FIFTH SECTION
CASE OF ŠANTARE AND LABAZŅIKOVS v. LATVIA
(Application no. 34148/07)
JUDGMENT
STRASBOURG
31 March 2016
FINAL
30/06/2016
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Šantare and Labazņikovs v. Latvia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Angelika Nußberger, President,
Khanlar Hajiyev,
Erik Møse,
Faris Vehabović,
Yonko Grozev,
Carlo Ranzoni,
Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 8 March 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 34148/07) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Latvian nationals, Mrs Lilija Šantare (“the first applicant”) and Mr Vladimirs Labazņikovs (“the second applicant”), on 9 July 2007.
2. The applicants were represented by Mrs S. Finka, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Mrs K. Līce.
3. The applicants alleged, in particular, that covert interception of their telephone conversations had not been carried out in compliance with Article 8 of the Convention. They also complained under Article 6 § 1 of the Convention that the way in which the Minister of Justice had commented on a lower court’s judgment had been prejudicial to the “fairness” of the appellate proceedings.
4. On 10 April 2012 the aforementioned complaints were communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1960 and 1956 respectively and live in Riga.
A. Background information
6. On an unspecified date the Bureau for the Prevention and Combating of Corruption (“the KNAB”) received information concerning allegedly unlawful activities of officials of the State Pharmacy Inspectorate. Aiming to verify that information, the KNAB launched operational proceedings (operatīvā izstrāde). In the context of those proceedings the second applicant, who at that time was the owner of a chain of pharmacies in Latvia, was summoned to the KNAB to give statements about the activities of certain State officials supervising pharmaceutical matters in Latvia.
7. According to the document (uzziņa) prepared by the Supreme Court on 27 July 2012 and addressed to the Government, on 10 March 2005 an operational measure – the interception of the second applicant’s telephone conversations – had been authorised until 12 May 2005. The document was based on “the Supreme Court’s register of special proceedings (lietvedība) relating to classified State secrets for the year 2005, Volume 13, entry no 2‑1264s of 19 March 2005”.
8. Upon being summoned by the KNAB, on 12 April 2005 the second applicant went to its offices, where he was questioned by two investigators, H. and J. Initially, he refused to cooperate and instead asked J. questions about his duties.
9. On 13 April 2005 the second applicant arranged a meeting with J. away from the KNAB’s offices. On the KNAB’s behalf, the meeting was organised as an undercover operation under section 15(3) of the Law on Operational Activities, and prior authorisation from a specially authorised prosecutor of the Prosecutor General’s Office was obtained.
10. On 13 and 14 April 2005 three meetings took place between the second applicant and J. During the second meeting, which was video and audio recorded by J., the second applicant offered J. a bribe in the amount of 50,000 Latvian lati (LVL) and monthly payments of LVL 1,000 in return for the cessation of any investigative activities concerning his business and the State officials connected with it. During the meeting the second applicant paid J. LVL 18,000 as a first instalment.
11. Meanwhile, the second applicant called the first applicant, who was a board member of the company he owned. He asked her to withdraw cash from the company’s account. He explained that the money would be spent on “protection”. Their phone conversations were intercepted and recorded.
12. The next day, the second applicant arranged another meeting, during which he gave the investigator LVL 27,000. On the same day he was arrested by KNAB officers.
B. The pre-trial investigation
13. After the second applicant’s meeting with J., on 13 April 2005 the KNAB instituted criminal proceedings for bribery. The second applicant was charged as a suspect. The charging decision was sent to the Prosecutor General’s Office so that the prosecution could commence.
14. On 22 April 2005 a prosecutor of the Prosecutor General’s Office questioned the second applicant. The second applicant pleaded guilty and stated that the payments had been intended to prevent further investigation into his business activities.
15. In a letter of 31 May 2005 the KNAB informed the supervising prosecutor at the Prosecutor General’s Office that the second applicant’s phone had been tapped in accordance with section 17(3) of the Law on Operational Activities “upon the authorisation of a judge of the Supreme Court”. The KNAB asked for the recordings to be included in the criminal case file.
16. On 2 June 2005 the Office of the Prosecutor brought a charge of aiding and abetting against the first applicant, and a charge of bribery against the second applicant.
17. On 30 June 2005 both applicants were questioned by a prosecutor of the Prosecutor General’s Office. The first applicant pleaded guilty.
