CASE OF BOŽE v. LATVIA
(Application no. 40927/05)
18 May 2017
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Bože v. Latvia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mārtiņš Mits, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 25 April 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 40927/05) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Mr Valdis Bože (“the applicant”), on 5 November 2005.
2. The Latvian Government (“the Government”) were represented by their Agent, Mrs K. Līce,
3. The applicant alleged that he had been subjected to an unauthorised search of his apartment and the seizure of personal belongings, contrary to Article 8 of the Convention. He further alleged that he had had no remedies available to him as required under Article 13 of the Convention.
4. On 27 March 2012 the complaints concerning Articles 8 and 13 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1958 and lives in Riga.
A. Inspection and seizure carried out at the applicant’s apartment
6. In May 2004 an official representing the Ministry of Health informed the State police authorities in writing that a private person - the applicant - was selling unlicensed pharmaceutical products via the internet. The products were advertised as medicines for the treatment of HIV, hepatitis C and cancer.
The official mentioned that the Department for the Combat of Organised Crime (Organizētās noziedzības apkarošanas pārvalde) had established the applicant’s address, but that it had declined to launch an investigation on the grounds that a sample of the product sold by the applicant did not contain narcotic or other dangerous substances. Other departments of the State police had similarly refused to investigate the case.
7. An undercover investigation was carried out and on 11 June 2004 police officers responsible for investigating economic crime made a test purchase. They contacted the applicant via the email address indicated on the website that was advertising the pharmaceuticals products, and met him at a pizzeria near his home. After having bought a pack of ten bottles of one of the products for 50 Latvian lati (LVL) (about 70 euros (EUR)), the police officers informed the applicant about the test purchase which had been carried out.
A record of the operation (pārbaudes akts), dated 11 June 2004 and signed by four police officers and the applicant, stated, inter alia:
“given that company Baltijas elektronikas izstrādes has been registered at [the applicant’s] address, and that the applicant himself lives at that address, [the applicant] voluntarily agreed that the apartment be subjected to an inspection (apskate) and to show the tools used to fabricate the medicaments.”
8. Immediately after the test purchase, the same police officers carried out an inspection at the applicant’s apartment. Later, four police officers from the organised crime department, an expert and officers from the police press centre arrived.
9. During the inspection, the applicant explained that he was director of the company “Baltijas elektronikas izstrādes” and that the company was not connected with the production of medicines. He had been producing alleged medicines at home since the beginning of 2004, when several pharmaceutical companies in Latvia had refused to cooperate with him in the production of medical products for the treatment of HIV and hepatitis C. He alleged that he had sold about fifty packs of the alleged medicines. He admitted to being aware that the sale of medicines required a licence, but claimed that he did not have the means to obtain such a patent.
10. As a result of the inspection, which lasted five hours, a computer, a computer hard drive and items used in the production of the medicines (chemical substances, spare bottles and labels) were seized from the applicant’s apartment. The inspection was video-recorded and photographs were taken; the seized items were packed and sealed. The inspection record of 11 June 2014 listed everything which the police officers had observed during the inspection at the applicant’s three-room apartment, including the composition of the apartment, and detailed content of shelves and boxes, and of the fridge.
B. Expert examinations and institution of administrative offence proceedings
12. A subsequent forensic examination concluded that there were no signs of narcotic or psychotropic substances in the seized items. The expert report concluded that the computer contained a massive volume of information, including on the production and distribution of the alleged medicines, as well as email correspondence, including communication with potential clients.
13. As a result, the police authorities instituted two sets of administrative offence proceedings under the Code of Administrative Offences on unlicensed business operations (see paragraphs 27-35 below) and on the sale of unlicensed pharmaceutical products (see paragraph 36 below). The first set of proceedings was remitted for examination by the State Revenue Service (Valsts ieņēmumu dienests - “the VID”), whereas the latter was remitted to the State Pharmacy Inspectorate (Valsts farmācijas inspekcija).
C. Complaints concerning the conduct of the police officers
1. Complaint to the State police authorities
14. In June and July 2004 the applicant submitted various complaints to the State police authorities concerning the events of 11 June 2004. An internal inquiry by the Internal Security Office of the State Police (Valsts policijas Iekšējās drošības birojs) was completed on 26 July 2004. It concluded that there had been no violations of law in the conduct of the police officers who had carried out the test purchase and the subsequent inspection of the applicant’s apartment.
