THIRD SECTION

DECISION

Application no. 18421/20 Olev KUKLASE against Estonia

The European Court of Human Rights (Third Section), sitting on 29 November 2022 as a Committee composed of:

Yonko Grozev , President , Peeter Roosma, Ioannis Ktistakis , judges , and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 18421/20) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 9 April 2020 by an Estonian national, Mr Olev Kuklase (“the applicant”), who was born in 1964 and lives in Võru;

the decision to give notice of the application to the Estonian Government (“the Government”), represented initially by their Agent, Ms M. Kuurberg, Representative of Estonia to the European Court of Human Rights, and subsequently by Mr T. Kolk, her successor in that office;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The applicant is a lawyer who is a suspect in a criminal case. Following a prosecutor’s request and subsequent authorisation by a preliminary investigation judge given in the form of an endorsement added to the request ( pealdisena ), the offices of the applicant’s law firm, as well as a car that he was believed to use, were searched on 31 October 2019. A number of paper documents, computers, mobile phones, hard drives, USB flash drives and memory cards were seized.

2 . Although under Article 383 § 1 in conjunction with Article 385 (5) of the Code of Criminal Procedure (CCrP), no appeal lay against order by which the preliminary investigation judge authorised the search (hereinafter referred to as a “search warrant”), the applicant nonetheless appealed against the search warrant ( määruskaebemenetlus ) issued in his case, while at the same time arguing that the lack of any route of appeal against such warrants was unconstitutional.

3 . On 27 November 2019 the Tallinn Court of Appeal found that the absence of a right to appeal against the search warrant did not breach the Constitution. The court noted that the Constitution allowed for restrictions on the right to appeal against specific court decisions. In the instant case, the fact that the search warrant had been issued by a preliminary investigation judge already operated as a procedural safeguard. The court further explained that under Article 383 of the CCrP, decisions that could not be appealed against separately could nonetheless be contested in the context of trial proceedings. In addition, in so far as the applicant’s complaints concerned the conduct of the search, he could have raised them by way of lodging an appeal against investigative activities ( uurimiskaebemenetlus ). Accordingly, the Tallinn Court of Appeal rejected the remainder of the applicant’s complaints. On 25 February 2020 the Supreme Court refused to examine his subsequent appeal on points of law.

4. The prosecutor’s office submitted the statement of charges to the trial court first on 25 February 2021 and, after the court initially returned it, again on 24 May 2021.

5. At the time of receipt by the Court of the parties’ observations, the criminal proceedings in the applicant’s case were still ongoing.

6. In his application to the Court, the applicant complained under Article 8 of the Convention that the domestic law concerning search and seizure in law offices did not afford the requisite safeguards for the protection of legal professional privilege. Against that background, the scope of the judge-issued search warrant had been overly wide, and the search had led to the copying and seizure of numerous data carriers and other materials which had not been related to the suspicion against him. In his observations submitted to the Court he complained, in addition, that the search warrant had not covered the search of a car, that during the search he had not been given a sufficiently clear explanation of what he was suspected of having done, and that the search warrant had not been based on a reasonable suspicion that he had committed an offence.

7. He also complained, relying on Article 13 of the Convention, that the domestic law did not afford effective remedies with respect to the above-mentioned complaint.

THE COURT’S ASSESSMENT

8. The Court notes that in its recent judgment in Särgava v. Estonia (no. 698/19, 16 November 2021) it found a violation of Article 8 in that the Estonian domestic legislation lacked appropriate procedural safeguards for the protection of data covered by legal professional privilege during search and seizure operations.

9. In the present case, in view of the applicant’s complaints and the Government’s observations regarding admissibility, the key question is whether the applicant exhausted the effective domestic remedies – provided that any existed – before lodging his application with the Court.

10. The applicant attempted to appeal directly against the search warrant (see paragraph 2 above), although such a remedy was not provided for under the domestic law. He considered that this was the only effective remedy that could allow him to swiftly counteract the alleged breach of legal professional privilege brought about by the search and seizure operation.

11. The Court observes that the Tallinn Court of Appeal, in dismissing the applicant’s claim that the lack of a right to appeal against the search warrant was unconstitutional, looked at the domestic system of legal remedies as a whole. The applicant’s complaint was dismissed, not solely because the search had been authorised in advance by a judge, but because the legislature had put in place other legal remedies to address complaints such as this one (see paragraph 3 above).

12. Turning to those potential remedies pointed out by the Tallinn Court of Appeal (as well as by the Government), the Court notes that the first of them – an appeal against investigative activities – was used by the applicant in the case of Särgava (cited above, §§ 34-35, 67 and 72). In that case the Government did not argue that it would not constitute an effective remedy. Accordingly, in Särgava , the applicant was considered to have duly exhausted domestic remedies.

13. The applicant in the present case argued that the appeal against investigative activities was rendered useless in his case by the broad scope of the search warrant and the lack of procedural safeguards in domestic law. The remedy in question addresses “violations of procedural requirements in the performance of a procedural action” (Article 228 § 1 of the CCrP). There is no doubt that it would have been suitable for at least some of the applicant’s complaints regarding alleged errors in the manner in which the authorities had acted (for example, searching the car, not explaining the suspicion against him and searching and seizing items unrelated to the suspicion against him; in the latter connection the Court notes that the Tallinn Court of Appeal expressed the understanding that the search warrant had been issued with respect to a specific offence that the applicant was suspected of). Moreover, the allegedly wide scope of the warrant would not have prevented the applicant from challenging the actions of the authorities which he considered to have breached the legal professional privilege despite being in keeping with the search warrant. This possibility has been indicated in a decision of the Viru County Court (concerning issuing a search warrant for a search of a law firm in a different case), dated 25 June 2020 and referred to by the applicant, in which the court noted that the authorities conducting search in a law firm had a responsibility – arching beyond the wording of the search warrant – to ensure that the search was not excessive and did not encroach disproportionately on professional privilege.

