case of meimanis v. latvia

7/23/2019 Case of Meimanis v. Latvia

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FOURTH SECTION

CASE OF MEIMANIS v. LATVIA

(Application no. 70597/11)

JUDGMENT

STRASBOURG

21 July 2015

This judgment will become final in the circumstances set out in Article 44

2 of the Convention. It may be subject to editorial revision.


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MEIMANIS v. LATVIA JUDGMENT 1

In the case of Meimanis v. Latvia,The European Court of Human Rights (Fourth Section), sitting as a

Chamber composed of:Guido Raimondi,President,

Pivi Hirvel,

George Nicolaou,

Ledi Bianku,

Nona Tsotsoria,

Faris Vehabovi,judges,Ineta Ziemele, ad hocjudge,

and Fato Arac,Deputy Section Registrar,Having deliberated in private on 30 June 2015,

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

PROCEDURE

1. The case originated in an application (no. 70597/11) 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 Mairis Meimanis (the

applicant), on 10 November 2011.2. The applicant was represented by Mr S. Vrpi, a lawyer practising

in Riga. The Latvian Government (the Government) was represented bytheir Agent Mrs K. Lce.

3. The applicant alleged, in particular, that on account of the interception

of his telephone conversations his Article 8 rights had been violated and that

there were no effective remedies in the Latvian legal system by which to

complain about such breaches. He also alleged that the proceedings before

the Constitutional Court had not been public and that he had been denied the

right to be heard.

4. On 7 December 2012 notice of the application was given to the

Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1968 and lives in Riga.

6. He is currently on trial in criminal proceedings instituted on

30 December 2005 for an attempt to take a bribe, together with A.B.


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2 MEIMANIS v. LATVIA JUDGMENT

and A.S. At the time the applicant was the head of a division in the

Economic Crime Bureau (Ekonomikas policijas birojs) in the Main Police

Department in Riga (Rgas galven policijas prvalde).7. According to the applicant, during his trial before the appellate court,

he learned that an operational investigation (operatvs uzskaites lieta) had

been opened in respect of his co-defendant A.S.

8. According to the Government, on 27 December 2005 the operational

investigation had been opened on the basis of information provided by a

private person. On 28 December 2005 the relevant authority, the Bureau for

the Prevention and Combating of Corruption (Korupcijas novranas un

apkaroanas birojs the KNAB), had informed the prosecutors officeabout this. On the same date, a Supreme Court judge had authorised the

interception of A.S.s telephone conversations and the prosecutors office

had authorised an undercover operation (operatvais eksperiments). On29 December 2005 the Head of the KNAB had authorised the interception

of A.B.s telephone conversations on the basis of section 7(5) of the Law on

Operational Activities, and they included conversations with the applicant.

On 30 December 2005 the KNAB had informed the prosecutors office

about the operational measures under the same provision. The Government

did not adduce any evidence in this connection.

A. Operational activities and the applicants complaints in that

regard

9. On 22 January 2009 a judge of the Criminal Cases Chamber of the

Supreme Court (Augstks tiesas Kriminllietu tiesu palta), in the context

of the criminal proceedings against the applicant, requested information

about the operational investigation.

10. On 18 February 2009 a specialised prosecutor, having examined the

material in accordance with section 35(1) of the Law on Operational

Activities, replied that the operational investigation had been opened on 27

December 2005. In respect of the applicant, no interception of telephone

conversations had been carried out in the context of that operational

investigation. However, she noted that his conversations were recorded if

he was speaking to [a person], whose conversations were intercepted inaccordance with the Law on Operational Activities. According to the

applicant, he learned about this information during the appellate court

hearing on 22 October 2009.

11. On 22 October 2009 the applicant requested the prosecution

authorities to review the lawfulness of the operational measures which had

been carried out and asked specific questions concerning these measures.

12. On 4 November 2009 the specialised prosecutor replied, among

other things, that on 28 December 2008 an undercover operation had been

approved on the basis of section 15(3) of the Law on Operational Activities


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in the context of the operational investigation to record the manner in which

the sworn attorney A.S. would proceed upon receipt of 19,500 Latvian lati

(LVL), to be handed over to the officials of the economic crime police, tofind out whether he would continue arranging for a bribe and to ascertain

his possible accomplices. She also noted that the domestic law did not

provide for independent judicial supervision of operational activities; such

supervision was carried out by the Prosecutor General and specially

authorised prosecutors in accordance with section 35(1) of the Law on

Operational Activities. Finally, she noted that the operational investigation

measures in respect of the applicant and his co-defendants had not been

illegal and that there had been no breaches of the general principles

governing operational activities contained in section 4 of that Law.

