuring the success of L.’s company’s bids. 18. On 27 April 2006 the applicant again made a request to the prosecutor concerning the surveillance measures. He emphasised that being able to review the authorisations for the surveillance measures was required in order to assess the lawfulness of the evidence which had been taken from the surveillance file for use in the criminal case file. Furthermore, he inquired whether additional information had been obtained as a result of the application of the surveillance measures, and requested access to it if such information existed, so that, like the prosecution, he could adduce parts of it as evidence. 19. On 28 April 2006 the prosecutor dismissed the request, noting that only information of an evidential nature (tõendamiseseme asjaolud) had been included in the criminal case file. 20. On 8 May 2006 the applicant applied to the Pärnu County Court to have the authorisations for the application of the surveillance measures included in the criminal case file. He also noted that the prosecution had had the opportunity to choose information which they considered relevant from the surveillance file, and claimed that the principle of the equality of arms required that he too be given access to the totality of the information gathered with the use of the surveillance measures. He requested that the court order the Public Prosecutor’s Office to grant him such access. 21. On 10 May 2006 the applicant, together with L., O. and OÜ G., was committed for trial by the Pärnu County Court. 22. At hearings on 11 September 2006 and 22 January 2007 the applicant repeated his requests concerning the surveillance authorisations. He also raised concerns that L. had acted with the knowledge and under the guidance of the police. At the hearing on 22 January 2007 a police officer, P., was examined at the request of the applicant’s counsel, who put a number of questions to him about various procedural acts carried out during the preliminary investigation. 23. On 22 January 2007 the court granted the application. It ordered that the applicant’s counsel be granted access to the surveillance information collected in the criminal case. It further instructed the police to submit to the court the surveillance authorisations (prosecutor’s authorisation LÄRP 16/273 and the authorisation given on 10 June 2005 by the President of the Tallinn City Court). 24. On 5 February 2007 the applicant’s counsel informed the County Court that the police department in possession of the surveillance file had refused to give him access, arguing that under applicable legislation the applicant’s counsel could have access only on the basis of a power of attorney given by the applicant and authenticated by a notary. Counsel asked the court to amend its decision so that both he and the applicant would be granted access. 25. On 7 February 2007 the County Court again ordered the police to grant the applicant and his lawyer joint access to the material gathered as a result of the application of the surveillance measures. The court also reiterated that the police had been instructed to present the surveillance authorisations to the court. 26. On 8 February 2007 a police superintendent decided that the applicant, but not his lawyer, could have access to the materials on which the charges against him were based. 27. At a court hearing on 12 February 2007 the applicant’s lawyer informed the court that the police had refused to comply with the court order and that the applicant considered that his defence had been seriously compromised. The public prosecutor considered that the decision of the police superintendent should be quashed. She quashed it on 16 February 2007. At the same hearing, the court announced that it had in the meantime examined the surveillance authorisations. According to the record of the hearing, the judge briefly summarised prosecutor’s authorisation LÄRP 16/273 of 9 June 2005 and the authorisation given on 10 June 2005 by the President of the Tallinn City Court. The hearing was adjourned so that the applicant and his lawyer could examine the materials gathered by the surveillance measures. 28. On 4 April 2007 at the police department’s premises the applicant and his counsel were given access to the prosecutor’s authorisation LÄRP 16/273 of 3 June 2005 and the authorisation given on 10 June 2005 by the President of the Tallinn City Court. The police superintendent in charge informed the County Court that the applicant’s counsel had not wished to examine the other materials collected with the use of the surveillance measures because the materials were the same as those included in the judicial criminal case file. 29. At a court hearing on 17 May 2007 the applicant’s counsel submitted that at the police department’s premises they had been invited to examine the same materials that were to be examined at court and that no access to other information had been given. He argued that the undercover recordings were not admissible as evidence and reiterated that the prosecutor had had a better opportunity to select and present the evidence collected through surveillance. He reiterated the concern that L. had collaborated with the police. 