TORNARITIS and C.T. TOBACCO LTD v. CYPRUS
Inadmissible
Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens
The first applicant, Mr Christoforos Tornaritis, is a Cypriot national, and the second applicant, C. T. Tobacco Ltd, is a company incorporated under Cypriot law. They were represented before the Court by Mr E. Efstathiou, a lawyer practising in Nicosia. The Cypriot Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus. The facts of the case, as submitted by the parties, may be summarised as follows. The first applicant lives in Nicosia. He is the director of the second applicant which is a limited liability company with its registered office in Nicosia. On 21 May 2002 the customs department applied to the District Court of Nicosia for a search warrant on the basis of Articles 5, 6 and 7 of the Protocol on Mutual Administrative Assistance in Customs Matters between the Republic of Cyprus and the European Union (hereinafter “the Protocol”) and sections 27 and 28 of the Criminal Procedure Law (Cap. 155, as amended). The application was made following a request made by the European Anti-Fraud Squad (“OLAF”) concerning an investigation they were carrying out into the smuggling of cigarettes into the European Union in violation of the Community Customs Code. The customs department maintained that they had reasonable grounds to suspect that there were documents, in electronic or other form, on the applicants’ premises which, on the basis of reasonable suspicion, concerned such smuggling. The District Court of Nicosia issued two search warrants on the same date; one for the private residence of the first applicant and one for the applicant company’s office. The wording of the latter warrant was as follows: “... Towards the director of the customs department and the other customs officials of the customs department Because it appears from the sworn statement of Christos Kotzapashi [customs official] ... That there is reasonable cause to suspect That on the premises of the company C.T. Tobacco Ltd (former Mananco Trading Ltd), ..., there are documents in electronic or other form, computers and other objects which on the basis of reasonable suspicion are used in smuggling cigarettes to countries of the European Union in violation of the Community Customs Code. With a written request by OLAF... towards the Cypriot Customs authorities which is based on Articles 5, 6, and 7 of the Protocol on Mutual Administrative Assistance in Customs Matters between the Republic of Cyprus and the European Union (Ratifying) Law of 2001 (32 (III)/01). This warrant authorises you and calls you immediately with the appropriate help, to enter the mentioned premises of the mentioned person...and with diligence to search for the mentioned objects and if these or part of these, are found during the search, to bring the objects which will be so found ... before myself or another Judge of the District Court for them to be treated in accordance with the Law ... .” The search of the company’s premises was carried out from 21 May 2002, 9.50 a.m., until 22 May 2002, 10.00 a.m. The search warrant was executed by the head of the investigation unit of the customs department in the presence of approximately ten customs officials, three officials from the tax department, four foreign officials authorised by OLAF, the first applicant and the second director of the applicant company, two shareholders and seven employees of the applicant company, the financial directors of another company and, finally, the applicants’ lawyers. It is not clear from the documents submitted before the Court how many of the above persons actually participated in the search. The customs officials seized approximately 8000 documents and other material, including six computers, a computer screen, keyboards and several floppy discs. During the search the first applicant requested the officers not to separate certain documents and also contested the seizure of certain material. The customs officials gave him copies of all the documents seized. All the material seized was taken to the customs department’s offices where the documents were copied. Some of these copies were communicated to OLAF. The customs officials also carried out a search of the first applicant’s private residence but did not seize any material. On 21 May 2002 an ex parte application (no. 188/02) was filed by the customs department before the District Court of Nicosia requesting the retention of the material seized until completion of the investigation and, in the case of filing of an action before the court, until the conclusion of the hearing of the action. The court directed that the application be served on the applicants. The hearing of the application took place between 28 May and 12 June 2002. The applicants objected to the retention of the material seized in so far as their relevance with the investigations had not been established. They further argued that the manner in which the search had been carried infringed their rights to private life, communication and correspondence under Articles 15, 16 and 17 of the Constitution. In their application before the Court the applicants claimed that they had also complained before the District Court of a violation of their rights under Articles 3 of the Convention and Article 1 of Protocol No. 1. During the hearing the customs authorities claimed that at the time of the search they had seized all the documents and material they had considered relevant to the investigation but that it had been impossible during the search, in view of the amount of documents, to assess their exact relevance. The customs officials had only carried out an evaluation at first sight and, as a consequence, certain of the seized documents subsequently proved to be irrelevant whilst others needed to be examined in conjunction with other documents that were abroad. In the meantime, by a letter dated 23 May 2002 addressed to the director of the customs department, the applicants requested that the material seized during the search be returned to them. The Acting Attorney-General, who had received a copy of the above letter, replied by letter on the same day informing the applicants that all the material was kept at the offices of the customs department and would be presented before the court on the basis of section 32 of the Criminal Procedure Law and that copies of certain of the documents had been