13. On 6 November 2009 the applicant lodged a complaint about the

specialised prosecutors reply.14. On 27 November 2009 a higher-ranking specialised prosecutor

rejected the applicants complaint. She referred to section 35(1) and

section 5 of the Law on Operational Activities. By reference to section 7(5)

the prosecutor also explained that the authorities had learned during the

interception of telephone conversations of A.S. that an offence was being

planned for 30 December 2005the act of arranging for and taking a bribe which would also involve officials from the State Police. In order to

prevent further participation of officials in corruption-related offences, a

decision was taken to intercept the telephone conversations of A.B. on the

basis of section 7(5) of the Law on Operational Activities. The competence

of the prosecution authorities did not include examination of whether that or

other provisions were compatible with the Latvian Constitution; these issues

could be determined by the Constitutional Court.

15. The applicant lodged a further complaint with the Prosecutor

General, which was rejected by a final decision of 29 December 2009. With

reference to sections 35(1) and 7(5) of the Law on Operational Activities, it

was reiterated that no breaches of that Law had been found.

B. The proceedings before the Constitutional Court

16. On 29 June 2010 the applicant lodged an individual constitutionalcomplaint with the Constitutional Court (Satversmes tiesa). He alleged that

(i) section 7(5) of the Law on Operational Activities was incompatible with

Articles 89 (protection of human rights) and 96 (right to private life) of the

Constitution (Satversme) and also with Articles 8 and 13 of the Convention,

and (ii) the first and second sentence of section 35(1) of the Law on

Operational Activities were incompatible with Article 89 and the first

sentence of Article 92 (right to a fair trial) of the Constitution and also with

Article 6 1 and Article 13 of the Convention.


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17. On 16 July 2010 the Constitutional Court initiated proceedings in

case no. 2010-55-0106 with regard to the compatibility of section 7(5) of

the Law on Operational Activities with Article 96 of the Constitution andArticle 13 of the Convention and the compatibility of the first sentence of

section 35(1) of that Law with Article 92 of the Constitution alone. The

Constitutional Court rejected the remainder of the applicants complaint.18. On 6 September 2010 a judge dismissed the applicants request,

among other things, to see the case materials, since it was contrary to the

procedure laid down in the Law on the Constitutional Court. It was for the

judge to take the necessary steps to prepare a case for adjudication (lietas

sagatavoana izskatanai) in accordance with section 22 of the Law on the

Constitutional Court. He also referred to section 22(9), section 24

and 22(2)(1) of the Law on the Constitutional Court (see paragraphs 34-35

below) to explain that the parties were entitled to see the case materials afterthe decision concerning adjudication had been taken and that it was for the

judge to decide which institutions or officials were to be requested to submit

additional information or documents.

19. On 5 November 2010 the judge dismissed the applicants request to

see the written submissions filed by the Latvian Parliament (Saeima) in the

proceedings on the grounds that such request had already been dismissed

given that these submissions formed part of the case materials.

20. On 2 December 2010 the applicant requested permission to see at

least the judges preliminary opinion (atzinums par lietas sagatavoanu

izskatanai) before the preparation of the case was completed and before

the preparatory meeting had taken place. The applicant sought the

possibility of expressing his opinion on the proceedings and, in particular,

on whether or not the case could be decided by means of an oral procedure,

which was his preference.

21. On 17 December 2010 the President of the Constitutional Court

replied to the applicant that the parties could see the case materials only

after the decision concerning adjudication had been taken. That decision had

been taken on 14 December 2010. Consequently, the applicant could see the

case material. As regards the possibility of the proceedings being conducted

orally or in accordance with a written procedure, he explained that this issue

was to be determined by the Constitutional Court in accordance with section22(8)-(10) of the Law on the Constitutional Court. This issue was first to be

considered by the relevant judge, then by the President of the Constitutional

Court and, subsequently, by all other judges in the preparatory meeting. The

parties could express their opinion on this matter after they had seen the

case materials.

22. On 21 January 2011 the applicant filed an opinion with the

Constitutional Court and noted, among other things, that the case could not

be decided through a written procedure and that an oral hearing should be

held. He admitted that the written procedure before the Constitutional Court


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as such did not infringe his rights to be heard, but submitted that it had to be

examined in each particular case and that the court was not allowed to reject

a request in connection with the gathering of evidence without examining itsnecessity, significance or procedural legal grounds.

23. On 25 January 2011, in a closed preparatory meeting, the

Constitutional Court examined the case materials and found that the

documents contained therein were sufficient for the purposes of examining

the case by means of a written procedure (sections 22(10) and 281 of the

Law on the Constitutional Court). On 26 January 2011 the applicant was

informed about this decision and was given 15 days to see the case materials

and to give his opinion in connection with them (section 28 1(2) of the Law

on the Constitutional Court). The applicant used this possibility.

24. On 11 May 2011 the Constitutional Court delivered its ruling in case

no. 2010-55-0106 and held that the contested legal provisions compliedwith the Constitution and the Convention. The relevant part reads as

follows:

11. ...

It follows from the case materials that, on 27 December 2005, the KNAB opened an

operational investigation. Interception of the Applicants telephone conversations wascarried out from 29 to 31 December 2005, that is, for three days under section 7(5) of

the Law on Operational Activities (see Case materials, Vol. 1, pp. 85 86). There isno dispute that the Applicant also participated in the telephone conversations which

were intercepted.

...

13. The Applicant and the Ombudsman argue that the restriction of rights

established in section 7(5) of the Law on Operational Activities is unclear. It is

impossible to understand the meaning of to prevent. Nor can it be understood whatpreconditions need to be fulfilled in order to take operational measures under the

special procedure where immediate action is required. Therefore, the restriction of

rights established in the above-mentioned legal provision has not been provided for by

a properly adopted law (see Case materials, Vol. 1, pp. 78, and Vol. 3, pp. 46-48).

...

13.2. The Applicant argues that the provisions of section 7(5) of the Law on

Operational Activities must be applied only when necessary to prevent serious or

especially serious crimes. Consequently, the operational measures contained in this

provision cannot be performed for the purpose of detecting (atklt) a criminal offence.

...

The first sentence of section 7(5) of the Law on Operational Activities provides that

... operational activities may be carried out to react immediately to threats of criminal

offences as referred to in this provision and [that] corresponding operational measures

[may be taken] to prevent these offences. However, the fact that detection of criminal

offences has not been mentioned expressis verbis in section 7(5) of the Law on

Operational Activities, does not exclude the obligation to observe the purpose of

operational activities. [The Constitutional Court] can agree with the arguments of

Parliament and the KNAB, namely, that when carrying out activities mentioned in

section 7(5) of the Law on Operational Activities, a criminal offence can be prevented


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and detected as well. When taking operational measures to prevent criminal offences,

some [other] criminal offence may also be detected. For instance, in the case of the

taking of a bribe, operational measures may prevent a criminal offence, as well as

identifying the persons involved in giving such a bribe. Therefore, it can be concluded

that the term to preventin section 7(5) of the Law on Operational Activities includesnot only prevention of crime, but also detection of other criminal offences.

13.3. ...

[The Constitutional Court] does not agree with the opinion by the Ombudsman that

section 7(5) of the Law on Operational Activities is unclear as it fails to establish

preconditions which are necessary to allow immediate action to be taken in the form

of operational measures under the special procedure. Section 7(5) of the Law on

Operational Activities establishes two preconditions which allow ... operational

measures.

First, section 7(5) of the Law on Operational Activities enumerates specific

circumstances ... Operational measures may be taken when required to prevent acts ofterrorism, murder, banditry, riots, or other serious or especially serious offences. They

are permissible also in circumstances of a real threat to the life, health or property of

an individual. [The Constitutional Court considers that] this enumeration ... is

exhaustive and sufficiently precise. Consequently, it excludes any possibility of

operational measures under the special procedure in relation to the prevention of such

criminal offences which are not indicated in the legal provision.

Second, operational measures ... may be taken ... only when an immediate action is

required.

Interpreting this legal provision in conjunction with section 17(3) of the Law on

Operational Activities, [the Constitutional Court] concludes that covert interception of

non-public conversations is allowed only when [there is] reliable information

(pamatotas zias) about personsinvolvement in a criminal offence, as well as a threatto important interests of the State, its security or defence. Consequently ... operational

measures ... may be taken if [there is] reliable information regarding the involvement

of an individual in a criminal offence.

Section 7(5) of the Law on Operational Activities provides for an exceptional

procedure, namely, it allows ... immediate operational measures to be taken because

any delay might significantly influence their results. Taking into account the

seriousness of the offences referred to in section 7(5) of the Law on Operational

Activities, it is important to provide a timely and effective response to prevent all

threats related to such crimes.

