SVĀRPSTONS AND OTHERS v. LATVIA

FIFTH SECTION

DECISION

Application no. 14976/05
Janis SVĀRPSTONS and Others
against Latvia

The European Court of Human Rights (Fifth Section), sitting on 6 December 2016 as a Chamber composed of:

Angelika Nußberger, President,
Erik Møse,
Khanlar Hajiyev,
Ganna Yudkivska,
André Potocki,
Yonko Grozev,
Síofra O’Leary, judges,
and Milan Blaško, Deputy Section Registrar,

Having regard to the above application lodged on 29 March 2005,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to the decision taken by the President to appoint Judge Yonko Grozev, the judge elected in respect of Bulgaria, to sit in the place of Judge Mārtiņš Mits, the judge elected in respect of Latvia, who withdrew from sitting in the case (Article 26 § 4 of the Convention and Rules 28 and 29 § 2(b) of the Rules of Court),

Having deliberated, decides as follows:

THE FACTS

1. The case originated in an application (no. 14976/05) 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 three Latvian nationals, Mr Jānis Svārpstons (“the first applicant”), Mr Juris Ulmanis (“the second applicant”) and Mr Jānis Zips (“the third applicant”), on 29 March 2005. The applicants were represented by Ms J. Kvjatkovska, a lawyer practising in Riga.

2. The Latvian Government (“the Government”) were represented by their Agent, most recently Ms K. Līce.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background to the case

4. The events leading up to the present application took place in the context of a transition in Latvia from analogue to digital terrestrial television broadcasting.

5. On 14 November 2002 a contract was signed between the Digital Latvian Radio and Television Centre (Digitālais Latvijas radio un televīzijas centrs – “the DLRTC”), a subsidiary company of the State non‑profit joint-stock company, the Latvian State Radio and Television Centre (Latvijas Valsts radio un televīzijas centrs – “the LVRTC”), and Kempmayer Media Ltd. (“KM”), a company registered in England and Wales, for implementation by the latter of the second phase of the digital terrestrial television broadcasting project.

6. In 2002 Kempmayer Media Latvia (“KML”), a subsidiary company of KM, was incorporated in Latvia. The applicants were at the material time board members of the KML. Subsequently, KM informed the DLRTC that its obligations under the contract of 14 November 2002 would be performed by KML, with KM only overseeing implementation of the project.

7. In August 2003 the DLRTC lodged a claim against KM with the International Court of Arbitration of the International Chamber of Commerce in Stockholm, seeking to invalidate the contract of 14 November 2002.

8. On 24 August 2006 that court ruled that, being a “mailbox” company, KM had never had the capacity to fulfil its contractual obligations. It was ordered to repay 6,976,737 United States dollars (USD) to the DLRTC.

2. Criminal proceedings

9. On 1 September 2003 the Bureau for the Prevention and Combating of Corruption (Korupcijas novēršanas un apkarošanas birojs – “the KNAB”) opened an investigation into whether, in the context of the transition to digital terrestrial television broadcasting, State officials had abused their authority and failed to act.

10. The KNAB carried out various investigative actions including numerous searches.

(a) Authorisation of searches and seizures

11. On 24 October 2003, at the request of the KNAB, a judge of the Riga City Vidzeme District Court authorised the searches and seizures.

12. The judge’s decision authorising the searches and seizures was amenable to appeal before the Riga Regional Court (Rīgas apgabaltiesa) (see paragraphs 17-20 below).

(b) Execution of the searches and seizures

13. On 27 October 2003 the KNAB searched KML’s business premises and the applicants’ residential premises. The search record indicated that numerous items were seized, such as the first applicant’s mobile phone and SIM card, the second applicant’s notebook, cassette tape, CDs, business card, the third applicant’s CDs, business cards, floppy disks, computers, computer hard drives, photographs and notes.

14. During the searches of their residential premises, the first and third applicants were also searched.

(c) Requests to return seized items

15. In October 2003 the applicants asked the KNAB and the Office of the Prosecutor General to return all the items and documents seized, in particular those of a personal nature and having no connection with the criminal case.

