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FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
15301/04
by Andres TAMM
against Estonia
The European Court of Human Rights (Fifth Section), sitting on 2 September 2008 as a Chamber composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Renate
Jaeger,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Zdravka
Kalaydjieva, judges,
Ants Kull, ad hoc judge,
and
Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 30 March 2004,
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
The applicant, Mr Andres Tamm, is an Estonian national who was born in 1955 and lives in Kuressaare. He is represented before the Court by Mr L. Glikman, a lawyer practising in Tallinn. The respondent Government are represented by Ms M. Hion, Director of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a lawyer (advokaat) who practises law mainly in Kuressaare where he has established the Andres Tamm Law Firm, a private limited company (OÜ Advokaadibüroo Andres Tamm).
On 1 August 2002 the applicant’s law firm concluded a rental agreement with OÜ H. Consulting, a private limited company, in respect of rooms at Sakala Street in Tallinn. The rooms were to be used by the law firm.
On 25 August 2002 the applicant applied to the Board of the Bar Association (Advokatuuri juhatus) for authorisation to act as a member of the management board of OÜ H. Consulting, which had its registered office at Sakala Street in Tallinn. He also informed the Board of his intention to open a branch of his law office at the same address in Tallinn on 1 September 2002.
On 5 May 2003 a criminal investigation was initiated in respect of tax offences related to a company, H. Inc, a client of the applicant. The applicant and his law firm as well as OÜ H. Consulting were among those involved in business transactions with H. Inc.
On 24 September 2003 a police investigator interviewed the applicant as a witness. According to the applicant, he had had business transactions with H. Inc. In the record of the interview the applicant is not mentioned as a legal counsel of H. Inc.
On 24 September 2003 the police investigator drew up a seizure order in respect of four documents concerning transactions between the applicant’s law firm and H. Inc. The documents were seized on the same date in Kuressaare, at an unspecified location. According to the seizure report the applicant voluntarily handed over the documents, making no statements or complaints.
On 25 September 2003 the police investigator drew up a search warrant, approved by the Public Prosecutor’s Office, in respect of the premises of OÜ H. Consulting at Sakala Street in Tallinn. According to the warrant, the evidence collected in the criminal case of H. Inc referred to the possibility that documents and other items relevant for the criminal case might be found at OÜ H. Consulting at Sakala Street in Tallinn. The search was carried out on the same date. Several documents and letters and a laptop computer were seized. The applicant was present but did not state that the search and seizure concerned privileged lawyer-client information.
On 26 September 2003 the police investigator drew up a further seizure order in respect of two specific accounting documents of the applicant’s law firm from 2 November 1999 and its accounting documentation for the whole of 1999. The documents were seized on the same date at the applicant’s law firm in Kuressaare in the applicant’s presence; the latter, according to the seizure report, gave the documents voluntarily to the investigator and made no statements or complaints.
On 29 September 2003 the applicant lodged a complaint with the Public Prosecutor’s Office of Saaremaa and the police investigator. He argued that the search in his law office’s branch in Tallinn and the seizure of confidential legal documents and a computer as well as the seizures at his law office in Kuressaare had been unlawful as the investigator had not presented a court order authorising these measures. Such a court order had been required, since inviolable data carriers (puutumatud teabekandjad) related to the provision of legal services by a lawyer had been concerned. He noted that his state of health at the time when the search and seizure orders were executed had been such that he could not complain about the investigator’s activities.
On 2 October 2003 the police investigator made two applications to the Tallinn City Court (linnakohus) in which he requested, under Article 145-1 of the Code of Criminal Procedure (Kriminaalmenetluse koodeks), judicial authorisation for the seizure from the applicant of the laptop computer and the 1999 accounting documents of the applicant’s law firm.
In the request concerning the seizure of the computer, the investigator noted that on 25 September 2003 the police had searched the premises of OÜ H. Consulting at Sakala Street in Tallinn. Certain documents and a laptop computer had been seized, the latter having been securely sealed. The investigator had presumed that in the registered office of OÜ H. Consulting there could not be inviolable data carriers related to the provision of legal services. However, considering the applicant’s allegation that the seized data carriers could contain information related to the provision of legal services, the investigator requested the court to authorise the seizure.
