Communicated on 10 April 2014

FIRST SECTION

Application no. 46069/13 Olev LÜÜTSEPP against Estonia lodged on 16 July 2013

STATEMENT OF FACTS

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

A. The circumstances of the case

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

The applicant is the sole member of the board of a non-profit organisation MTÜ Võru Jäätmekeskus . Criminal proceedings were instituted concerning the legality of the activities of the non-profit organisation. In the context of these criminal proceedings a house search was carried out in the applicant ’ s home on 3 November 2010 by the police. Neither the non-profit organisation nor the applicant officially became suspects in the criminal proceedings concerned.

In August 2012 the applicant learned from an investigator that the criminal proceedings have been terminated. The applicant suspected that secret surveillance activities had been carried out in respect of him. He had also doubts about the lawfulness of these activities. He requested to examine the surveillance file in the criminal case.

By a letter of 24 August 2012 the Southern District Prosecutor ’ s Office informed the applicant that it was not possible to inform him whether or not any surveillance measures had been taken in respect of him. The Prosecutor ’ s Office relied on Article 121 § 1(1) to § 1(3) of the Code of Criminal Procedure ( Kriminaalmenetluse seadustik ).

The applicant complained to the Office of the Prosecutor General.

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

The applicant again complained to the Office of the Prosecutor General. By a letter of 22 November 2012 the Office of the Prosecutor General agreed with the District Prosecutor ’ s position and confirmed that it was not authorised to inform the applicant whether or not he had been subjected to secret surveillance.

The applicant lodged an appeal to the Tartu County Court. He complained about lack of information about a possible violation of his fundamental rights and argued that by the refusal of the Prosecutor ’ s Office to disclose the information about surveillance, his human dignity and right to respect for private life and correspondence have been violated. He requested that the court order the Prosecutor ’ s Office to grant him access to the surveillance file.

On 17 January 2013 the County Court declined to examine the appeal finding that no appeal lay against a written reply of the Office of the Prosecutor General. The County Court referred to Article 230 § 1 of the Code of Criminal Procedure which provided that if the activities of an investigative body or Prosecutor ’ s Office in violation of the rights of a person were contested and the person did not agree with the order by the Office of the Prosecutor General who reviewed the appeal, the person had the right to file an appeal with the preliminary investigation judge of a county court. However, the County Court considered that in the present instance the Prosecutor ’ s Office had replied to the applicant ’ s requests by a letter and therefore there were no appealable orders within the meaning of Article 230 § 1 of the Code of Criminal Procedure.

The County Court also noted that it had at its disposal no information about whether or not the applicant had been subjected to secret surveillance. Only the body conducting preliminary investigation was authorised to disclose such information and the Prosecutor ’ s Office had the right, on grounds provided for in law, not to notify the person concerned about surveillance carried out in respect of him.

The ruling of the County Court was final and not subject to appeal.

B. Relevant domestic law and practice

1. Code of Criminal Procedure and Surveillance Act as in force until 31 December 2012

Relevant provisions of the Code of Criminal Procedure ( Kriminaalmenetluse seadustik ), as in force until 31 December 2012, provided as follows:

Article 110 - Admissibility of surveillance activities in collection of evidence

“(1) Evidence may be collected by surveillance activities in a criminal proceeding if collection of the evidence by other procedural acts is precluded or especially complicated and the object of the criminal proceeding is a criminal offence in the first degree or an intentionally committed criminal offence in the second degree for which at least up to three years ’ imprisonment is prescribed as punishment.

... ”

Article 114 – Grant of permission for surveillance activities

“(1) A preliminary investigation judge shall immediately review a reasoned request for the conduct of surveillance activities submitted by a prosecutor who directs the proceedings and grant or refuse to grant permission for the conduct of the surveillance activities by a ruling.

(2) Permission for surveillance activities is granted for up to two months and the permission may be extended by up to two months at a time at the request of a prosecutor who directs the proceedings.

... ”

Article 121 – Submission of information collected by surveillance activities for examination

“(1) A body which has conducted surveillance activities or the investigative body which requested the conduct of the surveillance activities shall immediately give notification of such activities to the person with respect to whom the activities were conducted and to the person whose private or family life was significantly interfered with by the surveillance activities and who was identified in the course of the proceedings. With the permission of the prosecutor, conduct of the surveillance activities need not be given notification of until the corresponding bases cease to exist if this may:

1. significantly damage the criminal proceedings;

2. significantly damage the rights and freedoms of another person which are guaranteed by law or endanger another person ;

3. endanger the confidentiality of the methods and tactics of a surveillance agency, the equipment or police agent used in conducting surveillance activities, of an undercover agent or person who has been recruited for secret co-operation .

