Communicated on 13 September 2017

SECOND SECTION

Application no. 173/15 Tullio LIBLIK against Estonia and 5 other applications (see list appended)

STATEMENT OF FACTS

A list of the applicants, four Estonian nationals and two companies incorporated under Estonian law with their seats in Tallinn, is set out in the appendix.

A. The circumstances of the case

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

Between 2 September 2004 and 11 October 2006 the Internal Security Service ( Kaitsepolitsei ) carried out, with pauses, various surveillance activities in respect of the first, second and fourth applicants. The fourth applicant was also acting as a member of the board of the third and fifth applicant companies. Those activities included covert observation of the applicants, covert listening in on their conversations and interception of their email and phone communications. In the course of those activities the communications of the sixth applicant with the persons under surveillance were covertly listened to and intercepted.

The surveillance activities were based on authorisation decisions issued by either a prosecutor (in respect of covert observation and requests for communication data) or a judge (in respect of covert listening in on conversations and interception of communications).

It was established in the domestic proceedings that, contrary to domestic law and practice, the courts ’ and prosecutors ’ decisions by which the surveillance activities were authorised did not contain any reasoning regarding either the probable cause to believe that an offence had been committed or the requirement that the collection of evidence by other means was impossible or especially complicated (compliance with the principle of ultima ratio ).

On the basis of evidence gathered by surveillance measures as well as other procedural means criminal charges of corruption were brought against the applicants.

By a judgment of 19 June 2012 the Harju County Court acquitted the applicants of the charges against them. As to the lawfulness of the surveillance activities, the court found that all evidence collected by such activities was inadmissible. The judgment does not indicate why the County Court changed its position expressed at an earlier court hearing that the requirements of the law had not been violated in the granting of authorisation for surveillance activities.

The Office of the Prosecutor General appealed to the Court of Appeal. Among other things it challenged the first-instance court ’ s assessment of the lawfulness of the surveillance activities.

The Court of Appeal convicted the applicants by a judgment of 19 June 2013. It considered the evidence obtained by the surveillance measures to be lawful and admissible.

The applicants appealed to the Supreme Court. Among other things they challenged the appellate court ’ s assessment of the lawfulness of the surveillance activities and the admissibility of evidence thereby collected.

On 30 June 2014 the Supreme Court delivered its judgment in the applicants ’ criminal case (no. 3 ‑ 1 ‑ 1 ‑ 14 ‑ 14). In substance it upheld the applicants ’ conviction.

1. The Supreme Court ’ s reasoning with respect to secret surveillance authorisations

The Supreme Court first addressed the courts ’ decisions authorising surveillance activities. It noted that such decisions had to contain reasoning as to why the issuing court found that there was probable cause to believe that an offence had been committed and that the collection of evidence by other means was impossible or especially complicated. It then noted that the text of the courts ’ decisions did not comply with those requirements. However, the lack of reasoning did not amount to a lack of authorisation. This was so because the investigating authority was not competent to assess the adequacy of reasoning. It had the right to rely on the operative part of the decision authorising surveillance activities. The failure to properly reason a decision authorising surveillance activities therefore did not result in the inadmissibility of evidence collected by such activities. The Supreme Court emphasised that the courts subsequently hearing a criminal case were also competent to examine whether at the time the authorisation decisions had been issued, the conditions for granting them had been fulfilled. In assessing the admissibility of evidence obtained by secret surveillance the courts had to verify whether those conditions had been fulfilled if a party so requested and had to do so regardless of the existence of an earlier decision authorising surveillance activities. The lack of requisite reasoning in the initial decision granting authorisation required that the subsequent examination of compliance with the conditions for granting authorisation for surveillance activities be conducted with special diligence.

The Supreme Court went on to note that it had directly examined the material in the surveillance file and the prosecutors ’ applications for authorisation for surveillance activities submitted to the courts. On the basis of that material the Supreme Court concluded that the conditions for authorising surveillance activities had been fulfilled at the time the authorisation decisions were issued. The Supreme Court was convinced that at the time there had been probable cause to believe that offences had been committed and that it had been impossible to collect evidence by other means to verify this suspicion.

With regard to the reasoning of the prosecutors ’ decisions to authorise surveillance activities, the Supreme Court observed that these contained only the operative part and no reasoning at all. It then in substance reiterated its position as regards the courts ’ decisions authorising surveillance activities. The Supreme Court concluded that the conditions for granting authorisation had been fulfilled at the time the decisions had been issued.

