SECOND SECTION

DECISION

Application no. 46069/13 Olev LÜÜTSEPP against Estonia

The European Court of Human Rights (Second Section), sitting on 20 February 2018 as a Committee composed of:

Ledi Bianku , President, Nebojša Vučinić , Jon Fridrik Kjølbro , judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 16 July 2013,

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

Having regard to the joint comments submitted by Privacy International and Article 19,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Olev Lüütsepp , is an Estonian national, who was born in 1962 and lives in Võru . He was represented before the Court by Mr A. Lillo, a lawyer practising in Tartu.

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

A. The circumstances of the case

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

4. The applicant is the sole member of the board of a non-profit organisation MTÜ Võru Jäätmekeskus .

5. On 5 April 2010 the South District Prosecutor ’ s Office initiated criminal proceedings concerning the legality of some of the activities of the non-profit organisation .

6. On 1 November 2010 the Prosecutor issued an authorisation for the tracking of the location of the applicant ’ s two mobile phones during the period between 2 and 5 November 2010. Those surveillance activities were carried out on 2 and 3 November 2010.

7. On 3 November 2010 police carried out a house search in the applicant ’ s home and took the documents relating to the activities of the non-profit organisation with them. According to the applicant the house search gave him a doubt that he might have been subjected to secret surveillance.

8. On 11 January 2011 a prosecutor of the South District Prosecutor ’ s Office issued an authorisation under Article 121 of the Code of Criminal Procedure ( Kriminaalmenetluse seadustik ; hereinafter CCrP ) not to notify the applicant of the surveillance activities that had been carried out. According to the reasoning, the criminal investigation was still in its active stage of collecting evidence and therefore the notification of the applicant could have hindered the investigation.

9. In July 2012 the criminal proceedings were terminated as the criminal offence had not been established.

10. According to the applicant, he learned in August 2012 from an investigator that the criminal proceedings had been terminated. The applicant suspected that he had been subjected to secret surveillance activities and had doubts about their lawfulness. On 23 August 2012 he submitted a request to the South District Prosecutor ’ s Office to examine the surveillance file in his criminal case.

11. By a letter of 24 August 2012 a senior prosecutor of the Southern District Prosecutor ’ s Office informed the applicant that it was not possible to tell him whether or not any surveillance measures had been taken in his respect. It noted, referring to Article 121 of the CCrP , that if it had been decided not to notify the person of the surveillance activities, the prosecutor could not confirm – in response to a person ’ s request – whether such activities had taken place or not. Otherwise it would have rendered the non-notification regulation meaningless.

12 . On 6 September 2012 a prosecutor of the Southern District Prosecutor ’ s Office issued a new authorisation of non-notification under Article 121 of the CCrP until the completion of preliminary investigation in another criminal case (“the second criminal case”) in which the suspect had been subjected to secret surveillance also during the applicant ’ s criminal proceedings. It was considered that the notification of the applicant of the surveillance activities would hinder the secret surveillance which had been undertaken in the context of the second criminal case.

13. On 7 September 2012 the applicant complained to the Office of the Prosecutor General, challenging the refusal of 24 August 2012.

14. On 9 October 2012 a leading prosecutor of the Southern District Prosecutor ’ s Office – to whom the complaint had been transmitted for reply – confirmed that the refusal to give information about whether any surveillance activities had been performed in respect of the applicant had been lawful.

15. On 22 October 2012 the applicant again complained to the Office of the Prosecutor General. By a letter of 22 November 2012 titled “a response to a request for explanation” ( vastus selgitustaotlusele ) the Office of the Prosecutor General agreed with the position of the District Prosecutor ’ s Office and confirmed that it was not authorised to inform the applicant of whether or not he had been subjected to secret surveillance.

16. The applicant lodged an appeal with the Tartu County Court. He complained about the lack of information regarding a possible violation of his rights and about being effectively deprived of the right to challenge the lawfulness of the possible secret surveillance in court. He requested that the court ordered the Prosecutor ’ s Office to grant him access to the surveillance file.

