Communicated on 7 January 2015
FOURTH SECTION
Applications nos. 41744/12 and 71064/12
Imants SERGETS against Latvia
and Juris MOČUĻSKIS against Latvia
lodged on 28 June 2012 and 2 November 2012 respectively
STATEMENT OF FACTS
1. The applicant in the first case, Mr Imants Sergets, is a Latvian national who was born in 1959 and lives in Mērsrags.
2. The applicant in the second case, Mr Juris Močuļskis, is a Latvian national who was born in 1966. He lives in Riga where he also practises as a lawyer.
A. The circumstances of the cases
3. The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Application no. 41744/12, Imants SERGETS
4. On 12 May 2011 police officers from the economic crimes department arrived on the premises of a company for which the applicant worked. The applicant was on the premises and had his personal computer with him.
5. The police officer, Dz.V., checked the applicant’s computer and found four computer programs for which the applicant was unable to present the relevant documentation.
6. The same day the police seized the applicant’s computer containing his personal information and correspondence.
7. On 7 February 2012 by a final judgment of the Riga Regional Court (Rīgas apgabaltiesa) the applicant was held administratively liable for the violation of copyrights with regard to the four computer programs. He was given a fine of 200 Latvian lati (LVL).
8. As concerns the police’s actions, the Regional Court reasoned that they were based on section 12(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 15 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.
9. Even though the company’s premises were on private property, a business activity had been conducted on them. Therefore the premises were public. Accordingly, no special authorisation for their inspection was required under section 2561 of the Administrative Violations Code (Administratīvo pārkāpumu kodekss) (see paragraph 16 below). Also, the applicant had not objected to the inspection of his computer.
2. Application no. 71064/12, Juris MOČUĻSKIS
10. On 12 March 2012 the judge of the Riga City Ziemeļu District Court (Rīgas pilsētas Ziemeļu rajona tiesa) issued a search order with respect to the applicant’s home in order to find and seize a computer possibly containing information about a certain email account which could serve as evidence in criminal proceedings.
11. On 13 March 2012 police officers from the organised crime department arrived at the applicant’s home. Having read the search order the applicant voluntarily surrendered the computer concerned. The police, however, seized another computer belonging to the applicant, which contained all his notes and other information in civil and criminal proceedings against his clients.
12. On 20 March 2012 the applicant complained about the search order to the Chairperson of the Riga City Ziemeļu District Court. On 2 April 2012 the applicant’s complaint was dismissed. No appeal was available against that decision.
13. Between March and May 2012 the applicant submitted several complaints to the prosecution and asked for his computer to be returned. His complaints were dismissed and the computer remained seized.
B. Relevant domestic law
1. Constitution (Satversme)
14. Article 96 of the Constitution guarantees “inviolability of private life, the home and correspondence”.
2. Law on Police
15. Section 12 insofar as relevant reads as follows:
“In the performance of his or her official duty a police officer ... shall have the right:
...
23) in order to prevent and uncover criminal offences against the economy, provided that sufficient grounds exist to believe that such crimes are being prepared or committed:
to inspect the lawfulness of acquisition of property ... of institutions, private legal persons and associations ... for which purpose [a police officer shall have the right] to visit institutions, private legal persons and associations ... and inspect ... the premises ... and verify ... documentation...”
3. Administrative Violations Code
16. Section 2561 regulates the inspection of a site where there has been an administrative violation. It is phrased in the following manner:
“...
During an inspection of the site of an administrative violation an authorised official may seize objects related to the administrative violation 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...
...”
4. Criminal Procedure Law (Kriminālprocesa likums)
17. Section 122 provides for a lawyer’s immunity. In the relevant part it reads as follows:
“(1) It shall be prohibited:
...
2) to check, inspect or seize documents, that a lawyer has prepared, or correspondence, that he or she has received or sent, while providing legal assistance, as well as to carry out a search in order to find and seize such correspondence and documents;
3) to inspect information systems and means of communication used by a lawyer in providing legal assistance, obtain information from them and interfere with their operation.”
COMPLAINTS
A. Application no. 41744/12, Imants SERGETS
18. The applicant complains under Article 8 of the Convention that the police entered the premises and inspected his computer without the authorisation of a judge.
19. He further complains under Article 8 that the police seized his computer. His private information and correspondence stored on the computer was not protected and became freely accessible to the police employees.
B. Application no. 71064/12, Juris MOČUĻSKIS
20. The applicant complains under Article 8 of the Convention that the seizure of the computers was disproportionate. Both computers were kept by the police for a long period of time. The second computer in particular contained confidential information about the applicant’s clients and their cases. Its seizure impinged on professional secrecy.
QUESTIONS
1. Have the applicants exhausted the domestic remedies with regard to their complaints?
2. Has there been an interference with the applicants’ right to respect for their private life or correspondence, within the meaning of Article 8 § 1 of the Convention?
3. If so, was that interference in accordance with the law and was it necessary in terms of Article 8 § 2?
Was the seizure of the applicants’ computers proportionate?
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