30. At a court hearing on 15 October 2007 the prosecutor noted that at the hearing on 12 February 2007 the court had erred in referring to the number of the surveillance authorisation issued by the prosecutor. In the meantime, the authorisation had again been presented to the court. The court specified that prosecutor’s authorisation LÄRP 16/273 had been issued on 3 June 2005. The applicant raised the issue of confusion – not only in respect of the numbers of the surveillance authorisations but also as concerned the dates when they had been issued. He asked that the court order the prosecutor to present the authorisations at the hearing. The prosecutor contended that surveillance authorisations were not normally included in the judicial case file but in the circumstances she considered it appropriate to admit the authorisations to the file. After a short break, the prosecutor procured and presented at the hearing prosecutor’s authorisation LÄRP 16/273 (issued on 3 June 2005) and authorisation LÄRP 16/287 issued by the President of the Tallinn City Court (issued on 10 June 2005). These authorisations were admitted to the case file. The prosecutor and the court confirmed that the authorisation of 9 June 2005 had been presented to the court but no surveillance activities had been carried out on the basis of it. The applicant’s request for submission and inclusion in the case file of the latter authorisation was dismissed. 31. On 30 November 2007 the Pärnu County Court convicted the applicant as charged and gave him a suspended prison sentence of two years and six months. Both L. and his company (OÜ G.) were convicted of paying bribes. Proceedings in respect of O. were discontinued, due to the minor nature of her guilt and the lack of public interest in the continuation of the proceedings in her respect. A similar request by the prosecutor in respect of L. was rejected by the court. 32. The court relied on the statements of L. and O., both of whom had pleaded guilty to giving the applicant EEK 130,000 (EUR 8,310) in two instalments. L.’s statements were corroborated by the statements of O., who had withdrawn the money from a cash dispenser and a bank so that L. could hand it over to the applicant. The court considered it improbable that L. and O. would have each given incriminating statements both in respect of themselves and the applicant without there being some basis for such statements. None of the accused had stated that they held a grudge against any of their co-defendants. 33. In respect of the first count of paying bribes, the court further relied on a video recording of L. meeting the applicant and giving him a plastic bag, which the latter put into his pocket. According to a surveillance report dated 7 June 2005, the covert video recording had been authorised by the prosecutor. The court observed that the prosecutor’s authorisation had been given on 3 June 2005; had been for one day’s surveillance; and had been valid from 6 to 10 June 2005. The court found no reason to consider the surveillance activity unlawful or untrustworthy: it had been carried out on one day falling within the authorised period. The court additionally relied on a bank statement, according to which the money in question had been withdrawn shortly after the applicant’s company had received an advance payment from the municipality. Shortly after the withdrawal, L. had given the money to the applicant. The court also examined two audio recordings seized from L. The recordings included L.’s conversations with the applicant, from which it could be understood that they had agreed on the payments and that L. had given the applicant EEK 45,000. 34. In respect of the second count of paying bribes, the court heard several witnesses – officials of the municipality and representatives of companies on behalf of whom L. had made fictitious bids so that his own company’s bid would be the best one. The court also heard undercover audio recordings made on 14 and 29 June and 5 July 2005 on the basis of an authorisation given on 10 June 2005 by the President of the Tallinn City Court. It noted that it had no grounds to doubt that the surveillance authorisation was lawful. The recordings were of conversations between L. and the applicant and included references to specific sums of money. Furthermore, a video recording of the applicant’s and L.’s arrest on 5 July 2005 was played back at the hearing, showing that a plastic bag containing EEK 85,000 and a bank receipt made out to OÜ G. were found in the glove compartment of the applicant’s car. Several further items of documentary evidence and witness statements were also relied on. 35. The applicant denied the charges and appealed against the County Court’s judgment. He argued, inter alia, that he had not been given access to all the information gathered as a result of the application of the surveillance measures, and that this had violated the principle of the equality of arms and his defence rights. He further complained about the confusion in the dates and numbers of the authorisations for the application of the surveillance measures. The court had been presented – outside the hearings – with two prosecutor’s authorisations dated 3 and 9 June 2005 which had apparently borne the same number. 