16. In November 2003 the applicants’ request to return the computers was refused because they contained information of evidential value. The KNAB indicated that the applicants could obtain a copy of the information stored on them and that the third applicant could recuperate certain items seized from his residential premises. Other items were being examined and would be returned if found to be of no evidential value.

(d) Complaints regarding the searches and seizures

(i) Complaints to the court

17. On 3 November 2003 the applicants lodged complaints regarding the judge’s decision authorising the searches and seizures with the Riga Regional Court, arguing that it had been unsubstantiated and had not specified the items sought. They further contended that items unrelated to the criminal case had been seized from their residential premises.

18. On 11 November 2003 the Riga Regional Court dismissed the applicants’ complaints.

19. As regards the conduct of the searches, that Court noted that the actions of the investigating authority could be appealed against to the prosecution service, in accordance with Article 220 of the Criminal Procedure Code. That part of the applicants’ complaints fell outside the scope of the Regional Court’s competence and was therefore left unexamined.

20. This decision of the Regional Court was final.

(ii) Complaints to the prosecution service

21. On 15 November 2003 a prosecutor of the Office of the Prosecutor General dismissed the applicants’ complaints regarding the conduct of the searches and seizures.

22. On 3 December 2003 and 8 January 2004 the applicants’ further complaints to two higher levels of prosecutor were dismissed. The applicants’ opinion that certain seized items were of no relevance to the case was deemed without basis. Furthermore, since KNAB employees had had sufficient reasons to believe that the first and third applicants had been in possession of and were hiding items which were of relevance to the case, they could therefore be searched.

23. On 20 February 2004 the Prosecutor General dismissed the applicants’ complaints with final effect.

3. Constitutional review

(a) Constitutional complaint

24. On 12 March 2004 the applicants and KML lodged a complaint with the Constitutional Court (Satversmes tiesa), challenging the compliance of Articles 220 and 222 of the Criminal Procedure Code (procedures for lodging complaints about the actions of an investigating authority and for a prosecutor’s decision on such a complaint) with Article 92 of the Constitution (right to a fair trial), Article 96 of the Constitution (right to respect for private life, home and correspondence) and Articles 6, 8 and 13 of the Convention.

25. They maintained that an investigating authority’s actions could not be the subject of an appeal before a court. A review of those actions by the prosecution service could not be equated to a review by a “court” within the meaning of Article 92 of the Constitution. They further complained in a general manner that their right to respect for private life, home and correspondence had been violated on the grounds that the intervention was not based on law.

(b) Constitutional Court’s decisions

26. On 16 April 2004, a panel of three judges of the Constitutional Court, by relying on Section 20 of the Constitutional Court Law, refused the initiation of constitutional proceedings insofar as it concerned Article 96 of the Constitution and Articles 8 and 13 of the Convention. They held that that part of the complaint did not comply with the criteria provided by Section 19² of the Constitutional Court Law (see paragraphs 29-32 below). In particular, the applicants had not sufficiently demonstrated in the complaint how their fundamental rights under those provisions had been infringed. This decision was final.

27. On 11 October 2004 the Constitutional Court handed down its judgment in relation to the remainder of the applicants’ complaint. It found that the impugned statutory provisions, namely Articles 220 and 222 of the Criminal Procedure Code, complied with Article 92 of the Constitution. The Constitutional Court also held that the prosecution service may be regarded as an effective and available legal remedy within the meaning of Article 13 of the Convention and that the absence of an appeal to a court does not in itself give rise to a breach of Article 6 or 13 of the Convention. As a result, it dismissed the applicant’s complaint.

B. Relevant domestic law and practice

1. Constitutional provisions

28. Article 92 guarantees the right to a fair trial (see Čalovskis v. Latvia, no. 22205/13, § 71, 24 July 2014). Article 96 enshrines the right to respect for private life, home and correspondence (see Mentzen v. Latvia (dec.), no. 71074/01, ECHR 2004-XII).

2. Constitutional Court Law

29. Section 18 paragraph 1 part 4 of the Constitutional Court Law provides that an application to the Constitutional Court regarding the initiation of constitutional proceedings must, among other criteria, contain legal reasoning (juridiskais pamatojums).

