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Cite as: [2010] ECHR 620
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FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Applications nos.
39820/08 and 14942/09
by Ardi SHUVALOV
against Estonia
The European Court of Human Rights (Fifth Section), sitting on 30 March 2010 as a Chamber composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having regard to the above applications lodged on 11 August 2008 and 3 March 2009,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ardi Shuvalov, is an Estonian national who was born in 1964. He is currently serving a prison sentence. He is represented before the Court by Mr A. Repnau, a lawyer practising in Tallinn.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The circumstances of the case
1. Criminal proceedings against the applicant
(a) Pre-trial proceedings
The applicant served as a judge at the Harju County Court at the material time. From 2003 he was in charge of a criminal case where D., a businessman, was one of the defendants. The case involved several charges including tax evasion, money laundering, aggravated breach of public order and bribery.
In December 2005 D. gave a statement to the security police. According to his statement, D.’s business partner N. – who had owed D.’s company a substantial sum of money – had refused to pay back the loan for an extended period. Instead, N. had said that he knew the applicant well, having shared a dormitory room with him during their law studies, and that a judgment in D.’s favour could be arranged as long as he did not insist on the repayment of the loan. After D.’s company had nevertheless claimed back the loan from N. in November 2005, the latter had demanded 200,000 kroons (EEK) (approximately 12,780 euros (EUR)) as a “Christmas good-will gesture” and a further EEK 900,000 (EUR 57,520) for D.’s acquittal. N. had, on several occasions, referred to his close relations with the applicant and demonstrated his good knowledge of the ongoing criminal proceedings saying that the evidence would support both D.’s conviction or his acquittal and that the outcome of the proceedings depended on the financial relations between N. and D.
On 5 January 2006 the police initiated criminal proceedings on suspicion of accepting and arranging a bribe.
On 10 January 2006 a prosecutor authorised the covert surveillance of N. and on the following day the president of the Harju County Court authorised the interception and undercover audio recording of N.’s conversations. On 24 January and 7 February 2006 similar authorisations were given in respect of the applicant. The authorisations were subsequently extended on several occasions.
On 26 January 2006 the president of the Harju County Court authorised a simulation of the offence of giving a bribe by D. in order to entrap the applicant and N. as an intermediary. The authorisation included the use of audio and video recording, was valid for ten days and expired on 3 March 2006. On 3 March and on 3 April 2006 the authorisation was renewed; on both occasions it was valid for ten days and expired on 3 April and 3 May 2006 respectively.
Between 16 January and 6 April 2006 D. and N. met nineteen times; N. and the applicant met on eight occasions between 3 February and 6 April 2006. On two occasions D., equipped with a covert recording device, approached the applicant at his workplace.
At the meetings D. expressed doubts as to whether N. would indeed be able to influence the judgment and whether he would transfer the money to the applicant. D. attempted to test N. and to learn through him about the applicant’s comments on some points related to the ongoing criminal proceedings. On 27 February 2006 D. gave N. EEK 200,000. On 1 March 2006 N. told D. that he would not pass the money to the applicant. D. showed him a covert listening device whereupon N. promised to hand over the money. On 6 March 2006 N. told D. that he had given the money to the applicant. On 14 March 2006 D. met the applicant in his office on the court premises in order to obtain authorisation to travel out of the country. He showed the applicant a piece of text printed on a sheet of paper: “Did [N.] bring [it]?” (“Kas [N.] tõi ära?”). According to a written summary of the undercover surveillance, the applicant replied in the negative. According to the applicant, it could be understood from the transcript of the covert recording that the applicant avoided the issue rather than replying “No”. On 16 March 2006 N. tried to convince D. that he had handed over the money to the applicant.
On 6 April 2006 D. gave N. EEK 400,000 (EUR 25,560). Within moments, N.’s car was stopped by the police; he was arrested and the money was seized. The operation was video recorded, but without sound; it could be seen from the recording that a security police officer, S., was having “a long conversation” with N.
