FIFTH SECTION
DECISION
Application no. 58262/09
Guntars ANTOMS
against Latvia
The European Court of Human Rights (Fifth Section), sitting on 31 January 2017 as a Committee composed of:
André Potocki, President,
Síofra O’Leary,
Mārtiņš Mits, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to the above application lodged on 26 October 2009,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Guntars Antoms, is a Latvian national who was born in 1960 and lives in Riga. He was represented before the Court by Ms J. Kvjatkovska, a lawyer practising in Riga.
2. The Latvian Government (“the Government”) were represented by their Agent, Mrs K. Līce.
3. The applicant alleged that a conversation he had had with his client in a prison had been covertly recorded and that there was no effective domestic remedy in that regard.
4. On 23 January 2012 the application was communicated to the Government.
A. The circumstances of the case
1. Facts leading to the events of 31 March 2008
5. The facts leading to the events of 31 March 2008 (see paragraph 8 below) have been disputed by the parties.
6. The parties agree, however, that the relevant authority, the Bureau for the Prevention and Combating of Corruption (Korupcijas novēršanas un apkarošanas birojs – the “KNAB”), opened an operational investigation in respect of the applicant, who is a practising lawyer (zvērināts advokāts).
7. Likewise, it is not disputed that a Supreme Court judge authorised the recording of the applicant’s conversation.
2. Events of 31 March 2008
8. On 31 March 2008 the applicant’s conversation with his client, who at the time was held in Matīsa Prison, was covertly recorded.
9. The applicant was unaware of the recording at that time. He learned about it in May 2009, when – in his capacity as defence counsel – he was given access to the whole case file in his client’s criminal case. The transcript of the recording was included in the evidence in the criminal case against his client.
3. Review of the applicant’s complaints at domestic level
10. On 6 May 2009 the applicant applied to the prosecutor’s office with a request for information about the lawfulness of the recording.
11. On 25 May 2009 a prosecutor replied that the recording had been authorised by a Supreme Court judge. The recording had been made in connection with an operational investigation, the subject matter of which had been unrelated to the criminal proceedings against the applicant’s client. On the one hand, she noted that the recording of the applicant’s conversation had been in breach of domestic law as regards lawyer-client privilege (see paragraph 16 below) and that another prosecutor had already declared it inadmissible in the criminal proceedings against the applicant’s client. On the other hand, she could not provide more details because the information that had been gathered within the operative investigation case was classified as State secret. She did, however, mention that the KNAB had received instructions from the prosecutor’s office in accordance with section 35(1) of the Law on Operational Activities and section 20 of the Law on the Prosecutor’s Office with a view to preventing similar infringements in the future.
12. On 9 June 2009 the applicant applied to the prosecutor’s office with a view to instituting criminal proceedings concerning abuse of office, abuse of position, forgery or falsification.
13. On 29 June 2009 the applicant’s request was refused for lack of any elements of a crime. At the same time, the applicant was informed that the KNAB had initiated disciplinary proceedings to review the lawfulness of the activities of its officials. The applicant lodged a complaint against that decision.
14. On 14 July 2009, with a final decision, a higher-ranking prosecutor upheld the refusal to institute criminal proceedings. He noted that although the covert recording had been made in breach of domestic law (see paragraph 16 below), it had not been used for unlawful purposes. For that reason the applicant’s rights and interests had not been significantly interfered with and elements of a crime were not present. At the same time, the applicant was informed that the KNAB had found that its officials had probably exceeded their official authority, but that any disciplinary action was time barred, the prescription period being of one year.
B. Relevant domestic law
1. Law on Operational Activities (as in force at the material time, with amendments effective until 31 December 2009)
15. The relevant sections of the Law on Operational Activities (Operatīvās darbības likums) have been summarised in the case of Meimanis v. Latvia (no. 70597/11, §§ 26-28 and 30, 21 July 2015).
16. In addition, section 24(5) prohibits State agencies from gathering operative information when practising lawyers are providing professional services, except when they themselves are under an operational investigation (operatīvās izstrādes objekts).