17 . On 17 January 2013 the County Court refused to examine the appeal, finding that no appeal laid against a response to a request for explanation of the Office of the Prosecutor General. The court went on to note that the Prosecutor ’ s Office had, in some instances, the right not to notify the person of the secret surveillance activities, and that in the instant case the court did not have at its disposal any information about whether such activities had taken place at all. Against that background the court found that it could not provide the applicant with the information about the surveillance measures nor analyse whether such measures had violated the applicant ’ s rights. The ruling of the County Court stated that it was final and not subject to appeal.

18. On 3 January 2014 the investigative body informed the District Prosecutor ’ s Office that the pre-trial criminal investigation in the second criminal case had been completed and submitted the relevant documents to the latter. In that light the grounds for non-notification of the applicant had ceased to exist.

19 . On 27 January 2014 the police notified the applicant of the secret surveillance he had been subjected to. He was informed of the right to acquaint himself with the material gathered via the surveillance and lodge an appeal in accordance with Article 126-16 of the CCrP .

20 . On 10 February 2014 the applicant examined the material obtained about him via secret surveillance. He signed a report in which he confirmed that he had been introduced information about the tracking of the location of two mobile phones during the period from 2 November to 3 November 2010. He submitted no further requests or complaints.

21. On 10 April 2014 the application was communicated to the Government.

B. Relevant domestic law and practice

1. The Code of Criminal Procedure

22. Article 121 of the CCrP , in force until 1 January 2013, set out an obligation to immediately notify the person, with respect to whom secret surveillance activities had been conducted, of such activities. However, on an authorisation of the prosecutor, such notification could be postponed for as long as it could 1) significantly damage the criminal proceedings; 2) significantly damage the rights and freedoms of another person or endanger them; or 3) endanger the confidentiality of the methods and tactics of a surveillance agency, the equipment or police agent used in conducting surveillance activities, or an undercover agent or a person who had been recruited for secret co-operation. Before 1 January 2013 the CCrP did not contain rules for periodic review by the prosecutor of the non-notification decisions, nor were such decisions subject to external (judicial) review.

23 . The procedure for notification of the secret surveillance measures was amended as of 1 January 2013. The new Article 126-13 of the CCrP provides for an obligation to notify the person who has been subjected to surveillance activities immediately after the expiry of the term of an authorisation for the surveillance. Whereas the amended regulation still entails aforementioned three exceptions to the immediate notification, it sets out rules about regular review of non-notification decisions and subjects them to judicial control.

24. Under Article 126-14, the person who has been notified pursuant to Article 126-13 of CCrP is permitted, with exceptions listed in that provision, to examine the data collected with respect to him or her.

25 . Article 126-16 § 1 provides that an appeal may be lodged against the court decision authorising the surveillance activities under CCrP . Under Article 126-16 § 2 an appeal may be filed against the course of surveillance activities, non-notification thereof and refusal to submit information collected thereby.

2. State Liability Act

26 . Section 9 of the State Liability Act ( Riigivastutuse seadus ) provides that a natural person may claim financial compensation for non-pecuniary damage upon wrongful degradation of dignity, damage to health, deprivation of liberty, violation of the inviolability of home or private life or the confidentiality of messages or defamation of honour or good name of the person.

3. Case-law of the domestic courts

27 . The criminal case no. 3-1-1-37-14 concerned the question whether the notification of the surveillance activities had been immediate in the sense of Article 126-13 § 1. In its judgment of 29 September 2014 the Supreme Court found that a person could lodge an appeal concerning surveillance activities under Article 126-16 of the CCrP . In that case a person had been under criminal investigation, surveillance activities had taken place between January and September 2010, a statement of charges had been sent to a court on 15 November 2012 and the person had been notified of the surveillance activities on 11 February and 29 February 2013. The Supreme Court explained that both under Article 121 § 1 of the CCrP (in force before 01 January 2013) and Article 126-13 § 1 of the CCrP (which entered into force on 1 January 2013) it was possible, on a permission of a prosecutor, not to notify the concerned persons of the surveillance activities if this could significantly damage the criminal proceedings. It considered that the risk of damaging criminal proceedings almost always existed in a situation where the pre-trial proceedings were ongoing and the evidence was still being gathered even after the end of secret surveillance activities. Against that background the Supreme Court found that the obligation to notify had only arisen on 15 November 2012 when the statement of charges had been sent to a court. It further found that considering the duration of the surveillance activities and the large number of persons concerned by them, the notification which took place in January 2013 could not be considered delayed.

