THIRD SECTION
DECISION
Application no. 42065/06
by Ivars KIBERMANIS
against Latvia
The European Court of Human Rights (Third Section), sitting on 17 January 2012 as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Egbert Myjer,
Ján Šikuta,
Ineta Ziemele,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 18 September 2006,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Ivars Kibermanis, is a Latvian national who was born in 1960 and lives in Rīga.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. First set of criminal proceedings
3. In 1996 the applicant, by an order of the Secretary of State at the Ministry of Justice was appointed deputy head of the Bailiffs’ Department of the Ministry of Justice. In 2003, he and two bailiffs were accused of an abuse of their official position. In particular, they were accused of selling the property of a company at less than its market value, knowing that the company was about to become insolvent, thereby infringing the lawful interests of its creditors. According to the bill of indictment, the applicant was accused of having committed two separate offences. In particular, he was accused of an abuse of his official position (under section 162 § 2 of the Criminal Code) by giving unlawful instruction to other bailiffs. He was also accused of receiving bribes from the co-accused after the unlawful transaction had been accomplished, and of omitting to report the unlawful activities of the other bailiffs with intent to receive a bribe (section 164 § 2 of the Criminal Code).
(a) Proceedings before the lower court
4. In order to establish whether the applicant was “an official” under section 162 of the Criminal Code, the lower court relied on the order of the Ministry of Justice of 1996 according to which the applicant had been nominated as a “candidate civil servant”, and on the Law on the Prevention of Corruption (Korupcijas novēršanas likums), in force at the material time, according to which a candidate civil servant was to be considered a State official.
5. In the bill of indictment the criminal activities under section 162 § 2 of the Criminal Code of all the accused were set out, together with the factual circumstances of the applicant’s accusation under section 164 § 2. The lower court clarified the bill of indictment by putting the facts corresponding to the activities of each of the accused, within the scope of the charges brought against each of them, in chronological order. The court also observed that the applicant had committed the offences in the same factual circumstances, therefore it classed the charges brought against the applicant as an aggregate offence (noziedzīgu nodarījumu kopība).
6. After cross-examination of the witnesses at court hearings between 16 August and 13 September 2005, the applicant was found guilty of the aforementioned offences. The sentence was established by the inclusion of the sentence for the milder offence (two years under section 162 § 2) in that for the more severe offence (five years’ imprisonment under 164 § 2). The final sentence was suspended for a probation period of three years.
(b) Appellate and cassation proceedings
7. The prosecutor appealed against the suspended sentence. The applicant complained that the court had erred in assessing the testimony of the witnesses and co-accused, and that according to his official duties he was not supposed to be considered a State official under section 162 of the Criminal Code. One of the co-accused complained that the court had rectified the bill of indictment.
8. During the hearing the appellate court cross-examined the witnesses summoned on behalf of the applicant. On 31 January 2006 the Zemgale Regional Court upheld the lower court’s judgment. When dismissing the applicant’s appeal concerning the status of State official, the court referred to section 316 of the Criminal Law, which came into force on 1 April 1999. The appellate court dismissed the other complaints by concurring with the reasoning of the lower court.
9. In his appeal on points of law the applicant submitted that the lower court had rectified the bill of indictment and accused him not only of omission to act with the aim of receiving a bribe, but also of acting with the same aim. He also complained that he had been classed as “an official” based on a norm which had not been in force at the material time.
10. The court of cassation dismissed the appeal, finding that the fact that the lower court had partly rectified the layout of the description of the facts in the bill of indictment had not restricted the applicant’s right to defence. It also found that the court had not violated any other procedural norms. With respect to the status of official, the Senate of the Supreme Court admitted that the reference to section 316 of the Criminal Law was wrong because it had come into force after the offence was committed. It nevertheless concluded that on the basis of the other evidence the applicant had rightly classed as an official under the Criminal Code in force at the material time.
(c) Other proceedings
11. The applicant submitted a constitutional complaint where he complained about the constitutionality of the fact that the appellate court had partly concurred with the reasoning of the lower court. It was dismissed for non-compliance with the formal requirements of a constitutional complaint.
2. Second set of criminal proceedings
(a) Pre-trial criminal proceedings
12. On 22 October 2004 the State Police instituted criminal proceedings for fraud, in particular, attempts to obtain by fraud the immovable property of a victim, K., by using fake cession contracts and carrying out other fraudulent activities, which had taken place, inter alia, at the premises of the bailiffs’ office where the applicant worked.
13. On 21 December 2004 a judge of the Rīga City Latgale District Court authorised a search of the applicant’s office, limiting the seizure to:
“... documents, contracts, letters, notices, and other documents concerning A.K., M.V. and E.M. for the period from 29 April 2004 until the material date”.