2. The Supreme Court ’ s reasoning with respect to the length of proceedings

In assessing whether the length of the proceedings was reasonable, the Supreme Court relied on the criteria elaborated in the Court ’ s case-law. It observed that the case was rather complex, both as regards issues of law and fact. It further noted that there had been no delays during the pre-trial and trial stage of the proceedings, but admitted that the organisation of court hearings at first instance, the volume and structure of the criminal file, and the presentation of the statement of charges might have added to the duration of the proceedings. The Supreme Court considered that the applicants had not prolonged the proceedings and admitted that the impact of the proceedings on the applicants had undoubtedly been serious, especially given the wide public interest in the case. Assessing all those circumstances together, the Supreme Court came to the conclusion that the length of the criminal proceedings had, on balance, been acceptable.

B. Relevant domestic law and practice

Article 112 § 3 in conjunction with Articles 114 § 1, 116, 118 and 119 of the Code of Criminal Procedure ( Kriminaalmenetluse seadustik , hereinafter “the CCP”), as in force at the material time, provided that the preliminary investigating judge had to give a decision in order to grant or refuse to grant authorisation for the conduct of surveillance activities such as wire-tapping or covert observation of messages or other information transmitted by the public electronic communications network.

Article 112 § 3 in conjunction with Articles 115 and 117 of the CCP provided that a prosecutor ’ s authorisation was needed for covert surveillance, covert examination and replacement of things or for collecting data transmitted by the public electronic communications network.

The requirements applicable to procedural decisions were set out in Article 145 of the CCP. Among other things a procedural decision had to be given in writing and be reasoned.

Article 110 § 1 of the CCP, as in force at the material time, provided that the collection of evidence by surveillance activities was permitted in criminal proceedings if the collection of evidence by other procedural acts was impossible or especially complicated and the object of the criminal proceedings was a first-degree criminal offence or an intentionally committed second-degree criminal offence for which the punishment was at least up to three years of imprisonment. The Supreme Court explained in its judgment in the applicants ’ criminal case (30 June 2014 judgment in case no. 3-1-1-14-14) that a court decision authorising surveillance activities had to include the court ’ s clear and intelligible arguments as to why evidence could not be collected by other means. With reference to the Tartu Court of Appeal judgment of 20 January 2014 in criminal case no. 1 ‑ 12 ‑ 2671 the Supreme Court added that a decision also had to set out clear reasons as to which circumstances and existing evidence gave rise to reasonable suspicion that a criminal offence had been committed.

Article 111 of the CCP stipulated that the information obtained via secret surveillance is evidence when the requirements arising from law have been followed when obtaining it.

COMPLAINT

The applicants complain under Article 6 of the Convention of the excessive length of the criminal proceedings.

The applicants (except for application no. 388/15 ( Reiljan )) also complain in essence that the lack of reasoning in the decisions authorising surveillance activities in respect of them and the retrospective assessment of the lawfulness of those activities was not in accordance with the law and resulted in the interference with their rights under Article 8 of the Convention not being necessary in a democratic society.

QUESTION TO THE PARTIES

1. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

2. Was the interference with the applicants ’ rights under Article 8 (except with respect to applications nos. 388/15 ( Reiljan ) and 173/15 ( Liblik )) of the Convention in accordance with the law and necessary in terms of Article 8 § 2 in so far as the lack of reasoning in the decisions authorising surveillance activities in respect of them and the retrospective assessment of the lawfulness of those activities is concerned (see, in particular, Dragojević v. Croatia , no. 68955/11, 15 January 2015)?

Appendix

No

Application No

Lodged on

Applicant

Date of birth

Place of residence

Represented by

173/15

23/12/2014

Tullio LIBLIK

12/11/1964

Kuressaare

Mart SUSI

181/15

23/12/2014

Kalev KANGUR

07/07/1968

Tallinn

Mart SUSI

374/15

18/12/2014

E.L.L. KINNISVARA AS

limited liability company incorporated under Estonian law with its seat in Tallinn

Percy BRATT

383/15

18/12/2014

Toomas ANNUS

05/10/1960

Tallinn

Percy BRATT

386/15

18/12/2014

AKTSIASELTS JÄRVEVANA

limited liability company incorporated under Estonian law with its seat in Tallinn

Percy BRATT

388/15

23/12/2014

Villu REILJAN

23/05/1953

Jõgevamaa

Margus MUGU