Communicated on 19 November 2019

SECOND SECTION

Applications nos. 12503/18 and 12496/18 Sergei HAMITSKI against Estonia and Andrei FILIPPOV against Estonia lodged on 5 March 2018 and 5 March 2018 respectively

SUBJECT MATTER OF THE CASES

The case concerns the alleged insufficient reasoning provided in domestic courts ’ decisions authorising secret surveillance measures against the applicants.

During the criminal proceedings against the applicants, on 29 October 2010, preliminary investigation judge of the Viru County Court authorised secret surveillance measures with respect to Mr Hamitski and Mr Filippov . These authorisations were extended by the decisions of 23 December 2010 and 22 February 2011. The Tartu Court of Appeal admitted that the Viru County Court ’ s decisions authorising secret surveillance measures were of declaratory nature and had not contained sufficient reasoning concerning the probable cause that an offence had been committed and why it had been strictly necessary to take secret surveillance measures. The Tartu Court of Appeal then carried out an ex post assessment of those decisions, relying on the information available to the prosecutor and the preliminary investigative judge at the time the secret surveillance measures were authorised and – by giving retrospective reasoning – concluded that the authorisations had been justified and had met the ultima ratio requirement. The Supreme Court refused to examine the applicants ’ subsequent appeals on points of law.

The applicants complained under Article 8 of the Convention about the insufficient reasoning of secret surveillance authorisations at the time they were issued. According to the applicants this led to secret surveillance authorisations being issued arbitrarily and without due consideration. They referred to concerns about how the domestic courts carried out the review of lawfulness, notably the so ‑ called “ ultima-ratio ” review of secret surveillance activities.

QUESTION TO THE PARTIES

Was the interference with the applicants ’ rights under Article 8 of the Convention in accordance with the law in so far as the lack of reasoning in the decisions authorising surveillance activities in respect of him and the retrospective assessment of the lawfulness of those activities is concerned? ( see Liblik and Others v. Estonia , nos. 173/15 and 5 others, 28 May 2019 , and Dragojević v. Croatia , no. 68955/11, 15 January 2015).