18. On 12 July 2005, having studied the material in the criminal case file, the representative of the first applicant asked the prosecutor to disclose a document attesting to the lawfulness of the interception of the telephone conversations between both applicants. On the same day the supervising prosecutor dismissed that request, arguing that the decision to authorise interception of the telephone conversations of the applicant and other persons had been adopted under 17(3) of the Law on Operational Activities, and therefore was not a procedural document. Moreover, the document had been classified as a State secret. The prosecutor also argued that the existence of such authorisation had been confirmed by the KNAB, and that there were no grounds to question the validity of that confirmation. The first applicant did not appeal against that reply to a more senior prosecutor.
19. On 15 July 2005 the criminal case concerning both applicants was referred to a court.
20. It appears that on 18 October 2005 the representative of the first applicant sent a complaint about the activities of KNAB officials in relation to the phone tapping to the Prosecutor General’s Office. The prosecutor in charge replied that the phone tapping had been authorised by a judge of the Supreme Court, and that the KNAB had not infringed any provisions of the Law on Operational Activities. The prosecutor also stated that the information obtained as a result of the operational activities was open to assessment in the course of the criminal proceedings. The first applicant did not appeal against that reply to the Prosecutor General.
C. Trial
21. On 2 November 2005 the Riga City Vidzeme District Court, acting as a first-instance court and presided over by Judge B.T., acquitted the first applicant. The court found the second applicant guilty and gave him a suspended sentence of two years’ imprisonment. He pleaded guilty during the hearing, therefore the court proceeded without assessing the evidence.
22. On 8 November 2005 the prosecutor submitted an appeal contesting the acquittal of the first applicant, and asked for an immediate custodial sentence to be imposed in relation to the second applicant. He asked the appellate court to give a new judgment in respect of the parts of the original judgment which were contested. The second applicant submitted an appeal concerning the severity of his sentence.
23. Between 24 and 27 October 2006 the Riga Regional Court, acting as an appellate court, held several hearings during which the second applicant pleaded guilty. The representative of the first applicant submitted that the case file did not contain any information pertaining to the authorisation of the interception of phone conversations, which had been the main evidence against her. During the hearing, the prosecutor confirmed orally that judicial authorisation had been obtained.
24. On 31 October 2006 the appellate court adopted a judgment which upheld the prosecutor’s appeal and quashed the disputed parts of the lower court’s judgment. The appellate court found the first applicant guilty, giving her a suspended sentence of one year’s imprisonment. It also revoked the suspension of the second applicant’s prison sentence and he was taken directly to prison from the courtroom. The appellate court stated, inter alia, “the court recognises all the evidence in the criminal case as admissible, on the grounds that the factual information has been obtained and established (nostiprinātas) in line with procedure and in accordance with the order set out by law ...”.
25. In an appeal on points of law the first applicant argued that the tapped phone conversations should not have been admitted as evidence, as they had been obtained without proper authorisation. The second applicant submitted, inter alia, that the appellate court had not assessed the lawfulness of the phone tapping and had ignored the fact that the criminal case had contained no reference to any authorisation to carry out the above activity as prescribed by Article 176¹ of the Code of Criminal Procedure. In this regard, he also submitted that the appellate court had consequently failed to observe that interference in a person’s private life should be in accordance with the law, as required by Article 8 of the Convention.
26. On 19 January 2007 the Senate of the Supreme Court dismissed the appeal on points of law in open court. In response to the Article 8 complaint, the Senate stated that the phone had been tapped “in accordance with section 17 of the Law on Operational Activities, and not as a special investigative measure under Article 176¹ of the Code of Criminal Procedure”.
D. Statements of the Minister of Justice
27. Meanwhile, during a judges’ conference on 4 November 2005, the Minister of Justice stated in her opening speech:
“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”.
28. A daily news report on 4 November 2005 mentioned that the minister had admitted to journalists that she had been referring to the judgment adopted by Judge B.T. in her speech (see paragraph 21 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.”
II. RELEVANT DOMESTIC LAW
A. Law on Operational Activities
29. The procedure for authorising operational activities is set down in section 7. In cases where the planned activities do “not significantly impinge on individuals’ constitutional rights”, they can be authorised by a supervisor of the official carrying out the activities (section 7(2)). Other activities have to be authorised by a prosecutor.
