SECOND SECTION

DECISION

Application no. 40797/17 Janno SAAR against Estonia

The European Court of Human Rights (Second Section), sitting on 12 November 2019 as a Committee composed of:

Ivana Jelić, President, Julia Laffranque, Arnfinn Bårdsen, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 1 June 2017,

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

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Janno Saar, is an Estonian national, who was born in 1976 and lives in Tallinn. He was repres ented before the Court by Ms K. Rande and Mr O. Nääs, lawyer s practising in Tallinn.

2 . The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.

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

4 . The applicant, together with A.V., is a member of the board of a legal-services company ( õigusbüroo ). The legal-services company provided services to AS Tere, a company which was subject to criminal proceedings concerning a tax offence. In the context of these criminal proceedings, the Northern District prosecutor ’ s office issued, on 15 August 2016, a search warrant to search the premises of the applicant ’ s company. According to the search warrant, the aim of the search was to find book-keeping and other documents, computers and electronic communications which could serve as evidence in the criminal case. A.V. was named as a suspect in the search warrant. No reference was made to the applicant. On the day of the search the applicant signed the search warrant, noting that he had examined it.

5 . On 16 August 2016 at approximately 10 a.m., when the applicant and A.V. were at the offices of AS Tere, officials from the Tax and Customs Board (hereinafter “the TCB”) entered AS Tere ’ s premises. A.V. was detained as a suspect, following which – at about 10.15 a.m., according to the applicant – the TCB officials ordered the applicant and A.V. to walk to their law offices nearby, where a search was then carried out. According to the search report ( läbiotsimisprotokoll ), the search started at 10.45 a.m. and ended at 3.50 p.m. In the report the applicant was referred to as “participating in the search procedure” ( uurimistoimingus osaleb ) and his desk and drawers were searched, with a number of documents and a laptop being seized. The applicant signed the search report, noting that he had examined it. The report does not indicate that the applicant made any requests, complaints or objections concerning the search. Following the search the applicant was given a summons to attend to give witness testimony on the following day.

6 . The applicant submitted that he had been forbidden to leave from 10 a.m. until approximately 4.30 p.m. and he had not been allowed to make any calls nor use a computer. Furthermore, he had only been permitted to go to the toilet when escorted by armed TCB officials. The applicant did not claim that he had made a request to leave during the search or that such a request had been denied.

7 . According to the record of applicant ’ s witness testimony ( tunnistajana ülekuulamise protokoll ) of 17 August 2016, he admitted to having provided consulting services to AS Tere. As to the search on the previous day, the applicant complained that he had not had his legal position in the criminal proceedings explained to him and that there had been no legal basis for him to have been detained during the search on the previous day.

8 . On 17 August 2018 the applicant lodged a criminal-offence report with the Northern District prosecutor ’ s office, claiming that he had been deprived of his liberty on 16 August 2016 without any legal grounds and in contravention of Article 136 of the Code of Criminal Procedure (hereinafter “the CCrP”). The applicant considered the relevant period to last from 10 a.m. to 4.30 p.m.

9 . On 29 August 2016 the Northern District prosecutor ’ s office refused to initiate criminal proceedings, finding that there had been legal grounds to restrict the applicant ’ s liberty and thus no grounds for criminal proceedings existed. The prosecutor noted that under Article 20 of the Constitution of the Republic of Estonia, a person ’ s liberty may be restricted in order to guarantee the fulfilment of duties provided for by law. The prosecutor also referred to Article 215 § 1 of the CCrP, in accordance with which orders given by investigative authorities during criminal proceedings were compulsory for everyone. A search was one such procedural act ( menetlustoiming ), where obligation to be present also served the interests of the person being subjected to the search and ensured the transparency and legality of the search, preventing, for example, the removal or artificial creation of evidence.

10 . On 5 September 2016 the applicant lodged an appeal against the refusal to initiate criminal proceedings with the Office of the Prosecutor General. He stated that Article 215 § 1 of the CCrP did not, by itself, authorise depriving a person who was not the subject of criminal proceedings of his liberty.

11 . The Office of the Prosecutor Gen eral dismissed the appeal on 15 September 2016, referring to Article 91 of the CCrP and noting that Article 215 § 1 authorised subjecting the applicant to a procedural act. The Prosecutor General stated that a person subjected to a procedural act (menetlustoimingule allustatud isik ) did not necessarily need to be already included as a party to the proceedings ( menetlusosaline ) in the sense of Article 16 § 2 of the CCrP, as the need to include the person might only become evident after carrying out various investigative measures. Moreover, it was noted that the applicant had not given any reasons why obliging him to be present during the search had been “disproportionate or objectively excluded. Such reasons could have been, for example, related to family needs, health conditions or work-related tasks that could not be postponed”.