given to the representatives of OLAF. Furthermore, in the intervening period, about 400 documents that were assessed as irrelevant were returned to the applicants. On 21 June 2002 the District Court delivered its decision. The judge firstly observed that both parties had accepted that search warrants were subject to the exclusive control of the Supreme Court and that they could be reviewed by way of appeal, where such a right was granted, or by way of the prerogative writ of certiorari. Consequently, in the present case, neither the issuing of the search warrant nor the basis for its issue nor its validity nor its legality was disputed. It was therefore binding. The judge then found that he did not have jurisdiction to intervene at this stage and was therefore not competent to examine the lawfulness of the execution of the search warrant; this could only be examined in the context of criminal proceedings or of any procedure before the court in which an attempt would be made to use the exhibits seized as evidence. In particular, the judge noted as follows: “I am of the opinion that the court at this pre-trial stage, of the completion essentially of the investigatory work which entailed the evaluation of the seized exhibits, cannot intervene as not being competent to examine the lawfulness or unlawfulness of the execution of the search warrant and of the consequences of this. It is obvious for this reason that an application of this kind is made by ex parte application by the authorities (police, customs etc) and the decision is within the discretionary power of the court which, as I mentioned above, is exercised judicially and with the interests of all the parties involved as the criterion. The main concern of the court is to ascertain if the detention of the seized exhibits is necessary or, moreover, if there is a danger of their destruction, with the interests of all the parties involved as the criterion. This serves both the urgency and the secrecy which should surround the conditions of the issuing of such an order for the detention of exhibits. The Legislator gave the right to the person from whom the exhibits have been seized or even to the person who claims ownership of them, to apply for their return after the filing of a criminal case or even for them to be disposed of for the payment of costs or damages (see Sect. 32 (3), Cap. 155 and also the case Concrete Mix Ltd ...). The unlawful execution of a search warrant ... will be the subject of criminal proceedings or of any procedure before the court in which an attempt will be made to use exhibits seized and detained as evidential material. The competency, in my opinion, belongs to the court which will try the case to decide if the search was conducted lawfully or unlawfully (within the framework of a trial within a trial) and at the same time there is an obligation on the present court to safeguard evidence which might be lost, destroyed, altered or falsified. In cases such as the present one, where there is seizure and the detention is sought of a large number of documents as exhibits and there is a great difference in the evidence before the court as to the way in which the search was carried out, the matter must be left to the court which will hear the case to decide within the framework of an investigation within the trial if the evidence collected and detained is admissible. ... There are clearly many particularities in the present case. The first peculiarity is the issuing and execution of a search warrant by virtue of the Protocol and indeed by the customs department. The most important peculiarity, however, is the seizure of such a significant number of documents. And the time the search took is indicative. Some of the seized documents have already been returned (more than 400), having been assessed as irrelevant. ... The relevance of documents which concern financial transactions and commercial activities in connection with the offences under investigation alleged to have been committed by the respondents, Christoforos Tornarites and C.T. Tobacco Ltd. is not an easy matter and no one can decide at first glance if a document is relevant or not. The work of evaluation is subtle, difficult and laborious, which requires time, knowledge and mainly comparison and evaluation with other documents abroad where customs officials are planning to send them in the near future, as was stated to the court.” Despite the above findings, the judge noted that he would go into an examination of the unlawful or lawful execution of the search warrant, without pre-empting any future decision of the court within the framework of the trial, where the unlawfulness or the lawfulness of the execution of the search warrant and the consequences of this for the acceptance or rejection of evidential material detained for this purpose had to be examined in the light of the facts at the time. He therefore proceeded to consider the points raised by the applicants’ lawyer in this respect. The judge held that the customs authorities had complied with the Protocol when notifying OLAF of the results of the search and, further, that both the officers of OLAF and the tax department had been duly authorised by the director of the customs department to be present during the search. With regard to the applicants’ claim concerning their constitutional rights, the judge observed that questions concerning violations of rights such as the right to respect to one’s private and family life, home and correspondence, were taken into account at the stage of issuing and not of the execution of the search warrant. In this connection he held that “the issuing of a search warrant automatically resulted in the violation of the constitutional rights of the person against whom it was issued”. Deviation from these rights was only justified when required by the public interest for the investigation of serious offences. Moreover, the judge held that the damage to the service of awarding justice would be much greater at the present stage if the documents were returned to those entitled to them than if they were detained by the customs department for evaluation and safe-keeping until a new order of the court. In this respect he further noted that their return before their essential evaluation was not advisable as the court was not competent and also lacked the knowledge to evaluate all the documents in order to decide if