30. Pursuant to section 19², in addition to the above-mentioned requirements, an individual constitutional complaint must include justification as to how the applicant’s fundamental rights as defined in the Constitution have been infringed upon, and show that all available remedies have been used.

31. Section 20 sets out the grounds on which the panel examining the constitutional complaint may refuse to initiate a case. Section 20 (5) (3) provides that, when examining applications, the panel dealing with the application may refuse to initiate a matter if the application does not comply with the requirements specified in Sections 18 or 19-19³ of the Constitutional Court Law. When examining a constitutional complaint, the panel may also refuse to initiate a case where the legal reasoning included in the complaint is evidently insufficient to satisfy the claim (section 20(6)).

32. For further details regarding the Constitutional Court Law see Meimanis v. Latvia, no. 70597/11, §§ 31-38, 30 June 2015.

3. Criminal Procedure Code

33. The provisions of the Criminal Procedure Code applicable at the time of the national proceedings ceased to be in force on 1 October 2005. The provisions governing the procedure for complaints regarding the actions of an investigating authority provided as follows.

34. Article 220 provides that a suspect, accused and other persons may lodge complaints with a prosecutor about the actions of an investigating authority.

35. Article 221 provides that the prosecutor supervising the investigation shall decide on a complaint within ten days of receipt. A higher-ranking prosecutor shall decide on a complaint within ten days, or thirty days if a further inquiry or information is necessary in order to decide [it]. The complainant shall be informed of the outcome. If the complaint is dismissed, the prosecutor shall provide reasons as to why the complaint was considered unfounded and explain the appeal procedure. The investigating authority and complainant may appeal against the prosecutor’s decision concerning the complaint to a higher-ranking prosecutor.

36. Under Article 222 complaints about the actions of a prosecutor shall be submitted to a higher-ranking prosecutor and decided in accordance with the procedure laid down in Articles 220 and 221 of the Criminal Procedure Code.

COMPLAINTS

37. The applicants complained under Article 8 of the Convention about the judicial decision authorising the searches and seizures and the review of the conduct of the searches and seizures by the Office of the Prosecutor General. They further complained under Article 13 of the Convention that they had been denied an effective remedy.

THE LAW

38. The applicants complained that the judge’s decision authorising the searches and seizures at their residential and business premises, as well as the review of the conduct of those searches and seizures by the Office of the Prosecutor General had been in breach of Article 8 of the Convention which, in so far as relied upon by the applicants, reads as follows:

“1. Everyone has the right to respect for his private ... 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. Complaint under Article 8 of the Convention on account of judicial authorisation of searches and seizures

1. The parties’ submissions

39. The Government argued, inter alia, that the applicants had lodged their application more than six months after the final decision in respect of the impugned searches, namely that of the Prosecutor General of 20 February 2004 (see paragraph 23 above). The proceedings before the Constitutional Court could not be taken into account for the purposes of the six-month rule laid down in Article 35 § 1 of the Convention. They had concerned the procedure provided by Articles 220 and 222 of the Criminal Procedure Code, which the Constitutional Court had only analysed with reference to Articles 6 and 13 of the Convention and their constitutional equivalents.

40. As regards the six-month time-limit, the applicants maintained that they had raised their complaints under Articles 6, 8 and 13 of the Convention before the Constitutional Court. The alleged violation of Article 8 had also concerned the quality of the national law, which fell within that court’s competence. Had the Constitutional Court satisfied their complaints, the applicants would have been offered a remedy enabling a judicial review of their grievances, including as regards the investigators’ actions.

41. The applicants therefore maintained that the final decision in the case as regards this complaint was the Constitutional Court’s decision of 11 October 2004.

2. The Court’s assessment

42. The Court will examine the Government’s objection that the applicants’ complaint was out of time.

43. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 259, ECHR 2014 (extracts)).

44. Turning to the case at hand, the Court notes that the applicants complained that the judge’s decision authorising the searches and seizures had been defective (see paragraph 38 above). This judicial authorisation had been examined on 11 November 2003 by the Riga Regional Court (see paragraphs 17-20 above).

