European Court of Human Rights

 

 

FIFTH SECTION

CASE OF PĪLĀGS v. LATVIA

(Application no. 66897/13)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

3 March 2022

 

This judgment is final but it may be subject to editorial revision.

In the case of Pīlāgs v. Latvia,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Lətif Hüseynov, President,
          Mārtiņš Mits,
          Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 66897/13) 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”) on 15 October 2013 by a Latvian national, Mr Alvis Pīlāgs, born in 1971 and living in Riga (“the applicant”) who was represented by Mr O. Ondrups, a lawyer practising in Kandava;

the decision to give notice of the application to the Latvian Government (“the Government”), represented by their Agent, Ms K. Līce;

the parties’ observations.

Having deliberated in private on 3 February 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the applicant’s complaint under Article 6 § 1 of the Convention that the domestic courts did not properly examine his allegations of incitement in the administrative offence proceedings against him.

2.  The applicant, a State official employed by the State Revenue Service, was subjected, with his colleague I.V., to an undercover operation (operatīvais eksperiments), organised by the Bureau for the Prevention and Combating of Corruption (Korupcijas novēršanas un apkarošanas birojs - “the KNAB”) and approved by the prosecutor’s office. At the request of a private person acting on the KNAB’s instructions, the applicant and I.V. delivered a large sum of cash from Estonia to Latvia and received 500 euros (EUR) each for those “services”. The KNAB instituted criminal proceedings but those proceedings were later discontinued in relation to the delivery of cash as no elements of a crime were present. The KNAB then instituted administrative offence proceedings in which he was held liable for breaching restrictions imposed on State officials, as he had not obtained prior permission to carry out other paid activities in addition to his duties as a State official. He was fined 65 Latvian lati (around EUR 92). The domestic courts in the administrative offence proceedings examined the case twice and upheld the fine imposed on the applicant. In the first round of proceedings, the appellate court quashed the first-instance court’s ruling and sent the case back for a fresh examination. In the second round of proceedings, by a final decision of 15 April 2013, the appellate court confirmed the reasoning of the first-instance court without assessing the applicant’s allegations of incitement.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

3.  The applicant complained that the domestic courts had not properly examined his allegations of incitement, and alleged a breach of the right to a fair trial under Article 6 § 1 of the Convention.

4.  The Government argued that the applicant had not suffered a significant disadvantage. The Court has already dismissed similar objections in other cases concerning Article 6 of the Convention (see Kangers v. Latvia, no. 35726/10, §§ 37-41, 14 March 2019, with further references). Taking into account that the alleged incitement, if it occurred, was capable of having a serious impact on the applicant’s personal reputation and the fairness of the proceedings against him, the Court sees no reason to rule otherwise in the present case.

5.  This complaint is not manifestly ill-founded or inadmissible on any other grounds. It must therefore be declared admissible.

6.  The general principles concerning entrapment have been summarised in, among many other authorities, Ramanauskas v. Lithuania ([GC], no. 74420/01, §§ 51-55, ECHR 2008), Bannikova v. Russia (no. 18757/06, §§ 37-65, 4 November 2010), Baltiņš v. Latvia (no. 25282/07, §§ 55‑57, 8 January 2013), and Matanović v. Croatia (no. 2742/12, §§ 131-35, 4 April 2017).

7.  It is undisputed that in the present case the undercover operation was organised by the KNAB, approved by the prosecutor’s office and carried out by a private person acting under their instructions. However, on the basis of the material presented by the parties, the Court cannot establish, under the substantive test alone, whether the applicant was subjected to incitement contrary to Article 6 of the Convention and will proceed with the procedural test of incitement.

8.  For the applicant’s plea of entrapment to be addressed effectively, the domestic courts would have had to establish in adversarial proceedings the reasons why the operation had been mounted, the extent of the police’s involvement in the offence and the nature of any incitement or pressure to which the applicant had been subjected (see Ramanauskas, cited above, § 71).

9.  The domestic courts added some material from the criminal case against the applicant (testimony by the private person in question and by the applicant’s colleague I.V., and information from the KNAB and the prosecutor’s office about the undercover operation) to the file in the administrative offence proceedings (contrast with Baltiņš, cited above, § 62). However, the first-instance court in the second round of administrative offence proceedings only referred to that material to establish that the applicant had concluded a civil law contract for which he had received remuneration and that the evidence contained therein was admissible in the administrative offence proceedings. The first-instance court did not examine the undercover operation itself, as the review of that operation had been carried out by the prosecutor’s office. That court held that there were no grounds to doubt the conclusion of the prosecutor’s office that the undercover operation had been lawful.

10.  Despite the applicant’s incitement plea, the appellate court did not examine his allegations in that regard. According to the KNAB’s submissions before the appellate court, it had been the task of the prosecutor’s office to monitor the conformity of operational activities with the law. The delivery of cash from Estonia to Latvia had been established in accordance with the Criminal Procedure Law. Thus, neither the KNAB nor the domestic courts in the administrative offence proceedings had competence to examine operational activities. The appellate court did not provide any assessment of that matter, thereby implying that it agreed with the KNAB that it had not had competence. It upheld the first-instance court’s ruling and agreed with its reasoning. However, it is the task of the judicial authorities to examine the facts of the case and to take the necessary steps to uncover the truth in order to determine whether there was any incitement (see Ramanauskas, cited above, § 70). It is not sufficient for the domestic courts to simply rely on the conclusions of the prosecutor’s office when assessing an incitement plea (compare Baltiņš, cited above, § 63). The Court concludes that the domestic courts did not carry out a comprehensive and thorough analysis within the administrative offence proceedings as to the reasons why the undercover operation had been mounted, the extent of the police’s involvement in the offence and the nature of any incitement or pressure to which the applicant had been subjected (see paragraph 8 above), thus undermining the applicant’s right to a fair hearing.

11.  There has accordingly been a violation of Article 6 § 1 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

12.  The applicant claimed 185.39 euros (EUR) in respect of pecuniary damage and EUR 30,000 in respect of non-pecuniary damage. He also claimed EUR 1,500 in respect of legal costs incurred before the domestic courts and 1,000 EUR for those incurred before the Court.

13.  The Government disagreed with those claims.

14.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. The Court - having regard to the fact that domestic law provides that administrative offence proceedings may be reopened if the Court has held that the impugned ruling does not comply with the Convention - considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant (see Kuzmina and Others v. Russia, nos. 66152/14 and 8 others, § 122, 20 April 2021, with further references).

15.  Having regard to the documents in its possession, the Court considers it reasonable to award 1,000 EUR covering costs under all heads, plus any tax that may be chargeable to the applicant.

16.  The Court further 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 6 § 1 of the Convention;

3.      Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

4.      Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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 3 March 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

            Martina Keller                                                   Lətif Hüseynov
          Deputy Registrar                                                      President