12 . The applicant ’ s appeal, lodged on 17 October 2016 with the Tallinn Court of Appeal, was dismissed on 7 November 2016. The Tallinn Court of Appeal found that, in the case before it, the necessary objective elements of the offence – that the restriction of the person ’ s movement had taken place without their consent or by deception – had not occurred. In any event, the court found that given the purpose and the nature of the search (which had been duly authorised) and the fact that the applicant had not just been a random person but had been someone whose workplace had been subjected to a search, Article 215 § 1 provided a legal basis for ordering the applicant to remain present during the search and not to make use of any means of communication with third parties.

13 . Despite the decision of the Tallinn Court of Appeal being final, the applicant still lodged an appeal with the Supreme Court, which did not grant him leave to appeal.

14 . On 20 February 2017 the applicant lodged a complaint ( uurimiskaebemenetlus ) against the search carried out by the TCB on 16 August 2016 with the Northern District prosecutor ’ s office.

15 . The Northern District prosecutor ’ s office dismissed the complaint on 21 March 2017, repeating the findings already referred to above (see paragraphs 9 , 11 and 12 ).

16 . An appeal lodged by the applicant on 22 March 2017 with the Office of the Prosecutor General was dismissed on 17 April 2017. The Prosecutor General noted that not all instances of restriction of a person ’ s liberty constituted a deprivation of liberty within the meaning of Article 5 § 1 of the Convention. In the applicant ’ s case the search had taken place in accordance with the law and the restrictions applied to him had not been so intensive as to exceed what was considered standard practice in order to guarantee the integrity of a search.

17 . On 27 April 2017 the applicant lodged an appeal with the Harju County Court. The court dismissed the appeal by a decision of 29 May 2017. The Harju County Court explained that the purpose of subjecting a person who was not a party to criminal proceedings to a procedural act, and temporarily restricting their freedom of movement and communication was to prevent the proceedings being undermined. It could not be ruled out that in the course of a search a need for additional measures might have arisen, such as a need to carry out an additional search in another location or to change the procedural status of a person who was not a party in the proceedings. It could also not be ruled out that a person subjected to such a procedural act might have given a third party instructions by telephone or by means of a computer to alter, destroy or remove evidence located elsewhere, and to prevent this, a temporary restriction on a person ’ s freedom of movement (including a person who is not a party to the proceedings) was necessary and lawful. The court stated that the applicant ’ s references to Article 5 § 1 of the Convention were irrelevant as the applicant had not been unlawfully deprived of his liberty.

(a) Clarification by the Ministry of Justice

18 . In reply to a request made by the applicant, the Ministry of Justice noted in a letter of 6 October 2016 that it was competent to provide explanations concerning legal acts that either fell within the Ministry ’ s domain or that it had drafted. Such explanations were not binding on the courts, on the prosecutor ’ s offices ( prokuratuur ) or on any other authorities. Concerning Article 215 § 1 of the CCrP, the Ministry of Justice considered that the provision itself did not constitute independent grounds for giving orders or making demands but that such grounds always had to be found either elsewhere in the CCrP or in some other legal act of general application. It noted that in accordance with Article 91 § 7 of the CCrP (as in force from 1 September 2016, and prior to that date Article 91 § 6), which concerned the presentation of a search warrant for examination, persons who were in attendance when their premises were to be searched were obliged to remain in attendance during the presentation of the search warrant. Article 91 § 7 of the CCrP did not provide a more specific regulation as to who should be present during the search. A deprivation of liberty exceeding the limits of the obligation to subject oneself to a procedural act ( väljub menetlustoimingule allumise piirest ) was possible only on the grounds specifically stated in the CCrP.

(b) Assessment by the Chancellor of Justice concerning the constitutionality of Article 215 § 1 of the CCrP

19 . In response to the applicant ’ s request, the Chancellor of Justice ( õiguskantsler ) analysed the constitutionality of Article 215 § 1 of the CCrP. In her reply of 16 November 2016, the Chancellor of Justice concluded that Article 215 § 1 of the CCrP did not provide self-standing grounds for giving orders and making demands by which a person ’ s rights were restricted. Such orders and demands thus always had to have a clear and concrete legal basis beyond that Article. The justification for making a demand could derive from the nature of a particular procedural act, but in such an instance the demand had to be in conformity with the direct purpose of that procedural act. As it was possible to interpret the relevant provision in conformity with the Constitution, the Chancellor of Justice did not find Article 215 § 1 of the CCrP to be unconstitutional. However, she noted that various authorities had placed a different interpretation on the role of Article 215 § 1 of the CCrP in relation to authorising a restriction on fundamental rights. This raised the problem of legal clarity, especially concerning persons who had not been included as parties to the criminal proceedings.

