FIFTH SECTION
DECISION
Application no. 41744/12
Imants SERGETS
against Latvia
The European Court of Human Rights (Fifth Section), sitting on 6 October 2020 as a Committee composed of:
Latif Hüseynov, President,
Mārtiņš Mits,
Mattias Guyomar, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to the above application lodged on 28 June 2012,
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 Imants Sergets, is a Latvian national, who was born in 1959 and lives in Mērsrags. He was represented before the Court by Mr A. Zvejsalnieks, a lawyer practising in Riga.
2. The Latvian Government (“the Government”) were represented by their Agent, Ms K. Līce.The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.Police inspection at the applicant’s workplace
4. On 12 May 2011 police officers from the economic crimes department arrived at the premises of a company for which the applicant worked. The police inspected the premises of the company and several computers which were found therein.
5. The police inspected the applicant’s computer and found four computer programs for which the applicant was unable to present the relevant documentation. The inspection lasted for thirty minutes; the applicant was present. Upon its completion, the relevant records were drawn up and the applicant signed them. His computer was not seized.Proceedings in relation to copyright infringement
6. Administrative and criminal proceedings were instituted as regards copyright infringement.
7. On 12 October 2011 the criminal proceedings against the applicant were terminated since the commercial value of the unlicensed programs on his computer was not such to constitute a criminal offence. Case material was sent for examination as part of administrative-offence proceedings.
8. On 17 October 2011 an administrative-offence report was drawn up against the applicant in relation to copyright infringement – four unlicensed programs that had been found on his computer.
9. On 3 November 2011 the Riga City Latgale District Court (Rīgas pilsētas Latgales priekšpilsētas tiesa, hereinafter – the “District Court”) found the applicant liable for the copyright infringement and imposed a fine of 200 Latvian lati (LVL) (approximately 285 euros (EUR)).
10. On 7 February 2012 the Riga Regional Court (Rīgas apgabaltiesa, hereinafter – the “Regional Court”) upheld the judgment of the District Court.
11. As concerns the police’s actions, the Regional Court reasoned that they were based on section 12(1)(23) of the Law on Police (likums “Par Policiju”). It authorised the police to inspect property where there were sufficient grounds to believe that economic crimes were being prepared or committed (see paragraph 13 below). Even though it was not evident from the case file why the police had chosen to inspect the company in question, that did not mean that the police had not had a reason to do so.
12. Although the company’s premises were on private property, an economic activity had been conducted therein. The premises were public since services had been provided, clients had been received, and contracts had been concluded. Moreover, it had been a workplace for six employees. Accordingly, no special authorisation for their inspection was required under section 2561 of the Administrative Violations Code (Administratīvo pārkāpumu kodekss) (see paragraph 14 below). The Regional Court dismissed the applicant’s allegation that his right to private life and correspondence had been breached. The applicant had not raised any objections to the inspection. The data obtained could be used as evidence.Relevant domestic lawLaw on Police
13. In order to prevent and expose criminal offences of an economic character, if there are sufficient grounds to believe that such a criminal offence is being prepared or has been committed, police officers have the right, under section 12(1)(23) of the Law on Police, to visit premises of private companies with the permission of their owners or in the presence of municipal officers; inspect production facilities; and ensure that goods and finished products found on the premises are in conformity with the relevant documentation.Code of Administrative Offences
14. Article 2561 of the Code of Administrative Offences, as in force at the material time, laid down the procedure for carrying out an inspection on the site of an administrative offence as follows:
“During an inspection of the site of an administrative offence an authorised official may seize objects related to the administrative offence and the means of its commission.
...
Publicly inaccessible ... territories or premises and objects in them ... may be inspected by an authorised ... official ... subject to the owner’s ... consent or ... decision of a judge...”
COMPLAINT
15. The applicant complained, under Article 8 of the Convention, that the police had inspected his computer without the authorisation of a judge. He also alleged that his computer had been seized.
THE LAW
16. The applicant complained about the unauthorised inspection of his computer; he also alleged that it had been subsequently seized. He relied on Article 8, which in its relevant part provides as follows:
“1. Everyone has the right to respect for his private ... life ... 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.”
17. The Government contested that argument.As regards the seizure of the applicant’s computer
18. While other computers were seized by the police at the applicant’s workplace, the Court notes that the applicant’s computer was not. Therefore, the applicant was not affected by the seizure of computers at his workplace.
