FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37571/97 by Tiit VEEBER against Estonia

The European Court of Human Rights ( First Section ), sitting on 14 March and 27 April 2000 as a Chamber composed of

Mrs E. Palm, President , Mr Gaukur Jörundsson, Mr R. Türmen, Mr C. Bîrsan, Mr B. Zupančič, Mr T. Panţîru, Mr R. Maruste , judges , [Note1]

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 4 July 1997 and registered on 1 September 1997.

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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

The applicant is an Estonian citizen, born in 1948 and living in Tartu , Estonia.

The facts of the case, as submitted by the parties, may be summarised as follows.

A. Particular circumstances of the case

The applicant is the owner of AS Giga , a joint-stock company with a registered office in Tartu . The company has been involved in reconstructing the public heat supply of the city.

On 14 November 1995 the Tartu police initiated criminal proceedings against the head of the Energy Department of the Tartu City Government for abuse of official position in contracting a loan with the Ministry of Finance of Estonia for reconstructing the city’s heat supply in an amount higher than approved and guaranteed by the City Council.  The Government submit that the applicant’s company benefited from the loan whereas the applicant denies it.  In the context of these criminal proceedings the Tartu Public Prosecutor approved a search of the applicant’s company’s premises on 14 November 1995 in order to determine whether there were any original bookkeeping documents which might provide information with regard to the unauthorised use of the loan.

On 15 and 20 November 1995 the Tartu police conducted a search of the company's premises and seized on the respective days 36 and 50 files of documents which comprised practically all of the company's bookkeeping records from the years 1994 and 1995.  The seized documents were recorded by the files and not individually. The applicant estimates that their total number amounted to approximately 10,000.

All seized files were placed in a separate room in the Tartu Police Prefecture for examination by the state auditors.

On 22 November 1995 the police informed the applicant that he was free to consult the seized documents at the police station for the continued activities of his company.

On 27 November 1995 the police returned to the applicant’s company three previously seized files of documents.  An undetermined number of documents was returned at a later date.

Alleging illegality of the police search and seizure, the applicant complained to the State Public Prosecutor ( Riigiprokurör ) and the Minister of Justice by letters of 17 and 27 November 1995 and 5 February 1996.

By letter of 30 November 1995 the State Public Prosecutor informed the applicant that he had investigated the complaint and was satisfied with the reply from the Tartu Public Prosecutor that the search and the seizure were conducted in accordance with the law. Deficiencies in the recording of the seized documents were acknowledged and were to be corrected by the order which the Tartu Public Prosecutor issued to the police.  It was also noted that the applicant was free to use the documents during their examination by the State auditors.

On 10 January 1996 the applicant’s company submitted a complaint against the police activities to the Tartu Administrative Court ( Tartu Halduskohus ).  By judgment of 13 September 1996 the Court dismissed it for lack of competence holding that complaints regarding police actions in connection with criminal proceedings could not be reviewed by the Administrative Court.  The Tartu Court of Appeal ( Tartu Ringkonnakohus ) revoked the ruling of the first instance court on formal grounds by judgment of 22 November 1996, but confirmed the lack of competence in relation to police actions in criminal proceedings. The Court of Appeal pointed out that supervision over the lawfulness of the police activities rested with the public prosecutor.  On 15 January 1997 the Supreme Court ( Riigikohus ) refused to grant the company leave to appeal.

In the meantime, on 23 October 1996, the police decided to return twelve previously seized files.  The applicant refused in writing to accept them stating that their seizure had not been documented and that the act of return did not describe each document individually.

The applicant submits that the number of the documents which are still not returned to his company is at least 5000 - 6000.

B. Relevant domestic law and practice

Article 33 of the Estonian Constitution provides for the inviolability of the home.  It stipulates that no one's dwelling, real or personal property under his or her control, or place of employment shall be forcibly entered or searched, except in the cases and pursuant to procedure provided by law to protect public order, health or the rights and freedoms of others, to prevent a criminal offence, to apprehend a criminal offender, or to ascertain the truth in criminal proceedings.

Article 15 of the Estonian Constitution guarantees everyone whose rights and freedoms are violated the right of recourse to the courts.

The 1993 Law on the Public Prosecutor's Office in force at the material time provides that the Public Prosecutor's office is an agency of the executive power which belongs to the administration of the Minister of Justice and has the status of an independent agency.  It supervises the lawfulness of the preliminary investigation in criminal cases as well as the lawfulness of the police activities.

According to Article 3 § 2(3) of the Code of Administrative Court Procedure the Administrative Court is not competent to deal with claims and complaints which are resolved under civil and criminal procedure.  Its Article 4 § 1(1) provides that the Administrative Court is competent to deal with appeals against the organs of the executive State power or the legal acts or action by one of its officials.