Section 7(5) of the Law on Operational Activities establishes the preconditions

for its application [with sufficient precision]; consequently, the restriction on the

fundamental rights has been established by law.

...

17. The Applicant indicates that section 7(5) of the Law on Operational Activities

does not provide an obligation ... to receive approval by a judge in cases where

operational measures are terminated within ... 72 hours (see Case materials, Vol. 1,

pp. 2627).

17.1. Sections 7(2) and 7(3) of the Law on Operational Activities establish two

procedures for taking operational measures, namely, under the general and special

procedures. Such classification is closely related to the nature of operational measures

and their impact on the fundamental rights of persons. In the cases established in


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section 7(5) of the Law on Operational Activities, operational measures must be taken

under the special procedure as they significantly impinge on the fundamental rights of

persons.

The Constitutional Court considers that the grammatical wording of section 7(5) of

the Law on Operational Activities [does not clearly indicate] whether it is necessary to

obtain approval by the President of the Supreme Court or a specially authorised judge

in cases when operational measures are terminated within ... 72 hours.

17.2. In order to determine the content of section 7(5) of the Law on Operational

Activities, it must be interpreted in conjunction with other provisions of the same

section regulating operational measures to be taken under the special procedure.

Section 7(5) of the Law on Operational Activities contains a reference to

section 7(4) setting out the operational measures to be taken under the special

procedure. These measures, including monitoring of correspondence and covertinterception of non-public conversations, must be taken with the approval of the

President of the Supreme Court or a specially authorised judge.

Although section 7(5) of the Law on Operational Activities provides for exceptional

circumstances where ... immediate action may be taken, it also establishes the

obligation ... to obtain the approval of the President of the Supreme Court or a

specially authorised judge for operational measures under section 7(4). Already when

the draft of the Law on Operational Activities was being drawn up ... the need to

receive a judges approval was emphasised in cases where operational measureswould be taken under the special procedure (see Case materials, Vol. 1, pp. 171

and 173).

The third sentence of section 7(5) of the Law on Operational Activities indicated

that the operational measures had to be discontinued where no approval by a judge

was obtained. According to the KNAB, this indication confirms that a judges

approval must be sought only in cases where operational measures have not beenterminated within ... 72 hours (see Case materials, Vol. 3, pp. 45). However, the

Ministry of Justice and the Ombudsman indicate that such an interpretation ... would

not comply with the essence of the Constitution (see Case materials, Vol. 3, pp. 48

and 5455).

Section 7(5) of the Law on Operational Activities contains no reference to the fact

that no approval by the President of the Supreme Court or a specially authorised judge

is necessary for operational measures to be taken under section 7(4) in the event that it

is planned to terminate them within ... 72 hours. Consequently, [the Constitutional

Court] cannot agree with the opinion by the KNAB that a judges approval does nothave to be obtained if operational measures are terminated within ... 72 hours.

...

17.3. ... Consequently, section 7(5) of the Law on Operational Activities provides

that a prosecutor must always be informed of the operational measures taken; this

provision also obliges ... [the seeking of] approval by the President of the Supreme

Court or a specially authorised judge.

The restriction established in section 7(5) of the Law on Operational Activities

must be regarded as the most lenient measure for fulfilling the legitimate aim

because monitoring by a prosecutor and subsequent judicial scrutiny of the

lawfulness of operational measures ensures effective protection of the rights of

persons.

18. ...


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It is not possible to agree with the Applicants statement to the effect that theinfringement of his right is greater than the benefit gained by society. By means of a

lawful restriction of a persons right to respect for his or her private life, the State

helps to combat crime and permits ... immediate reaction to threats of criminal

offences that are particularly dangerous for society, serving to prevent them and

identifying the persons involved. When intercepting non-public conversations in the

cases established in section 7(5) of the Law on Operational Activities, the protection

of public safety is ensured.

Consequently, operational measures taken to prevent criminal offences

referred to in section 7(5) of the Law on Operational Activities must be regarded

as proportionate and compliant with Article 96 of the Constitution only if

approval by the President of the Supreme Court or a specially authorised judge

has been obtained irrespective of the time when the operational measures are

terminated.

19. The Applicant indicates that the [prosecutors office] cannot be regarded as aneffective remedy in respect of his rights within the meaning of Articles 8 and 13 of theConvention (see Case materials, Vol. 1, pp. 1718).