they were relevant or not. He therefore ordered that the majority of the documents and other exhibits be detained by the customs department until a new court order and/or until the conclusion of any criminal proceedings. In connection with this, the judge also observed that the applicants had not argued before the court that the retention of the material seized affected their trade activities in any way. Although he disagreed with the applicants’ arguments that the search ought not to have included financial activity and commercial transactions of other legal and natural persons who had links with the applicants (associated persons), he found that it should have excluded the taking of documents which related to the applicants’ private life and any other activities, except financial activities and commercial transactions. He ordered that material that had been seized and concerned numbers of telephone communications of the applicants should be returned at once to the applicants and that the relevant copies taken by the customs officials should be destroyed, as the disclosure of such information was unlawful and violated the confidentiality of telephone communications. The judge referred to the Law on the Protection of the Confidentiality of Private Communication (Surveillance of Communications) in this respect (Law 92/(I)/96). Finally, the judge did not exclude the possibility of the filing by the applicants of an application for the return of material seized at a future stage, in which the documents or exhibits would be specified and the reasons for which their return was claimed, either within the framework of section 32 (1) of the Criminal Procedure Law, that is, before the filing of any criminal proceedings or within the framework of section 32 (3) of that Law, that is, the commencement of the criminal proceedings. Following the above decision, the authorities destroyed the copies made of the documents concerning the applicants’ telephone communications. The applicants appealed against the decision of the court of first instance asking for it to be set aside and annulled (appeals nos. 7322 and 7323). They alleged that the decision was the outcome of a wrong exercise of the discretion granted to the court by section 32 of the Criminal Procedure Law to order the retention of objects seized during the execution of a search warrant. They further complained that the search of the company’s premises had been in violation of their constitutional rights. During the course of the appeal proceedings all the remaining material seized was returned to the applicants. On 21 April 2003 the Supreme Court rejected the appeals on the ground that the decision of the District Court was not appealable as the applicable law did not provide the right to appeal against decisions of this nature. The court, however, did go on to say the following: “..in the case of section 32 (1) of the Law, the grant by law of the right to appeal against decisions giving rise to the detention of confiscated objects is advisable, in as much as it concerns the independent decision of a court of first instance which affects fundamental rights of the individual, that of property and of the use of movable property (Art. 23 of the Constitution), and possibly other rights too, such as the right to private life (Art. 15 of the Constitution) and of the secrecy of communication (Art. 17 of the Constitution).” No criminal proceedings were initiated against the applicants. The right to private life, communication and correspondence is safeguarded by Articles 15, 16 and 17 of the Constitution. These provisions read as follows: “1. Every person has the right to respect for his private and family life. 2. There shall be no interference with the exercise of this right except such as is in accordance with the law and is necessary only in the interests of the security of the Republic or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by this Constitution to any person.” “1. Every person’s dwelling house is inviolable. 2. There shall be no entry in any dwelling house or any search therein except when and as provided by law and on a judicial warrant duly reasoned or when the entry is made with the express consent of its occupant or for the purpose of rescuing the victims of any offence of violence or of any disaster.” “1. Every person has the right to respect for, and to the secrecy of, his correspondence and other communication if such other communication is made through means not prohibited by law.” 2. There shall be no interference with the exercise of this right except in accordance with the law and only in cases of convicted and unconvicted prisoners and business correspondence and communication of bankrupts during the bankruptcy administration.” Under Article 155 (4) of the Constitution the Supreme Court has exclusive jurisdiction to issue prerogative orders. This provision reads as follows: “... 4. The High Court shall have exclusive jurisdiction to issue orders in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari.” The sections of the Criminal Procedure Law (Cap. 155, as amended) concerning search and seizure provided as follows at the time of the incident: “(1) Where a Judge is satisfied by a statement upon oath that there is reasonable ground for believing that there is in any place- (a) anything upon or in respect of which any offence has been or is suspected to have been committed; or (b) anything which there is reasonable ground for believing will afford evidence as to the commission of any offence; or (c) anything which there is reasonable ground for believing is intended to be used for the purpose of committing any offence, the Judge may at any time issue a warrant (in this Law referred to as a “search warrant”, authorising the person therein named- (i) to search such place for any such thing and to seize and carry such thing before the Court out of which the search warrant is issued or some other Court to be dealt with according to law; (ii) to apprehend and bring before a Judge the occupier of the house or place where the thing is found or any person in or about such house or place being in possession of such thing, if the Judge thinks fit so to direct in the warrant.” “(1) Every search warrant shall bear the signature of the Judge issuing the same, the date and time of issue as well as confirmation of the judge that he has been reasonably satisfied for the