30. In the case of operational activities provided for in section 17 (the monitoring of correspondence, covert interception of non-public conversations (including telephone conversations), obtaining of information from technical devices and entering of premises), authorisation is granted by a specially designated judge of the Supreme Court (section 7(4)), who either draws up a judicial authorisation in writing or refuses to grant such authorisation, in accordance with the provisions regulating the processing of classified information (section 7(7)). Under section 35(2), in order to decide whether to grant authorisation to carry out an operational activity, a judge has a right to have access to the documents on which the requested operational measure is based, subject to obtaining special leave from an operational investigation entity insofar as access to secret information is concerned.
31. Section 24 provides that, where operational activities are carried out in a criminal case, the authority in charge of the criminal proceedings is provided with all information obtained as a result of such activities. Pursuant to section 27 of the Criminal Procedure Law on the adjudication of a criminal case, the court is the authority in charge of criminal proceedings.
32. All operational activities are to be carried out in strict compliance with the law and human rights (section 4). Any person who considers that he or she has suffered harm as a result of the actions of an official carrying out operational activities, that person has a right to lodge a complaint with a prosecutor or the relevant court (section 5). The Prosecutor General and prosecutors specifically authorised by him supervise the operational activities (section 35(1)).
B. Code of Criminal Procedure (replaced by a Criminal Procedure Law as of 1 October 2005)
33. At the material time, Article 176¹ set out the procedure for implementing special investigative measures in criminal proceedings, such as the covert interception of telephone conversations relating to persons who were suspects in criminal proceedings or against whom charges had been brought. Prior authorisation for implementing the measure had to be obtained from a judge, and records had to be drawn up in relation to the interception.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
34. The applicants complained that covert interception of their mobile phone conversations had not been carried out in compliance with Article 8 of the Convention, which reads:
“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.”
A. Admissibility
1. Parties’ submissions
(a) Exhaustion of domestic remedies
35. The Government argued that the applicants had failed to bring their grievances before the Prosecutor General’s Office – an effective domestic remedy which had been afforded to them under section 5 of the Law on Operational Activities. Notably, the first applicant had not fully used the remedy as she had not submitted an appeal to the Prosecutor General (see paragraph 20 above), and the second applicant had not used the remedy at all.
36. The applicants submitted that, under section 5 of the Law on Operational Activities, grievances sustained as a result of operational activities could also be brought before a trial court, and that they had both exhausted that avenue of redress.
37. In their additional observations, the Government submitted that criminal proceedings and operational investigation proceedings were two different sets of proceedings, and that a complaint to a prosecutor regarding operational measures could be lodged irrespective of the existence of criminal proceedings or the stage at which those proceedings were. Lastly, they contested the second applicant’s allegation that he had brought his Article 8 complaint before the trial court.
(b) Compliance with the six-month time-limit
38. The Government further argued that, in lodging their complaints with the Court on 9 July 2007, the applicants had failed to comply with the six-month rule. The Government submitted that, in relation to the first applicant, the six-month time-limit had started running on 24 October 2005, the date when she had learnt of the prosecutor’s decision. In relation to the second applicant, the Government was of the view that the running of the six-month time-limit had started on the date he had learnt that his phone conversations had been intercepted, that is, 14 July 2005 at the latest.
39. The applicants contested the Government’s objections in relation to the six-month rule.
2. The Court’s assessment
40. Even though the Government did not challenge the effectiveness of the applicants’ choice to raise their Convention complaints before the trial court during the adjudication of their criminal case, in calculating the six-month time-limit the Court must assess whether the applicants used an effective remedy (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 138, ECHR 2012).
41. The Court has recently examined complaints against Latvia where the issue of possible remedies in respect of operational investigative measures carried out under the Law on Operational Activities has been raised. Where a person has found out about a surveillance measure in the course of criminal proceedings brought against him, the trial court adjudicating on the criminal case would, in principle, be competent to review a complaint regarding the lawfulness of the operational measures taken (see, mutatis mutandis, Meimanis v. Latvia, no. 70597/11, § 78, 21 July 2015, and Kibermanis v. Latvia (dec.), no. 42065/06, 3 November 2015, § 49).
42. Turning next to the Government’s argument that the second applicant did not raise his Convention grievances before the trial court, the Court observes that both applicants have, in essence, raised this complaint before the court adjudicating on their criminal case (see paragraph 25 above).