Immediately thereafter, N. was interviewed as a suspect. He confirmed that he had been supposed to pass on EEK 200,000 to the applicant but he had not done so as D. had not given him EEK 300,000 (EUR 19,170) relating to transactions between them. Instead, he had spent the money from D. In response to the question as to whether he had demanded money from D. for transferring it to the applicant as a bribe for a judgment in D.’s favour, he replied that he had not demanded any money from D. but had just communicated to him what the applicant had demanded. According to N., the applicant had said that if D. paid him EEK 900,000, he would give a judgment in D.’s favour. Under instructions from the security police, N. arranged a meeting with the applicant later the same day.
On 6 April 2006 at 2.30 p.m. the president of the Harju County Court authorised a simulation of the offence of arranging a bribe by N. in order to entrap the applicant. The authorisation included the use of audio and video recording, was valid for one day and expired on 9 April 2006.
Also on 6 April 2006 N., equipped with recording devices, met up with the applicant and gave him EEK 200,000. Some hours later the applicant was arrested and detained as a suspect. In the course of a search carried out on the following day he surrendered EEK 200,000. The applicant was released on 7 April 2006.
On 19 May 2006 a public prosecutor requested permission from the Supreme Court to draw up a bill of indictment against the applicant. On 6 June 2006 the Supreme Court made a proposal in this regard to the President of the Republic who gave his authorisation on 13 June 2006.
On 17 July 2006 the prosecutor terminated the criminal proceedings in respect of N. because of the assistance he had provided in obtaining evidence.
(b) Court proceedings
The applicant was charged under Article 294 § 2 (2) and (4) of the Penal Code with an aggravated offence of demanding a large bribe (in excess of EEK 300,000).
On 23 November 2006 the hearing started at the Viru County Court. It continued until the end of 2007. The applicant denied the charges. According to him, he had met up with N. approximately once a month between May 2004 and April 2006 on N.’s initiative. N. had told him that D. had been ready to pay EEK 1,000,000 (EUR 63,900) for his acquittal. D. had allegedly also been ready to pay the applicant for granting certain requests in the criminal proceedings. It had seemed to the applicant that N. had defended D.’s interests for some kind of gain of his own. When D. had come to his office and shown him a sheet of paper with the text: “Did [N.] bring [it]?”, he had understood that it concerned a bribe; however, he had not reacted. On 4 April 2006 N. had told him that he should accept EEK 200,000 to which he had agreed. The applicant submitted that already by the end of 2005 N. had said that D. was offering EEK 200,000 to secure a favourable judgment. He could not explain why he had not informed the law-enforcement agencies.
According to D.’s statements given in court, he had loaned N. money on several occasions. When the applicant had become in charge of his criminal case, N. had told him that if his debts were cancelled, D. would be acquitted. Initially, N. had only referred to his good relations with the applicant but later he had announced that the “Christmas good-will gesture” would cost EEK 200,000 and a judgment acquitting D. would cost EEK 900,000. D. had had doubts as to whether N. had indeed had contact with the applicant and he had attempted to verify this. In December 2005 he had given a statement to the security police.
N. stated in court that, in the criminal case against D., mortgages placed on N.’s real estate in favour of D. had been attached by the court and N. had been interested in the termination of these restrictions. Furthermore, in the autumn of 2005 the applicant had suggested to him that D. would only be convicted of one of the charges and given a suspended sentence if he paid the applicant EEK 1,100,000 (EUR 70,300). He had passed on this message to D. who had sought to obtain more specific information but the applicant had declined to give any further explanations and had demanded EEK 200,000 as a confirmation of the deal. According to N., D. had wanted a complete acquittal but the applicant had considered this impossible. In the spring of 2006, when the matter had been delayed, the applicant had said that if D. prolonged the proceedings in the court, he would “run out of good ideas” and dismiss D.’s procedural requests, not allow him to travel abroad and so on. N. admitted that, parallel to acting as an intermediary between the applicant and D., he had also sought to negotiate better conditions for his loans taken from D. He further admitted that he had not dared to pass the first instalment of EEK 200,000 to the applicant and had spent it himself. When D. had asked the applicant directly whether N. had handed over the money, the applicant had been very upset by D.’s indiscretion. The handing over of EEK 200,000 to the applicant on 6 April 2006 had been agreed upon two days before. On 6 April, after his arrest, he had not been able to refuse to cooperate with the police and had agreed to take part in the simulation of the offence. He had then arranged with the applicant where they would meet to hand over the money as had been agreed earlier.
