THIRD SECTION

Application no. 34148/07 Lilija Å ANTARE and Vladimis LABAZ Å… IKOVS against Latvia lodged on 9 July 2007

STATEMENT OF FACTS

1. The applicants, Ms Lilija Šantare and Mr Vladimirs Labazņikovs, are Latvian nationals who were born in 1960 and 1956 respectively and live in Rīga .

A. The circumstances of the case

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

3. On an unspecified date the Bureau for the Prevention and Combating of Corruption (“the KNAB”) launched an undercover investigation ( operatīvās izstrādes lieta ) in connection with which the second applicant, who was the owner of a chain of pharmacies in Latvia, was summoned to the KNAB to give a statement about the activities of certain State officials supervising pharmaceutical matters in Latvia.

4. On 12 April 2005 the second applicant attended at the KNAB but refused to cooperate. On 13 April 2005 the second applicant arranged a meeting with the Bureau ’ s investigator, J., outside the KNAB ’ s premises. It appears that during the meeting, which was recorded on audio and video tape by J., the second applicant offered J. a bribe in the amount of 50,000 lati (LVL) and a monthly payment of LVL 1,000 in return for the annulment of any investigative activities directed against his business and the State officials connected with it. During the same meeting the second applicant paid J. LVL 18,000 as the first instalment. The next day the second applicant telephoned J. and arranged the next meeting for 14 April 2005. During that meeting he gave the investigator LVL 27,000, after which the second applicant was arrested by the KNAB officers.

1. The pre-trial investigation

5. After the second applicant ’ s meeting with J., on 13 April 2005 the KNAB instituted criminal proceedings for bribery. The decision to institute criminal proceedings was sent to the Office of the Prosecutor General.

6. Meanwhile, on 13-14 April 2005 the KNAB carried out the undercover investigative measure of tapping the telephone conversations between the first and the second applicants. At least four of the tapped conversations were included in the criminal case file. The conversations mainly concerned the second applicant ’ s meeting with J. and the need to withdraw money from the company ’ s account.

7. In a letter of 31 May 2005 the KNAB informed the supervising prosecutor at the Office of the Prosecutor General that the applicants ’ phone had been tapped after authorisation had been obtained from a judge of the Supreme Court, as prescribed by the Law on Operational Measures, and asked for the recordings to be included in the criminal case file.

8. On 2 June 2005 the Office of the Prosecutor brought against the first applicant the charge of aiding and abetting the second applicant in the offence of bribery.

9. On 12 July 2005 the first applicant was shown the criminal case file. Her representative asked the prosecutor to add the decision adopted by a judge of the Supreme Court authorising the tapping of the telephone conversations between the applicants to the case file . The supervising prosecutor dismissed the request because the decision at issue was classified as a State secret. He also noted that the existence of such authorisation had been confirmed by the authority which had carried out the operation, and that there were no grounds to question the validity of such a confirmation. The decision was subject to appeal to a superior prosecutor.

10. On 15 July 2005 the criminal case concerning both the applicants was referred to the court.

11. Meanwhile, on 6 July 2005 a prosecutor of the Office of the Prosecutor General examined the activities of investigator J. and found that the latter had acted within the restraints applicable to an undercover operation, and that his actions had been lawful. The criminal proceedings concerning investigator J. were terminated. The decision was subject to appeal.

2. Trial

12. On 2 November 2005 the Rīga City Vidzeme District Court, chaired by judge B.T., acquitted the first applicant. The court found the second applicant guilty and sentenced him to a suspended sentence of two years ’ imprisonment. During the hearing the second applicant pleaded guilty and therefore the court proceeded without an assessment of the evidence.

13. The prosecutor objected with respect to the acquittal of the first applicant and the sentence of the second applicant. The second applicant submitted an appeal concerning the severity of his sentence.

14. On 31 October 2006 the Rīga Regional Court upheld the objection and found the first applicant guilty, imposing on her a suspended sentence of one year ’ s imprisonment. The appellate court imposed an immediate sentence on the second applicant. He was taken to prison from the courtroom.