43. In the light of the above, the Court concludes that the applicants did make use of a remedy that is apparently effective and sufficient. Therefore, they cannot be required also to have tried other remedies that were available but probably no more likely to be successful (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999).
44. It follows that the complaint cannot be declared inadmissible for non-exhaustion of domestic remedies
45. The running of the six-month period should be calculated starting from 19 January 2007, that is, the date of the final domestic court decision in the applicants’ criminal case. As the applicants lodged their complaint with the Court on 9 July 2007, they have therefore complied with the requirements of Article 35 § 1 in this regard.
46. The Court finds that complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. Parties’ submissions
47. The Government did not contest that there had been an interference with the applicants’ right to respect for private life. They nevertheless submitted that the interference had been lawful and had pursued a legitimate aim. Notably, the contested interception of the applicants’ telephone conversations had been carried out in accordance with the Law on Operational Activities. Referring to the document provided by the Supreme Court (see paragraph 7 above), the Government contended that the interception of phone conversations had been duly authorised by a specially designated judge of the Supreme Court, as provided for by section 17 of the above law.
48. On the question of proportionality, the Government argued that no special investigative techniques had been applied in relation to the first applicant, and therefore the interference with her right to respect for private life had been kept to a minimum. The only conversations of the first applicant which the authorities had intercepted had been between her and the second applicant. The latter had been made the subject of special investigative techniques on the basis of information about an alleged corruption case in the State Pharmacy Inspectorate. According to the Government, the phone tapping had been carried out in relation to the second applicant only after other less stringent measures had turned out to be ineffective.
49. Furthermore, with regard to the existence of adequate safeguards, the Government relied on the case of Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, § 90, 28 June 2007, and maintained that on 24 October 2005 the prosecutor had informed the first applicant that a judge had sanctioned the use of investigative techniques against the second applicant. Lastly, the Government reiterated that the applicants had not used the system of review by a prosecutor set out in section 5 of the Law on Operational Activities.
50. The applicants maintained that, in their criminal proceedings, there had been no decision adopted by a judge of the Supreme Court authorising the interception of their phone conversations, as required by Article 176¹ of the Code of Criminal Procedure. They submitted that the information furnished by the Government merely attested to the existence of an entry in the register and nothing more.
2. The Court’s assessment
51. As regards the scope of the complaint under Article 8, the Court observes that, in essence, the applicants complained that the covert interception of their telephone conversations had not been lawful and that in the course of their criminal proceedings they had been unable to verify the existence of prior judicial authorisation for the contested measure.
52. The Court considers, and this is not disputed, that the covert interception of the applicants’ telephone conversations amounted to an interference within the meaning of Article 8 of the Convention. In examining whether the interference was justified in the light of paragraph 2 of Article 8, the Court has to assess whether the authorities acted “in accordance with the law”, pursuant to one or more legitimate aims, and whether the impugned measure was “necessary in a democratic society”.
(a) General principles
53. The Court reiterates that the wording “in accordance with the law” implies conditions which go beyond the existence of a legal basis in domestic law and requires that the legal basis be “accessible” and “foreseeable”. In the special context of secret surveillance measures, the Court has held that the reference to “foreseeability” cannot be the same as in many other areas, however domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see Roman Zakharov v. Russia [GC], no. 47143/06, §§ 227-231, 4 December 2015 for a recent summary on general principles deriving from the Court’s case law).
54. Although authorising of phone tapping by a non-judicial authority may, under certain circumstances, be compatible with the Convention (ibid., § 258), judicial scrutiny constitutes an important safeguard against arbitrariness at all stages of secret surveillance (ibid., §§ 233-234 and 249), provided that the scrutiny it provides is “effective” in practice as well as in law (see Wille v. Liechtenstein [GC], no. 28396/95, § 75, ECHR 1999-VII).
55. On the effectiveness of review, the Court has stated that a reviewing authority must be able to verify whether contested measures have been lawfully ordered and executed (see C.G. and Others v. Bulgaria, no. 1365/07, § 48, 24 April 2008). In case of retrospective review of the lawfulness of a surveillance measure, the applicant must, at the very least, be provided with sufficient information regarding the existence of an authorisation and the minimum level of information about the decision authorising secret surveillance (see, mutatis mutandis, Roman Zakharov, cited above, §§ 294 – 295).