36. In respect of the authorisation given on 10 June 2005 by the President of the Tallinn City Court, the applicant noted that it had been for ten days’ surveillance and had remained valid until 10 July 2005. He pointed out that audio recordings had been made on the basis of that authorisation on 14 and 29 June and 5 July 2005. As the applicant had not been given access to the totality of the information gathered as a result of the application of the surveillance measures, it had been impossible to establish whether the application of the measures in question had in fact been limited to the authorised ten days. He pointed out that the period between the first (14 June) and the last (5 July) undercover recording had been more than ten days. The County Court had only noted that it had had no grounds to doubt that the surveillance authorisation had been lawful but it had not given an opinion in its judgment on the lawfulness of the surveillance activities, namely whether the authorised ten-day period had been exceeded. 37. The applicant also reiterated his concern that L. had acted in the interests and under the guidance of the police. 38. The prosecutor argued that the court had examined the lawfulness of the evidence obtained with the use of the surveillance measures by all means at its disposal and pointed out that pursuant to the State Secrets Act the court had had the ability to examine information obtained through surveillance if it so wished. Therefore, the applicant’s argument that the judge had examined the surveillance activities outside the hearings was inappropriate: the court had fulfilled its tasks and had demonstrated an appropriate level of interest in the information related to the criminal case. 39. On 19 March 2008 the Tallinn Court of Appeal upheld the County Court’s judgment. It considered that the applicant’s conviction was in any event safe, even if the evidence challenged by the defence was set aside. 40. The Court of Appeal found that there were no convincing reasons to think that L. had co-operated with the police; the fact that he had been charged with an offence rather confirmed that the police had received information from third parties, in whose interest it was that parts of the surveillance information were kept secret. The Court of Appeal found that the applicant’s right to an adversarial trial had not been infringed owing to the fact that the prosecutor – but not the defence – had had access to the totality of the information gathered with the use of surveillance measures. It considered that there was no reason to overload the criminal case file with irrelevant information. The rights of the defence had not been violated in so far as the prosecutor had not adduced the information in question as evidence against the applicant. Nor had the County Court relied on evidence that had not been examined at court hearings. 41. In a situation where the County Court had examined the lawfulness of the evidence obtained on the basis of the Surveillance Act outside the hearings, the Court of Appeal considered that the worthiness and integrity of the County Court had to be presumed. Pursuant to the Courts Act, judges had access to State secrets. The County Court had not examined the surveillance materials secretly; rather, it had subsequently recorded its examination in a record of a court hearing. 42. The Court of Appeal was satisfied that the County Court had examined the surveillance authorisations. For its part, it analysed at length the content of the authorisations and the surveillance activities carried out on their basis and held that there could be no doubt that the surveillance authorisations had been given retroactively. It further found that since no surveillance activities had been carried out on the basis of the authorisation of 9 June 2005 and since the authorisation had not been used as evidence, there had been no reason to admit that authorisation to the case file. 43. In his subsequent appeal to the Supreme Court the applicant noted, inter alia, that he had been unaware during the proceedings before the County Court that, between the public hearings, the court had examined not only the surveillance authorisations but also the other surveillance materials. He argued that if this had been the case (as asserted by the prosecutor in the Court of Appeal and stated in the Court of Appeal’s judgment), the requirements of a public hearing and an adversarial trial had been breached. 44. In her reply to the applicant’s appeal, the prosecutor, inter alia, explicitly stated that in the present case the judge of the County Court had examined the surveillance authorisations and the surveillance file. 45. On 5 June 2008 the Supreme Court declined to hear the applicant’s appeal. 46. Article 111 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) provides that information obtained by surveillance activities is admissible evidence if such information has been obtained in compliance with the requirements of law. 47. Pursuant to Article 112 of the Code, a surveillance authorisation (jälitustoimingu luba) may be given by a preliminary investigation judge or a prosecutor, depending on the type of surveillance activity in question. 48. Article 113 of the Code provides that a surveillance report shall contain, inter alia, information obtained through the application of the surveillance measures. Photographs, films, audio and video recordings are to be annexed to the report if necessary. 49. Article 115 of the Code concerns covert surveillance and Article 118 deals with wiretapping, covert interception and observation of information. Both Articles stipulate that information obtained through the application of the relevant surveillance measures shall be entered in the surveillance report in so far as necessary for the adjudication of the criminal case (Article 115 § 3 and Article 118 § 2, respectively). 50. Article 121 § 2 of the Code provides that at the request of the person concerned, he or she is to be permitted to examine the materials of the surveillance activities conducted with regard to him or her. Nevertheless, in certain cases such information can be withheld with the permission of the prosecutor. Such cases include, inter alia, instances where: the information concerns the private lives of other persons; its disclosure may damage the rights and freedoms of other persons; it concerns State secrets; its disclosure may endanger the life, health, honour, dignity or property of an employee of a surveillance agency, of a person who has been engaged in surveillance activities or who has been recruited for surveillance activities, or the confidentiality of the latter’s co-operation with a surveillance agency; or where disclosure may prejudice criminal proceedings or give rise to a criminal offence. Information can also be withheld if it cannot be separated or disclosed without the information referred to above becoming evident. 51. Section 8(1) of the Surveillance Act (Jälitustegevuse seadus) obliges surveillance agencies to protect persons involved in surveillance activities and, inter alia, ensure the secrecy of their co-operation. 52. Section 10-4(1) of the Surveillance Act stipulates that information collected in the course of surveillance proceedings shall be stored in a surveillance file (jälitustoimik). 53. Section 16(4) of the Surveillance Act provides that the use of surveillance information as evidence in a criminal case must not bring about disclosure of the secret surveillance information or the identity of persons who have been engaged in surveillance activities or recruited therefore without their consent. 54. Pursuant to section 17(2) of the Surveillance Act a person’s right to examine the materials concerning the surveillance activities carried out in respect of him or her can be restricted on grounds similar to those provided for in Article 121 § 2 of the Code of Criminal Procedure (see paragraph 50 above). 55. Section 18 of the Surveillance Act provides that everyone may file a complaint with the head of a surveillance agency or its superior agency or with the Public Prosecutor’s Office against the activities of the surveillance agency upon the conduct of surveillance activities. Furthermore, everyone has the right of recourse to a court if his or her rights and freedoms have been violated by surveillance activity. 56. Section 4-1(3) of the State Secrets Act (Riigisaladuse seadus), as in force at the material time, provided that information collected by surveillance agencies on the basis of Articles 115 to 120 of the Code of Criminal Procedure, and the methods, tactics and technical equipment used for collection thereof to the extent to which such information could be used as evidence, were State secrets classified as “restricted”. 57. Pursuant to section 23(1)(4) of the State Secrets Act judges had the right of access to State secrets. 58. Section 25 of the State Secrets Act provided that participants in criminal proceedings had the right of access to State secrets classified as “restricted”, “confidential” or “secret”, on the basis of a reasoned order of a preliminary investigator or prosecutor or a court ruling, if access was unavoidably necessary for the adjudication of the criminal case. Access could not be granted if this jeopardised the performance of the duties of protection and secrecy provided for in section 8(1) of the Surveillance Act (see paragraph 51 above) and to State secrets classified as “top secret”. 59. In a judgment of 17 January 2005 (case no. 3-1-1-114-04) the Criminal Chamber of the Supreme Court noted that it proceeded unequivocally from Article 111 of the Code of Criminal Procedure that any violation in collecting information through surveillance excluded the admissibility of such information as evidence. 60. In a judgment of 5 December 2008 (case no. 3-1-1-63-08) the Criminal Chamber of the Supreme Court reiterated that any violation in the process of collecting evidence through the application of surveillance measures automatically resulted in the inadmissibility of such information as evidence. It held that all parties to court proceedings had to be able to verify whether Article 111 of the Code of Criminal Procedure had been complied with. Thus, upon the receipt of a request of a party for the assessment of the legality of a surveillance activity, the court was obliged to verify the existence of an authorisation by a court or the Public Prosecutor’s Office, and identify whether the information used as evidence had indeed been obtained in the course of the authorised activity and during the authorised period. The Supreme Court noted that when determining the legality of surveillance, the court had to ensure the protection of the State secret which served as the reason for the prohibition of disclosure of the materials of the surveillance file at a court hearing. However, the court could disclose its opinion on the lawfulness of the surveillance. The disclosure of the court’s opinion in this regard to the parties had to be recorded in the record of the hearing and, if necessary, in the judgment.