15. According to the record of the hearing, the applicants had been informed in writing of their procedural rights. At the applicants ’ request the court had banned any video or audio recording by the media. The court had refused the request of the second applicant for a closed hearing while the audio recording of the tapped conversations between the applicants was played, arguing that the conversations had ceased to be private after authorisation had been given to carry out the undercover operation. During the hearing the second applicant ’ s representative stated that the case file did not contain any information with respect to the authorisation for the conversations between the applicants to be tapped.

16. In her appeal on points of law the first applicant mainly argued that the tapped phone conversations should not have been admitted as evidence as they had been obtained without proper authorisation. In his appeal on points of law, the second applicant complained that the appellate court had not verified the circumstances which allegedly made the evidence inadmissible; in particular, the undercover operation of April 2005 had been carried out without the required authorisation from a superior prosecutor, and during the experiment he had been incited to commit a crime. He also complained that the tapping of the phone had been conducted without proper authorisation. He submitted that the media had infringed the principle of presumption of innocence in respect of his criminal proceedings and asked the court to examine his appeal in an open hearing. He further claimed that the plea-bargaining process had been unlawful in that the lower court had failed to inform him of the consequences of that procedure.

17. On 19 January 2007 the Senate of the Supreme Court, in an open hearing, dismissed the appeals on points of law. It stated that the phone had been tapped by virtue of section 17 of the Law on Operational Measures and the undercover operation had been carried out by virtue of section 15 of that Law. It dismissed the argument with respect to the allegedly unlawful plea-bargaining, observing that it had been requested by the applicant ’ s representative, and the applicant had not raised any objections to the procedure in his appeal or during the appellate hearing. Based on the above observations, the Senate dismissed the complaints about the examination of evidence.

3. Statements of the Minister of Justice

18. On 4 November 2005, during a judges ’ conference, the Minister of Justice allegedly indirectly referred to the judgment of 2 November 2005 by which the applicants had been acquitted:

“Today I would say that I, like the majority of you sitting in this hall, am powerless against the actions of our colleagues, which neither society nor I personally understand”

19. In a daily news report on 4 November 2005 it was mentioned that the minister had confessed to the journalists that during her speech she had been referring to the judgment adopted by judge B.T. (see paragraph 12 above):

“Yes, I am not authorised to comment on particular cases where the adjudication is still pending, but I consider that I have the right to express an opinion on behalf of other judges who carry out their work honestly”.

COMPLAINTS

The first applicant complains under Article 8 of the Convention about the refusal by the appellate court of her representative ’ s request for a closed hearing owing to the private nature of the tapped conversation. As a result the contents of the applicants ’ private conversations had been reported in the media.

The second applicant complains under Article 6 § 1 of the Convention that he did not have a fair trial because the national courts allowed allegedly unlawful evidence obtained in breach of the domestic law. With respect to the alleged incitement to commit a crime, the applicant also invokes Article 8 of the Convention.

He further complains under Article 6 of the Convention that the lower court failed to explain to him the consequences of the plea-bargaining procedure.

Finally, he complains under Article 5 that the period of detention from 31 October 2006 to 19 January 2007 was unlawful in that the court failed to provide reasons justifying it. He further complains under Article 5 § 4 that the national court failed to review the legality of that decision

Both applicants complain under Article 6 § 1 of the Convention that the way the Minister of Justice commented on the lower court ’ s judgment was prejudicial to the “fairness” of the appellate proceedings.

They also complain under Article 8 of the Convention that the tapping of their phone conversations constituted unlawful interference with their private life. The applicants also complain in this regard that they were unable to verify the lawfulness of the aforementioned measure or to appeal against it.

QUESTIONS TO THE PARTIES

1. Was there a violation of the applicants ’ right to respect for their private life, contrary to Article 8 of the Convention, with respect to their attempts to verify the lawfulness of the investigation measure by which their telephone conversations were tapped on 13 and 14 April 2005? The Government are requested to furnish a copy of, or any other information concerning, the decision by which the aforementioned measure was authorised by a judge of the Supreme Court.

2. With respect to the remarks of the Minister of Justice made on 4 November 2005 during the conference of judges, was the court which dealt with the applicants ’ case impartial, as required by Article 6 § 1 of the Convention, and was the presumption of innocence, as guaranteed by Article 6 § 2 of the Convention, respected in the present case, especially in the light of the Court ’ s finding in the case Lavents v. Latvia , no. 58442/00, §§ 105-121, 28 November 2002.