The applicant asked the County Court to summon his wife and a police officer, S., as witnesses. The court, having heard the arguments of the defence and the prosecution on the matter, refused the request considering that it was not sufficiently substantiated.
On 31 January 2008 the Viru County Court delivered a judgment by which the applicant was convicted of attempting to accept a bribe (Article 394 § 1 of the Penal Code). He was sentenced to three and a half years’ imprisonment.
The court noted that in 2004 N. had already made the applicant an offer concerning the bribe. On 4 April 2006 the applicant consented to accepting the bribe and took the money on 6 April 2006, being aware that it had come from D. in connection with the criminal case in which the latter was a defendant. The court relied on the statements of N. and D. as well as the undercover recordings and surveillance reports. It found that the charges concerning the applicant’s alleged demand for a bribe of EEK 1,100,000 had not been proven. These charges had been based on the statements of N. and were only partly supported by D.’s submissions who, in turn, relied on what he had heard from N. The court considered that N. had not only mediated information between the applicant and D. but had also pursued his own agenda. It considered it probable that N. had presented the applicant’s readiness to accept bribe to D. as a demand for bribe. Applying the principle of in dubio pro reo, the court only considered it established that the applicant had agreed to accept, and had accepted, a bribe of EEK 200,000. Furthermore, the court qualified it as an attempted offence.
The court considered the criticism of the defence regarding the use of surveillance measures in the present case, as well as vis-à-vis the legislation concerning surveillance activities in general, to be unfounded. It considered that the use of surveillance measures, including in the simulation of the offence, had been lawful and justified; the measures had not been applied for very long and there had not been incitement. The applicant had been ready to accept a bribe before D. had given his statement and the criminal proceedings had been initiated. The court declined to initiate constitutional review proceedings in the Supreme Court considering that, according to the Constitutional Review Court Procedure Act (Põhiseaduslikkuse järelevalve kohtumenetluse seadus) and the Supreme Court’s case-law, there were no grounds for doing so in the present case.
The applicant appealed against the judgment arguing, inter alia, that the County Court had declined to summon the two witnesses as he had requested.
By a judgment of 28 March 2008 the Viru Court of Appeal upheld the County Court’s judgment.
On 9 June 2008 the Supreme Court declined to hear the applicant’s appeal.
2. Public statements made by the prosecutor during the criminal proceedings
During the criminal proceedings, the Public Prosecutor’s Office published two press releases on its Internet site and prosecutor V. who was dealing with the case made comments to several newspapers and television programmes.
The first press release was published on the Internet site of the Public Prosecutor’s Office on 9 April 2006. The applicant was not named in it but was referred to as “a judge of the Harju County Court”. It was stated in the press release: “On the evening of 6 April a judge suspected of bribery accepted part of the sum he had been demanding from a person involved in the simulation of the offence [...]”.
However, within a few days the identity of the judge suspected of having accepted a bribe became known. Prosecutor V. was subsequently quoted directly or indirectly in several newspaper articles. Among others, the publications included the following extracts.
On 20 April 2006 a weekly newspaper Eesti Ekspress published an article containing the following sentence: “Prosecutor V. is asserting that it was [the applicant] himself who was demanding the money.”
On 6 October 2006 a second press release titled “The judge’s criminal case has arrived at the court” was published on the Internet site of the Public Prosecutor’s Office. It read:
“The state prosecutor [V.] has sent a criminal case to court in which [the applicant], a judge of the Harju County Court, is charged with having demanded a large bribe.