14. The search of the office was carried out on 22 December 2004, and the investigators seized two hard drives from the applicant’s and his assistant’s computers. The items were sealed and the applicant made no complaints with respect to the seizure on the search records. He nevertheless commented that pursuant to section 52 of the Law on Bailiffs the computers contained documents which were not to be removed from the premises of the bailiffs’ office.
15. On 22 December 2004 the investigator ordered a technical expert report in order to find out whether the memory of the seized hard drives contained certain deleted documents: a cession contract dated 15 July 2004 and letters and other documents containing the names of four persons, A.K., E.M., M.V. (all of whom at that time were suspects or accused in the same criminal proceedings), and I.K., the victim. On 27 December 2004 the hard drives were returned to the applicant.
(b) Complaints about the search and seizure
16. On 23 December 2004 the applicant complained to the Office of the Prosecutor that the investigators had exceeded their powers by seizing the hard drives, since the judge’s search order had not authorised the seizing of anything but documents. He invoked Article 8 of the Convention, submitting that the search and seizure at his office had violated his right to respect for his private life and that of his clients in that the seized items had included two hard drives containing information on his private life and documents with respect to his clients. Later he added the complaint that the seized objects had not been duly sealed and were accessible to anyone.
17. On 29 December 2004 the applicant’s claim was dismissed. The prosecutor of the Rīga Court Region stated that the search had been conducted in accordance with section 52 § 4 of the Law on Bailiffs, which in criminal proceedings concerning fraud authorised the seizure of documents from bailiffs’ offices, and that the search order must be interpreted as covering not only documents but also any other device containing the relevant documents. It added that the hard drives had not been seized but only taken in order to extract from them the information authorised by the judge.
18. The applicant submitted various similar complaints to higher-ranking prosecutors claiming that during the search and seizure the investigating officer had been accompanied by an IT specialist who could have copied on the spot the necessary information from the hard drive, as the applicant had suggested. On 29 March 2005 a supervising prosecutor dismissed the complaint by contending that electronic documents which were stored in hard drives could be changed; therefore in the particular circumstances the seizure of the hard drives had been an appropriate decision in that it would not have been possible to select the correct document without special knowledge. A similar conclusion was reached in the final decision of the Prosecutor General of 21 June 2005.
19. In September and November 2005 the applicant and his co-accused were asked to give a voluntary voice sample in order to verify the authenticity of the tapped telephone conversations between the two. They both refused and were subjected to compulsory voice sampling.
20. It appears that in January 2006 the criminal case was sent to court in order for the adjudication to commence.
21. Following another complaint, on 3 February 2006 the Office of the Prosecutor General reiterated that the Prosecutor General had given a final decision on the complaints. Moreover, the applicant was reminded that the pre-trial criminal process had been terminated, therefore any future requests and submissions were to be addressed to court.
22. On 23 March 2006 the applicant submitted to the investigating judge of the Rīga City Latgale District Court a similar complaint to the one mentioned above about the allegedly unlawful seizure of the hard drives. The judge noted that section 17 of the Law on Criminal Procedure provided for a separation between the pre-trial criminal process and the trial, therefore the judge could only have examined the complaints of alleged human-rights infringements during the pre-trial criminal process, that is, before the criminal proceedings were referred to the appellate court for adjudication. Therefore, on 28 March 2006 the applicant’s claim was dismissed owing to the fact that his criminal case had been sent to trial in January 2006 and the beginning of the adjudication had been set for 2 May 2006.
(c) Trial
23. On 5 December 2006 the applicant was convicted of fraud and sentenced to five years’ imprisonment, which was suspended. The court relied on, inter alia, the telephone conversations between the applicant and the co-defendants which were tapped in 2004.
24. On various dates after the lower court’s judgment the applicant’s representative asked the Chairman of the Supreme Court and the appellate court to inform him whether the telephone tapping had been in accordance with the law, in particular, whether it had been authorised by a judge.
25. On 1 June 2007 the Chairman of the Supreme Court refused to provide any information on grounds of State secrecy. On 31 August 2007 a judge sitting on the panel of the appellate court told the applicant that she would herself verify whether the phone tapping of 2004 had been authorised by a judge.
26. On 15 May 2008 the appellate court partly revoked the lower court’s judgment and sentenced the applicant to six years’ imprisonment. The court referred to information received from the Bureau for the Prevention and Combating of Corruption (KNAB) confirming that the phone tapping from 14 June to 14 November 2004 had been carried out after authorisation had been obtained from a judge of the Supreme Court. The court noted that it had no reason not to rely on the aforementioned information in that the recorded conversations concerned the criminal case, and the substance of the conversations was supported by other evidence.