15. In addition, the Internal Security Office of the State Police refused to initiate criminal proceedings following a complaint lodged by the applicant about the theft by the police officers of weights from his apartment on 11 June 2004 (decision adopted on 25 November 2004), the alleged unauthorised conduct of investigative activities and false testimonies given by one of the police officers present during the inspection (decision adopted on 30 December 2009).
16. Contrary to what was indicated in the decisions adopted by the Internal Security Office of the State Police, the applicant did not appeal against those decisions to a higher official within the State police hierarchy. Instead, he submitted a new complaint to the Office of the Prosecutor General. The complaint was dismissed by a final decision of 29 December 2009 (see paragraph 25 below).
17. On 30 May 2005, following the internal inquiry, the Pre-trial Investigation Department of the State Police (Valsts policijas Galvenās Kriminālpolicijas pārvaldes Pirmstiesas izmeklēšanas pārvade) dismissed the allegations that the police officers had carried out a search of the applicant’s apartment on 11 June 2004. They concluded that the police officers had verified the facts about the alleged sale of pharmaceutical products. After the test purchase and with the permission of the applicant, they had inspected the legal address of the company “Baltijas elektronikas izstrādes” and had taken items in accordance with section 12(1)(23) of the Law on the Police, which authorised the examination of premises of legal entities (see Relevant domestic law section).
The decision further stated that on arriving at the address of the company registered at the applicant’s apartment, the police officers had had no intention of drawing up an administrative offence record. The latter had been drawn up only after the examination of all the evidence seized during the inspection. According to the decision, the police officers had not carried out a search because all the seized items were easily visible and accessible. Therefore the Code of Criminal Procedure could not have been violated.
The decision also stated that the applicant himself had not taken back the computer. The applicant did not appeal against the decision.
2. Complaint to the Office of the Prosecutor and the Prosecutor General
18. On various occasions the applicant complained to various branches of the Office of the Prosecutor, alleging that the “search” of his apartment on 11 June 2004 had been unlawful. He also requested that the seized items be returned to him.
19. According to information submitted by the Office of the Prosecutor General, between December 2004 and March 2012 the applicant complained to the Office of the Prosecutor General on sixty-two occasions in relation to the events of 11 June 2004, out of which the Office examined forty eight complaints. It appears that most of the complaints were related to various aspects of the administrative offence or criminal proceedings (see paragraphs 29-30 below).
20. On 17 November 2004 a prosecutor in charge of investigating financial end economic crimes replied to the applicant that the inspection of the applicant’s apartment, which was also the registered address of company “Baltijas elektronikas izstrādes”, had been carried out “in accordance with the law”, and that the items from the apartment had been seized, recorded and filmed in accordance with the provisions of the Code of Criminal Procedure. The prosecutor’s reply was amenable to appeal to a higher prosecutor.
21. On 13 January 2005 the applicant complained to the Office of the Prosecutor General that, inter alia, items from his apartment had been seized “without judicial authorisation”.
22. On 5 April 2005 the applicant was offered to receive back a computer hard drive seized in 2004. The computer was added to the materials of the criminal case.
23. On 27 April 2005 a supervising prosecutor ordered an internal inquiry into the conduct of the police officers at the applicant’s apartment and the seizure of items there on 11 June 2004. The prosecutor noted that the police had had no legal grounds on which to carry out an inspection of the applicant’s apartment, in that the Code of Administrative Offences did not provide for such a measure. The prosecutor also noted that the police officers had breached various procedural rules, notably Articles 168-178, 179 and 180 of the Code of Criminal Procedure.
24. On 25 August 2009 a prosecutor from the Office of the Prosecutor General dismissed the applicant’s request to institute criminal proceedings in respect of the conduct of the police officers. The decision stated that the police officers had carried out the investigative measure - an inspection of the applicant’s apartment - on the basis of Articles 179 and 183 of the Code of Criminal Procedure. Having concluded that there were no grounds to institute criminal proceedings, the police officers drew up an administrative offence record. The Prosecutor General’s Office recognised that the police officers should have remitted the administrative offence files to the court for adjudication, rather than to the VID. However, that omission had later been rectified by a supervising prosecutor (see paragraph 29 below). The decision stated that in any event, the statutory deadline for instituting disciplinary proceedings against the police officers had expired.