The facts established by the security police in the course of the preliminary investigation give ground to charge [the applicant], who served as a judge of the Harju County Court, with demanding a large bribe from an accused person through an intermediary. In return, the judge promised to take decisions in favour of the accused in the course of the court proceedings and also to acquit him. [The applicant] did not have time to make a judgment in the case in question as, because of the present criminal proceedings, the case was transferred to another division of the court.
The judge wanted to receive the money from the accused in two instalments. At the end of last year [the applicant] wanted to receive 200,000 kroons from the accused in addition to the 900,000 kroons that had already been requested through the intermediary. On 6 April 2006 the judge accepted the 200,000 kroons in cash from the intermediary.
Officers of the security police arrested [the applicant], who was serving as a judge, on suspicion of having accepted a large bribe on 6 April this year, after he had accepted 200,000 kroons in cash from the intermediary.
[The applicant], having demanded and partly accepted a bribe from an accused, committed [the offence of] demanding a large bribe. The precise qualification of the offence with which [the applicant], a former judge of the Harju County Court is charged, is Article 294 § 2 (2) and (4) of the Penal Code. In the event that he is convicted, two to ten years’ imprisonment may be imposed as punishment.
[The applicant], a judge, made use of his official position and breached an important principle of a state governed by the rule of law, according to which justice is administered by an independent, impartial and honest court. ”
On 20 November 2006 a daily newspaper Postimees published an article which included the following passage: “According to the public prosecutor, the applicant asked [D.] for a total sum of 1.1 million kroons of which he received 200,000 in the course of the simulation of the offence through an intermediary, [D.’s] business partner [N.].” The online version of the article on the newspaper’s website also contained the following sentence: “[The applicant] wanted to receive the money in instalments, [prosecutor V.] noted.”
On 23 November 2006 prosecutor V. made a statement on Eesti Televisioon, a public television channel, saying: “It can be asserted that the bribe was demanded from [D.] and the sum of money the judge wanted was 1.1 million kroons.”
3. Administrative court proceedings
In December 2006 the applicant lodged a complaint about the Public Prosecutor’s Office with the Tallinn Administrative Court. He considered that the prosecutor’s public statements made during the criminal proceedings had not respected his presumption of innocence and that his right to respect for his private life had been infringed.
On 5 December 2007 the Tallinn Administrative Court dismissed the complaint finding that the Public Prosecutor’s Office had released the information in compliance with the Code of Criminal Procedure (Kriminaalmenetluse seadustik) and the Personal Data Protection Act (Isikuandmete kaitse seadus). It considered that the criminal case in question had attracted great public interest and media attention and that such interest had been justified as the criminal proceedings had been carried out in respect of a judge. Communication between the Public Prosecutor’s Office and the press had been important in order to avoid, or at least to minimise, the possibility of incorrect information being spread. The court found that the information released by the Public Prosecutor’s Office had not gone beyond what had been objectively necessary for informing the public and that the applicant’s interests had not been excessively interfered with. It considered that the press release made on 9 April 2006 and the public prosecutor’s statements to the press had made it clear that the applicant had merely been suspected of having accepted a bribe. Furthermore, the applicant’s identity had been disclosed by the Harju County Court and not by the Public Prosecutor’s Office. The court established that the press release of 6 October 2006 and the prosecutor’s subsequent statements to the press had been based on the official bill of indictment. According to the Administrative Court, the release of more detailed information had been justified at that stage of the proceedings.
The court rejected the applicant’s argument concerning a failure to respect his presumption of innocence. It noted that publication of information in the press in the course of the preliminary investigation was not excluded; in the case at hand it had not been established that the Public Prosecutor’s Office had informed the public in an unbalanced manner or that an opinion concerning the applicant’s guilt had been expressed.
On 5 June 2008 the Tallinn Court of Appeal upheld the Administrative Court’s judgment. It reiterated that suspicion of bribery in respect of a judge – a high official expected to enjoy public confidence – was an important event justifying increased public interest and release of information by the Public Prosecutor’s Office. The appellate court shared the opinion of the first-instance court that his presumption of innocence had not been infringed.