(c) Compromise agreement

20 . It appears from the submitted documents that there were administrative court proceedings concerning the obligation of the prosecutor ’ s office to reply to a certain request for explanations, made by the applicant, and a request he made for the annulment of the Ministry of Justice ’ s decision on the challenge ( vaideotsus ), the scope of which was unclear. In the framework of these proceedings the Harju County Court approved on 4 April 2018 a compromise agreement reached between the applicant, the Ministry of Justice and the prosecutor ’ s office. The content of the agreement was the explanation provided by the Ministry of Justice about the role of Article 215 § 1 of the CCrP (see paragraph 18 above).

(a) Constitution of the Republic of Estonia

21 . Article 20 (2) of the Constitution of the Republic of Estonia ( Eesti Vabariigi põhiseadus – hereinafter “the Constitution”) provides:

Article 20. Everyone has the right to liberty and security of person

“No one may be deprived of his or her liberty except in the cases and pursuant to a procedure laid down by law:

...

( 2) in the case of non-compliance with a direction of a court, or to guarantee fulfilment of a duty provided for by law;”

(b) The Code of Criminal Procedure

22 . Article 91 of the CCrP, as in force at the time of the search, provided as follows.

Article 91. Search

“ (1) The objective of a search is to find an object to be confiscated or used as physical evidence, a document, thing or person necessary for the adjudication of a criminal matter, property to be seized for the purposes of compensation for damage caused by a criminal offence or confiscation, or a body, or to apprehend a fugitive in a building, room, vehicle or enclosed area.

(2) A search shall be conducted at the request of a prosecutor ’ s office on the basis of a warrant issued by a preliminary investigation judge or on the basis of a court ruling, taking into account the exceptions listed in sub-paragraphs (2 1 ) and (3) of this Article.

...

(4) A search warrant shall set out:

1. the objective of the search;

2. the reasons for the search.

...

(6) If a search is to be conducted, the search warrant shall be presented for examination to the person whose premises are to be searched or to his or her adult family member or a representative of the legal person or the state or local government agency whose premises are to be searched and he or she shall sign the order to that effect. In the absence of the responsible person or representative, a representative of the local government shall be involved.

...”

23 . In accordance with Article 211 § 1 of the CCrP, the objective of such pre-trial procedures was to collect evidentiary information and create other conditions necessary to proceed to court.

24 . The first sentence of Article 215 § 1 provided that the orders and demands issued by investigative bodies, and prosecutor ’ s offices in criminal proceedings conducted by them, are binding on everyone and shall be complied with throughout the territory of the Republic of Estonia.

25 . In a judgment of 28 April 2011 in criminal case no. 3-1-1-31-11 the Supreme Court emphasised the importance of a search report. The Supreme Court noted that a search report was primarily a document with regard to which the parties concerned (who were, in the case before it, one of the accused and a witness to whom the vehicle searched belonged) could immediately react to any violations, make remarks or statements. The Supreme Court considered that the fact that the persons who had been present during the search had not added any written remarks to the search report was an important aspect when retroactively assessing the lawfulness of that procedural act.

26 . In a judgment of 28 May 2014 in criminal case no. 3-1-1-131-13 the Supreme Court noted that requirements of the CCrP for conducting a search had been violated when the person on whose premises the search had been conducted had not been involved in the procedural act, the search warrant had not been presented to them for examination, no signature confirming the presentation of the order had been obtained, nor had any local authority representative been involved in the search. In that case, the garage where the search had been conducted had been used by the accused but he had not been involved in the procedural act. The Supreme Court found that such a violation could not have been rectified merely by involving the owner of the garage being searched.

COMPLAINT

27 . The applicant complained under Article 5 § 1 of unlawful deprivation of liberty.

THE LAW

Alleged violation of Article 5 § 1

28 . The applicant argued that while he was being escorted from the offices of AS Tere to his law offices and during the search of the law offices, lasting approximately 6.5 hours, he had been deprived of his liberty in violation of Article 5 § 1 of the Convention, which reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

(a) The Government

29 . The Government contended that the applicant had not been deprived of his liberty within the meaning of Article 5 § 1 of the Convention during the search on 16 August 2016 and asked the Court to declare the application inadmissible ratione materiae. Alternatively, the Government asked the Court to find that the application was manifestly ill-founded, as the obligation to be present had had a legal basis, had been in accordance with the procedure set out in law and had been compatible with the purpose of Article 5 § 1 (b).