14. Lastly, the Court notes that the decision to dismiss the applicant’s complaint became final on 25 February 2020. He thus appears to have had sufficient time to lodge an appeal against investigative activities, as suggested by the Tallinn Court of Appeal, before the prosecutor’s office drew up the statement of charges and forwarded it to the trial court on 25 February 2021 (Article 228 §§ 1 and 6 of the CCrP).

15 . As for the other remedy referred to by the Tallinn Court of Appeal (see paragraph 3 above), the applicant agreed that it was possible to raise questions concerning the lawfulness of the search warrant, as well as of the subsequent search, in the main proceedings. However, given that such a review could – depending on the circumstances – be performed only after a considerable lapse of time following the search itself and would focus on the admissibility of any evidence obtained during the search, the applicant did not consider it effective. He was, moreover, not convinced that a claim for damages could be seen as an effective remedy, as it could be used only after a violation of Article 8 rights had been confirmed in the main proceedings and it would not eliminate the violation itself.

16. The question of raising search- and seizure-related complaints in the main proceedings has already been addressed in Särgava (cited above, § 70). In that case the Court found that the applicant did not have to resort to that remedy, given that he had already appealed against the investigative activities under Article 228 of the CCrP. Although it observed that in the main proceedings the emphasis would probably be on the admissibility of evidence obtained via search and seizure, the Court did not rule out that that could be seen as an effective remedy in relation to complaints under Article 8 of the Convention (ibid.).

17. The Government submitted examples of domestic case-law where the courts had awarded damages after certain procedural measures had been declared unlawful in the main proceedings (for example, the Supreme Court’s judgment of 13 June 2016 in case no. 3-1-1-34-16, which related to unlawful secret surveillance measures) or had indicated that a claim for damages might be possible in the event that an appeal against investigative activities was successful (the Tallinn Court of Appeal’s judgment of 10 July 2014 in case no. 3-13-70173 and the reference made therein to the Supreme Court’s judgment of 22 March 2013 in case no. 3‑3‑1‑11‑13). The relevant grounds and procedure for claiming damages are laid down in the Compensation for Damage Caused in Offence Proceedings Act ( süüteomenetluses tekitatud kahju hüvitamise seadus ) as in force since 1 May 2015.

18. Other than referring to his concerns about timing and doubting the appropriateness of a compensatory remedy (see paragraph 15 above), the applicant did not deny the practical availability of the suggested measure. In fact, he admitted that he could submit the relevant claim in the context of the ongoing main proceedings.

19. The Court notes that an effective remedy with respect to an alleged violation of Article 8 rights can be one that – depending on the circumstances – either prevents the alleged violation or its continuation or provides adequate redress for any violation that has already occurred (see Avanesyan v. Russia , no. 41152/06, § 27, 18 September 2014; compare Cacuci and S.C. Virra & Cont Pad S.R.L. v. Romania , no. 27153/07, § 115, 17 January 2017). It cannot be said that the lapse of time between the search and the conclusion of the criminal trial would, in itself, render the remedy ineffective in the circumstances (compare Cacuci and S.C. Virra & Cont Pad S.R.L. , cited above, §§ 113-14).

20. As for the other possibilities referred to by the Government – namely, being present during the examination of the seized materials (apparently used by the applicant on one occasion) and submitting requests to the prosecutor’s office under Article 225 of the CCrP – the Court has already explained why it does not consider them to be effective (see Särgava , cited above, §§ 68-69). It sees no reason to hold differently in the context of the case at hand.

21. The Court finds that, given the grievances the applicant raised in the proceedings before it, effective domestic remedies were available to him: an appeal against investigative activities and/or raising his complaints in the main proceedings, possibly combined with a claim for damages. The Court observes that the particular remedy to be used might also depend on the specific content of the applicant’s complaints, i.e. questioning whether the search was justified in the first place or raising issues as to the manner in which the search and seizure were carried out. It reiterates that the existence of mere doubts as to the prospects of success of a particular remedy cannot excuse the applicant from making use of that remedy (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 74 and 84, 25 March 2014).

22. Instead of using the above-mentioned remedies, the applicant decided to attempt a remedy that did not exist under domestic law, combining it with a plea of unconstitutionality.

23 . The Court considers that, given the operation of the constitutional review mechanism in Estonia, there might indeed be cases where making use of an effective domestic remedy would entail claiming that domestic law is unconstitutional (see Fizgejer v. Estonia (dec.), no. 43480/17, §§ 70-77, 2 June 2020). However, in circumstances where other remedies – which have not been proven to be obviously futile – exist, the Convention does not grant applicants the right to demand the creation of a remedy that, in their opinion, would serve their interests the best

24. It follows that the applicant’s complaint under Article 8 must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

25. Given that the Court has established above that the applicant had effective domestic remedies at his disposal, his complaint under Article 13 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 12 January 2023.

Olga Chernishova Yonko Grozev Deputy Registrar President