Under Article 120 § 1 of the Code of Criminal Procedure supervision of the lawfulness of activities of the organs of preliminary investigation rests with the public prosecutor.  According to its Articles 182 and 183 complaints regarding the activities of the police investigator and the police examiner are submitted to the public prosecutor whose decisions and actions concerning the complaints can be appealed to the higher level public prosecutor.

According to the case-law of the Supreme Court of Estonia concerning Article 4 § 1(1) of the Code of Administrative Court Procedure the legal acts and actions by the State Public Prosecutor, as a Government official, can be appealed against to the Administrative Court and, since an appeal against his/her decisions is not provided for in the Code of Criminal Procedure, control of such acts and action falls within the competence of the Administrative Courts.  In doing so the Administrative Court does not interfere with the criminal proceedings in question and does not exercise supervision over the lawfulness of the actions of the organs of preliminary investigation.  The Administrative Court only examines whether the activities of the State Public Prosecutor in dealing with the complaint submitted are lawful. (Decision of the Administrative Chamber of the Supreme Court of 3 November 1995, Riigi Teataja III 1995, 17, 217).

Article 139 of the Code of Criminal Procedure stipulates that if an investigator has sufficient reason to believe that in a certain room, location or in a person’s possession there might be items of significance to a criminal case he conducts a search to find them.  A search may be conducted on the basis of a decision of an examiner or investigator and only upon the authorisation of the public prosecutor or his deputy.  If an investigator knows the exact location of an item which is of significance to a criminal case, he conducts the seizure of that item.

Under Article 140 of the Code of Criminal Procedure an investigator, in performing a search and a seizure, can take away only those items and documents which are relevant to a criminal case.  Each seized item and document must be entered in a protocol indicating their exact amount, format, weight and individual characteristics.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the refusal of the courts to examine his complaints concerning the police activities violated his right of access to court.

2. The applicant complains that the search and seizure by the police of documents in his company’s premises violated his rights under Article 8 of the Convention.

3. The applicant complains under Article 13 of the Convention that he did not have an effective remedy before the national authorities against the police search and seizure of documents.

PROCEDURE

The application was introduced with the European Commission of Human Rights on 4 July 1997 and registered on 1 September 1997.

On 10 September 1998 the Commission decided to invite the respondent Government to submit written observations on the admissibility and merits of the application.

The Government’s written observations were submitted on 13 November 1998.  The applicant replied on 28 January 1999.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention about the lack of access to court in relation to the police activities.

Article 6 § 1 first sentence provides:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The Government submit that in so far as the application relates to the search and seizure conducted by the police on the applicant’s business premises on 15 and 20 November 1995 and to the applicant’s appeals to the State Public Prosecutor on 17 and 27 November 1995 and on 5 February 1996, it is outside the Court’s competence ratione temporis as the above facts took place prior to the entry into force of the Convention with respect to Estonia on 16 April 1996 and the acceptance by it of the right of individual petition on the same date.  As regards the decisions of the Tartu Administrative Court, the Tartu Court of Appeal and the refusal of the Supreme Court to grant leave to appeal after 16 April 1996, the Government submit that the fact that the applicant lodged appeals before these courts cannot result in the Court having competence to deal with events which fall outside its competence ratione temporis .  The appeals are so closely bound up with the search and the seizure of documents and files in November 1995 that they cannot be considered to “create” retroactively violations of Article 8 when at the crucial time that Article was not yet applicable.  Divorcing these appeals from the events which gave rise to them would be tantamount to invalidating the fundamental principle of ratione temporis .

The Government further question the applicability of Article 6 in the present case as the claimed access to court in relation to the impugned police measures taken in the context of criminal proceedings against a third person would not have related to a determination of the applicant’s civil rights or obligations or a criminal charge against him.

In any event, it is recalled that a general right of recourse to the court is stipulated in Article 15 of the Constitution and that the laws and jurisprudence provide a specific right of appeal to a court against the decisions and actions of the State Public Prosecutor.  The applicant had the possibility to have his case examined in the judicial proceedings by bringing an appeal to the administrative courts against the State Public Prosecutor rather than against the police.

The applicant submits that the court decisions with respect to his appeals in the administrative proceedings were taken after 16 April 1996.  He also claims that Article 6 is applicable in the present case as a decision by the administrative court finding the police activities to be unlawful would have entitled him to submit a civil action against the authorities for material and non-material damages.  Such a decision would thus have been decisive for the determination of his civil rights.  He further argues that the requirement of submitting complaints against the police to the public prosecutor under Articles 182 and 183 of the Code of Criminal Procedure is not applicable to him as he was not involved in any criminal proceedings.

The Court considers, in the light of the parties’ submissions, that this part of the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application.  It concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2. The applicant complains that the search and seizure by the police of documents in his company’s premises violated his rights under Article 8 of the Convention which provides:

“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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government submit in the first place that the applicant has failed to exhaust available domestic remedies.  It was open to the applicant to appeal against the State Public Prosecutor’s decision to the administrative courts which would have examined his appeal in accordance with Article 15 of the Constitution and the Code of Administrative Court Procedure.  Had the applicant contested the actions of the State Public Prosecutor rather than that of the police he would have had a remedy against the alleged irregularities.