30 . The Government considered that the relevant period should be calculated from approximately 10.30 a.m., when the applicant presumably arrived at his law offices, to 3.50 p.m., the time when the search had ended, according to the search report.

31 . The Government did not contest that the TCB officials had given instructions to the applicant and had temporarily restricted his freedom of movement and communication. The TCB officials had acted based on a lawful search warrant. They had not deviated from the objective of the search warrant and had acted efficiently and with no delays. The relevant orders given to the applicant were directly linked to the nature and purpose of the search. They were necessary in order to carry out the search efficiently and ensure the collection and the integrity of the evidence (including preventing the removal or artificial creation of evidence). Moreover, the Government noted that although the applicant had not been a party to the criminal proceedings, he had had a close connection to the place that was searched – it was his place of work and, in addition to A.V., the applicant had also provided legal services to AS Tere. Hence the applicant had been aware of the reason for the search of his offices. The applicant ’ s participation had helped to ensure, inter alia , the protection of his own rights and interests, primarily his right under Article 8 of the Convention, and thus guarantee the lawfulness of the search.

32 . In addition, the Government pointed out that the applicant had never claimed that he had asked for permission to leave, either prior to moving from the premises of AS Tere to his law offices or during the search at his office. Had the applicant provided reasons as to why it had been unavoidably necessary for him to leave the search site, standard practice (see paragraph 11 above) suggested that he probably would have been allowed to do so. It was thus questionable whether the applicant had indeed not wished to be present during the search. Rather it should be presumed that the applicant had consented to a lawful duty to subject himself to such a procedural act. Alternatively, the Government argued that the fact that there was a possibility that was so generally accepted that the person concerned could leave, meant that the general order to be present during the search had not amounted to a deprivation of liberty.

33 . The Government also underlined that the applicant had not made any written remarks or objections to the conduct of the search in the search report, despite having had the possibility of doing so when signing it.

34 . In any event, the applicant ’ s presence in his own law offices for approximately six hours on a normal working day had not exceeded the level of intensity required for it to be considered a deprivation of liberty. Therefore, the applicant had not been deprived of his liberty, but had merely been subjected to the obligations which arose from a specific procedural act – a search – and which were meant to ensure the correct conduct of that search.

(b) The applicant

35 . The applicant contended that he had been deprived of his liberty within the meaning of Article 5 § 1 of the Convention. He had not been free to leave or to communicate with anyone outside the office and he had been able to go to the toilet only when escorted by armed TCB officials. The duration of the detention – six and half hours – was not negligible and did not change this conclusion.

36 . In any event, the applicant indicated that he was not convinced by the Government ’ s assertion that according to common practice he could have referred to personal needs in order to ask to leave the search site. This was a mere assumption, without any basis in law, and the Government had not provided any evidence to prove such a practice indeed existed. In any event, the fact that the applicant had not had any urgent need to be elsewhere had not meant that he could be subjected to a search.

37 . The applicant stressed that, contrary to the Government ’ s assertion, he had not consented to the obligation to stay present during the search even if he had not actively opposed the orders given to him. Although he had not added any remarks or objections to the search in the search report, he had made a statement about the unlawfulness of his detention on the following day when questioned as a witness. The applicant also contested the Government ’ s claim that the prohibition on leaving during the search had been in his own interests. It had been unnecessary to involve every person connected to a legal entity – in the instance case, the legal-services company – in the search. The presence of A.V., who was a suspect in the case, would have sufficed. Instead, the applicant had also been treated as a suspect without having such a procedural status, as he had not been named as a suspect in the search warrant.

38 . In the present case the parties disagree on whether or not the applicant ’ s situation relating to the search of his law offices amounted in practice to a deprivation of liberty.

39 . The Court notes that the parties provide differing accounts as to the relevant period of time that should be taken into account in the Court ’ s assessment (see paragraphs 6 and 30 above). Given the parties ’ arguments, the Court considers that the relevant period is approximately six hours, that is to say slightly longer than the period noted in the search report, starting from the moment when the TCB officials accompanied the applicant to his company ’ s offices for the search and ending when he was allowed to leave after the end of the search and after having been served with a summons to attend to give witness testimony on the following day.

