Communicated on 18 November 2015
FIFTH SECTION
Application no. 66897/13
Alvis PĪLĀGS
against Latvia
lodged on 15 October 2013
STATEMENT OF FACTS
1. The applicant, Mr Alvis Pīlāgs, is a Latvian national, who was born in 1971 and lives in Riga.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Criminal proceedings
3. In the course of operational investigation (operatīvās uzskaites lieta) and with the authorisation of the Prosecutor General’s Office, in October 2008 the Bureau for the Prevention and Combating of Corruption (Korupcijas novēršanas un apkarošanas birojs – “KNAB”), carried out an undercover operation (operatīvais eksperiments) concerning the applicant and his colleague, both of whom were employed by the State Revenue Service. The operations were carried out in the following manner: On KNAB’s instructions V., a businessman, asked the applicant and his colleague to bring a sum of around 90,000 euros in cash from Estonia to Latvia. The applicant and his colleague agreed and on 24 October 2008 they delivered the sum of money to V. It appears from the investigation materials that after delivery they had received EUR 500 each as remuneration for the “service”.
4. On 13 November 2008 KNAB instituted criminal proceedings against the applicant and his colleague. They were charged, inter alia, of misuse of official duties in aiding and abetting money laundering.
5. The evidence gathered in the criminal proceedings was not sufficient to pursue a criminal charge in so far as it concerned the transfer of cash, and on 30 April 2009 KNAB decided to discontinue the criminal proceedings against the applicant. In this part the case-file was sent to another department of the KNAB which was in charge of the control of the activities of state officials to verify whether there were any elements of an administrative offence in the actions of the applicant.
2. Administrative offence proceedings
6. On 19 May 2009 KNAB officials drew up a record of an administrative offence according to which on 24 October 2008 the applicant had been carrying out a paid activity at V.’s request without having obtained prior written permission authorising him to carry out another activity parallel to his duties as a State official. On 29 May 2009 the applicant was administratively fined under Article 166. of the Administrative Offences Code for having breached the restrictions imposed on a State official. He was fined LVL 65 (around EUR 92).
7. In June 2009 V. informed the Prosecutor General that in October 2008 he had been forced to participate in the undercover operation, and therefore he wished to retract all his witness statements given in the above-mentioned criminal proceedings. Later that year he revoked the complaint and declared that he had wrote it under duress.
8. On 16 September 2009 KNAB upheld the decision in relation to the administrative fine, and the applicant lodged an appeal to the Administrative Court arguing, among other grounds, that V’s evidence should not be permitted as it had been submitted under duress and the undercover operation had not been carried out lawfully. In particular, the investigating authorities had not obtained the necessary authorisation required by law.
9. The court at two levels dismissed the grounds. Referring to the case‑law of the Senate of the Administrative Court which provided that the evidence obtained in criminal proceedings may be verified and assessed in the course of administrative proceedings, the lower court assessed the statements given by V. and concluded that they had been coherent and recorded in accordance with the provisions of the Criminal Procedure Law. As to the operative investigation, the lower court noted that the Prosecutor General had informed the applicant that there had been no shortcoming in the operative investigation procedure. Therefore the court considered that it had no grounds to undermine these findings. The lower court relied on the statements of V. in the criminal proceedings and established that the applicant, a State official, had carried out tasks on V.’s behalf. It concluded that by failing to request and to obtain a written permission authorising the applicant to carry out another activity parallel to his duties as a State official, he had violated the provision of the Law on prevention of conflict of interests in activities of State officials.
10. In his appeal the applicant complained in particular that KNAB had incited him to commit the offence. In the final decision of 15 April 2013 the appellate court in essence confirmed the reasoning of the lower court without specifically addressing incitement allegations.
B. Relevant domestic law
1. On prevention of conflict of interests in activities of State officials
11. Sections 7 and 8 provide in essence that State officials may combine the office of a State official only with such offices and the carrying out of other tasks, if the combination of the offices and tasks does not result in a conflict of interests, and a written permission of the head of the relevant authority set out by law has been received.
2. Code of administrative offences
12. Article 166. provides that a fine from LVL 50 to 250 and, if applicable, a restriction on holding a post of a State official, shall be imposed for a non-compliance with restrictions applicable to the State officials on, inter alia, carrying out tasks parallel to the official duties and receiving income from other sources.
13. Article 289. provides, inter alia, that the court shall directly assess the evidence. It also provides that the court is not authorised to obtain evidence on its own initiative and to assess such evidence in the court hearing.
COMPLAINT
14. The applicant complains under Article 6 of the Convention that the Administrative Court failed to address his incitement claim, as a result of which he had been allegedly deprived of a fair trial.
QUESTION TO THE PARTIES
Did the applicant receive a fair trial within the meaning of Article 6 of the Convention (see, mutatis mutandis, Baltiņš v. Latvia, no. 25282/07, 8 January 2013)? In particular, did the domestic courts properly examine his allegations that KNAB officials had incited him to perform the contested activities?
Full & Egal Universal Law Academy