19. Accordingly, his complaint in that regard is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.As regards the inspection of the applicant’s computerThe parties’ submissions
20. The Government raised several pleas of inadmissibility: the applicant’s victim status, the compliance with the six-month’s time-limit and the abuse of the right of application. They also argued that the applicant had not suffered a significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention. Given that the police had inspected the applicant’s computer in his presence and that it had lasted for thirty minutes, the alleged violation did not attain a minimum level of severity. His case, including the allegations regarding authorisation for carrying out the inspection and actions taken during the inspection, had been examined by the domestic courts.
21. The applicant disagreed. He alleged that had been coerced to allow the police to inspect his computer.The Court’s assessment
22. The Court will first address the Government’s argument regarding Article 35 § 3 (b) of the Convention. The Court must examine whether: (1) the applicant has suffered a significant disadvantage; (2) whether respect for human rights as defined in the Convention and the Protocols attached thereto requires an examination of the application on the merits; and (3) whether the case was duly considered by a domestic tribunal (see Zwinkels v. the Netherlands (dec.), no. 16593/10, § 24, 9 October 2012).
(a) Whether the applicant has suffered a “significant disadvantage”
23. The Court notes at the outset that this complaint is entirely unrelated to the fine imposed on the applicant. In the applicant’s submission, the violation of Article 8 of the Convention consists of the unauthorised inspection of his computer.
24. Inspired by the principle de minimis non curat praetor, the admissibility criterion contained in Article 35 § 3 (b) of the Convention hinges on the idea that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed, taking account of both the applicant’s subjective perceptions and what is objectively at stake in a particular case (see Korolev v. Russia (dec.), no. 25551/05, ECHR 2010).
25. The Court considers that the interference alleged by the applicant can have had no more than a minimal impact, if at all, on the applicant’s “private life” or “correspondence”. Indeed, the applicant was present when the police inspected his computer and he saw what that inspection entailed. He did not suggest that the police had reviewed any private material. The inspection was limited to no more than verifying what programs had been installed on the computer. It was completed within thirty minutes and the applicant’s computer was not seized. The applicant’s subjective perception that he had been coerced into allowing the police to inspect his computer does not suffice for the Court to conclude that the applicant had suffered a significant disadvantage (see, mutatis mutandis, Ladygin v. Russia, no. 35365/05, 30 August 2011). The applicant’s subjective perception has to be justifiable on objective grounds. However, the Court does not see such justification in this case.
26. In view of the foregoing, the Court concludes that the applicant has not suffered a significant disadvantage as a result of the inspection of the applicant’s computer.
(b) Whether respect for human rights as defined in the Convention and the Protocols attached thereto requires an examination of the application on the merits
27. The second element set out in Article 35 § 3 (b) compels the Court to examine the case in any event, if respect for human rights so requires. This would apply where a case raises questions of a general character affecting the observance of the Convention, for instance whether there is a need to clarify the respondent State’s obligation under the Convention or to induce the respondent State to resolve a structural deficiency (see Ladygin, cited above).
28. Turning to the present case, the Court notes that the problem of unlawful or unauthorised police searches is a subject of the Court’s well-established case law (see, in general, Bože v. Latvia, no. 40927/05, 18 May 2017). The Court considers that the present case does not raise any additional elements that would clarify the States’ obligation under the Convention or induce the respondent State to resolve a structural deficiency. Accordingly, it does not consider that respect for human rights compels it to examine the case (see Rooney v. Ireland (dec.) [Committee], no. 6870/18, § 34, 17 March 2020).
(c) Whether the case was duly considered by a domestic tribunal
29. Article 35 § 3 (b) does not allow the rejection of an application on the ground of “no significant disadvantage” if the case has not been duly considered by a domestic tribunal. Its purpose is to ensure that every case receives a judicial examination whether at national level or at the European level. The clause is also consonant with the principle of subsidiarity, as reflected notably in Article 13 of the Convention, which requires that an effective remedy against violations be available at the national level (see Korolev, cited above).
30. In the Court’s view, the facts of the present case taken as a whole disclose no denial of justice at the domestic level. The applicant’s grievances against the domestic authorities were first considered by the District Court and then by the Regional Court. It is further noted that in this case, the Regional Court examined the lawfulness of the inspection and held that the inspection had been carried out in accordance with law and that no special authorisation had been required (see paragraphs 11 and 12 above).
31. The Court concludes that the applicant’s case was duly considered by a domestic tribunal within the meaning of Article 35 § 3 (b).
(d) Conclusion
32. It follows that this complaint must be declared inadmissible in accordance with Article 35 §§ 3 (b) and 4 of the Convention. This conclusion obviates the need to consider if other admissibility requirements have been complied with.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 5 November 2020.
Anne-Marie DouginLatif Hüseynov
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy