European Court of Human Rights

THIRD SECTION

Application no. 58262/09
Guntars ANTOMS
against Latvia
lodged on 26 October 2009

STATEMENT OF FACTS

THE FACTS

1.  The applicant, Mr Guntars Antoms, is a Latvian national who was born in 1960 and lives in Riga.

A.  The circumstances of the case

2.  The facts of the case, as submitted by the applicant, may be summarised as follows.

3.  The applicant is a sworn attorney practising in Riga. At the time of the events, he was defence counsel for his client in criminal proceedings. His client had been declared a suspect and ordered into custody in connection with those proceedings.

4.  On 31 March 2008 the applicant’s conversation with his client, who at the time was held in Matisa Prison, was covertly recorded.

5.  One year and two months later, in May 2009, the applicant in his capacity as defence counsel was given access to the whole case material in his client’s criminal case. He then learned that the conversation of 31 March 2008 had been recorded. It had been organised by the Corruption Prevention and Combating Bureau (Korupcijas noveršanas un apkarošanas birojs, “the KNAB”) in connection with an unrelated operative investigation. The KNAB had subsequently sent the recording for inclusion in the criminal case material against the applicant’s client as it had been of “significant importance” for those proceedings.

6.  On 6 May 2009 the applicant applied to the prosecutor’s office with a request to receive information about the lawfulness of the recording.

7.  On 25 May 2009 a high-ranking prosecutor replied that the recording had been authorised by a judge in accordance with a special law on operational measures. The recording had been made in connection with an operative investigation case (operativas izstrades lieta), the subject matter of which had been unrelated to the criminal proceedings against the applicant’s client. On the one hand, she noted that the recording of the applicant’s conversation had been in breach of domestic law as regards attorney-client privilege and that another prosecutor already had declared it inadmissible in the criminal proceedings against the applicant’s client. On the other hand, she could not provide more details because the information that was gathered within the operative investigation case was state secret. She did, however, mention that the KNAB had received prosecutor’s instructions with a view to preventing similar infringements in the future.

8.  On 9 June 2009 the applicant applied to the prosecutor’s office with a view to opening criminal proceedings concerning abuse of office, abuse of position, forgery or falsification.

9.  On 29 June 2009 the applicant’s request was refused for lack of crime. At the same time, the applicant was informed that the KNAB had initiated disciplinary proceedings to review the lawfulness of the activities of its officials. The applicant lodged a complaint against this decision.

10.  On 14 July 2009, with a final decision, the high-ranking prosecutor upheld the refusal to open criminal proceedings. He noted that although the covert recording had been made in breach of domestic law, it had not been used for unlawful purposes. For that reason the applicant’s rights and interests were not significantly interfered with and elements of a crime were not present. At the same time, the applicant was informed that the KNAB had found that its officials had probably exceeded official authority, but that any disciplinary action had been time barred, the prescription period being of one year.

B.  Relevant domestic law

11.  Section 6 of the Law on Bar (Advokaturas likums) lays down the principle of attorney-client privilege in Latvian law. It provides that communication by sworn attorneys in providing legal assistance to a client may not be subject to control. Unlawful action in the interests of the client, however, is not to be considered as legal assistance.

12.  Section 122 of the Law of Criminal Procedure (Kriminalprocesa likums), entitled “sworn attorneys’ immunity”, prohibits state agencies to control sworn attorneys’ communication when they are providing legal assistance to a client. Unlawful action in the interests of the client, similarly, is not to be considered as legal assistance.

13.  Section 24, paragraph 5 of the Law on Operational Measures (Operativas darbibas likums) prohibits state agencies to gather operative information when sworn attorneys are providing professional services, save for the circumstances when they themselves are under an operational investigation (operativas izstrades objekts).

COMPLAINTS

14.  The applicant complained under Article 8 of the Convention about the covert recording of the conversation in prison with his client. He argued that it had constituted an interference with his private life and correspondence and that it had not been “in accordance with law” or “proportionate”.

15.  The applicant also complained that he did not have an effective remedy, as required by Article 13 of the Convention, in connection with his Article 8 complaint.

QUESTIONS TO THE PARTIES

1.
1.  Has there been an interference with the applicant’s right to respect for his private life or correspondence, within the meaning of Article 8 § 1 of the Convention, on account of the covert recording of the conversion that he in the capacity as a sworn attorney had with his client on 31 March 2008?

1.2.  If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention?

1.3.  Did the Latvian legal system provide for adequate and effective safeguards against abuse as concerns the applicant’s Article 8 rights (see Smirnov v. Russia, no. 71362/01, § 44, ECHR 2007-VII)?

2.  Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 8, as required by Article 13 of the Convention?

The Government are requested to submit documents or information therein concerning the authorisation of the covert recording of the applicant’s conversation with his client.