On 24 September 2008 the Supreme Court declined to hear the applicant’s appeal.
B. Relevant domestic law
Article 22 § 1 of the Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) and Article 7 § 1 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) provided that no one could be considered guilty of a criminal offence before a convicting judgment had entered into force with regard to him or her.
Chapter 14 of the Code of Criminal Procedure provided for a special procedure for performing procedural measures in respect of certain officials enjoying judicial immunity. In particular, a bill of indictment with regard to a judge could only be drawn up on the proposal of the Supreme Court and with the consent of the President of the Republic (Article 376 § 3). Certain procedural measures, including detention and search, could be applied in respect of a judge only if the President of the Republic had given consent (Article 377 § 2). The consent was not required if the judge was apprehended in the act of committing a criminal offence in the first degree (Article 377 § 3).
COMPLAINTS
THE LAW
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal....
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. “
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
The Court notes at the outset that the present complaint is limited to the disclosure of information by the Public Prosecutor’s Office and does not concern the context into which it was placed or the way in which it was presented in the press. The Court also observes that, according to the Administrative Court’s judgment, the identity of the applicant was revealed by the Harju County Court and not by the Public Prosecutor’s Office.
The Court further notes that the domestic courts found the disclosure of the information in question lawful under the Code of Criminal Procedure and the Personal Data Protection Act. There appears to be no reason for the Court to come to a different conclusion. As regards the aim and necessity of the interference, the Court, bearing in mind the role of the press, and the freedom of information under Article 10 of the Convention, notes that the information disclosed was a short summary of a factual nature. Having regard to the fundamental importance in a democratic society that the courts inspire confidence in the public, the Court considers that information about criminal proceedings concerning a suspicion of bribery in respect of a judge can be deemed to be of general interest. Thus, the disclosure of the information in question can reasonably be regarded as being “necessary in a democratic society” for the legitimate aim of ensuring the right of the public to receive information (see, mutatis mutandis, Allenet de Ribemont v. France, 10 February 1995, § 38, Series A no. 308, and A.K. v. the Netherlands, no. 24774/94, Commission decision of 6 April 1995).
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
In relation to the complaint concerning incitement, the Court reiterates that the use of special investigative methods – in particular, undercover techniques – cannot in itself infringe the right to a fair trial. However, on account of the risk of police incitement entailed by such techniques, their use must be kept within clear limits (see Ramanauskas v. Lithuania [GC], no. 74420/01, § 51, ECHR 2008 ...). Furthermore, while the use of undercover agents may be tolerated provided that it is subject to clear restrictions and safeguards, the public interest cannot justify the use of evidence obtained as a result of police incitement, as to do so would expose the accused to the risk of being definitively deprived of a fair trial from the outset. Police incitement occurs where the officers involved – whether members of the security forces or persons acting on their instructions – do not confine themselves to investigating criminal activity in an essentially passive manner, but exert such an influence on the subject as to incite the commission of an offence that would otherwise not have been committed, in order to make it possible to establish the offence, that is, to provide evidence and institute a prosecution (see Ramanauskas, cited above, §§ 54 55, with further references).