On 2 October 2003 the City Court authorised the seizure of the laptop computer. It held that, since the search had been performed in the premises of another private limited company (not a law firm), the investigator had had no reason to presume at the time of the search that the computer could contain inviolable information related to the provision of legal services by a lawyer. The computer had been packed and sealed and no unauthorised persons had examined its contents. In order for the investigator to find out whether the computer contained information required for the investigation of the criminal case, it was necessary for him to examine its contents. At the same time, it could not be ruled out that the computer might contain information protected by the lawyer’s professional confidentiality, which the investigator had the right to become aware of only if authorised by a court. Accordingly, the judge authorised, apparently with immediate effect, the seizure of the laptop computer from the applicant, relying on Article 145-1 § 2 of the Code of Criminal Procedure. The judicial decision bears the applicant’s signature to the effect that he has familiarised himself with it on 8 October 2003. It was not specified in the decision whether an appeal lay against it.
In the second request, made on 2 October 2003, concerning the seizure of the law firm’s accounting documents, the investigator noted that the applicant had been requested voluntarily to hand over the documents specified in the seizure order, which he had done without objection. He had not disclosed during the seizure that the documents could include inviolable data carriers and since, according to the Bar Association Act (Advokatuuriseadus), the lawyer had to store data carriers related to the provision of legal services separately from other data carriers (section 44(1)(4)), the investigator had presumed that the seized accounting documents did not contain inviolable information.
On 2 October 2003 the City Court granted this request as well, noting that since the seizure had concerned accounting documents of the law firm and it had not been immediately challenged by the applicant, the investigator had had no ground to presume, at the time of the search, that the seized accounting documents could contain inviolable information related to the provision of legal services by a lawyer. The seized documents had been packed and sealed and no unauthorised persons had examined their contents. In order for the investigator to find out whether the seized documentation contained information required for the investigation of the criminal case, it was necessary for him to examine its contents. At the same time, it could not be ruled out that the documents might contain information protected by the lawyer’s professional confidentiality, which the investigator had the right to become aware of only if authorised by a court. Accordingly, the judge authorised, apparently with immediate effect, the seizure from the applicant of the applicant’s law firm’s accounting documents from 1999, referring to Article 145-1 § 2 of the Code of Criminal Procedure. The judicial decision bears the applicant’s signature to the effect that he has familiarised himself with it on 8 October 2003. It was not specified in the decision whether an appeal lay against it.
On 8 October 2003 the accounting documents and the computer – the packaging and seals not having been opened in the meantime – were returned to the applicant on police premises in Tallinn. The applicant requested that the documents seized at Sakala Street on 25 September 2003 also be returned, but the investigator refused. At the applicant’s request, it was stated in the report that the investigator had not accessed the content of the returned items or copied or opened them. Some hours later on the same date, still on police premises, the computer and the accounting documents were seized again. The applicant objected, arguing that both the computer and the accounting documents contained information related to the provision of legal services by a lawyer and they were therefore inviolable under the Code of Criminal Procedure. Only the Board of the Bar Association could assess whether the computer also contained other information.
On 8 October 2003 the police investigator declared the applicant a tax evasion suspect.
On 10 October 2003 the Public Prosecutor’s Office replied to the applicant’s complaint of 29 September 2003. It asserted that on 8 October 2003 the computer and documents had been returned to him; accordingly, his complaint was without substance. Nevertheless the applicant had voluntarily surrendered the accounting documents without arguing that they contained inviolable information and therefore the investigator had had no grounds not to seize the documents. At Sakala Street, a search had been carried out in respect of OÜ H. Consulting and not in respect of a law office. The Public Prosecutor’s Office noted that at the time it was replying to the applicant, the City Court’s rulings served as grounds for the seizure of the documents and the computer. In so far as the documents seized at Sakala Street were concerned, the Public Prosecutor’s Office was of the opinion that they did not relate to the provision of legal services by a lawyer but were items related to the business transactions of H. Inc. Therefore, the guarantees provided for under the Bar Association Act were not applicable and, accordingly, the search of the premises of OÜ H. Consulting and seizure of the documents had been lawful.