28 . A case no. 3-1-1-6814 concerned a situation where criminal proceedings had been terminated without submitting a statement of charges to court. The person was notified of the secret surveillance activities and was granted a possibility to acquaint himself with the material gathered about him. The person then requested access to the documents forming bases of the secret surveillance (the prosecutor ’ s request to authorise secret surveillance activities and the court ’ s respective decision to authorise them) and lodged an appeal asking those surveillance activities be declared unlawful. The Supreme Court, in its judgment of 16 December 2014, found that the surveillance activities – despite having been authorised by a preliminary investigation judge – had not been in accordance with the ultima ratio principle. The Government noted in their submission that the applicant in this case had been a suspect in the criminal case referred to above (see paragraph 12 above).

COMPLAINTS

29. The applicant complained under Articles 6 and 8 that the Prosecutor ’ s Office had not given him the full information about the secret surveillance measures he thought he had been subjected to and that the domestic court refused to examine his appeal in that respect. Without obtaining information about secret surveillance activities and their legal basis or about the reasons for not notifying him of such measures, he had been deprived of the possibility to subject the potential violation of his rights to a judicial review.

THE LAW

Alleged violation of Articles 6, 8 and 13 of the Convention

30. The applicant complained of the violation of his rights under Articles 6 and 8 of the Convention.

Article 6 § 1, in so far as relevant, provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 8 reads 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 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.”

31. The applicant ’ s complaint was additionally communicated under Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] 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.”

1. The parties ’ submissions

(a) The Government

32. The Government noted that the applicant had not informed the Court of the fact that he had been notified of the surveillance activities and that he had examined the material gathered about him. The applicant had been informed of the possibility to lodge an appeal concerning the surveillance activities and the non-notification thereof in accordance with the procedure set out in Article 126-16 § 2 of the CCrP , but he had not used this opportunity (see paragraphs 19 and 20 above). The existence, in practice, of such a right to appeal was confirmed by domestic case-law (see paragraphs 27 and 28 above). Had the applicant lodged an appeal against the surveillance activities or the non-notification thereof, and had the domestic courts established a violation of the applicant ’ s rights, the applicant could have lodged a compensation claim against the State under the State Liability Act (see paragraph 26 above). The Government held that the applicant ’ s passiveness in taking any further action presented a tacit acceptance that there had not been any violation of his rights which would have had to be redressed. It noted, however, that possibility of lodging an appeal was still open to the applicant, as the CCrP did not foresee any deadline in this respect. Against that background the Government considered that the matter raised by the applicant had been resolved. Alternatively, the applicant could no longer claim to be a victim within the meaning of Article 34 of the Convention.

33. The Government further submitted that the applicant had not exhausted the domestic remedies as he had not appealed the Tartu County Court decision of 17 January 2013 (see paragraph 17 above). The Government argued that despite the reference in the judgement, according to which it was not amenable to appeal, there was in fact such a possibility as of 1 January 2013 under the amended CCrP .

(b) The applicant

34 . The applicant initially complained that he had not been able to obtain any information about the secret surveillance he thought he had been subjected to and that he could not subject the potential violation of his right by the surveillance measures to judicial review.

35 . In response to the Government ’ s observations according to which the applicant had been notified of the surveillance activities, the applicant argued that he had not been presented a full surveillance file for examination on 10 February 2014, noting that he had been shown only a few lines of a text on one page which had not been signed. Based on this scarce information he had had no possibility to assess the extent and intensity of the interference with his private life. The applicant expressed a suspicion that he might have been subjected to secret surveillance already long before 2 and 3 November 2010 and held that no information about such activities had been provided. According to the applicant, the fact that he had not lodged an appeal after having been presented information about the surveillance activities did not mean that he had acknowledged the legality of the secret surveillance.

36 . After the judgment of the Supreme Court of 16 December 2014 in case no. 3-1-1-6814 (see paragraph 28 above), the applicant claimed that he had learned only from the judgment that also the itemisation of his phone calls had been ordered. He claimed that he had not been notified of such an activity.

37. The applicant denied the possibility to appeal the decision of the Tartu County Court of 17 January 2013.

(c) The joint third-party interveners Privacy International and Article 19

38. The interveners emphasised that in the light of the rapid changes in communication technology and the unprecedented increase in the amount of surveillance, the requirement to notify a person of surveillance activities was not merely a desirable but indeed a necessary safeguard against the abuse of surveillance powers. They added that it was also an essential part of the right to an effective remedy under Article 13 of the Convention and a necessary trigger for the fair trial guarantees under Article 6 of the Convention.

2. The Court ’ s assessment

39. The Court notes that the Government raised preliminary objections to the admissibility of the complaints, arguing that the applicant had not exhausted domestic remedies, that the matter raised by the applicant had been resolved or, alternatively, that the applicant could no longer be considered to be a victim of the alleged violation. The Court considers that the arguments raised by the Government with respect to the latter two inadmissibility grounds are in substance closely related to the allegation about the non-exhaustion of domestic remedies.

40. The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with an application after domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among many other authorities, Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13 , § 76, ECHR 2016 (extracts); see also Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § § 70-72, 25 March 2014).

41. In the area of the exhaustion of domestic remedies, there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Chaykovskiy v. Ukraine , no. 2295/06 , § 71, 15 October 2009) . A mere doubt as to the prospect of success is not sufficient to exempt an applicant from submitting a complaint to the competent court (see, for example, Samoylov v. Russia , no. 64398/01, § 25, 2 October 2008).

42. Turning to the facts of the present case, the Court notes that although the applicant was unable to obtain information about the secret surveillance measures he thought he had been subjected to before he lodged an application with the Court, he was nevertheless thereafter notified of those measures on 27 January 2014 and was provided an opportunity to acquaint himself with the material collected about him on 10 February 2014 (see paragraphs 19 and 20 above). Upon notification of the surveillance activities and granting access to the material gathered about him, the applicant was informed of the possibility to lodge an appeal concerning the surveillance activities in accordance with Article 126-16 of the CCrP . The possibility of using such remedies is confirmed by the domestic case-law (see paragraphs 25 to 28 above). The Government also referred to the possibility to lodge a compensation claim against the State under the State Liability Act. Furthermore, according to the Government the applicant still has the possibility to lodge claims under Article 126-16 CCrP .

43. The applicant raised a suspicion that the surveillance activity had been more extensive and stated that not all the material in the surveillance file (including the information gathered about him) had been made available to him (see paragraph 35 above).

44. The Court underlines that the applicant did not specify what type of information assumedly kept on the surveillance file (other than the material gathered about him) he wanted to have access to. However, the Court notes that the applicant nevertheless signed the report confirming that he had been introduced the material gathered via tracking his mobile phones (see paragraph 20 above). He did not submit any specific requests to be granted access to the documents authorising the surveillance activities (compare with the example cited in paragraph 28 above).

45. Given the applicant ’ s concerns, the Court finds it striking that he did not make use of the legal remedies which became available to him after the notification, or even after he learned about possible additional measures taken in his respect (see paragraph 36 above). It notes further that the applicant did not present any arguments which would cast doubt on the effectiveness of these legal remedies with respect to his concerns or their continued availability.

46. Against this background, and considering that the Government has convincingly argued the availability and effectiveness of the legal remedies under domestic law, it is not for the Court to induce arguments why the applicant did not have to avail himself to at least some of these remedies. It must therefore conclude that there are no grounds which would have dispensed the applicant from the requirement to exhaust such domestic remedies.

47. The Court accordingly considers that the applicant ’ s complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

48. Given the above conclusion it is not necessary for the Court to examine the Government ’ s other preliminary objections regarding whether the applicant can still be considered a victim or whether the matter should be considered to be resolved.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 22 March 2018 .

Hasan Bakırcı Ledi Bianku              Deputy Registrar President