(2) At the request of a person specified in paragraph 1 of this Article, he or she is permitted to examine the materials of the surveillance activities conducted with regard to him or her, and the photographs, films, audio and video recordings and other data recordings obtained as a result of the surveillance. With the permission of the prosecutor, the following information need not be made available until the corresponding bases cease to exist:

1. information concerning the family or private life of other persons;

2. information which, if made available, may damage the rights and freedoms of another person which are guaranteed by law;

3. information which contains state secrets, classified information of foreign states or secrets of another person that are protected by law;

4. information which, if made available, may endanger the life, health, honour, good name and property of an employee of a surveillance agency, police agent, undercover agent, person who has been recruited for secret co-operation or another person who has been engaged in surveillance activities or of persons connected with them ;

5. information which, if made available, may endanger the right of a police agent, undercover agent and person who has been recruited for secret co-operation to maintain the confidentiality of co-operation ;

6. information which, if made available, may result in communication of information concerning the methods, tactics of a surveillance agency and the equipment used in conduct of surveillance activities ;

7. information which cannot be separated or disclosed without information specified in subparagraphs 1 to 6 of this paragraph becoming evident.

(3) Upon notifying a person of surveillance activities conducted in respect of him or her, the procedure for appeal shall be explained to him or her.”

Regulation similar to Article 121 §§ 1 and 2 of the Code of Criminal Procedure was also contained in the Surveillance Act ( Jälitustegevuse seadus ) which was in force until 31 December 2012. The Surveillance Act provided that the head of a surveillance agency or an official authorised by him could make a reasoned written decision not to notify the person of surveillance and to refuse to make available the information concerned (sections 17(1) and 17(2)).

2. Code of Criminal Procedure as in force from 1 January 2013

On 1 January 2013 the earlier regulations concerning the secret surveillance in the Code of Criminal Procedure as well as the Surveillance Act as a whole were repealed and the new regulations entered into force. The pertinent provisions of the Code of Criminal Procedure provide as follows:

Article 126-13 – Notification of surveillance activities

“(1) U pon expiry of the term of a permission for the conduct of surveillance activities and, when several surveillance activities are conducted that coincide at least partly in time, upon expiry of the term of the last permission, the surveillance agency shall immediately notify the person with respect to whom the surveillance activities were conducted and the person whose private or family life was significantly interfered with by the surveillance activities and who was identified in the course of the proceedings. The person shall be notified of the time and type of surveillance activities conducted with respect to him or her.

(2) With the permission of a prosecutor, a surveillance agency need not give notification of conduct of surveillance activities if this may:

1. significantly damage the criminal proceedings;

2. significantly damage the rights and freedoms of another person which are guaranteed by law or endanger another person;

3. endanger the confidentiality of the methods and tactics of a surveillance agency, the equipment or police agent used in conducting surveillance activities, of an undercover agent or person who has been recruited for secret co-operation.

(3) With the permission of a Prosecutor ’ s Office, a person need not be given notification of surveillance activities until the basis specified in paragraph 2 of this Article cease to exist. The Prosecutor ’ s Office shall verify the basis for non-notification in the criminal matter upon completion of pre-trial proceedings but not later than one year after the expiry of the term of the permission for surveillance activities.

(4) If the basis for non-notification of surveillance activities have not ceased to exist upon expiry of one year as of the expiry of the term of the permission for surveillance activities, a Prosecutor ’ s Office applies, at the latest 15 days prior to the expiry of the specified term, for a permission of a preliminary investigation judge for extension of the non-notification term. The preliminary investigation judge grants permission by a ruling for non-notification of the person or refuses to grant such permission. Upon non-notification of a person, the ruling shall set out whether the non-notification is granted for an unspecified or specified term. In the case of non-notification during a specified term, the term during which a person is not notified shall be set out.

(5) If the basis specified in paragraph 2 of this Article have not ceased to exist upon expiry of the term of the permission granted for non-notification by a preliminary investigation judge specified in paragraph 4 of this Article, a Prosecutor ’ s Office applies, at the latest 15 days prior to expiry of such term, for a permission from a preliminary investigation judge for extension of the non-notification term. The preliminary investigation judge grants permission by a ruling pursuant to the provisions of paragraph 4 of this Article.

(6) A person shall be immediately notified of surveillance activities upon expiry of the permission for non-notification or refusal to grant permission for the extension thereof.