On 13 October 2003 the applicant lodged a new complaint with the Public Prosecutor’s Office. He argued that the search and seizure carried out on 25 and 26 September 2003 could not be legitimised retroactively by the judicial rulings of 2 October 2003. He also asserted that the seizure executed on 8 October 2003 had been unlawful. The Code of Criminal Procedure was flawed as it did not set out the grounds on which a judge had to grant the investigator’s request and in which circumstances a request could be refused. He was of the opinion that lawyer’s privilege had been insufficiently protected. The applicant referred to the Supreme Court’s (Riigikohus) judgment of 22 December 2000, according to which search and seizure were measures in public law that restricted a person’s fundamental rights and freedoms. The Supreme Court had held that judicial review of such measures fell within the jurisdiction of administrative courts under Article 3 § 1 of the Code of Administrative Court Procedure (Halduskohtumenetluse seadustik). The applicant concluded that he had the right to judicial protection up to the “European Court”.
On 23 October 2003 the Public Prosecutor’s Office replied that the Code of Criminal Procedure explicitly provided for a possibility of search and seizure in a law office, on the condition of judicial authorisation. In the case at hand such an authorisation had been granted and, accordingly, there was no ground for declaring the investigator’s activities unlawful. It was also emphasised that the seizure had not been aimed at obtaining information concerning the clients of the applicant’s law firm or at taking any data carriers related to the provision of legal services. The seizure had related to a criminal case in which a possible tax offence committed by H. Inc had been investigated. Therefore, it had been necessary to gather information on persons who had had business relations with this company. It had been necessary to verify the applicant’s assertion that certain sums he had received from H. Inc had not been his personal income but had belonged to his law firm. On the basis of the above, the Public Prosecutor’s Office rejected the complaint.
On 23 October 2003 the seized computer was examined on police premises in the applicant’s presence. The data on its hard disc were copied and the computer was returned to the applicant.
On 10 November 2003 the investigator interviewed the law firm’s chief accountant as a witness. After a list of the seized accounting documents had been presented to her, she stated that the ledger and file no. 60 had not been included in the list.
On 24 November 2003 the police investigator made two applications to the Tallinn City Court in which he requested, under Article 145-1 of the Code of Criminal Procedure, judicial authorisation for searches in the applicant’s law firm and at his home in Kuressaare in order to find the law firm’s ledger for 1999 and other important evidence in the criminal case.
On 24 November 2003 the Tallinn City Court granted the requests, referring to Article 145-1 of the Code of Criminal Procedure. It noted that in the criminal case at hand the applicant was not acting as a lawyer, neither did he represent other legal persons’ interests (he was not a contractual representative) but he was himself a tax evasion suspect. In the City Court’s decision it was noted that an appeal could be lodged with the Tallinn Court of Appeal within five days. The decision was presented to the applicant on 25 November 2003.
On the same date a search was conducted at the applicant’s home in Kuressaare. Two documents related to the criminal investigation were seized.
On 24 May 2004 the applicant was charged with tax offences committed by him as the sole member of the management board and sole shareholder of the Andres Tamm Law Firm. According to the charges he had presented incorrect information to the tax authorities in his law firm’s tax return for 1999 and in other documents, evading payment of about 565,000 kroons (EEK; corresponding approximately to 36,000 euros (EUR)) in taxes.
On 22 June 2004 the criminal case concerning the applicant was separated from the case concerning H. Inc.
On 23 August 2004 the Public Prosecutor’s Office discontinued the criminal investigation in respect of the applicant. It was noted that the applicant had paid most of the outstanding taxes on behalf of his law firm, his guilt was negligible and there was no public interest in pursuing the case. The applicant undertook to pay the remaining taxes plus a lump sum of EEK 150,000 (corresponding approximately to EUR 9,600) into the public revenues. The seized documents were to be returned to the applicant after he had fulfilled the obligations imposed on him.
On 28 April 2005 the accounting documents of the applicant’s law firm and the documents taken from Sakala Street were returned to the applicant.
B. Relevant domestic law and practice
Article 15 of the Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) reads as follows:
“Everyone whose rights and freedoms are violated has the right of recourse to the courts. Everyone has the right, while his or her case is before the court, to petition for any relevant law, other legislation or procedure to be declared unconstitutional.
The courts shall observe the Constitution and shall declare unconstitutional any law, other legislation or procedure which violates the rights and freedoms provided by the Constitution or which is otherwise in conflict with the Constitution.”
