FIFTH SECTION

DECISION

Application no . 42065/06 Ivars KIBERMANIS against Latvia

The European Court of Human Rights (Fifth Section), sitting on 3 November 2015 as a Chamber composed of:

Angelika Nußberger, President, Khanlar Hajiyev, Erik Møse, Faris Vehabović, Yonko Grozev, Carlo Ranzoni, Mārtiņš Mits, judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 18 September 2006,

Having regard to the decision of 17 January 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

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.

A. The circumstances of the case

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.

1. Pre-trial criminal proceedings

(a) Search and seizure

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.

(b) Complaints about the search and seizure

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 vario us similar complaints to higher ‑ ranking 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.

(c) Complaints about phone-tapping

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.

2. Trial

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.

B. Relevant domestic law

1. The Code of Criminal Procedure

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.

2. The Criminal Procedure Law (entered into force on 1 October 2005; wording in force at the material time)

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.

3. The Law on the Prosecutor ’ s Office

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.

4. The Law on Operational Activities

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.””

5. Case-law of the Constitutional Court

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.

COMPLAINTS

33 . The applicant complained under Article 8 of the Convention about allegedly unlawful conduct of police officers during the search at his office and that he had not been able to ascertain whether the procedure by which the investigating authorities had tapped his phone was lawful or not.

THE LAW

34 . The applicant complained in particular that during the search of the bailiffs ’ office where he worked, the investigation authorities took items the seizure of which was not authorised by a judge. The applicant also complained that he had been unable to ascertain whether the procedure by which the evidence against him was obtained, namely the phone tapping, was lawful or not. He relied on Article 8 of the Convention, the relevant parts of which provide as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ...”.

1. Complaint in relation to the search and seizure in the applicant ’ s office

35 . The Government argued, inter alia , that in relation to this complaint the applicant has failed to exhaust domestic remedies. In particular, the Government argued that the applicant had never appealed against the decision of 28 March 2006 (see paragraph 13 above) by which the investigating judge had dismissed his complaint on the ground that the criminal case had already been committed to trial and therefore the investigating judge ’ s powers at this stage were limited.

36 . The applicant disagreed, and contended that a formal appeal against the above decision would not be effective. He emphasised that the Government did not dispute that the decision of 28 March 2006 contained a correct interpretation of the investigating judge ’ s powers in the criminal proceedings which had been committed to trial, and therefore any appeal against the above decision would be rightfully dismissed.

37 . The Court observes that the Government did not raise the issue of the applicant ’ s compliance with the six-month rule; nevertheless, the Court has jurisdiction to apply this rule of its own motion (see Sabri Güneş v. Turkey [GC] , no. 27396/06 , § 29 , 29 June 2012). It will therefore address this issue at the outset.

38 . According to the Court ’ s case-law, where no effective domestic remedy is available the six-month period runs from the date of the act or measure complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 259, ECHR 2014 (extracts)). In particular, where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (ibid., § 260).

39 . Turning to the particular circumstances of the case, the Court notes first that the contested search was carried out on 22 December 2004 (see paragraph 6 above) and the applicant addressed his grievances related to the conduct of the search to the Office of the Prosecutor General, who adopted a final decision on 21 June 2005 (see paragraph 10 above).

40 . It could be argued that before lodging a complaint before the Court the applicant wished to avail himself of the new remedy enshrined in the Criminal Procedure Law, which entered into force on 1 October 2005 and provided for an investigating judge to supervise investigating activities (see also Nagla v. Latvia , no. 73469/10, §§ 87-90, 16 July 2013). However, it derives from the relevant provisions of the Criminal Procedure Law (see paragraph 29 above) that the competence of the investigation judge was more limited from the moment the criminal case was committed to trial. As a consequence this particular remedy, as far as it concerns the review of the conduct of search by the investigating authorities, would seem effective if lodged before the criminal case is committed to trial. Moreover, the applicant in his submissions before the Court also confirmed that the above provision and the limitations on the investigating judge ’ s competence were clear to him.

41 . Applying the above conclusion to the facts of the case, the Court observes that the applicant ’ s criminal case was committed to trial in January 2006; therefore, his complaint to the investigating judge dated March 2006 was dismissed because of the statutory restrictions on the investigating judge ’ s competence (see paragraphs 11 and 13 above). In sum, already at the time the applicant lodged a complaint with the investigating judge this remedy could not be considered effective.

42 . In the light of the above, and given that the applicant has not substantiated the reasons preventing him from pursuing this remedy before January 2006, the Court is not aware of any circumstances which have interrupted the running of the six-month period, which began to run on 21 June 2005 and expired in December 2005 at the latest (see paragraph 39 above). Since the applicant only lodged his application with the Court in September 2006, it follows that the complaint in this part is inadmissible under Article 35 §§ 1 and 4 of the Convention as out of time.

2. Complaint in relation to the tapping of the applicant ’ s telephone

(a) The parties

43 . The Government argued, inter alia, that the applicant had failed to exhaust the available domestic remedies, and that in any case he had submitted his complaint in this regard outside the six-month time-limit. In the alternative the Government asked the Court to conclude that the complaint in this matter had been resolved within the meaning of Article 37 of the Convention (see Facts, paragraph 21 above). Finally, the Government invited the Court to conclude that the applicant had abused the right of individual petition by failing to report to the Court in the application form the information received by the Prosecutor ’ s Office (ibid.).