2. Lawyer-client privilege
17. Section 6 of the Law on the Bar Association (Advokatūras likums) lays down the principle of lawyer-client privilege in Latvian law. It provides that communication between a practising lawyer and his or her client in the provision of legal assistance may not be subject to control. Unlawful action in the interests of the client, however, is not to be considered as legal assistance.
3. Civil law
18. The relevant provisions of the Civil Law (Civillikums) have been summarised in Zikovs v. Latvia (dec.) (no. 17689/14, §§ 17-19, 30 June 2015).
COMPLAINTS
19. The applicant complained under Article 8 of the Convention about the covert recording of a conversation he had had with his client in prison. He argued that it had constituted an interference with his private life and correspondence and that it had not been “in accordance with the law” or “proportionate”.
20. The applicant also complained that he did not have an effective remedy, as required by Article 13 of the Convention, in connection with his Article 8 complaint.
THE LAW
A. Alleged violation of Articles 8 and 13 of the Convention
21. Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
22. Article 13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
1. The parties’ submissions
(a) The Government
23. The Government raised several preliminary objections. Firstly, they considered that the applicant could not claim to be a “victim” of a violation of his rights under Article 8 of the Convention. They noted that on 25 May 2009 a prosecutor had expressly acknowledged a breach of section 24(5) of the Law on Operational Activities. That had been the only redress sought by the applicant. Secondly, the applicant had failed to exhaust the available domestic remedies, as he had not applied to the Constitutional Court to challenge section 24(5) of the Law on Operational Activities.
24. In so far as the Article 13 complaint was concerned, the Government submitted that a review by a prosecutor was an effective mechanism. In addition, the applicant could have relied on sections 1635 and 1779 of the Civil Law to claim compensation for pecuniary and non-pecuniary damage from the State on account of the allegedly unlawful actions of the KNAB officials. The Government provided two examples of domestic case-law, which have been described in more detail in Zikovs (cited above, §§ 25 and 28).
25. Lastly, the Government invited the Court to strike the case out of its list of cases, in accordance with Article 37 § 1 (b) of the Convention. Referring to the prosecutor’s letter of 25 May 2009 and her acknowledgment of a breach of domestic law (see paragraph 11 above) they submitted that as of 25 May 2009 the effects of a possible violation of the Convention had been redressed.
(b) The applicant
26. The applicant disagreed. Firstly, he considered himself to be a “victim” of a violation of Article 8 of the Convention since the prosecutor’s acknowledgment had not offered any redress as the relevant authority‑the KNAB – still considered that the recording had been perfectly legal. Secondly, he did not consider that a complaint before the Constitutional Court was a remedy to be exhausted because his complaint related to the interpretation and application of a legal provision, not its actual wording.
27. In so far as his Article 13 complaint was concerned, the applicant emphasised that the prosecutor’s acknowledgment of 25 May 2009 had had no legal consequences for him. There had been no effective investigation or punishment of those responsible. Nor had there been any effect on the system as a whole, since the KNAB considered that the recording had been perfectly legal. The applicant argued that the civil courts could not be considered effective. The domestic case-law relied on by the Government was not comparable to the present case because in those cases a criminal investigation had been carried out.
28. Lastly, the applicant was of the view that the matter had not been resolved.
2. The Court’s assessment
29. The Court does not consider it necessary to examine all of the preliminary objections raised by the Government because, for the reasons mentioned below, it considers that the application is inadmissible.
30. The Court notes that the crux of the present case is the covert recording of the conversation between the applicant, who is a practising lawyer, and his client, and the alleged lack of an effective remedy in this respect.
31. In the present case prosecutors at several levels acknowledged that the covert recording was in breach of domestic law (see paragraphs 11 and 14 above).
32. In view of the foregoing, the Court will now address the Government’s argument that there were effective remedies available in Latvian system for such breaches. In this respect, the Court notes that there is a close affinity between Articles 13 and 35 § 1 of the Convention. The requirement of exhaustion of domestic remedies contained in the latter is based on the assumption that there exists an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights. In other words, the notion of “effectiveness” is essentially the same in both provisions (see Bazjaks v. Latvia, no. 71572/01, § 130, 19 October 2010 with further references).