The relevant provisions of the Code of Criminal Procedure (Kriminaalmenetluse koodeks), as in force at the material time, provided:
Article 145-1
“(1) Documents of notarial acts and other documents which contain confidential information on notarial acts and data carriers (teabekandjad) related to the provision of legal services by lawyers (advokaadid) shall be inviolable (puutumatud).
(2) If the search of a notary’s office or law office or seizure therein concerns data carriers specified in paragraph 1 of this Article, the procedural act may be performed only on the basis of a ruling of a county or city court.
(3) A notary or lawyer who is in the possession of documents specified in paragraph 1 of this Article shall be present during the search or seizure, or if this is not possible, another notary or lawyer who acts in the same office or provides legal services through the office shall be present during the search or seizure.”
The relevant provisions of the Bar Association Act (Advokatuuriseadus), as in force at the material time, provided:
Section 43
“...
(3) Data carriers (teabekandjad) related to the provision of legal services by a lawyer (advokaat) shall be inviolable (puutumatud).
...
(5) A lawyer shall not be detained, searched or taken into custody in circumstances arising from his or her professional activities, except on the basis of a ruling of a county or city court. A law office through which a lawyer provides legal services shall also not be searched in circumstances arising from his or her professional activities.”
Section 44
“(1) A lawyer is required to:
...
3) maintain a list of matters in which the lawyer acts as a representative;
4) store data carriers related to the provision of legal services separately from other data carriers in his or her possession.
...
(2) In the provision of legal services, a lawyer shall not acquire the rights of his or her clients.”
Section 49
“(1) A lawyer shall provide legal services through a law office.
...
(6) Another undertaking ... shall not operate in a law office...”
Section 53
“(1) A company of lawyers (advokaadiühing) shall engage in no other area of activity than the provision of legal services.
...”
According to sections 12(7-1), 27(1)(4) and 36(1)(8) of the Bar Association Act, a lawyer may be a member of the management board of a company only when authorised by the Board of the Bar Association.
In a judgment of 22 December 2000 (case no. 3-3-1-38-00), the Supreme Court, sitting in plenary session in order to ensure the uniform application of the law, dealt with complaints lodged with an administrative court by two companies on whose premises search and seizure of documents had been carried out by police and tax officers with the approval of the Public Prosecutor’s Office. The first- and second-instance administrative courts had rejected the complaints, finding that they were not authorised to review the lawfulness of measures taken in the context of a criminal investigation. However, the Supreme Court found for the appellants, quashed the lower courts’ decisions and referred the case to the Tallinn Administrative Court for examination on the merits. It held:
“19. ...[T]he Supreme Court en banc finds it necessary to note, firstly, that Articles 13, 14 and 15 of the Constitution and Article 13 of the European Convention on Human Rights give rise to the right to an effective remedy. The European Court of Human Rights has observed that according to Article 13 an effective remedy means a remedy which is as effective as possible (see Klass and others v. Germany, judgment of 6 September 1978, Series A, No 28, p 31 § 69). The Court has also said that if a person alleges that his or her Convention rights have been violated, he or she should have a remedy before a national authority in order both to have his or her claim decided and, if appropriate, to obtain redress (see Klass and others, cited above, § 64; Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000 XI; and Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 96, ECHR 2000 XI). It cannot be a prerequisite for the application of Article 13 that the Convention be in fact violated. Effective remedy must be guaranteed to everyone who claims that his rights and freedoms under the Convention have been violated (see Klass and others, cited above, § 64).
20. Postponement of a review of the legality of an investigative activity infringing fundamental rights and freedoms of persons until the judicial hearing of a criminal matter cannot be regarded as an effective remedy, because the hearing may take place years after the investigative activity was conducted. The harm caused by the violation of fundamental rights and freedoms may essentially increase or redress may become impossible by that time. Furthermore, the court hearing a criminal case has no right to decide on compensating the damage caused by an investigative activity. The possibility cannot be excluded that a criminal matter never reaches a court, or that an investigative activity infringes the fundamental rights and freedoms of a person who is not a party to a proceeding and therefore cannot seek judicial protection from violation of his or her rights and freedoms.
...
