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THIRD
SECTION
DECISION
Application no.
42065/06
by Ivars KIBERMANIS
against
Latvia
The
European Court of Human Rights (Third Section), sitting
on 17 January 2012 as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Egbert
Myjer,
Ján
Šikuta,
Ineta
Ziemele,
Nona
Tsotsoria,
Kristina
Pardalos,
judges,
and Marialena Tsirli,
Deputy
Section Registrar,
Having
regard to the above application lodged on 18 September 2006,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Ivars Kibermanis, is a Latvian national
who was born in 1960 and lives in Rīga.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicant,
may be summarised as follows.
1. First set of criminal proceedings
- In
1996 the applicant, by an order of the Secretary of State at the
Ministry of Justice was appointed deputy head of the Bailiffs’
Department of the Ministry of Justice. In 2003, he and two bailiffs
were accused of an abuse of their official position. In particular,
they were accused of selling the property of a company at less than
its market value, knowing that the company was about to become
insolvent, thereby infringing the lawful interests of its creditors.
According to the bill of indictment, the applicant was accused of
having committed two separate offences. In particular, he was accused
of an abuse of his official position (under section 162 § 2 of
the Criminal Code) by giving unlawful instruction to other bailiffs.
He was also accused of receiving bribes from the co-accused after the
unlawful transaction had been accomplished, and of omitting to report
the unlawful activities of the other bailiffs with intent to receive
a bribe (section 164 § 2 of the Criminal Code).
(a) Proceedings before the lower court
- In
order to establish whether the applicant was “an official”
under section 162 of the Criminal Code, the lower court relied on the
order of the Ministry of Justice of 1996 according to which the
applicant had been nominated as a “candidate civil servant”,
and on the Law on the Prevention of Corruption (Korupcijas
novēršanas likums), in force at the material time,
according to which a candidate civil servant was to be considered a
State official.
- In
the bill of indictment the criminal activities under section 162 §
2 of the Criminal Code of all the accused were set out, together with
the factual circumstances of the applicant’s accusation under
section 164 § 2. The lower court clarified the bill of
indictment by putting the facts corresponding to the activities of
each of the accused, within the scope of the charges brought against
each of them, in chronological order. The court also observed that
the applicant had committed the offences in the same factual
circumstances, therefore it classed the charges brought against the
applicant as an aggregate offence (noziedzīgu nodarījumu
kopība).
- After
cross-examination of the witnesses at court hearings between
16 August and 13 September 2005, the applicant was found guilty
of the aforementioned offences. The sentence was established by the
inclusion of the sentence for the milder offence (two years under
section 162 § 2) in that for the more severe offence (five
years’ imprisonment under 164 § 2). The final sentence was
suspended for a probation period of three years.
(b) Appellate and cassation proceedings
- The
prosecutor appealed against the suspended sentence. The applicant
complained that the court had erred in assessing the testimony of the
witnesses and co-accused, and that according to his official duties
he was not supposed to be considered a State official under section
162 of the Criminal Code. One of the co-accused complained that the
court had rectified the bill of indictment.
- During
the hearing the appellate court cross-examined the witnesses summoned
on behalf of the applicant. On 31 January 2006 the Zemgale Regional
Court upheld the lower court’s judgment. When dismissing the
applicant’s appeal concerning the status of State official, the
court referred to section 316 of the Criminal Law, which came into
force on 1 April 1999. The appellate court dismissed the other
complaints by concurring with the reasoning of the lower court.
- In
his appeal on points of law the applicant submitted that the lower
court had rectified the bill of indictment and accused him not only
of omission to act with the aim of receiving a bribe, but also of
acting with the same aim. He also complained that he had been classed
as “an official” based on a norm which had not been in
force at the material time.
- The
court of cassation dismissed the appeal, finding that the fact that
the lower court had partly rectified the layout of the description of
the facts in the bill of indictment had not restricted the
applicant’s right to defence. It also found that the court had
not violated any other procedural norms. With respect to the status
of official, the Senate of the Supreme Court admitted that the
reference to section 316 of the Criminal Law was wrong because it had
come into force after the offence was committed. It nevertheless
concluded that on the basis of the other evidence the applicant had
rightly classed as an official under the Criminal Code in force at
the material time.
(c) Other proceedings
- The
applicant submitted a constitutional complaint where he complained
about the constitutionality of the fact that the appellate court had
partly concurred with the reasoning of the lower court. It was
dismissed for non-compliance with the formal requirements of a
constitutional complaint.
2. Second set of criminal proceedings
(a) Pre-trial criminal proceedings
- On
22 October 2004 the State Police instituted criminal proceedings for
fraud, in particular, attempts to obtain by fraud the immovable
property of a victim, K., by using fake cession contracts and
carrying out other fraudulent activities, which had taken place,
inter alia, at the premises of the bailiffs’ office
where the applicant worked.
- On
21 December 2004 a judge of the Rīga City Latgale District Court
authorised a search of the applicant’s office, limiting the
seizure to:
“... documents, contracts, letters, notices, and
other documents concerning A.K., M.V. and E.M. for the period from 29
April 2004 until the material date”.
- The
search of the office was carried out on 22 December 2004, and the
investigators seized two hard drives from the applicant’s and
his assistant’s computers. The items were sealed and the
applicant made no complaints with respect to the seizure on the
search records. He nevertheless commented that pursuant to section 52
of the Law on Bailiffs the computers contained documents which were
not to be removed from the premises of the bailiffs’ office.
- On
22 December 2004 the investigator ordered a technical expert report
in order to find out whether the memory of the seized hard drives
contained certain deleted documents: a cession contract dated 15 July
2004 and letters and other documents containing the names of four
persons, A.K., E.M., M.V. (all of whom at that time were suspects or
accused in the same criminal proceedings), and I.K., the victim. On
27 December 2004 the hard drives were returned to the applicant.
(b) Complaints about the search and
seizure
- On
23 December 2004 the applicant complained to the Office of the
Prosecutor that the investigators had exceeded their powers by
seizing the hard drives, since the judge’s search order had not
authorised the seizing of anything but documents. He invoked Article
8 of the Convention, submitting that the search and seizure at his
office had violated his right to respect for his private life and
that of his clients in that the seized items had included two hard
drives containing information on his private life and documents with
respect to his clients. Later he added the complaint that the seized
objects had not been duly sealed and were accessible to anyone.
- On
29 December 2004 the applicant’s claim was dismissed. The
prosecutor of the Rīga Court Region stated that the search had
been conducted in accordance with section 52 § 4 of the Law on
Bailiffs, which in criminal proceedings concerning fraud authorised
the seizure of documents from bailiffs’ offices, and that the
search order must be interpreted as covering not only documents but
also any other device containing the relevant documents. It added
that the hard drives had not been seized but only taken in order to
extract from them the information authorised by the judge.
- The
applicant submitted various similar complaints to higher-ranking
prosecutors claiming that during the search and seizure the
investigating officer had been accompanied by an IT specialist who
could have copied on the spot the necessary information from the hard
drive, as the applicant had suggested. On 29 March 2005 a supervising
prosecutor dismissed the complaint by contending that electronic
documents which were stored in hard drives could be changed;
therefore in the particular circumstances the seizure of the hard
drives had been an appropriate decision in that it would not have
been possible to select the correct document without special
knowledge. A similar conclusion was reached in the final decision of
the Prosecutor General of 21 June 2005.
- In
September and November 2005 the applicant and his co-accused were
asked to give a voluntary voice sample in order to verify the
authenticity of the tapped telephone conversations between the two.
They both refused and were subjected to compulsory voice sampling.
- It
appears that in January 2006 the criminal case was sent to court in
order for the adjudication to commence.
- Following
another complaint, on 3 February 2006 the Office of the Prosecutor
General reiterated that the Prosecutor General had given a final
decision on the complaints. Moreover, the applicant was reminded that
the pre-trial criminal process had been terminated, therefore any
future requests and submissions were to be addressed to court.
- On
23 March 2006 the applicant submitted to the investigating judge of
the Rīga City Latgale District Court a similar complaint to the
one mentioned above about the allegedly unlawful seizure of the hard
drives. The judge noted that section 17 of the Law on Criminal
Procedure provided for a separation between the pre-trial criminal
process and the trial, therefore the judge could only have examined
the complaints of alleged human-rights infringements during the
pre-trial criminal process, that is, before the criminal proceedings
were referred to the appellate court for adjudication. Therefore, on
28 March 2006 the applicant’s claim was dismissed owing to the
fact that his criminal case had been sent to trial in January 2006
and the beginning of the adjudication had been set for 2 May 2006.
(c) Trial
- On
5 December 2006 the applicant was convicted of fraud and sentenced to
five years’ imprisonment, which was suspended. The court relied
on, inter alia, the telephone conversations between the
applicant and the co-defendants which were tapped in 2004.
- On
various dates after the lower court’s judgment the applicant’s
representative asked the Chairman of the Supreme Court and the
appellate court to inform him whether the telephone tapping had been
in accordance with the law, in particular, whether it had been
authorised by a judge.
- On
1 June 2007 the Chairman of the Supreme Court refused to provide any
information on grounds of State secrecy. On 31 August 2007 a judge
sitting on the panel of the appellate court told the applicant that
she would herself verify whether the phone tapping of 2004 had been
authorised by a judge.
- On
15 May 2008 the appellate court partly revoked the lower court’s
judgment and sentenced the applicant to six years’
imprisonment. The court referred to information received from the
Bureau for the Prevention and Combating of Corruption (KNAB)
confirming that the phone tapping from 14 June to 14
November 2004 had been carried out after authorisation had been
obtained from a judge of the Supreme Court. The court noted that it
had no reason not to rely on the aforementioned information in that
the recorded conversations concerned the criminal case, and the
substance of the conversations was supported by other evidence.
- At
the applicant’s appeal on points of law on 16 December 2008 the
Senate partly revoked the appellate court’s judgment (on the
counts of bribery and fraud) and sent it to the appellate court. The
remainder of the judgment (in respect of document forgery) took
effect.
- In
January 2009 the applicant repeatedly asked the Chairman of the
Supreme Court to provide information on whether there had been a
judge’s authorisation for the recording of his telephone
conversations. The applicant was informed that only from 1 September
2008 had the Supreme Court started to register information about
persons in respect of whom a judge had granted authorisation to carry
out special investigative measures. The legal basis was an order of
the Chairman of the Supreme Court of 18 August 2008. The applicant
was, therefore, asked to address the same request either to the
Office of the Prosecutor General, or to the appellate court.
- The
final judgment in the revoked part was delivered on 2 March 2010 when
the Senate of the Supreme Court terminated the criminal proceedings,
finding that there had been a wrong interpretation of the substantive
norms of the Criminal Law.
B. Relevant domestic law
1. Code of Criminal Procedure
- Section
168 provides, inter alia, that a search may be conducted only
on the basis of a judicial decision.
- Pursuant
to section 172, the investigator or the prosecutor is strictly
limited to seizing only documents which may have direct relevance to
the [criminal] case.
- Section
220 provides that complaints about the actions of the investigating
authorities may be submitted to a prosecutor.
- Section
222 provides that a complaint about the actions of a public
prosecutor may be submitted to a higher prosecutor.
2. Law on Criminal Procedure
- Section
40 provides that an investigating judge is the judge whom the
chairperson of the district (city) court has assigned, for a specific
term in relation to each case and in accordance with the procedure
specified by law, to supervise the observance of human rights in
criminal proceedings.
- Section
41 provides that during a pre-trial investigation and criminal
prosecution an investigating judge has, inter alia, the duty
of reviewing, in cases provided for by law, the performance of
procedural activities.
- The
same section provides that during the pre-trial investigation and
criminal prosecution an investigating judge has the right to
familiarise himself with all the material in the criminal proceedings
in respect of which the complaint has been received. He or she also
has the right to request additional information about criminal
proceedings where special investigative actions are being conducted,
as well as to determine the terms for the performance of the special
investigative actions.
- The
investigating judge is authorised to apply a procedural sanction for
the non-execution of duties or the non-observance of procedures
during pre-trial criminal proceedings. He or she can propose that
officials who are authorised to perform criminal proceedings are to
be held liable for infringements of human rights committed in the
carrying out of criminal procedural activities.
3. Law of the Office of the Prosecutor
- The
Office of the Prosecutor is a judicial institution which
independently carries out supervision of the observance of law within
the scope of its competence as determined by law. Its role is,
inter alia, to supervise the work of investigative institutions
and the investigatory operations of other institutions.
COMPLAINTS
A. Complaints concerning the first set of criminal
proceedings
- The
applicant complains under Article 6 § 1 of
the Convention that there was a violation of the equality of arms
principle in that the court rectified the bill of indictment,
therefore allegedly acting on behalf of the prosecution. He also
complained of the court’s failure to grant adversarial
proceedings in that he was unaware of the scope and grounds of the
accusations.
- The
applicant also complains under Article 7 § 1 (1) that he was
found guilty on the basis of legal norms which were not in force at
the time the offence was committed, in particular, that he was
classed as an official within the meaning of Section 316 of the
Criminal Law which came into force only in 1998, whereas the alleged
offence took place in 1996.
- He
further complains under Article 2 of Protocol No. 7 that the
appellate court concurred with the reasoning of the lower court, thus
allegedly depriving him of an adequate review of his appeal.
B. Complaints concerning the second set of criminal
proceedings
- The applicant complains under Article 8 of the
Convention that during the search of the bailiffs’ office where
he worked the investigation authorities took items the seizure of
which was not authorised by a judge. The applicant also complaints
that he was unable to verify the lawfulness of the procedure by which
the evidence against him was obtained.
- The
applicant also complains under Article 6 of the Convention of lack of
access to court in order to examine the alleged unlawful actions of
the investigators during the search and seizure, in particular, that
the investigators exceeded their powers in seizing objects which were
not mentioned in the search order.
THE LAW
- The
applicant complains under Article 8 the Convention, which in so far
as relevant provides as follows:
“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.
...”
- The
Court considers that it cannot determine the admissibility of this
complaint 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.
- The
applicant also alleges violations under various other Articles of the
Convention.
- 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. It follows that these complaints are inadmissible under
Article 35 § 3 as manifestly ill-founded and must be rejected
pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn
the examination of the applicant’s
complaints under Article 8 of the Convention;
Declares the remainder of
the application inadmissible.
Marialena Tsirli Josep
Casadevall
Deputy Registrar President