existence of the need for the issue of the warrant. (2) Every such warrant shall normally be directed generally to all police officers; but any Judge issuing such warrant may, if its immediate execution is necessary and no police officer is immediately available, direct it to any other person or persons and such person or persons shall execute the same and, when such warrant is directed to more officers or persons than one, it may be executed by all or by any one or more of them. (3) Every such warrant shall remain in force until it is executed or until it is cancelled by a Judge.” “(1) When, upon the execution of a search warrant, any object is seized and brought before any Judge, as provided in section 27 of this Law, such object, subject to subsection (2) of this section, may be detained by such person as the Judge may direct, reasonable care being always taken for its preservation until the conclusion of any criminal proceedings which may be initiated in respect thereof. (2) Where any object seized under a search warrant and brought before a Judge is of a perishable or noxious nature, such object may be disposed of in such manner as the Judge may direct. (3) If the Judge is of the opinion that anything seized under a search warrant is no longer required for the conduct of any criminal proceedings, he shall, unless he is authorised or required by this or any other Law to dispose it otherwise, direct - (a) that the object or any part thereof be restored to the person who appears to the Judge to be entitled thereto and, if such person is the accused in the relevant criminal proceedings, that it be restored either to him or to such other person as the accused may direct ; or (b) that, if such object belongs to the accused, such object or any part thereof be used to enable the payment of any costs or compensation directed to be paid by the accused.” The relevant sections of the Criminal Code (Cap. 154, as amended) provide as follow: “Any person employed in the public service who wilfully neglects to perform any duty which he is bound by law to perform, provided that the discharge of such duty is not attended with great danger than a man of ordinary firmness and activity may be expected to encounter, is guilty of a misdemeanour.” “Every person who wilfully disobeys any Law by doing any act which it forbids, or by omitting to do any act which it requires to be done, and which concerns the public or any part of the public, is guilty of a misdemeanour and is liable, unless it appears from the Law that it was the intention of the Legislature to provide for some other penalty for such disobedience, to imprisonment for a term not exceeding two years or to a fine not exceeding one hundred pounds or to both.” “Everyone who disobeys any order, warrant or command duly made, issued or given by any Court, officer or person acting in any public capacity and duly authorised in that behalf is guilty of a misdemeanour and is liable, unless any other penalty or mode of proceedings is expressly prescribed in respect of such disobedience, to imprisonment for two years.” Law 92(I)/96 on the Protection of the Confidentiality of Private Communication (Surveillance of Communications) was enacted in line with Article 17 of the Convention. This Law prohibits and criminalises, with certain exceptions, the disclosure of the contents of every private communication, including telecommunication. Law 32(III)/2001 ratified the Protocol on Mutual Administrative Assistance in Customs Matters between the Republic of Cyprus and the European Union. The relevant provisions of the Protocol read as follows, in so far as relevant: “At the request of the applicant authority, the requested authority shall, in accordance with legal or regulatory provisions applicable to the latter, take all necessary measures in order: -to deliver any documents, or -to notify any decisions, emanating from the applicant authority and falling within the scope of this Protocol, to an addressee residing or established in the territory of the requested authority. Requests for delivery of documents or notification of decisions shall be made in writing in an official language of the requested authority or in a language acceptable to that authority.” “1. Requests pursuant to this Protocol shall be made in writing. They shall be accompanied by the documents necessary to enable compliance with the request ... 2. Requests pursuant to paragraph 1 shall include the following information: (a) the applicant authority; (b) the measure requested; (c) the object of, and the reason for, the request; (d) the legal or regulatory provisions and other legal elements involved; (e) indications as exact and comprehensive as possible on the natural or legal persons who are the target of the investigations; (f) a summary of the relevant facts and of the enquiries already carried out. ...”. “1. In order to comply with a request for assistance, the requested authority shall proceed, within the limits of its competence and available resources, as though it were acting on its own account or at the request of other authorities of that same Contracting Party, by supplying information already possessed, by carrying out appropriate enquiries or by arranging for them to be carried out. This provision shall also apply to any other authority to which the request has been addressed by the requested authority when the latter cannot act on its own. 2. Requests for assistance shall be executed in accordance with the legal or regulatory provisions of the requested Contracting Party. 3. Duly authorised officials of a Contracting Party may, with the agreement of the other Contracting Party and subject to the conditions laid down by the latter, be present to obtain in the offices of the requested authority or any other concerned authority in accordance with paragraph 1, information relating to activities that are or may be operations in breach of customs legislation which the applicant authority needs for the purposes of this Protocol. 4. Duly authorised officials of a Contracting Party may, with the agreement of the other Contracting Party and subject to the conditions laid down by the latter, be present at enquiries carried out in the latter’s territory.! “1. The requested authority shall communicated results of enquiries to the applicant authority in writing together with relevant documents, certified copies or other items. ...”.