24. Search of a dwelling, possession or place of work and seizure of documents are acts of public law, which infringe fundamental rights and freedoms of persons. According to Article 3 § 1 (1) of the Code of Administrative Court Procedure adjudication of disputes in public law falls within the jurisdiction of administrative courts. According to the special clause of paragraph 2 of the same Article adjudication of disputes in public law for which a different procedure is prescribed by law does not fall within the jurisdiction of administrative courts. As the Code of Criminal Procedure prescribes that appeal against the referred measures may be filed only with a prosecutor, then judicial review of such measures falls within the jurisdiction of administrative courts, pursuant to the general clause of Article 3 § 1 of the Code of Administrative Court Procedure; that is why the administrative court should not have refused to hear the complaints on the substance. Any person whose fundamental rights and freedoms are violated by a procedural act is entitled to file a complaint with a prosecutor or an administrative court. The Supreme Court en banc considers it necessary to note that the duty of an administrative court is not to review the necessity and expediency of an investigative activity or look into the question whether the information obtained can be used as evidence in criminal proceedings. The task of an administrative court is to review whether a person’s fundamental rights and freedoms were infringed by a procedural act.”
In a judgment of 6 January 2004, the Supreme Court sitting in plenary session (case no. 3-3-2-1-04) dealt with a request to reopen the domestic administrative court proceedings related to unlawfulness of search and seizure executed in respect of the applicant’s company after a finding of a violation by the Court in the case of Veeber v. Estonia (no. 1) (no. 37571/97, 7 November 2002). The Supreme Court noted, referring to its judgment of 22 December 2000, that it was within the administrative courts’ jurisdiction to examine on the merits complaints against the actions of the police. It held that the violation of Article 6 § 1 of the Convention on account of an administrative court’s failure to examine the complaint lodged with it also constituted a violation of Article 15 of the Constitution. In case the legislature had not provided for an effective and seamless mechanism for the protection of fundamental rights, the judicial power had to ensure, proceeding from Article 14 of the Constitution, the protection of fundamental rights. The Supreme Court referred the case to a first-instance administrative court for a new examination.
In subsequent proceedings the Tartu Administrative Court and the Tartu Court of Appeal delivered judgments on the merits of the case (judgments of the Tartu Administrative Court were delivered on 30 September 2004 (case no. 3-15/04) and 17 April 2006 (case no. 3-05-528) and those of the Tartu Court of Appeal on 30 December 2004 (case no. 2-3-326/2004) and 29 June 2006 (case no. 3-05-528)). The proceedings resulted in a declaration of unlawfulness of search and seizure measures taken by the police and an award of compensation.
COMPLAINTS
The applicant complained that Article 8 of the Convention had been violated in that the police had been authorised to examine files containing confidential information relating to his clients and his personal correspondence. He submitted that “confidential attorney-client data [had] been taken over by the police [through] court [authorisations] for examination”. The court orders had not distinguished between documents which could be examined and those which had to remain inviolable. According to the applicant, the seizure had also infringed his right under Article 1 of Protocol No. 1 to the Convention to be involved in lawyers’ business and to own files and computers necessary for his normal day-to-day work. He also complained, relying on Articles 14 and 17 of the Convention, that he had been discriminated against on the basis of his profession; because he was a lawyer he could be searched at any time. Normally it was possible to lodge a complaint against search and seizure with an administrative court; the decision of the administrative court could be appealed against twice – to the Court of Appeal and to the Supreme Court. However, as the applicant was a lawyer, “the seizures [had been] made based on final criminal court orders” and there had been no possibility of an appeal against the orders. Furthermore, the different treatment of law firms owning premises and law firms renting them amounted to discrimination.
He further complained under Article 6 §§ 1 and 3 (b), (c) and Articles 13 and 17 of the Convention about the procedure in which the seizure in his law office had been authorised.
He was of the opinion that the applicable law and practice of the authorities led to self-incrimination and infringement of the right to defence in violation of Articles 6 § 3, 13 and 17 of the Convention.
THE LAW
A. Complaint under Article 8 of the Convention and the related complaints under Article 1 of Protocol No. 1 to the Convention and Articles 14 and 17 of the Convention
The applicant complained under Article 8 of the Convention of the search and seizure carried out in his law office. The seizure had also interfered with his right under Article 1 of Protocol No. 1 to the Convention to be involved in lawyers’ business and to own files and computers necessary for his work. Furthermore, and contrary to Articles 14 and 17 of the Convention, he had been discriminated against on the basis of his profession.
