SEPARATE OPINION OF JUDGE TÃœRMEN

I agree with the majority that there is no violation of Article 8 of the Convention for the reasons that the complaint lies outside the Court's jurisdiction ratione temporis and that the applicant has failed to exhaust domestic remedies.

However, I am unable to agree with the majority's opinion of finding a violation of Article 6 § 1 of the Convention.

It is true that the administrative courts had declined jurisdiction to examine the applicant's company's complaint about the police search and seizure of documents on the ground that the police acts were criminal investigation measures, the lawfulness of which could not be assessed in the administrative proceedings. The courts relied on Article 3 § 2(3) of the Code of Administrative Court Procedure under which they are not competent to deal with complaints which fell under civil or criminal procedure.

However, the applicant has not attempted to file an action with the civil courts to contest the alleged interference with his rights under Article 8 of the Convention. The Estonian law, in particular the Constitution and the General Principles of the Civil Code, provided an avenue for filing with the civil courts an action against the State for breach of personal rights. According to Article 112 of the General Principles of the Civil Code, the civil courts are empowered to order elimination of violations, restoration of the situation that existed  prior to violation or to award compensation. There is no indication that the bringing of civil proceedings would be dependant on the outcome of an examination of the lawfulness of the impugned measure by other authorities.

As regards the applicant's argument that the civil law protection did not extend to a workplace, since the relevant part of the General Principles of the Civil Code dealt only with the rights of natural persons, it is to be noted that the applicant complained under Article 8 of the Convention that he was personally affected by the acts of the police. Furthermore, the inviolability of the home under Article 33 of the Constitution explicitly includes the workplace.

It is true that the case-law examples provided by the Government post-dated the events at issue and did not deal with professional or business activities or premises. However, this is not a sufficient basis to conclude that a civil action would have had no prospect of success. At the material time, the relevant constitutional and statutory provisions were still in force. If there exists a doubt as to the effectiveness of a domestic remedy, that remedy must be tried (see, mutatis mutandis , Raif v. Greece , no. 21782/93, Commission decision of 26 June 1995, DR 82, p. 5).

On the other hand the Court has stated in the Niemietz v. Germany case that “the search of the applicant's office constituted an interference with his rights under Article 8” ( Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251-B, pp. 33-34, §§ 29-31).

In these circumstances, I consider that it was open to the applicant to pursue the matter before the civil courts.

What is more, the applicant's complaint concerning the police actions was examined subsequently by the criminal courts which had the opportunity to, and indeed did, assess the lawfulness of the seizure of documents and its impact on the fairness of the criminal proceedings against the applicant.

It follows that the applicant has not been denied access to a court, contrary to Article 6 § 1. Accordingly there has been, in my opinion, no breach of Article 6 § 1 of the Convention.