44 . As regards the exhaustion of domestic remedies the Government argued that the applicant had never followed the mechanism enshrined in section 5 of the Law on Operational Activities and had failed to lodge any complaints with the Prosecutor General ’ s office – an institution exercising effective and independent control over special investigative techniques, as had been concluded by the Constitutional Court in case no. 2010-55-0106. Furthermore, the Government contended that had the applicant considered that there was a violation of his right to private life as guaranteed by Article 8 of the Convention, he should not have waited for the outcome of the domestic criminal proceedings to seek redress for this alleged violation. Furthermore, in any case the applicant had failed to raise in his appeal on points of law the question of the lawfulness of the tapping of his telephone.

45 . The applicant disagreed, and emphasised that the essence of the violation of Article 8 of the Convention was the applicant ’ s inability to establish the legality or otherwise of the wire-tapping of his telephone conversation, especially during the trial of his case on the merits. He further contended that the running of the six-month term must be calculated from the final decision in the criminal case on 16 December 2008, despite the fact that he had not raised the question of the legality or otherwise of the wire ‑ tapping in his appeal on points of law.

(b) The Court

46 . Even assuming that the applicant retains victim status within the meaning of the Convention, in addition to the case-law related to the observance of the six-month rule stated above (see paragraph 38 above), the Court reiterates that Article 35 § 1 is based on the assumption, reflected in Article 13 (with which it has a close affinity), that there is an effective domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief (see for example P.G. and J.H. v. the United Kingdom , no. 44787/98, § 85, ECHR 2001 ‑ IX, and case-law cited therein).

47 . The Court observes that, as underlined by the applicant, his primary concern under Article 8 was to ascertain in the course of the criminal proceedings whether the wire-tapping of his telephone conversation had been carried out in accordance with the law. The Government in this respect relied on the review mechanism enshrined in the Law on Operational Activities, whereas the applicant maintained that such a remedy should be provided in the course of his criminal trial. According to the Court ’ s case-law, if an applicant has made use of a remedy that is apparently effective and sufficient, he cannot be required also to have tried other remedies that were available but probably no more likely to be successful (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999). Subsequently, the Court will look at both sets of remedies cited by the parties, taking into consideration that, noting the strong affinity between Article 35 § 1 and Article 13, if a single remedy does not by itself entirely satisfy the requirement of Article 13, the aggregate of remedies provided for under domestic law may do so (see KudÅ‚a v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI

48 . In relation to the review mechanism enshrined in the Law on Operational Activities, the Court refers to its observations made in its recent case-law with respect to Latvia. In particular, in the case of Meimanis v Latvia , cited above, the Court was faced with the issue of whether the review mechanism for operational activities in Latvia provided an effective remedy in respect of breaches of Article 8 of the Convention. The Court relied on the Constitutional Court ’ s case-law (see Relevant domestic law above) which had in essence concluded that there were no evidence to the effect that the two-tier mechanism provided for under the national law – the involvement of a prosecutor and a court, as enshrined by section 5 of the Law on Operational Activities (see paragraph 31 above) could fail to provide an effective review to the extent that the question of the lawfulness of the operative measure taken is raised (ibid., § 78). This conclusion is to be considered in the light of the Court ’ s recent decision in the case of Zikovs v. Latvia ((dec.), no. 17689/14, §§ 35-39, 30 June 2015), in which the Court observed that the domestic courts in the criminal proceedings against the applicant acknowledged that the investigating activities (search of the applicant ’ s car) had been carried out in breach of the relevant legal provisions, thus giving rise to a claim for compensation under the domestic law in connection with an alleged breach of the claimant ’ s private life. As a consequence, it derives from the above case-law that with respect to the review of the lawfulness of the operational measures taken the prosecutor ’ s involvement was not the only remedy available, and that under the Law on Operational Activities the court had comparable competence in this respect (see Meimanis , cited above, § 78).

49 . In the light of the above, the applicant ’ s choice to ask the court to review the lawfulness of the operational activities as part of the adjudication of his criminal case does not seem a priori unlikely to provide a review as to whether the phone-tapping had been conducted “in accordance with law”, as required by Article 8 of the Convention. As a consequence, a finding by the domestic courts that the telephone conversations had been recorded in breach of domestic law would provide the applicant with the opportunity to institute compensation proceedings. The Court considers that once the applicant had chosen to use the above remedy, it would be for the applicant to substantiate the reasons why he did not continue pursuing the remedy by raising his grievances in his appeal on points of law which hold a crucial role in criminal proceedings (see, Morice v. France [GC], no. 29369/10, § 88, 23 April 2015; see also, mutatis mutandis , Vdovins v. Latvia (dec.), no. 6290/04, §§ 40-41, 9 December 2014). In the absence of such an explanation, the Court considers that by failing to follow the procedures provided for under the domestic law, the applicant has not exhausted the domestic remedies.

50 . It follows that the complaint in this part is inadmissible under Article 35 §§1 and 4 of the Convention.

51 . Having regard to its findings above, the Court considers that it is not necessary to examine the other arguments of the Government as to the inadmissibility of this complaint under Article 8 of the Convention.

For these reasons, the Court, unanimously,

Declares inadmissible the remainder of the application.

Done in English and notified in writing on 26 November 2015 .

             Claudia Westerdiek Angelika Nußberger Registrar President