25. By a final decision of 29 December 2009 a supervising prosecutor from the Office of the Prosecutor General upheld the decision not to initiate criminal proceedings with regard to the conduct of the police officers on 11 June 2004. The decision stated that the police officers had conducted an inspection and seizure at the applicant’s apartment pursuant to sections 10(1)(6), 12(1)(4) and 12(1)(24) of the Law on the Police.
26. Meanwhile, in August 2009 and again in August 2010 the applicant claimed compensation for non-pecuniary damage from the Office of the Prosecutor General on the basis of the alleged unlawful activities of police officers on 11 June 2004. On 15 September 2009 the claim was dismissed and the applicant was informed that it was open to him to institute civil damages proceedings. On 29 October 2010 the same prosecutor dismissed the applicant’s claim for damages with respect to the seized items. The applicant appears to have appealed against that decision to the administrative courts. The Court has no further information on the outcome of the proceedings.
D. Proceedings in relation to carrying out unlicensed business activities
27. On 20 September 2004 the VID held the applicant liable for committing the administrative offence of unlicensed business activities - manufacturing of pharmaceutical products. He was fined LVL 200 (about EUR 300) and the items he had used in manufacturing the pharmaceutical products were confiscated. On 11 August 2004 the items were destroyed.
28. The applicant appealed against the decision to the administrative courts and to the Office of the Prosecutor.
29. On 7 October 2004 the Office of the Prosecutor of Financial and Economic Offences established that the impugned actions of the applicant had amounted to a criminal offence under section 207 of the Criminal Law, and therefore instituted criminal proceedings. On the basis of the prosecutor’s instruction, on 11 October 2004 the VID revoked their decision to hold the applicant liable for an administrative offence.
30. Following the pre-trial investigation in the criminal case, in which the applicant was questioned 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, including the items seized from the applicant’s apartment, were remitted to the VID for the initiation of administrative offence proceedings.
31. Subsequently, on 21 July 2006 the VID adopted in substance an identical decision to that adopted after the first attempt to institute administrative offence proceedings (see paragraph 27 above).
32. The applicant appealed against the decision to the VID and later to the administrative courts, seeking revocation of the allegedly unlawful decision. Among other things, the applicant complained that an unlawful search and seizure had been carried out at his home on 11 June 2004. He claimed compensation for non-pecuniary damage in the amount of LVL 5,000 (about EUR 7,140), and later increased the claim to more than a million lati.
33. On 11 December 2008 the District Administrative Court dismissed the appeal. It noted that, within the powers vested in the State police under section 18(2) of the Law on the Police, in June 2004 police officers had inspected the applicant’s apartment in the course of criminal proceedings. Therefore the activities carried out prior to the institution of the administrative offence proceedings fell outside the administrative courts’ competence. The court nevertheless analysed the information concerning the alleged unlawful conduct of the police officers and concluded that there were no grounds to question the legality of the police officers’ conduct.
34. The applicant submitted a further appeal in which he argued, inter alia, that the evidence had been obtained unlawfully and therefore it could not be admitted in the administrative offence proceedings.
35. On 15 April 2010, by a final decision, the Regional Administrative Court upheld the VID’s decision. At the same time it varied the lower court’s finding that the police officers had carried out the contested measure as part of criminal proceedings. The appellate court relied on the outcome of the police internal inquiry into the lawfulness of the police officers entering the applicant’s apartment and seizing evidence. The court noted that the police officers had acted pursuant to section 12(1)(23) of the Law on the Police (see paragraph 40 below), which vested police officers with powers to inspect company premises, and section 10(1)(6) and (7), which provided that police officers had a duty to prevent and terminate administrative offences (see paragraph 37 below). As a consequence, the appellate court did not find that any of the evidence had been obtained unlawfully.
On the merits, the Regional Administrative Court established that the applicant had carried out an unlicensed business activity, i.e. the manufacturing of pharmaceutical products, with an aim of receiving income. The court came to this conclusion by analysing the applicant’s activities, such as him setting up a web site, communication with potential clients via emails and setting a price. Accordingly, it was concluded that the applicant was rightly fined. It was also noted that the fine was the lowest possible for an individual person.
E. Proceedings concerning the selling of unlicensed pharmaceutical products
36. On 15 September 2004 the State Pharmacy Inspectorate fined the applicant under Article 46ą, second paragraph, of the Administrative Offences Code in the amount of LVL 500 (about EUR 700) for selling unauthorised pharmaceutical products (see paragraph 51 below). The decision was upheld at three levels of the administrative jurisdiction and came into force in June 2009.
II. RELEVANT DOMESTIC LAW
A. Law on the Police
37. The general duties of police officers comprise, inter alia:
“Section 10(1)(6): the prevention and termination of administrative offences; determination of guilt on the part of those suspected of such offences; drawing up reports within the scope of their competence; and the examination of case files regarding such offences or transmitting them for examination in accordance with the law.
Section 10(1)(7): within the scope of his or her authority, [a police officer has a duty] to disclose the causes of criminal and administrative offences and to carry out measures to prevent them, and to participate in educating people about the law (tiesiskā audzināšana)”.
38. In carrying out their duties, police officers have the right, inter alia, to draw up administrative offence records; accompany persons violating the law to a police station for questioning; and take and check property and documents (section 12(1)(4)).
“[Police officers have the right to] enter any time residential premises without the permission of the residents therein (if necessary, by use of physical force) if someone is to be arrested at the scene of the crime, or if the lives of other persons are at risk (paragraph 1).
[The police also have the right to] enter non-residential premises (if necessary, by use of physical force), if someone is to be arrested at the scene of the crime, if the lives of other persons are at risk as well as in cases of natural disasters and other emergencies when the people’s safety is at risk (paragraph 2).
Whenever police officers have entered under that provision residential premises against the will of the residents or by use of physical force, they must notify the prosecutor in writing without delay, and within twenty-four hours (paragraph 3).
In any other case, entry to residential and other ... premises is permitted only in cases prescribed by law on the basis of a decision by a judge, or in urgent cases with the consent of the prosecutor, for the purpose of carrying out a search (paragraph 4)”.
40. In order to prevent and expose criminal offences of an economic character, if there are sufficient grounds to believe that such a criminal offence is being prepared or has been committed, police officers have the right, under section 12(1)(23), to visit premises of private companies with the permission of their owners; inspect production facilities; and ensure that goods, raw materials, and partially processed and finished products found in warehouses, production and other facilities are in conformity with the relevant documentation. They also have the right to make test purchases to take samples of raw materials and partially processed and finished products and to take other measures in order to ensure their preservation.
“[Police officers have the right to] seize objects, articles and substances, the manufacture, acquisition, storage or sale of which is prohibited by law or which are being stored without a permit, if this is required by law, as well as to take documents which they suspect may be fraudulent”.
42. Under section 39, the Prosecutor General and prosecutors have a supervisory role in respect of the implementation of the law by police officers.
B. Code of Criminal Procedure
43. The provisions of the Code of Criminal Procedure applicable at the time of the national proceedings ceased to be in force on 1 October 2005. The provisions governing the relevant actions of an investigating authority provided as follows.
1. Search and seizure
44. Article 168 provides that search and seizure are carried out on the basis of a reasoned decision adopted by an investigator or a prosecutor if there are sufficient grounds to suspect that items and documents that are important for the criminal proceedings are located at the relevant premises.
Searches have to be authorised by a judge; they can be authorised by a prosecutor only in urgent cases. In such urgent cases the judge has to be notified within twenty-four hours.
45. Article 169 provides that, at the request of an investigator or a prosecutor, private persons must hand in any items and documents indicated in the decision to carry out a seizure operation.
46. Articles 170-178 govern the overall search-and-seizure procedure and the carrying out those measures in certain specific circumstances, including phone tapping. In particular, they provide that search or seizure operations are carried out in the presence of the persons concerned, and those persons are informed of their rights to be present throughout the investigative activities and to comment on them (Article 170). Before carrying out a search or seizure operation, an investigator or a prosecutor must read out the decision to that effect and invite those concerned to hand in the items and documents indicated in the decision. If necessary, an investigator or a prosecutor has the right to invite specialists to take part in the search or seizure (Article 171).