(7) When a person is notified of surveillance activities conducted with respect to him or her, the procedure for appeal shall be explained to him or her.”

Article 126-14 – Submission of information collected by surveillance activities for examination

(1) The person who has been notified pursuant to Article 126-13 of this Code shall be permitted at his or her request to examine the data collected with respect to him or her and the photographs, films, audio and video recordings and other data recordings made in the course of the surveillance activities. With the permission of a Prosecutor ’ s Office, the following information need not be made available until the corresponding bases cease to exist:

1. information concerning the family or private life of other persons;

2. information which, if made available, may damage the rights and freedoms of another person which are guaranteed by law;

3. information which contains state secrets, classified information of foreign states or secrets of another person that are protected by law;

4. information which, if made available, may endanger the life, health, honour, good name and property of an employee of a surveillance agency, police agent, undercover agent, person who has been recruited for secret co-operation or another person who has been engaged in surveillance activities or of persons connected with them;

5. information which, if made available, may endanger the right of a police agent, undercover agent and person who has been recruited for secret co-operation to maintain the confidentiality of co-operation;

6. information which, if made available, may result in communication of information concerning the methods, tactics of a surveillance agency and the equipment used in conduct of surveillance activities;

7. information which cannot be separated or disclosed without information specified in subparagraphs 1 to 6 of this paragraph becoming evident.

(2) Upon disclosing or refusal to disclose information collected by surveillance activities to a person, the procedure for appeal shall be explained to him or her.

... ”

Article 126-16 – Filing of appeals in connection with surveillance activities

“(1) An appeal may be filed pursuant to the procedure provided for in Chapter 15 of this Code against the court ruling that grants permission for surveillance activities on the basis specified in this Code.

(2) An appeal may be filed pursuant to the procedure provided for in Division 5 of Chapter 8 of this Code against the course of surveillance activities conducted on the basis specified in this Code, non-notification thereof and refusal to submit information collected thereby.”

3. Supreme Court ’ s case-law

In a judgment of 20 March 2014 (case no. 3-4-1-42-13) the Constitutional Review Chamber of the Supreme Court dealt with the constitutionality of the regulation concerning non-notification of persons who had been subject to secret surveillance under the regulation in force prior to 1 January 2013. The Supreme Court found that no judicial control existed over the continued presence of the grounds for non-notification of the surveillance activities that had been carried out before 1 January 2013. Regulation concerning the administrative and parliamentary control was unclear, inefficient and lacked independence. As regards the surveillance activities carried out in criminal proceedings the prosecutor ’ s authorisation for non-notification served as a procedural guarantee but in this respect, too, the law did not contain a sufficiently detailed regulation. The Supreme Court held that the regulation in question was in breach of the Constitution of the Republic of Estonia ( Eesti Vabariigi põhiseadus ). It declared unconstitutional and invalidated a transitional provision whereby no effective control system was envisaged for the continued presence of the grounds for non-notification of the surveillance activities that had been carried out before 1 January 2013. The Supreme Court adjourned the invalidation of the pertinent provision for six months, leaving the Riigikogu (the Estonian Parliament) time to enact legislation in conformity with the Constitution.

COMPLAINTS

The applicant complains under Article 6 § 1 and Article 8 of the Convention that the domestic court did not examine his complaint concerning his secret surveillance, violating thereby his right of access to a court, and that carrying out the surveillance activities breached his right to respect for his private life.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s right to respect for his private life within the meaning of Article 8 § 1 of the Convention? Was the alleged interference in accordance with the law and necessary in terms of Article 8 § 2? In particular, did the applicable law meet the requirement of lawfulness within the meaning of Article 8 § 2? Was it sufficiently foreseeable and precise and did it provide adequate and sufficient safeguards against possible abuse including, inter alia , supervision by an independent authority?

In this connection, the Government are requested to explain which authorities and in which proceedings determined:

– whether or not the applicant was to be informed of the fact of whether in respect of him secret surveillance activities had been carried out?

– whether or not the applicant was to be given access to the surveillance file, or any information contained in it, in case surveillance activities in respect of him had been carried out?

3. Did the applicant have at his disposal effective domestic remedies for his complaint under Article 8, as required by Article 13 of the Convention (see Klass and Others v. Germany , 6 September 1978, Series A no. 28 ) ?

4. What judicial remedies, if any, were available to the applicant in respect of any measures of surveillance applied in respect of him either during the application of such measures or after their discontinuation? Was Article 6 of the Convention applicable in the present case? If Article 6 was applicable, was the applicant ’ s right of access to a court respected?