Information Note on the Court’s case-law 47

November 2002

Veeber v. Estonia (no. 1) - 37571/97

Judgment 7.11.2002 [Section III]

Article 35

Article 35-3-a

Ratione temporis

Search of premises and seizure of files: incompatible ratione temporis

Facts : The premises of the applicant's company were searched by the police in the context of a criminal investigation and files with around 10,000 documents were seized for examination by State auditors. The applicant complained to the public prosecutor, submitting that the wholesale nature of the seizure and the failure to make an individual record of the items was contrary to the requirements of the Code of Criminal Pr ocedure. He was informed that he was free to consult the documents and the public prosecutor instructed the police to make a record of the individual documents and to return documents which were not relevant to the investigation. A number of files were lat er returned. The applicant's complaint to the Administrative Court was dismissed. The court held that it did not have jurisdiction to review the actions of the police in criminal proceedings, since such supervision rested with the public prosecutor. The Su preme Court refused leave to appeal. The applicant was subsequently convicted in criminal proceedings. The Supreme Court found that the procedures for seizing documents had not been strictly followed but considered that the infringement was not substantial .

Law : Article 8 – The search and seizure took place before entry into force of the Convention in respect of Estonia and were instantaneous acts which did not create a continuing situation. The court judgments were given after the relevant date but divorci ng them from the events would amount to giving retroactive effect to the Convention. The Court was therefore precluded, ratione temporis , from examining this complaint. Moreover, it was unnecessary to examine whether the applicant had exhausted domestic re medies in that respect. On the other hand, it was necessary to consider whether he had exhausted with regard to the retention of the files after the relevant date. The applicant had not contested the retention before any domestic body but he could have com plained to the public prosecutor and there was no indication that he would not have had any prospects of success. He had therefore failed to exhaust domestic remedies with regard to the retention of files.

Article 6 § 1 – The applicant's claim before the A dministrative Court was covered by the civil limb of Article 6, being designed to seek protection of individual rights from interference by the executive authorities. However, the administrative courts declined jurisdiction on the ground that supervision o f police actions rested with the public prosecutor, and although further appeal to the State Public Prosecutor and ultimately to the administrative courts was open, the scope of the courts' review was limited to assessing the lawfulness of the State Public Prosecutor's acts. The could not examine questions of fact and law in relation to the actions of the police and could not quash those measures. Thus, they could not have afforded the applicant redress. The applicant's complaint was also examined in the co ntext of the criminal proceedings against him but the assessment was relevant only to the determination of the criminal charge and the criminal courts could not quash the impugned acts or grant appropriate relief. Finally, as regards the possibility of civ il proceeidngs for damages against the State, the examples of domestic case-law submitted by the Government did not deal with professional or business activities or premises and moreover related to a period subsequent to the events at issue. The existence of a remedy before the civil courts at the material time had therefore not been established with sufficient certainty.

Conclusion : violation (6 votes to 1).

Article 13 ‑ In view of the foregoing conclusion, it was not necessary to examine this complaint.

Conclusion : not necessary to examine (unanimously).

Article 41 – The Court considered that the finding of a violation constituted sufficient just satisfaction. It made an award in respect of costs and expenses.

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