In the present case, the Court observes that the criminal proceedings were initiated upon the receipt by the police of a statement given by D. in which he had submitted that N. had claimed financial incentives and money from him alleging that he could influence the outcome of the criminal proceedings in respect of D. N. had demonstrated his good knowledge of the details of the criminal case. After the start of the criminal investigation, the police first carried out covert surveillance and undercover audio recordings of N.’s conversations (authorised on 10 and 11 January 2006 respectively). It would seem that the investigation in this initial phase focused on N. as there were doubts as to whether he indeed had such relations with the applicant as he had sought to make D. believe. It was only after this that covert surveillance and undercover audio recordings of the applicant’s conversations were started (authorised on 24 January and 7 February 2006 respectively). Then authorisation for the simulation of the offence by D. was granted (26 January 2006) in order to entrap N. and the applicant. Thus, the Court observes that the criminal investigation was initiated and the undercover operation started on the basis of specific information of a planned offence and that only later was the simulation of the offence of bribery – mainly by D. and mainly in respect of N., and only in its final phase also by N. and directly in respect of the applicant – carried out. The Court notes that the use of undercover measures, including the simulation of the offence, was authorised by the competent authorities and that the domestic courts subsequently examined the surveillance reports and parts of the actual recordings at public court hearings, thus having the opportunity to directly assess the role the different actors had played in the undercover operation and whether or not there had been any incitement. In so far as the pertinent material has been available to the Court, it cannot conclude that the simulation was overly active. Although it would appear that N., motivated by his own financial goals, had displayed greater interest than the applicant in arranging a bribe, he had started to act as an intermediary for the bribe well before the authorities joined the process. The Court considers that N.’s actions in this context are not imputable to the State. N. became aware of the fact of the simulation of the offence only at the very end of the operation and had until then acted in pursuance of his own goals.
Lastly, the Court observes that N. and D. were examined as witnesses at the trial court hearing and that the applicant was able to put questions to them and to directly challenge their submissions.
Therefore, the Court finds that the applicant cannot be considered a victim of incitement.
Turning to the complaint that the applicant’s arrest and search had been carried out in breach of his judicial immunity (see the relevant provision of the Code of Criminal Procedure above) and that therefore the evidence obtained as a result of the use of these measures had been unlawful, the Court reiterates that the Convention does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, among other authorities, Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001 II, and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I). In any event, the Court notes that although the criminal proceedings had been initiated in respect of accepting and arranging a bribe, which were offences in the second degree, N. stated in an interview after his arrest on 6 April 2006 that he had passed on to D. the applicant’s demand for a large bribe thus giving rise to a suspicion that the applicant could have committed an offence in the first degree. Indeed, the following documents starting with a report concerning the applicant’s arrest indicate that he was suspected of having demanded a large bribe. The qualification of the offence remained the same in the bill of indictment. It was only during the court proceedings that the charges in respect of the elements of “demanding” and “large” were dropped. The Court finds no reason to think that the domestic authorities did not act in good faith in considering the offence to be an offence in the first degree at the time of the applicant’s arrest and search, and sees no reason to put in doubt, on the grounds invoked by the applicant, the lawfulness of the evidence obtained as a result.
As regards the complaint that the courts had failed to establish the unconstitutionality of certain provisions of the Code of Criminal Procedure and the Surveillance Act and to address the issue of a violation of the applicant’s fundamental rights in this context, the Court notes that the Convention does not guarantee, as such, a right to have an act declared unconstitutional. Moreover, it observes that the domestic courts did address the applicant’s arguments and found that the provisions of the legislation in question were not of decisive importance for the purposes of initiating the constitutional review proceedings in the Supreme Court. In so far as this complaint relates to the actual use of surveillance measures in the present case, the Court has already found that there was no indication of a violation of the applicant’s right to a fair trial in this respect.
Lastly, the applicant complained that two of the witnesses had not been summoned to court in spite of his request to that effect. The Court observes that although the applicant complained in his appeal to the Court of Appeal that the witnesses had not been summoned, he did not request, either in his appeal or at the Court of Appeal’s hearing, that they be summoned. Nor did he provide any convincing explanation as to the relevance of the statements of the witnesses – the applicant’s wife and a police officer – in the criminal proceedings. Even leaving aside the question of whether domestic remedies can be considered to have been exhausted in this respect, the Court is unable to conclude, in the absence of any convincing explanation as to the relevance of these witnesses, that there was a violation of the applicant’s right to a fair trial in this respect.
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 unanimously
Decides to join the applications;
Decides to adjourn the examination of the applicant’s complaint concerning an alleged infringement of the presumption of innocence;
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer Lorenzen
Registrar President