FOURTH SECTION

Application no. 70597/11 Mairis MEIMANIS against Latvia lodged on 10 November 2011

STATEMENT OF FACTS

1. The applicant, Mr Mairis Meimanis , is a Latvian national, who was born in 1968 and lives in Rīga . He is represented before the Court by Mr S. Vārpiņš , a lawyer practising in Rīga .

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

A. The circumstances of the case

3. The applicant is currently on trial in criminal proceedings, instituted on 30 December 2005, for an attempt to receive a bribe. At the time the applicant was the head of a division in the Economics Crimes Bureau ( Ekonomikas policijas birojs ) in the Main Police Department in Rīga ( Rīgas galvenā policijas pārvalde ).

4. During his trial before the appellate court, the applicant learned that an operational investigation case ( operatīvās uzskaites lieta ) had been opened in respect of his co-defendant A.S.

1. Operational activities and the applicant ’ s complaints in that regard

5. On 22 January 2009 a judge of the Criminal Chamber of the Supreme Court ( Augstākās tiesas Krimināllietu tiesu palāta ), in the context of the criminal proceedings against the applicant, requested information about the operational investigation case.

6. On 18 February 2009 a specialised prosecutor replied that the operational investigation case had been opened on 27 December 2005. A Supreme Court judge had approved an operational interception of A.S. ’ s telephone conversations from 28 December 2005 to 28 February 2006. Interception of telephone conversations of the other co-defendant, A.B., had been carried out from 29 to 31 December 2005. Finally, in respect of the applicant no interception of telephone conversations had been carried out in the context of the operational investigation case. However, “his conversations were recorded if he spoke to [a person], whose conversations were intercepted in accordance with the Law on Operational Activities”. The applicant learned about this information during the appellate court hearings on 22 October 2009.

7. On 22 October 2009 the applicant requested the prosecution authorities to review the lawfulness of the operational measures which had been carried out and asked specific questions concerning these measures.

8. On 4 November 2009 a specialised prosecutor replied, among other things, that on 28 December 2008 an investigative test ( operatīvais eksperiments ) had been accepted in the context of the operational investigation case to record the manner in which the sworn attorney A.S. would proceed upon receipt of 19,500 Latvian lati (LVL) and to find out his possible accomplices. She also noted that the Law on Operational Activities did not provide for independent judicial control over operational investigation cases; such control was carried out by the Prosecutor General and specialised prosecutors. Finally, she noted that the operational investigation measures in respect of the applicant and his co-defendants had not been illegal and that there had been no breaches of the general principles governing operational activities.

9. On 6 November 2009 the applicant lodged a complaint about the specialised prosecutor ’ s reply.

10. On 27 November 2009 a higher-ranking specialised prosecutor rejected the applicant ’ s complaint. The applicant lodged a further complaint with the Prosecutor General, which was rejected by a final decision of 29 December 2009.

2. The proceedings before the Constitutional Court

11. On 29 June 2010 the applicant lodged an individual constitutional complaint with the Constitutional Court ( Satversmes tiesa ).

12. On 16 July 2010 the Constitutional Court initiated proceedings in case no. 2010-55-0106 on the compliance of section 7, paragraph 5 of the Law on Operational Activities with the right to private life (Article 96 of the Constitution ( Satversme )) and the right to an effective remedy (Article 13 of the Convention) and on the compliance of section 35, paragraph 1 first sentence of the Law on Operational Activities with the right to a fair trial (Article 92 of the Constitution).

13. On 6 September 2010 a judge dismissed the applicant ’ s request, among other things, to see the case materials.

14. On 5 November 2010 the judge dismissed the applicant ’ s request to see the written submissions filed by the Latvian Parliament ( Saeima ) in the proceedings on the grounds that such request had already been dismissed.

15. On 2 December 2010 the applicant requested permission to see at least the judge ’ s preliminary opinion ( atzinums par lietas sagatavošanu izskatīšanai ) before the preparation of the case was completed and before the preparatory meeting ( rīcības sēde ) had taken place. The applicant sought the possibility to express his opinion on the proceedings and, in particular, on whether or not it could be decided by means of an oral procedure, which was his preference.

16. On 17 December 2010 the President of the Constitutional Court replied to the applicant that the parties had a right to see the case materials only after the decision concerning adjudication ( lēmums par lietas nodošanu izskatīšanai ) was taken. Such a decision had been taken on 14 December 2010. Consequently, the applicant could see the case material. As concerns the possibility of the proceedings being conducted orally or in accordance with a written procedure, he explained that this issue was to be determined by the Constitutional Court . This issue was first to be considered by the relevant judge, then by the President himself and, subsequently, by all other judges in the preparatory meeting. The parties had a right to express their opinion on this matter after they had seen the case materials.

17. On 21 January 2011 the applicant submitted an opinion to the Constitutional Court and noted, among other things, that the case could not be decided in a written procedure and that an oral hearing should be held.

18. On 25 January 2011, in a closed preparatory meeting, the Constitutional Court decided that the case would be decided by means of a written procedure, but did not provide any reasons. On 26 January 2011 the applicant was informed about this decision and was given fifteen days to acquaint himself with the case materials.

19. On 11 May 2011 the Constitutional Court delivered its ruling in case no. 2010-55-0106 and found that the contested legal provisions complied with the Constitution and the Convention [1] .

B. The relevant domestic law and practice

20. The relevant provisions of the Law on Operational Activities and extracts of the Constitutional Court ’ s ruling in case no. 2010-55-0106 have been summarised elsewhere (see Baltiņš v. Latvia , no. 25282/07, §§ 27-34, 40-41, 8 January 2013).

COMPLAINTS

21. The applicant complained under Article 8, alone and in conjunction with Articles 6 and 13 of the Convention, that by virtue of the interception of his telephone conversations his right to private and family life, as well as his right to correspondence had been violated. The applicant considered that there were no effective remedies in the Latvian legal system against such breaches. He argued that his right to a fair trial had not been ensured since the review of the operational investigative activities in Latvia was entrusted to prosecutors and not subject to independent judicial control.

22. The applicant complained under Article 6 § 1 of the Convention about the fairness of the proceedings before the Constitutional Court . He submitted that the proceedings had not been public and that he was denied a right to be heard.

23. Finally, the applicant complained under Article 10 of the Convention about certain actions undertaken by the President of the Constitutional Court against his lawyer.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s right to respect for his private life or correspondence, within the meaning of Article 8 § 1 of the Convention, on account of the interception of his telephone conversations in the context of the operational investigation case?

2. If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention?

3. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 8, as required by Article 13 of the Convention?

In the above connection, can the Constitutional Court be considered an effective and available remedy (see GriÅ¡ankova and GriÅ¡ankovs v. Latvia (no. 36117/02, ECHR 2003 ‑ II (extracts)) , in the circumstances of the present case where the applicant ’ s constitutional complaint, which related to an alleged incompatibility of a domestic legal provision with the Constitution, was examined following a written procedure?

4. Was Article 6 § 1 of the Convention applicable to the proceedings before the Constitutional Court in the present case?

5. If so, has there been a violation of Article 6 § 1 of the Convention in the present case? In particular, a reference is made to the fact that no public hearing took place before the Constitutional Court and that no reasons were given for this.

6. Why the applicant ’ s requests to the Constitutional Court were rejected?

[1] Available at: http://www.satv.tiesa.gov.lv/upload/Judgment%202010-56-0106_ENG.htm (accessed on 23 November 2012).