45. Following that decision, on 12 March 2004, the applicants lodged a complaint with the Constitutional Court. The Court has already noted that the Constitutional Court examines, inter alia, individual complaints challenging the constitutionality of a legal provision or its compliance with a provision of superior legal force (see Meimanis v. Latvia, no. 70597/11, § 49, 30 June 2015, and Latvijas jauno zemnieku apvienība v. Latvia (dec.), no. 14610/05, § 44, 17 December 2013). The Court has also acknowledged that under Latvian law an individual constitutional complaint cannot serve as an effective remedy if the alleged violation resulted only from erroneous application or interpretation of a legal provision which, in its content, is not contested as being unconstitutional (ibid., § 45). In view of the above, it follows that the Constitutional Court did not have the power to review the judge’s authorisation as far as it concerned the mere application of statutory provisions by the judge.

46. In the present case the applicants had not challenged before the Constitutional Court the statutory provisions which had led to authorisation by the judge of the searches and seizures. They had only challenged the statutory provisions which provided that the investigating authority’s actions could not be the subject of an appeal before a court (see paragraph 24 above). It does not appear, on the basis of the information before the Court, that the applicants’ constitutional complaint was capable of providing redress in respect of their complaint that the judge’s decision authorising the searches and seizures had been defective. It follows that the Regional Court’s decision of 11 November 2003 must be regarded as the final decision for the purposes of Article 35 § 1 of the Convention.

47. It follows that this complaint, lodged on 29 March 2005, was introduced outside the requisite six-month time-limit and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

B. Complaint under Article 8 of the Convention on account of the review of the conduct of the searches and seizures

1. The parties’ submissions

48. The parties raised the same arguments as those raised in relation to the first complaint (see paragraphs 39-41 above).

2. The Court’s assessment

49. In response to the Government’s objection relating to the six-month time-limit, the Court reiterates the principles outlined in paragraph 43 above.

50. It also observes that, as well as lacking competence to review the judge’s decision authorising the searches and seizures (see paragraph 45 above), the Constitutional Court could not review, in themselves, the searches and seizures complained about by the applicants. The Constitutional Court’s focus was the compliance of provisions of the Criminal Procedure Code with Article 92 of the Constitution.

51. The Court notes that, on 16 April 2004, the Constitutional Court refused the initiation of constitutional proceedings under Article 96 of the Constitution and Article 8 of the Convention on the grounds that the applicants had not sufficiently demonstrated how their fundamental rights under those Articles had been infringed (see paragraph 26 above; see also the case of Gubenko v. Latvia (dec.), no. 6674/06, § 25, 3 November 2015, in relation to the formal requirements to be met when submitting a constitutional complaint). The Court observes that it is not its task to take the place of the Constitutional Court and to review its conclusion reached in the decision of 16 April 2004 in relation to the quality of the applicant’s constitutional complaint (see also, in this respect, Gubenko, cited above, § 25). Therefore, the starting point for the calculation of the running of the six-month period in respect of the Article 8 complaint under consideration was the decision of the Constitutional Court of 16 April 2004 (see, for a similar approach, the case of Lecomte v. Germany, no. 80442/12, §§ 70-71, 6 October 2015).

52. The judgment of the Constitutional Court of 11 October 2004 did not concern the complaint under Article 8 of the Convention which the Court is called upon to examine under this head (see paragraphs 26-27 above). On the grounds of the limited scope of that judgment it did not restart the running of the six-month period for the purpose of Article 35 § 1 of the Convention, insofar as the complaint under Article 8 of the Convention on account of the review of the conduct of the searches and seizures was concerned. As stated above, the running of the six-month period expired on 16 October 2004, at the latest.

53. Given that the applicants introduced their application with the Court on 29 March 2005, they have not complied with the six-month rule.

54. Consequently, it follows that also this complaint must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

C. Other complaints

55. The applicants complained under Article 13 of the Convention that they had been denied an effective remedy in respect of the alleged violations of their rights under Article 8 of the Convention.

56. The Court recalls that Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see, among other authorities, Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V). In the light of its above findings under Article 8 of the Convention, the Court finds that the applicants did not have an arguable claim in the light of Article 13, and that Article 13 is therefore inapplicable.

57. It follows that the remainder of the application must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 12 January 2017.

Milan BlaškoAngelika Nußberger
              Deputy RegistrarPresident

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