(b) Application to the present case
56. With regard to the parties’ disagreement as to whether the contested surveillance measure had any basis in domestic law, the Court observes that, according to the ruling of the Senate of the Supreme Court on 19 January 2007, the interception of the applicants’ telephone conversation was carried out under section 17 of the Law on Operational Activities, and not under the provisions of the Criminal Procedure Code, as erroneously alleged by the applicants (see paragraph 26 above). Bearing in mind that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, the Court will not question the interpretation of the domestic courts unless and in so far as the alleged errors of fact or law may have infringed rights and freedoms protected by the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 190-191, ECHR 2006‑V). In the absence of an arbitrary interpretation, the Court considers that the interception of the applicants’ phone conversations had a legal basis in domestic law and that the legal basis was accessible to the applicants.
57. Next, as to the question of foreseeability, section 4 of the Law on Operational Activities lists the principles to be applied when operational measures are ordered and carried out. Section 7 (4) of the above law requires judicial authorisation for the interception of telephone conversations and sets out that interception may not exceed three months initially. The authorisation is drawn up in writing and a judge deciding whether to grant it has a right to have access to documents on which the requested operative measure is based, subject to obtaining special leave from an operational investigation entity insofar as access to secret information is concerned (see relevant domestic law, paragraph 30 above). The court adjudicating on the criminal case shall have all information obtained as a result of operational investigation activities (see paragraph 31 above).
58. The Court observes that the Law on Operational Activities enshrined certain safeguards against arbitrary or indiscriminate surveillance at the time the surveillance measure was ordered in the present case. It is true that in the light of the Court’s case-law the legislation may have certain weaknesses (see Roman Zakharov, cited above, §§ 253 – 256 in relation to the importance of a procedure regulating the processing of intercepted data), however, given the scope of the present complaint, they are of no relevance as the Court is not asked to assess the quality of the provisions of domestic law in this respect.
59. In the present case the Court has to examine whether the retrospective judicial review of the lawfulness of the contested measure was carried out “in accordance with the law”, and whether the judicial review provided additional safeguards against arbitrariness during the adjudication of the criminal proceedings against the applicants.
60. During the appellate court hearing and in their appeal on points of law both applicants raised in essence the objection that the criminal case-file contained no reference to a judicial decision authorising interception of their telephone conversations. In response, the Riga Regional Court submitted a general conclusion about the admissibility of evidence (see paragraph 23 above), whereas the Senate of the Supreme Court’s assessment was limited to referring to the legal provision governing the impugned surveillance measure (see paragraph 26 above). The Court notes that the Government has furnished a document prepared by the Supreme Court on 27 July 2012 according to which the contested operational measure had been authorised on 10 March 2005 (see paragraph 7 above). However, the Court cannot speculate as to whether the information furnished by the Government attested to the existence of a written authorisation in the form of a decision. Neither the appellate court nor the cassation court mentioned a reference number of the decision authorising the interception of the applicants’ telephone conversations, a name of the judge who had adopted the decision or an entry number in the register of judicially authorised operational investigations. It cannot be seen from the case materials that the domestic courts had had access to the classified materials in the operation investigation file, and whether they had indeed verified that the judicial authorisation was part of that file (see relevant domestic law at paragraph 31 above and Baltiņš v. Latvia, no. 25282/07, § 63, 8 January 2013 with regard to access to classified information).
61. The Government further argued that the Prosecutor General’s Office had duly informed the first applicant about the existence of a prior judicial authorisation. The Court notes that in all replies provided to the applicants (see paragraphs 18 and 20), the Prosecutor General’s Office merely referred to what had been previously stated by the authority carrying out the surveillance measure (see paragraph 15 above), without verifying the existence of the contested decision.
62. In these circumstances the Court concludes that, in the course of their criminal proceedings, the applicants could not verify whether the interference with their rights under Article 8 of the Convention had been carried out on the basis of a prior judicial authorisation. The domestic courts did not, contrary to the provisions of the domestic law, provide for an effective judicial review of the lawfulness of the contested measure and failed to serve as additional safeguards against arbitrariness within the meaning of Article 8 § 2 of the Convention. There has therefore been a violation of Article 8 of the Convention.