27. At the applicant’s appeal on points of law on 16 December 2008 the Senate partly revoked the appellate court’s judgment (on the counts of bribery and fraud) and sent it to the appellate court. The remainder of the judgment (in respect of document forgery) took effect.
28. In January 2009 the applicant repeatedly asked the Chairman of the Supreme Court to provide information on whether there had been a judge’s authorisation for the recording of his telephone conversations. The applicant was informed that only from 1 September 2008 had the Supreme Court started to register information about persons in respect of whom a judge had granted authorisation to carry out special investigative measures. The legal basis was an order of the Chairman of the Supreme Court of 18 August 2008. The applicant was, therefore, asked to address the same request either to the Office of the Prosecutor General, or to the appellate court.
29. The final judgment in the revoked part was delivered on 2 March 2010 when the Senate of the Supreme Court terminated the criminal proceedings, finding that there had been a wrong interpretation of the substantive norms of the Criminal Law.
B. Relevant domestic law
1. Code of Criminal Procedure
30. Section 168 provides, inter alia, that a search may be conducted only on the basis of a judicial decision.
31. Pursuant to section 172, the investigator or the prosecutor is strictly limited to seizing only documents which may have direct relevance to the [criminal] case.
32. Section 220 provides that complaints about the actions of the investigating authorities may be submitted to a prosecutor.
33. Section 222 provides that a complaint about the actions of a public prosecutor may be submitted to a higher prosecutor.
2. Law on Criminal Procedure
34. Section 40 provides that an investigating judge is the judge whom the chairperson of the district (city) court has assigned, for a specific term in relation to each case and in accordance with the procedure specified by law, to supervise the observance of human rights in criminal proceedings.
35. Section 41 provides that during a pre-trial investigation and criminal prosecution an investigating judge has, inter alia, the duty of reviewing, in cases provided for by law, the performance of procedural activities.
36. The same section provides that during the pre-trial investigation and criminal prosecution an investigating judge has the right to familiarise himself with all the material in the criminal proceedings in respect of which the complaint has been received. He or she also has the right to request additional information about criminal proceedings where special investigative actions are being conducted, as well as to determine the terms for the performance of the special investigative actions.
37. The investigating judge is authorised to apply a procedural sanction for the non-execution of duties or the non-observance of procedures during pre-trial criminal proceedings. He or she can propose that officials who are authorised to perform criminal proceedings are to be held liable for infringements of human rights committed in the carrying out of criminal procedural activities.
3. Law of the Office of the Prosecutor
38. The Office of the Prosecutor is a judicial institution which independently carries out supervision of the observance of law within the scope of its competence as determined by law. Its role is, inter alia, to supervise the work of investigative institutions and the investigatory operations of other institutions.
COMPLAINTS
A. Complaints concerning the first set of criminal proceedings
39. The applicant complains under Article 6 § 1 of the Convention that there was a violation of the equality of arms principle in that the court rectified the bill of indictment, therefore allegedly acting on behalf of the prosecution. He also complained of the court’s failure to grant adversarial proceedings in that he was unaware of the scope and grounds of the accusations.
40. The applicant also complains under Article 7 § 1 (1) that he was found guilty on the basis of legal norms which were not in force at the time the offence was committed, in particular, that he was classed as an official within the meaning of Section 316 of the Criminal Law which came into force only in 1998, whereas the alleged offence took place in 1996.
41. He further complains under Article 2 of Protocol No. 7 that the appellate court concurred with the reasoning of the lower court, thus allegedly depriving him of an adequate review of his appeal.
B. Complaints concerning the second set of criminal proceedings
42. The applicant complains under Article 8 of the Convention that during the search of the bailiffs’ office where he worked the investigation authorities took items the seizure of which was not authorised by a judge. The applicant also complaints that he was unable to verify the lawfulness of the procedure by which the evidence against him was obtained.
43. The applicant also complains under Article 6 of the Convention of lack of access to court in order to examine the alleged unlawful actions of the investigators during the search and seizure, in particular, that the investigators exceeded their powers in seizing objects which were not mentioned in the search order.
THE LAW
44. The applicant complains under Article 8 the Convention, which in so far as relevant provides 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. ...”
45. The Court considers that it cannot determine the admissibility of this complaint on the basis of the case file and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
46. The applicant also alleges violations under various other Articles of the Convention.
47. 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 this part of the application does not disclose any appearance of a violation of any of the Articles of the Convention. It follows that these complaints are inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints under Article 8 of the Convention;
Declares the remainder of the application inadmissible.
Marialena TsirliJosep Casadevall
Deputy RegistrarPresident
Full & Egal Universal Law Academy