47. Article 179 provides the legal basis for carrying out an inspection:
“In order to search for traces and other material evidence, to establish factual circumstances as well as to establish other circumstances which are of importance in a criminal case, 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 the institution of criminal proceedings. In the latter case, criminal proceedings must be instituted immediately after the inspection”.
48. Article 180 sets out the overall inspection procedure:
“An investigator or a prosecutor may invite specialists to take part in an inspection. The inspection site may be surrounded until the inspection is finished.
If necessary, in order to search for traces and other material evidence, as well as with the aim of recording circumstances at the inspection site ... [the officials carrying out the inspection] may use scientific and technical tools.
The inspection of items and documents found during a search, seizure or an inspection of land or premises is carried out at the place where the corresponding investigative activity was carried out. If more time is needed for the inspection of items and documents, or if for any reason more time is required for the inspection, the inspection may be carried out at the investigation site (izmeklēšanas vietā).
If during an inspection there is a need to carry out a search or to organise an identification procedure, an investigator or a prosecutor must carry out those activities in accordance with Articles 168-178 of this Code.
49. Articles 181-182 set out specific arrangements with regard to post-mortem examinations and bodily inspections.
50. Article 183 provides that inspection records must be drawn up, describing all the activities carried out and noting the observations made by the investigators. The records should also list all the items seized during the inspection.
C. Code of Administrative Offences
51. Article 256, in force at the material time, provided for the procedure for examination of persons and inspection of objects. According to that Article, such examination and inspection was carried out by, among other authorities, authorised officials of the State police who had to draw up a record to that effect. The inspection is carried out in the presence of the person who owns or possessed the property. In urgent cases such property and objects may be inspected without the presence of the owner.
Section 46ą, second paragraph, provided that a fine for selling unauthorised pharmaceutical products was between LVL 100 and 500 for an individual person, and between LVL 1,000-5,000 for a legal entity.
Section 166˛ provided that a fine for carrying out an unlicensed business activity was between LVL 200 and 500 for an individual person, and between LVL 500 and 3,000 for a legal entity.
D. Administrative Procedure Law (as in force at the material time)
52. By virtue of section 91, a person who considers that his or her rights or legal interests have been or may be infringed by a de facto action on the part of an institution, which is planned or has already begun, may apply to the institution with a submission regarding the de facto action (subsection 1). With respect to finished actions, a person may apply directly to a court (subsection 5).
53. 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 action, 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.
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
54. The applicant complained, under Article 8 of the Convention, of the unauthorised search of his apartment and the seizure of his personal belongings. The relevant part of Article 8 provides:
“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 ...”
1. The parties’ observations
55. The Government argued, first, that the applicant could not claim to be a victim within the meaning of Article 34 of the Convention. Notably, he had failed to substantiate how the seizure of his computer during the police inspection at his apartment and their subsequent forensic examination had breached his rights protected under Article 8 of the Convention.
56. Secondly, the Government considered that the applicant had not exhausted domestic remedies as he had failed to institute proceedings in respect of his Article 8 complaints before the Office of the Prosecutor General. Alternatively, the applicant had failed to institute administrative proceedings seeking to contest the impugned de facto actions of the police officers. The Government asserted that the role of the administrative courts in reviewing the lawfulness and proportionality of police actions became particularly important in cases, such as this one, where following an internal police inquiry it had been decided not to initiate disciplinary or criminal proceedings.
57. Lastly, the Government argued that the applicant had abused his right of application by not informing the Court that the seized items had either been returned to him, or that he had the right to have them returned.
58. The applicant disagreed with the Government’s assertions.
2. The Court’s assessment
59. In relation to the Government’s first argument on the alleged non-compliance with Article 34 of the Convention, the Court notes that it is common ground between the parties that on 11 June 2004 police officers entered the applicant’s apartment and, without prior authorisation, seized certain items from it. Reiterating that the word “victim” in the context of Article 34 of the Convention denotes a person directly affected by the act or omission in issue (see, for example, Nada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012), the Court finds it sufficiently established that the applicant has been directly affected by a measure which falls to be examined under Article 8 of the Convention.
60. Regarding the Government’s argument about the non-exhaustion of domestic remedies, the Court observes that, in essence, the applicant raised his Article 8 complaint before the administrative courts in the course of the administrative offence proceedings (see paragraph 32 above). The administrative courts in those proceedings established the facts relevant for the applicant’s complaint under Article 8 of the Convention and, to a certain extent, verified the legal basis on which the police officers had carried out the inspection of the applicant’s flat and the seizure of certain items (see paragraphs 33 and 35 above). In addition, the Office of the Prosecutor General also examined and adopted a final decision in relation to the impugned events (see paragraph 25 above). As a consequence, this complaint cannot be declared inadmissible for non-exhaustion of domestic remedies.
61. Lastly, in relation to the Government’s argument that the applicant abused the rights set forth in the Convention within the meaning of Article 35 § 3 (a) of the Convention, the Court reiterates that under this provision an application may be rejected as an abuse of the right of individual application if, among other reasons, new, important developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 of the Rules of Court, the applicant has failed to disclose that information to the Court (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with case-law cited therein). However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (ibid.). In the present case the available information does not indicate that the applicant intended to mislead the Court. On those grounds the Court dismisses the Government’s argument that the applicant had abused his Convention rights.
62. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties’ observations
63. The applicant maintained the substance of his initial complaint. First, he denied that he had invited the police officers to inspect his apartment. Secondly, he argued that he had no information what procedural activities all the people who arrived at his apartment had carried out. According to the applicant, around twenty to thirty people wearing uniforms and plain clothes were entering and leaving the apartment, and taking his belongings.
64. The Government contested that the police inspection had constituted an interference with the applicant’s right to respect for his home or private life. As provided for under section 12(4) of the Law on the Police and Articles 179-80 of the Code of Criminal Procedure, an inspection, as opposed to a search, may be carried out before the initiation of criminal proceedings and conducted in places to which the State authorities had free access. As the applicant had consented to grant the police officers access to his apartment, the police chose an inspection of the apartment as the most appropriate procedural tool for the situation concerned.
They agreed that the seizure carried out at the applicant’s home had amounted to an interference with the applicant’s right to respect for his private life under Article 8.
65. Should the Court consider that there had been an interference within the meaning of Article 8, the Government contended that, as in the case of Evcen v. the Netherlands (dec.) (no. 32603/96, 3 December 1997), the legal basis for the alleged interference in the present case had been sufficiently clearly provided for in the national law. Namely, the inspection of the applicant’s apartment and the seizure of items were carried out within the scope of section 12(1)(24) of the Law on the Police (see paragraph 41 above). They added that those activities were similar to the investigative measures provided for under Articles 168 and 179-80 of the Code of Criminal Procedure and Article 256 of the Code of Administrative Offences.
2. The Court’s assessment
66. At the outset, the Court reiterates that the essential object and purpose of Article 8 of the Convention is to protect the individual against arbitrary interference by the public authorities (see, for example, Niemietz v. Germany, 16 December 1992, § 31, Series A no. 251-B, with further references). With that in mind, the Court shall assess whether there was an interference and, if so, whether it was justified under the terms of Article 8 § 2 of the Convention.
(a) Whether there was an interference
(i) Police inspection
67. In the present case, it is not disputed that the contested police actions - an inspection and ensuing seizure - were carried out at the applicant’s residence, which was at the same time also the registered address of a company of which he was director (see paragraph 9 above). The Government argued that the impugned action had not amounted to a “search” but merely to an “inspection”.
68. Being compelled to look behind appearances and to examine the realities of the procedure in question (see, mutatis mutandis, Mikolajová v. Slovakia, no. 4479/03, § 41, 18 January 2011), the Court observes that, disregarding the characterisation of the impugned measure under domestic law, the scope and effects of the police inspection suggest that they amounted to an interference (see paragraphs 8-10above).
69. Given that the police officers had entered and inspected the applicant’s home on the basis of his consent, the Government in substance argued that the applicant had waived his right to benefit from any procedural safeguards established under domestic law. The Court notes in this regard that a waiver of a right guaranteed by the Convention is not valid unless it has been given in full knowledge of the facts, that is to say on the basis of informed consent and without constraint (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 202, ECHR 2007-IV). In addition, a waiver must be attended by minimum safeguards commensurate with its importance (see Dvorski v. Croatia [GC], no. 25703/11, § 100, ECHR 2015) and once invoked, must not only be voluntary, but must also constitute a knowing and intelligent relinquishment of a right (Pishchalnikov v. Russia, no. 7025/04, § 77, 24 September 2009). The Court considers that the same principle is to be applied also in this case.
70. Even accepting that the applicant had indeed consented to the inspection (see paragraph 7 above), there is no information that the applicant was informed of his rights to refuse the police officers access to his apartment and of the consequences of consent to the inspection.
71. With regard to the seizure, the Court observes that it is common ground between the parties that it constituted an interference with the applicant’s rights guaranteed by Article 8 of the Convention.
72. In the light of the above, the Court therefore finds that the measures complained of - police inspection and seizure - constituted an interference with the applicant’s right to respect for his home and private life.
(b) Whether the interference was justified
73. Next, the Court has to determine whether the interference was justified under paragraph 2 of Article 8, in other words whether it was “in accordance with the law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve the aim or aims in question.
(i) “in accordance with the law”
74. The Court reiterates at the outset that the expression “in accordance with the law” not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law which implies that where a national law authorises intervention, it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness (see, mutatis mutandis, Mooren v. Germany [GC], no. 11364/03, § 76, 9 July 2009). A law is “foreseeable” if it is formulated with sufficient precision to enable the individual - if need be with appropriate advice - to regulate his conduct (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000-XI). In the context of such investigating activities which lack public scrutiny and bear risks of abuse of power, the compatibility with the rule of law requires and the Court will assess whether domestic law provides adequate and effective protection against arbitrary interference with Article 8 rights (see, mutatis mutandis, Vukota-Bojić v. Switzerland, no. 61838/10, §§ 68 and 72, 18 October 2016).
75. The file of the applicant’s case shows that the police had been informed that an individual, namely the applicant, was selling unlicensed pharmaceutical products at his apartment (see paragraph 7 above). After having carried out an initial investigation, on 11 June 2005, the police officers informed the applicant that the inspection at his home was to be carried out under Articles 179-183 of the Code of Criminal Procedure (see paragraph 11 above).
The case-file does not show that the domestic authorities had made him aware of the legal basis for the ensuing seizure.
76. The Court concludes that the above legal basis was presented to the applicant as grounds for the ensuing police actions. Even if couched in very brief terms, the provisions invoked by the authorities should be understood to limit the scope of police powers during an inspection. In particular, once there was a need to carry out a search, sections 168-178 of the Code of Criminal Procedure regulating search and seizure were to be applied (for more detailed description see paragraphs 43-46 above). The latter provisions provided for procedural safeguards and required a prior motivated decision to be presented to the applicant (see, however, the Court’s findings in the case of Taraneks v. Latvia, no. 3082/06, §§ 106-108, 2 December 2014, in relation to shortcomings with regard to carrying out urgent searches).
77. Overall, from the information the applicant had received he could have expected that the police activities during inspection would be distinct to those of a search and seizure. In the present case, however, the police intervention lasted for an extended period of time and resulted in seizure of several items, including the applicant’s computer and a computer hard drive (see paragraph 10 above). Given that both in law and in practice the distinction between an inspection and seizure and a search and seizure was not evident, it was of particular importance that the police actions were attended by an adequate and effective supervision aimed at preventing possible abuses in the activities of police officials.
78. At this point the Court reiterates that its power to review compliance with domestic law is limited, it being in the first place for the national authorities, notably the courts, to interpret and apply that law (see, among other authorities, Chappell v. the United Kingdom, 30 March 1989, § 54, Series A no. 152-A). While the Court should exercise a certain power of review in this matter, since failure to comply with domestic law entails a breach of Article 8, the scope of its task is subject to limits inherent in the subsidiary nature of the Convention, and it cannot question the way in which the domestic courts have interpreted and applied national law, except in cases of flagrant non-observance or arbitrariness (see Goranova-Karaeneva v. Bulgaria, no. 12739/05, § 46, 8 March 2011, and, mutatis mutandis, Galović v. Croatia, no. 54388/09 (dec.), 5 March 2013, §§ 58-61). Moreover, domestic courts must undertake a meaningful scrutiny of the authorities’ actions affecting rights under the Convention in order to comply with the lawfulness requirement (see C.G. and Others v. Bulgaria, no. 1365/07, §§ 42-49, 24 April 2008).
79. Turning to the facts of the present case, the Court observes that the posterior review of the impugned actions of the police that was carried out by the domestic authorities demonstrated the following shortcomings in guaranteeing adequate and effective safeguards against possible abuse.
80. First, the domestic authorities retroactively altered the legal basis for the police inspection.
The Office of the Prosecutor General, in their initial review, indicated that the police officers had acted pursuant to the powers provided for in Articles 179-183 of the Code of Criminal Procedure (see paragraphs 11 and 24 above). However, the Office of the Prosecutor General subsequently held that the powers of the police to conduct inspection and seizure measures derived from sections 12(1)(4) and 12(1)(24) of the Law on the Police (see paragraph 25 above). This was also reiterated by the Government (see paragraph 65 above).
The domestic courts were asked during the administrative offence proceedings to assess the lawfulness of the police actions. The Administrative Court, by relying on the police internal investigation, concluded that the activities had been carried out by virtue of, first, the general duties of police officers and, second, their duties to combat economic crimes, as set out in sections 12(1)(23) and 10(1)(6) and (7) of the Law on the Police (see paragraph 35 above).
81. The Court considers that the alteration of the initial legal basis and the disagreement among the authorities as to which specific provision of the Law on Police had regulated the police actions attest to the lack of clarity as to the actual legal basis on which the impugned actions were carried out.
82. Second, the domestic authorities failed to scrutinize the initial absence of a legal basis for carrying out seizure.
Even assuming that the items were seized on the basis of section 12(1)(24) of the Law on the Police, as alleged by the Government (see paragraph 65 above), given that this provision authorised the seizure of items, products and substances the storage of which was prohibited by law or needed authorization, there was no assessment carried out by the domestic authorities on how the seizure of such items as the applicant’s computer and computer’s hard drive had fallen within the scope of that provision.
Moreover, the Administrative Court did not carry out any meaningful assessment of the legality and scope of the seizure carried out during inspection.
83. The Court finds that the supervision in the circumstances of the case failed to provide adequate and effective safeguards against possible abuse in the application of the impugned measure by the police. Moreover, the actions complained of cannot be considered as a foreseeable application of the relevant provisions of domestic law.
(ii) legitimate aim and “necessity in a democratic society”
84. Having regard to the above conclusion, the Court does not consider it necessary to review compliance with the other requirements of Article 8 § 2 in this case (see, for example, Kopp v. Switzerland, 25 March 1998, Reports of Judgments and Decisions 1998-II, § 76, and Heino v. Finland, no. 56720/09, § 49, 15 February 2011).
85. In the light of the above considerations, the interference was not “in accordance with the law” within the meaning of Article 8 § 2 of the Convention.
There has been a violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
86. The applicant complained that he had been deprived of effective remedies, which in substance raises an issue under Article 13 of the Convention:
“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.”
87. The Government contested that argument.
88. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.
89. Having regard to the above finding relating to Article 8, the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 13 (see, among other authorities, Heino v. Finland, cited above, § 55).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
90. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
91. The applicant claimed 100,383,565.20 United States dollars (USD) (about EUR 941,906,000) in respect of pecuniary damage and 101,985,314.80 Latvian lati (LVL) (about EUR 145,700,000) in respect of non-pecuniary damage.
92. The Government contested the claim.
93. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 3,000 in respect of non-pecuniary damage.
B. Costs and expenses
94. The applicant also claimed LVL 80,985 (about EUR 116,000) for the costs and expenses incurred before the domestic courts and the Court.
95. The Government contested the claim, arguing that the applicant had failed to prove that he had actually incurred the expenses claimed.
96. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, given that no documents were submitted pertaining to the expenses claimed, the Court rejects the claim.
C. Default interest
97. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 8 of the Convention;
3. Holds that there is no need to examine the complaint under Article 13 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 18 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Angelika Nußberger
Deputy Registrar President