63. Having regard to the foregoing conclusion, the Court does not consider it necessary to examine whether other requirements of paragraph 2 of Article 8 were complied with.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
64. The applicants complained that the way in which the Minister of Justice had commented on the lower court’s judgment in their criminal case during the annual conference of judges had been prejudicial to the fairness of the appellate proceedings. They relied on Article 6 of the Convention:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
A. Admissibility
1. Incompatibility ratione materiae
65. The Government firstly submitted that, in relation to the second applicant, the complaint was incompatible ratione materiae, as the disputed remarks of the Minister of Justice had been made after the applicant had pleaded guilty and the lower court had pronounced judgment. The Government submitted that the self-incriminating statements of the second applicant had deprived him of the protection of the presumption of innocence.
66. The second applicant did not comment on the Government’s objection.
67. Considering that this complaint is in any event inadmissible for the reasons set out below, the Court will proceed on the assumption that Article 6 is applicable.
2. Compliance with the six-month time-limit
68. In the alternative, the Government asked the Court to find that, in submitting the application in July 2007, the second applicant had not observed the six-month time-limit. The disputed remarks had been made on 4 November 2005, and therefore the second applicant had had to bring his Article 6 grievances to the Court by 4 May 2006 at the latest.
69. The applicants did not comment on the Government’s objection.
70. The Court observes that the Government did not raise the same objection in relation to the first applicant. Nevertheless, the Court has jurisdiction to apply it of its own motion (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 29, 29 June 2012). The Court will therefore address this issue in relation to both applicants.
71. The Court has previously held that allegations of a breach of the presumption of innocence are normally raised in the course of criminal proceedings against the applicant (see Shagin v. Ukraine, no. 20437/05, §§ 71-73, 10 December 2009) in order to give the criminal courts an opportunity to place the applicants, as far as possible, in the position they would have been in had the requirements of Article 6 not been disregarded (see Igars v. Latvia (dec.), no. 11682/03, § 91).
72. In the present case, the applicants never brought their complaints pertaining to the statements of the Minister of Justice to the attention of the criminal court. Therefore the starting point for the calculation of the running of the six-month period was either 4 November 2005 – the date when the impugned statements were made (see paragraph 27 above), or, at the very latest, 31 October 2006 – the date when the appellate court adopted the judgment contested by the applicants (see paragraph 24 above). Since the applicants only lodged the application in July 2007, it follows that this complaint was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
73. Lastly, the applicants also made other complaints under Articles 5, 6 and 8 of the Convention. These complaints were not communicated to the Government.
74. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that the remaining complaints do not disclose any appearance of a violation of any of the Articles of the Convention relied on. It follows that these complaints are inadmissible under Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
75. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
76. The first applicant claimed 50,000 euros (EUR) and the second applicant claimed EUR 164,029.23 in respect of pecuniary and non-pecuniary damage.
77. The Government disagreed with the claim.
78. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. Deciding on an equitable basis, it awards each applicant EUR 1,500 in respect of non-pecuniary damage.
B. Costs and expenses
79. The second applicant also claimed EUR 8,163.63 for costs and expenses incurred before the Court. In support of his claim, he submitted a copy of an invoice issued by a company on 6 August 2007 which had billed him for fifty hours of legal work for drafting a complaint to the Court, at an hourly rate of LVL 90 (EUR 125), without submitting any time-sheets. The invoice also covered translation and postal expenses.
80. The Government disagreed with the claim. They submitted in particular that, given the legal character of the present case, which was not complicated and involved only two alleged violations of the Convention, it was exorbitant to claim expenses for fifty hours of legal research. Similarly, there had been no need to translate the application, which could have been submitted in any of the languages of the Council of Europe.
81. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court observes that the second applicant seeks to recover costs and expenses for drafting and submitting an application form to the Court. Regard being had to the documents in its possession and the fact that the application form was submitted in Latvian and that only part of it was found admissible, the Court considers that drafting the application to the Court did not necessarily require fifty hours of work. Bearing in mind the rates generally applied in Latvia at the material time, the Court considers it reasonable to award the second applicant a lump sum of EUR 800 to cover legal and postal expenses.
C. Default interest
82. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint under Article 8 of the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 8 of the Convention;
3. Holds
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to each applicant;
(ii) EUR 800 (eight hundred euros) to the second applicant, in respect of costs and expenses, plus any tax that may be chargeable to him;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 31 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia WesterdiekAngelika Nußberger
RegistrarPresident
Full & Egal Universal Law Academy