33. Furthermore, the “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective. Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (ibid., § 129).
34. Two mechanisms have been brought to the Court’s attention in the present case: a review by a prosecutor, and a claim for damages in the domestic courts (see paragraph 24 above). The Court will, accordingly, limit its analysis to those two mechanisms.
35. As concerns the first mechanism, as already noted above, prosecutors at various levels acknowledged that the covert recording was in breach of domestic law. In this connection, the present case can be compared to that of Zikovs, where the Court accepted that a claim in civil proceedings before the domestic courts was an effective remedy for the unlawful search of a car (see Zikovs, cited above, § 38). While in that case it was the appellate court in the criminal proceedings against Mr Zikovs which acknowledged the unlawfulness of the search in breach of the Criminal Procedure Law, the fact remains that in the present case a similar acknowledgment of unlawfulness was made by the prosecutors, albeit on different grounds, namely, for a breach of lawyer-client privilege under the Law on Operational Activities (see paragraphs 11 and 14 above).
36. It appears that the finding of a breach of domestic law at national level is relevant if a subsequent claim in civil proceedings before the domestic courts is to have reasonable prospects of success. That is why the Court can draw a distinction between the present case and the case of Čamans and Timofejeva, which concerned allegedly unlawful deprivation of liberty during an inspection (see Čamans and Timofejeva v. Latvia, no. 42906/12, 28 April 2016). In that case the Court did not accept that a claim for damages was an effective remedy because, unlike in Zikovs, there had been no finding at national level of a breach of domestic law; therefore, the Court was unable to accept that the domestic courts would have examined in substance matters pertaining to criminal procedure while adjudicating in the framework of civil proceedings; nor would they have reconsidered in substance the findings made by the prosecution service (ibid., §§ 90‑92).
37. Moreover, the prosecutors in the present case also instructed the relevant authority – the KNAB – to prevent similar infringements in future. The applicant’s allegation that the KNAB continued to consider its recording lawful is of no relevance here. In accordance with section 35(1) of the Law on Operational Activities, it is the prosecutor’s task to monitor conformity of operational activities with the law (see Meimanis, cited above, § 30). Since no criminal proceedings were pending against the applicant, the recording of 31 March 2008 was not used in any criminal proceedings against him. It was also excluded from the evidence in the criminal case in relation to his client.
38. The applicant was of the view that there should have been an investigation and that those responsible should have been punished. The Court considers that in the circumstances of the present case, the Convention does not go as far as to require the opening of criminal proceedings against the individuals who had made the recording (see Zikovs, cited above, § 35).
39. As concerns the second mechanism, the Government referred to the possibility of the applicant claiming compensation from the State under sections 1635 and 1779 of the Civil Law for pecuniary and non-pecuniary damage on account of the allegedly unlawful actions of the KNAB officials. The Court has already had an opportunity to examine the domestic case-law provided by the Government. In the above-mentioned Zikovs case, the Court concluded that the domestic courts could examine a claim for compensation under section 1635 of the Civil Law in connection with an alleged breach of the claimant’s right to private life and could award compensation (see Zikovs, cited above, § 38). The Court sees no obstacles to the applicant in the present case seeking compensation from the respondent State in civil proceedings, as indicated by the Government. The applicant’s allegation that it was impossible for him to do so on account of the lack of a criminal investigation is unsubstantiated. The Court has dismissed a similar argument, noting that the adjudication of civil matters without a final judgment in criminal proceedings giving rise to those civil matters is possible (see Zikovs, cited above, § 37 and the case-law cited therein).
40. In view of the above-mentioned considerations, the applicant’s complaint that he did not have an effective remedy, as required by Article 13 of the Convention, in connection with his Article 8 complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
41. Taking into account the above conclusion under Article 13 of the Convention, the Court considers that the applicant has failed to seek compensation from the respondent State in civil proceedings for the unlawful recording of the conversation with his client in prison. Accordingly, his complaint under Article 8 of the Convention must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 23 February 2017.
Anne-Marie DouginAndré Potocki
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy