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      European Court of Human Rights

      You are here: BAILII >> Databases >> European Court of Human Rights >> Valdis BOZE v Latvia - 40927/05 [2012] ECHR 648 (27 March 2012)
      URL: http://www.bailii.org/eu/cases/ECHR/2012/648.html
      Cite as: [2012] ECHR 648
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      THIRD SECTION

      DECISION

      Application no. 40927/05
      Valdis BOZE
      against Latvia

      The European Court of Human Rights (Third Section), sitting on 27 March 2012 as a Chamber composed of:

      Josep Casadevall, President,
       Corneliu Bîrsan,
       Egbert Myjer,
       Ján Šikuta,
       Ineta Ziemele,
       Nona Tsotsoria,
       Kristina Pardalos, judges,
      and Santiago Quesada, Section Registrar,

      Having regard to the above application lodged on 5 November 2005,

      Having deliberated, decides as follows:

      THE FACTS

    1. The applicant, Mr Valdis BoZe, is a Latvian national who was born in 1958 and lives in Rīga.

      2. A.  The circumstances of the case

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

    3. In 2004 an official representing the Ministry of Health informed the police authorities that there was a company operating in Latvia which was selling unregistered pharmaceutical products via their website which were advertised as medicines treating Aids, hepatitis C and cancer. The company was registered at the applicant’s apartment.

    4. On 11 June 2004 the officers of the Economic Police made a test purchase, after which they searched the applicant’s apartment and seized a computer, a computer hard drive and items used in the production of the alleged medicines (chemical substances, spare bottles and labels).

    5. On the same day the applicant gave statements to the police admitting that he had started producing medical products for the treatment of HIV and hepatitis C himself after pharmaceutical companies had refused to cooperate with him.

    6. As a result the police authorities instituted two sets of administrative offence proceedings. On 6 July 2004 the police lodged the record, document no. 115, of the administrative offence proceedings under the Code of Administrative Offences (APK) of unregistered entrepreneurship. On 20 July 2004 the police lodged the record, document no. 123, under the APK of sale of unlicensed pharmaceutical products. The first was remitted for examination by the State Revenue Service (Valsts ieņēmumu dienests, (VID)), whereas the latter was remitted to the State Pharmacy Inspectorate (Valsts farmācijas inspekcija).

      7. 1.  First set of administrative offence proceedings

    7. On 26 July 2004 the State Revenue Service charged the applicant with the administrative offence of unregistered entrepreneurship. He was fined 200 Latvian lati (LVL, 300 euros (EUR)) and the items he used in manufacturing the pharmaceutical products were confiscated. On 11 August 2004 the items were destroyed.

    8. After various procedural decisions, on 20 September 2004 the VID authorities upheld the decision.

    9. Meanwhile, on 5 July 2005 the applicant lodged, and later clarified, an administrative complaint of unlawful activities by the VID authorities, namely the destruction of the items seized in the administrative offence proceedings.

    10. On 5 June 2008 the Administrative Regional Court upheld the request in part, and recognised that the VID had acted unlawfully in executing the decision of 26 July 2004, regardless of the fact that the appeals procedure was pending. The VID was ordered to make a written apology to the applicant. The rest of the application was dismissed and the final decision came into force on 26 November 2008.

    11. On 30 December 2008 the VID made a written apology to the applicant.

      12. 2.  Criminal proceedings concerning unauthorised sale of pharmaceutical products

    12. Meanwhile, on 7 October 2004 the Office of the Prosecutor of Financial and Economic Offences established that the activities mentioned in the first set of administrative offence proceedings amounted to a criminal offence under section 207 of the Criminal Law, and therefore the prosecutor instituted criminal proceedings. On the basis of the prosecutor’s instruction, the VID authorities on 11 October 2004 terminated the first set of administrative proceedings.

    13. Following the pre-trial investigation in the criminal case, in which the applicant was called as a witness, on 26 June 2006 the criminal proceedings were terminated owing to lack of evidence that a criminal offence had been committed, and the materials were remitted together with the evidence, including the computers and the sample pharmaceutical products, to the VID for initiation of administrative offence proceedings.

      14. 3.  Second set of administrative offence proceedings

    14. On 21 July 2006 the VID adopted in substance an identical decision to that adopted in the first set of administrative offence proceedings. Specifically, the applicant was administratively fined in the amount of LVL 200 with confiscation of the property seized during the search.

    15. The applicant appealed against the decision to the VID and later to the Administrative Court, asking to revoke the allegedly unlawful decision. Among other things he complained that an unlawful search and seizure of his home had been carried out in June 2004. He claimed non-pecuniary damages in the amount of LVL 5,000, and later increased the claim to more than a million lati.

    16. On 11 December 2008 the lower court dismissed the application. It established, inter alia, that the seized items (samples of the chemical products and the computer) were at the VID’s storage premises in Rīga. Besides, the court noted that the police had searched the applicant’s apartment in June 2004 as part of the criminal proceedings. As a consequence, the activities carried out prior to institution of the administrative offence proceedings felt outside the competence of the court. The court nevertheless analysed the information concerning the alleged unlawful actions and concluded that there were no grounds to undermine the legality of the contested activities.

    17. On 15 April 2010, by a final decision, the Administrative Regional Court upheld the VID’s decision in substance. However, it contested the lower court’s finding that the contested activities had been carried out as part of the criminal proceedings.

    18. In September 2010 the applicant asked the Administrative Regional Court to reopen the administrative proceedings on the basis of allegedly newly discovered evidence, which in substance was the same as that cited in his earlier complaints. Because of this the Administrative Regional Court dismissed the request on 11 October 2010.

      19. 4.  Third set of administrative offence proceedings

    19. On 15 September 2004 the State Pharmacy Inspectorate fined the applicant in the amount of LVL 500 (EUR 700) for selling unauthorised pharmaceutical products. The applicant asked the Ministry of Health to revoke the allegedly unlawful decision and to terminate the administrative offence proceedings. When no response was received, the applicant applied to the Administrative Court contesting the Ministry’s action. At a later stage he also claimed non-pecuniary damages in the amount of LVL 1,200,000,000.

    20. On 14 November 2008 the appellate court concluded that the decision of 15 September 2005 was lawful, and dismissed the application as well as the claim for non-pecuniary damages. It also ordered the items used to produce the pharmaceutical products which were seized on 11 June 2004 to be destroyed.

    21. By a final decision of 11 June 2009 the Senate revoked the appellate court’s decision with respect to the destruction of the seized items, in that they had already been destroyed as a result of the first set of administrative offence proceedings (see above).

      22. 5.  Complaints of unlawful activities by police officers

    22. On various occasions the applicant complained to the prosecutor’s office that the search of his apartment on 11 June 2004 had been unlawful. He also requested the return of the seized items.

    23. It appears that on 5 April 2005 the applicant was offered the return of the seized computer. The other computer was added to the materials of the criminal case.

    24. On 27 April 2005 the supervising prosecutor ordered an internal investigation of the police activities on 11 June 2004 concerning the search of the applicant’s apartment and the seizure of items there. The prosecutor noted that the police inspectors had no legal grounds to search the applicant’s apartment, in that the Code of Administrative Offence did not provide for such a measure. The prosecutor also noted that the police officers had infringed various procedural rules.

    25. On 30 May 2005, following an internal investigation, the Pre-trial Investigation Department of the State Police (Valsts policijas Galvenās Kriminālpolicijas pārvaldes Pirmstiesas izmeklēšanas pārvade) investigation dismissed the allegations that the police officers had carried out a search and seizure on 11 June 2004. According to their conclusions, the police inspected the applicant’s apartment and took the items in accordance with section 12 § 23 of the Law on Police (see Relevant domestic law section). The conclusion also stated that the applicant himself had not taken back his computer.

    26. On 25 November 2004 and 26 November 2009 the Internal Security Office of the State Police refused to institute criminal proceedings against the police officers concerned for unlawful activities on 11 June 2004.

    27. On 29 December 2009 the latter decision was upheld by the Prosecutor General. It recognised that the police officers should have remitted the administrative offence files to the court, rather than to the State Revenue Service. However, this omission had been rectified by a supervising prosecutor, who had objected to the VID’s decision of 11 October 2004 (see paragraph 12 above).

    28. In August 2009 and again in August 2010 the applicant claimed non-pecuniary damages from the Office of the Prosecutor on the basis of what he stated were unlawful activities by police officers on 11 June 2004. On 15 September 2009 the request was dismissed and the applicant was informed that it was open to him to institute civil damages proceedings. With respect to his second request, on 29 October 2010 the same prosecutor dismissed the applicant’s claim for damages with respect to the seized items, establishing that he could not be treated under the Law on Compensation for Damage Caused by the Investigating and Prosecuting Institutions or Court (Par izziņas iestādes, prokuratūras vai tiesas nelikumīgas vai nepamatotas rīcības rezultātā nodarīto zaudējumu atlīdzināšanu).

      29. 6.  Other proceedings

      (a)  Administrative proceedings against termination of the first set of administrative offence proceedings

    29. In November 2004 the applicant asked the Administrative Court to revoke the decision of 11 October 2004 by which the VID had terminated the first set of administrative offence proceedings (see paragraph 12 above). The claim was dismissed at all three levels of jurisdiction. By a final decision of 24 January 2008 the Senate concluded that the VID had been right to terminate the proceedings, because at the same time the police had already instituted criminal proceedings based on the same events.

      30. (b)  Complaints about access to the seized documents

    30. After various procedural decisions, on 6 April 2006 the applicant was authorised to familiarise himself with the materials of the criminal case. He was also allowed to make the necessary copies.

      31. (c)  Administrative proceedings against the Ministry of Justice

    31. The applicant claimed from the Ministry of Justice large sums in pecuniary and non-pecuniary damages as compensation for the allegedly unlawful administrative offence proceedings and the confiscated items. By a final decision of 12 May 2008 the request was dismissed in that the applicant was not recognised as a subject of Law on Compensation for Damage Caused by the Investigating and Prosecuting Institutions or Court. The Senate noted, inter alia, that the applicant might raise a claim for compensation of damage under the Law on Compensation for Damage Caused by State Institution, with a condition that the claim is admissible under that law.

      32. (d)  Civil proceedings concerning dissemination of allegedly false information

    32. In 2008 the applicant brought a civil claim against the news agency LETA, which in 2007 published an item about the third set of administration proceedings, in which the applicant claimed more than one million lati in damages. On 9 September 2008 the lower court dismissed the claim. The proceedings are pending.

      33. B.  Relevant domestic law

      1.  Law on Police (as in force at the material time)

    33. According to section 12 § 23 in order to prevent and expose an offence of economic crime, if there is sufficient basis to believe that such a criminal offence is being prepared or has been committed, police officers have the rights to, inter alia, visit private companies with the permission of their owners, inspect production facilities, compare the conformity of goods, raw materials, partially processed and finished products found in warehouses, production and other facilities with their documentation; to make test purchases; to take samples of raw materials, partially processed and finished products; and to take other measures in order to ensure their preservation.

    34. According to section 39, the Prosecutor General and the prosecutors shall have a supervisory role in respect of the implementation of the law by the police.

      35. 2.  Code of Criminal Procedure (in force until 1 October 2005)

    35. Search and seizure may be carried out by virtue of section 168, and only on the basis of a judicial decision. In exceptional circumstances judicial authorisation shall be obtained after the measures have been taken, within twenty-four hours of the event.

    36. Section 179 provides that in order to investigate a criminal offence the investigators or prosecutors may carry out an inspection of the site of the criminal offence, premises, objects or documents. In urgent situations the site may be inspected before institution of criminal proceedings. In the latter case the criminal proceedings shall be instituted immediately after the inspection.

      37. 3.  Code of Administrative Offences

    37. Section 256 provides a procedure for an inspection of persons or objects. Since 2007 a new section 256¹ regulates the inspection of premises and areas inaccessible to the public and requiring a prior or subsequent judicial or prosecutor’s authorisation if it is carried out by authorities other than the representatives of the state police, border control or the state revenue service. If the authorisation is received after the inspection, which is permitted only in urgent cases, the court shall assess the admissibility of the evidence obtained by the inspection.

      38. 4.  Administrative Procedure Law (as in force at the material time)

    38. By virtue of section 91, a person who considers that their rights or legal interests have been or may be infringed by a de facto action of an institution, which is planned or which has already begun, may apply to the institution with a submission regarding the de facto action (see paragraph 1), whereas with respect to finished actions a person may apply directly to a court with an application regarding such actions being taken by an institution (see paragraph 5).

    39. By virtue of section 188, an application to an administrative court regarding a de facto action by an institution may be submitted within a year of the date the applicant comes to know of the specific actual action of the institution, if no limitation period is prescribed by other laws. If an institution or a higher institution has failed to notify the applicant of a decision regarding his or her submission, the application may be submitted to a court within a year of the date the person made his or her submission to the institution or the higher institution.

      40. 5.  Law on Compensation for Damage Caused by State Institution (in force since 1 July 2005)

    40. The law lays down a procedure for compensation for damage caused by unlawful administrative acts decided upon by State institutions or for de facto unlawful actions by those institutions. Individuals must submit a claim for damages within one year from the time when they learnt of the loss, but no later than five years from the date the unlawful decision was adopted or the de facto unlawful act was carried out.

      41. COMPLAINTS

    41. The applicant complains under Article 8 of the Convention of the allegedly unauthorised search of his apartment and seizure of his personal belongings, such as personal correspondence and information on medical invention.

    42. The applicant also complains under Article 6 that he has been deprived of the right of access to court, to enable him to complain about allegedly unlawful activities on the part of the investigating authorities.

    43. He makes numerous further complaints under Articles 6 and 8 of the Convention, Article 1 of Protocol No. 1 to the Convention, and Article 4 of Protocol No. 7 to the Convention.

      44. THE LAW

      A.  Complaints under Articles 8 and 13 of the Convention

    44. The applicant complains under Article 8 of the Convention of the allegedly unauthorised search of his apartment and seizure of his personal belongings. He also complains that he has been deprived of remedies thereof, which in substance raises an issue under Article 13 of the Convention (see Rehbock v Slovenia; 29462/95; § 63.).

      45. Articles 8 and 13 of the Convention as far as relevant provide as follows:

      Article 8

      “1. Everyone has the right to respect for his private and family 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 ...”.

      Article 13

      “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”.

    45. The Court considers that it cannot determine the admissibility of these complaints on the basis of the case file 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.

      46. B.  Other complaints

    46. The applicant also alleges various violations under Articles 6 and 8 of the Convention, Article 1 of Protocol No. 1 to the Convention, and Article 4 of Protocol No. 7 to the Convention.

    47. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of any of the Articles of the Convention and the Protocols to it.

    48. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

      49. For these reasons, the Court unanimously

      Decides to adjourn the examination of the applicant’s complaints under Article 8 and 13 of the Convention;

      Declares the remainder of the application inadmissible.

      Santiago Quesada Josep Casadevall
      Registrar President

       


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