40 . The Court reiterates that in proclaiming the “right to liberty”, paragraph 1 of Article 5 contemplates the physical liberty of the person. Accordingly, it is not concerned with mere restrictions on liberty of movement, which are governed by Article 2 of Protocol No. 4. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting-point must be his or her specific situation and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation and restriction of liberty is one of degree or intensity, and not one of nature or substance (see De Tommaso v. Italy [GC], no. 43395/09, § 80, 23 February 2017, with further references, and Khlaifia and Others v. Italy [GC], no. 16483/12, § 64, 15 December 2016). As the Court has also held, the requirement to take account of the “type” and “manner of implementation” of the measure in question enables it to have regard to the specific context and circumstances surrounding types of restriction other than the paradigm of confinement in a cell. Indeed, the context in which the measure is taken is an important factor, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good (see De Tommaso , cited above, § 81, and Nada v. Switzerland [GC], no. 10593/08, § 226, ECHR 2012).

41 . The Court has previously analysed from the viewpoint of Article 5 § 1 situations where persons had been ordered (or invited) to be present during a search or an inspection at their home or workplace (see Miķelsons v. Latvia , no. 46413/10 , 3 November 2015 ; Čamans and Timofejeva v. Latvia , no. 42906/12 , 28 April 2016; and Stănculeanu v. Romania , no. 26990/15 , 9 January 2018 ). Contrary to the arguments put forward by the relevant applicants, the Court considered in those cases that their presence during the conduct of the search (or at least during part of the search) had not amounted to a deprivation of liberty in the sense of Article 5 § 1 of the Convention. In reaching such a conclusion, the Court, among other considerations, gave weight to the fact that the applicants, although able to make remarks when signing search reports, had not made any reference to any form of restriction of liberty imposed upon them (see Stănculeanu , cited above, § 44; Čamans and Timofejeva , cited above, §§ 116 and 119; and Miķelsons , cited above, § 59). The Court also found that the presence of the persons concerned during a search could be understood as a safeguard aimed at ensuring that the search procedure was conducted fairly (see Stănculeanu , cited above, § 45) and that it could not be excluded, especially when a search was conducted at a person ’ s home, that they might wish to remain present (see Miķelsons , cited above, § 61, and see also Čamans and Timofejeva , cited above, §§ 117 and 120 ). Furthermore, the Court found that it could not be ruled out that restricting a person ’ s freedom of movement during a search served the aim of avoiding the risk of tampering with evidence (see Miķelsons , cited above, § 61).

42 . The Court finds it important to stress that the previous remarks do not mean that the obligation to be present during a search at one ’ s home or a workplace never amounts to a deprivation of liberty. The specific context and circumstances surrounding the restrictions imposed on a person and the intensity of the measures taken, including the possible use of coercion, may lead to a finding that the person was indeed deprived of his or her liberty (see, for example, Čamans and Timofejeva , cited above, §§ 111-15, where the applicant was found to have been deprived of his liberty for part of the search).

43 . Turning to the facts of the present case, there is no dispute between the parties that the TCB officials asked the applicant to accompany them to his company ’ s offices, that he was told to stay on-site during the search and not to use a telephone or a computer. The Court notes that the search was conducted in the course of criminal proceedings against AS Tere, to which the applicant admitted having provided consulting services. Although the applicant was not a suspect in the criminal case, it is undisputed that the search took place in the applicant ’ s workplace – the offices of a legal-services company of which he was a board member – and during the search the applicant ’ s work desk and shelves were searched and some items were seized. The applicant did not claim that he had requested to leave the premises during the search or that such a request had been denied. Nor did he argue that he had been unable to attend any other meetings or events or had to forego any family engagements owing to having to be present during the search. The search of the law offices was duly authorised and there is nothing to suggest that the TCB officials did not conduct the search efficiently or that they restricted the applicant ’ s freedom of movement to a greater extent or for a longer period than was necessary given the purpose and the nature of the search. In any event, although he later initiated proceedings concerning an alleged unlawful deprivation of liberty, the applicant did not make a note of having been deprived of his liberty nor raise any other objections when signing the search report.

44 . In the light of the circumstances described above, the Court cannot exclude that the applicant ’ s presence during the search served not only the interests of collecting evidence, but – considering that the applicant ’ s workspace was also searched and his belongings seized – helped to protect the applicant ’ s interests, even if he denied that.

45 . Considering the reasoning above, the Court finds that the obligation on the applicant to accompany the TCB officials to his law offices and to be present during the search did not amount to a deprivation of liberty within the meaning of Article 5 § 1 of the Convention.

46 . It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 December 2019 .

Hasan Bakırcı Ivana Jelić Deputy Registrar President