1. The scope of the case
The Court notes that in the Government’s submission the applicant had not made any complaints to the Court about the seizures based on the City Court’s rulings of 8 October 2003. The applicant did not comment on that allegation specifically. The Court observes that the applicant’s submissions indeed allow different interpretations as to the exact extent of his complaints. The Court considers, nevertheless, that it can be concluded from the wording used in the application (see Complaints above) that the applicant intended his complaints to include the seizures based on the City Court’s rulings.
2. The Government’s objection of non-exhaustion
(a) Arguments before the Court
(i) The Government
The Government disputed the admissibility of the case. They contended that the applicant had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention. In the Government’s submission, had the criminal case reached a court, the applicant could have raised objections before the City Court and, subsequently, in appeals to the Court of Appeal and to the Supreme Court.
The Government argued that immediately after the City Court had made the rulings, the applicant could have lodged a separate appeal against them to the Court of Appeal. They cited the Supreme Court’s case-law, according to which the right to appeal against first-instance court rulings on procedural issues had been repeatedly broadened in order to ensure the effectiveness of the right of appeal. The Supreme Court had recognised the right to appeal against several kinds of first-instance court rulings – in addition to those included in an exhaustive list in Article 68 § 1 of the Code of Criminal Court Appeal and Cassation Procedure (Apellatsiooni ja kassatsiooni kriminaalkohtumenetluse seadustik) – in case the rulings concerned effectively discontinued the criminal proceedings and, accordingly, objections to them could not be raised in the course of an ordinary appeal against the judgment of the first-instance court.
In the Government’s argument the applicant could also have lodged a complaint against the allegedly unlawful search and seizure with an administrative court. In this context they referred to the Supreme Court judgment of 22 December 2000, under which it was possible to challenge the actions of the police before administrative courts. They argued that under the Supreme Court’s case-law making a complaint before an administrative court constituted an effective remedy, as it could declare the actions of the police unlawful and also grant compensation for damage. The Government asserted that because of the above-mentioned Supreme Court case – which had also concerned premises where a law firm had been acting, although in that case the search and seizure had not been carried out in respect of the law firm – legislation had been amended so as to require judicial authorisation for search and seizure in a law firm in order to better protect them. The actual conduct of search and seizure was still regulated by the Code of Criminal Procedure and did not vary depending on whether executed in a law firm or elsewhere.
The Government emphasised that in his complaint to the Public Prosecutor’s Office, lodged on 13 October 2003, the applicant himself had referred to the Supreme Court judgment of 22 December 2000, mentioned above, and noted that he had a right to judicial protection.
The Government also referred to the Supreme Court judgment of 6 January 2004 and subsequent judgments of the Tartu Administrative Court and the Tartu Court of Appeal. These proceedings had resulted in a declaration of unlawfulness of search and seizure measures taken by the police and an award of compensation.
(ii) The applicant
The applicant disagreed with the Government’s arguments and considered the case-law cited by them irrelevant to the present case. He contended that a separate appeal against a court ruling on a procedural issue was possible only in circumstances explicitly set out in the law of criminal procedure, other court orders – including a ruling concerning search and seizure in a law office – being final and not open for appeal.
In respect of a complaint to an administrative court, the applicant argued that the criminal courts were not subordinated to administrative courts. He submitted that the search in his case had been “ordered by a criminal court and any reference to the case-law mentioning jurisdiction of the administrative court[s] [was] incongruous”. The case-law cited by the Government concerned searches ordered by investigators or prosecutors and not searches of law firms ordered by criminal courts.
The applicant stated that his health had been appalling during the searches of 25 and 26 September 2003, making it impossible for him to object immediately. However, he noted that the legality of searches did not depend on whether protests were made at the time of the searches.
The applicant emphasised that the court orders had been focused on the seizure of confidential information from a lawyer and that the place of the infringement was of a secondary importance. He pointed out that the City Court had unequivocally stated in the orders that they had been needed in order to seize “untouchable” information. The orders had been of a formal character and had not contained any substantive analysis as to the necessity, proportionality and constitutionality of the search. The court itself had not examined the seized information. Moreover, the law had not specified under which circumstances a court could have refused to grant a search warrant.