It is also contended that in so far as the events underlying the applicant’s complaint took place prior to 16 April 1996 they fall outside the Court’s competence ratione temporis .

In addition, it is argued that Article 8 of the Convention is not applicable in the present case. As the search and the seizure took place on the applicant’s company premises and concerned only the company’s business records, they did not affect the applicant’s private life, his family life or his home.  It is also questionable whether internal bookkeeping records and documents could be regarded as “correspondence” within the meaning of Article 8 of the Convention.  The applicant has not clearly demonstrated that his rights under Article 8 have been infringed.

In the event the Court would find that Article 8 is applicable in the present case, the Government submit that the interference with the applicant’s rights was justified under paragraph 2 of Article 8 of the Convention, i.e. it was carried out in accordance with Estonian law, it pursued legitimate aims and it was necessary in a democratic society.  In particular, the searches and the seizures were based on Articles 139 and 140 of the Code of Criminal Procedure as well as on Article 33 of the Constitution.  They pursued two legitimate purposes: first, the prevention and punishment of crime and secondly, the protection of the economic well-being of the country which results from the energetic and effective measures against corrupt officials entrusted with important financial responsibilities.  The interest in investigating the complex fraudulent behaviour by a local government official outweighed the alleged interference with the applicant’s rights.

The applicant submits that he has used all effective domestic remedies at his disposal. He argues that it is impossible to contest before the courts the police actions in the context of criminal proceedings.  The administrative court can only examine whether the State Public Prosecutor dealt lawfully with the complaint.

As regards the ratione temporis issue it is argued that the violation of Article 8 is of a continuing nature since a large number of the documents have still not been returned to the company and remain in the hands of the police.

As regards the applicability of Article 8 in the present case the applicant claims that managing his business forms part of both his business and private life.  Furthermore, the notion of “home” under Article 33 of the Estonian Constitution also includes work premises.

Finally, the applicant contends that the interference with his rights was not in accordance with the conditions laid down in paragraph 2 of Article 8 of the Convention.  In particular, the large-scale and indiscriminate seizure of the company’s documents was contrary to the requirements of Article 140 of the Code of Criminal Procedure and disproportionate to the aims pursued.

The Court considers, in the light of the parties’ submissions, that this part of the case also raises complex issues of law and of fact under the Convention and that the question of non-exhaustion of domestic remedies should be joined to an examination of the merits of the application.  It concludes, therefore, that this part of the application is not manifestly ill ‑ founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

3. The applicant complains under Article 13 of the Convention that he did not have an effective remedy before the national authorities against the police search and seizure of documents.

Article 13 of the Convention provides:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government submit that this Article is not applicable in the present case because it is linked to a claim under Article 8 of the Convention which is not “arguable” due to its incompatibility ratione temporis and a lack of appearance of a violation of the applicant’s rights.

In any event, the applicant had effective remedies at his disposal in respect of his complaints under Article 8 of the Convention in the form of a judicial review of the State Public Prosecutor’s action.  Furthermore, the Convention is directly applicable in the Estonian legal system and takes precedence over ordinary law.  Consequently, a remedy was available to the applicant to raise before the courts the non-compatibility of the impugned laws or administrative acts with the Convention.

The applicant submits that the domestic law lacks a regulation which would enable a person to clearly understand that recourse to courts against the police activities is only possible after complaining to the public prosecutor in accordance with Articles 182 and 183 of the Code of Criminal Procedure.  He argues that the Code does not foresee a possibility of submitting a complaint on the decision of the public prosecutor to a court.  The Code of Administrative Court Proceedings in its Article 3 § 2(3) excludes from the competence of the administrative courts the examination of complaints submitted against a police investigator or a public prosecutor in the context of criminal proceedings.  Furthermore, Article 4 of the Code does not mention a police investigator and a public prosecutor among the authorities the decisions or actions of which can be challenged in the court.

It is further argued that in the Estonian legal system the Public Prosecutor’s Office is not an independent and impartial institution with judicial powers.  It is an agency subordinated to the Minister of Justice and which supports State prosecution of criminal offenders in court.  The applicant submits that the State Public Prosecutor did not adequately investigate his complaints and issued a formal and meaningless reply.  In performing a dual function of investigation and prosecution, the public prosecutor could not objectively examine the alleged violations of individual rights.

The Court considers, in the light of the parties’ submissions, that this part of the case similarly raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application.  It concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, by a majority,

JOINS TO THE MERITS the objection concerning exhaustion of domestic remedies raised in conjunction with Article 8

and

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Michael O’Boyle Elisabeth Palm              Registrar              President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)