(b) The Court’s assessment
The Court reiterates that the purpose of the requirement of exhaustion of domestic remedies (Article 35 § 1 of the Convention) is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999 V, with further references).
However, the only remedies which must be tried under Article 35 § 1 of the Convention are those that relate to the breaches alleged and which at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996 IV, p. 1210, § 66, and Selmouni, cited above, § 75). Nevertheless, if there exists a doubt as to the effectiveness of a domestic remedy, that remedy must be tried (see, for example, Veeber (no. 1), cited above, § 62, and Raif v. Greece, no. 21782/93, Commission decision of 26 June 1995, DR 82, p. 5).
According to the Court’s case-law in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, for example, Akdivar and Others, cited above, p. 1211, § 68, and Selmouni, cited above, § 76).
Turning to the present case, the Court notes that the Government advanced two avenues which the applicant could have used to make a complaint about the search and seizure at issue. First, he could have appealed against the City Court rulings to the Court of Appeal. Second, he could have lodged a complaint against the search and seizure with an administrative court.
The Court considers it unnecessary to examine the first possibility referred to by the Government as, for the reasons set out below, it finds that the second avenue did constitute an effective remedy.
The Court notes that there was a certain lacuna in the Code of Criminal Procedure in respect of judicial review of the lawfulness of search and seizure measures which was filled by the Supreme Court judgment of 22 December 2000. By that judgment, an extensive right of recourse to administrative courts was recognised – also in respect of measures like search and seizure taken in the context of criminal proceedings.
The Court further notes that on 29 September and 13 October 2003 the applicant complained against the searches and seizures in question to the Public Prosecutor’s Office. In the latter instance, he explicitly referred to the Supreme Court judgment of 22 December 2000, which arguably granted him the right of recourse to a court. In the Court’s view, it transpires from the applicant’s complaint that at the time he was of the opinion that it was open to him to lodge a complaint with an administrative court. Nevertheless, he did not make any such complaints.
In light thereof, the Court is not persuaded by the applicant’s subsequent argument that no appeal to an administrative court was available in his case because search and seizure in a law office was subject to different regulations and in his case judicial review had already been exercised by a City Court judge. The Court does not consider that the circumstances of the present case were sufficiently different to distinguish it from the above Supreme Court case or the other cases cited by the Government. Indeed, the applicant has provided no explanation as to why he changed his position compared with what he expressed in his complaint to the Public Prosecutor’s Office.
Furthermore, the Court finds force in the Government’s assertion that judicial authorisation for search and seizure in a law firm had been meant to better protect the activities of law firms and that the actual conduct of search and seizure by the police was regulated by the Code of Criminal Procedure and did not vary depending on whether the search was carried out in a law firm or elsewhere. The Court is of the view, having taken note of the domestic case-law referred to by the Government, that an administrative court could have reviewed the lawfulness of the measures taken by the police, leading possibly to the declaration of their unlawfulness and an award of compensation. The Court takes note in this context of the Government’s assertion that even after the criminal proceedings against the applicant had been discontinued, it was open to him to challenge the lawfulness of the search and seizure with an administrative court. The Court observes that by that time the Supreme Court had already delivered its judgment whereby the proceedings in the case of Veeber were reopened and, accordingly there was even more reason to make a complaint to an administrative court. Accordingly, the Court considers that an effective remedy existed for the applicant’s complaints.
The Court finds that the applicant has not put forward any convincing arguments as to the inadequacy or ineffectiveness of recourse to the administrative court in the particular circumstances of the case or pointed to any special circumstances absolving him from the requirement of making use of the remedy. It also notes that the applicant has not referred to any domestic case-law demonstrating that a complaint to an administrative court in such circumstances would clearly have been futile.
Although there can be no absolute certainty about the outcome of the case had the applicant lodged a complaint with an administrative court, the Court reiterates that in case of doubt as to the success, a remedy has to be tried. The Court does not find any special circumstances which might have absolved the applicant, a lawyer by profession, from exhausting this remedy.
Accordingly, this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Other complaints
The Court has examined the remainder of the applicant’s complaints as submitted by him. However, in the light of all the material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Articles of the Convention invoked. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Claudia
Westerdiek Peer Lorenzen
Registrar President