The Constitutional Court has already established in its case-law that [an application

to] the prosecutors office in Latvia may be regarded as an effective and availableremedy, because the status and the role of the prosecutor in the supervision of law

secures independent and impartial review of cases in compliance with Article 13 of

the Convention (see Judgment of 11 October 2004 by the Constitutional Court in the

case No. 2004-06-01. Para 19).

In the present case it is necessary to examine whether section 7(5) of the Law on

Operational Activities provides a person with protection compliant with Article 13 of

the Convention in cases where the right to the inviolability of private life and

correspondence guaranteed in the Convention is infringed.The Constitutional Court concludes that section 7(5) of the Law on Operational

Activities establishes circumstances ... where operational measures may be taken

immediately, as well as the procedure in accordance with which this has to be notified

to a prosecutor and approval by a judge is to be obtained. However, this provision is

not related to the right to an effective remedy under Article 13 of the Convention.

Consequently, the compliance of section 7(5) of the Law on Operational Activities

with Article 13 of the Convention must be assessed in conjunction with the first

sentence of section 35(1) of that Law, the latter establishing a mechanism for

monitoring operational measures and being contested by the Applicant as to its

compliance with Article 92 of the Constitution.

20. The Applicant indicates that the first sentence of section 35(1) of the Law on

Operational Activities fails to comply with Article 92 of the Constitution because ithas no legitimate aim and it is not necessary in a democratic society. The provision

fails to establish a procedure according to which the supervision and monitoring of

performance of operational measures would be carried out. In the monitoring of

operational measures, the first sentence of section 35(1) of the Law on Operational

Activities confers on the prosecutors office a broad margin of appreciation (see Casematerials, Vol. 1, pp. 2021).

21.1. ...

The Constitutional Court has already concluded in paragraph 17 above that [there is]

an obligation to request, in any event, the approval of the President of the Supreme

Court or a specially authorised judge in relation to operational measures.


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Consequently, the legislature has established such a regulatory framework for

operational measures that requires not only monitoring by a prosecutor but also

judicial supervision or at least subsequent judicial scrutiny of the lawfulness of the

measures taken and their compliance with the requirements of the law.

20.2. ...

The Constitutional Court has already indicated in its case-law that the prosecutorsoffice, as a judicial institution, has a twofold nature. On the one hand it is a single,

centralised three-level institutional system, under the management of the Prosecutor

General, buton the otherprosecutorial functions are carried out independently andsolely by officials of the prosecutors office, that is, the individual prosecutors (see

Judgment of 20 December 2006 by the Constitutional Court in the case No. 2006-12-

01, Para 12.2).

... As to the taking of operational measures referred to in section 7(4) of the Law onOperational Activities, in cases established in section 7(5), ... a prosecutor, that is, the

Prosecutor General or specialised prosecutors, must be notified within ... 24 hours (seeKavalieris A. Operatvs darbbas likuma komentri. Rga: Raka, 2002, pp. 26).Consequently, the Prosecutor General or specialised prosecutors also supervise the

lawfulness of operational measures.

Pursuant to section 22(2) of the Law on Operational Activities, operational

proceedings (operatv izstrde) are opened by a decision approved by a head ordeputy head of the operational activities authority and a prosecutor is informed about

this. Consequently, operational measures established in section 7(5) of the Law on

Operational Activities ... must be notified to the Prosecutor General or a specialised

prosecutor. The Constitutional Court indicates that in the event of receipt of such

notice, the public prosecutor must monitor the compliance of the investigative

operational measures with the requirements of the law, thus ensuring the observance

of the rights of the person concerned.20.3. The Applicant indicates that the possibility of securing protection for one s

rights is limited in cases where ones telephone calls are intercepted (see Casematerials, Vol. 1, pp. 10, 13, 18 and 22).

...

It follows from the afore-mentioned that the Prosecutor General and specialised

prosecutors review operational activities and, based on the results of such review,

provide an opinion on the lawfulness of operational activities ... Review is necessary

for the Prosecutor General and specialised prosecutors to ensure that operational

measures have been lawful. However, the effective regulatory framework also

establishes judicial supervision, including subsequent scrutiny. Consequently, [the

Constitutional Court does not] agree with the opinion that the effective regulatory

framework fails to provide independent subsequent scrutiny in respect of operational

measures.

Pursuant to section 29(3) of the Law on Operational Activities, if in the course of

operational activities the rights and interests of persons have been unlawfully

infringed and damage has been caused, the obligation of the relevant officials

(prosecutor or court) shall be to restore such rights and to compensate for or avert the

inflicted pecuniary and non-pecuniary damage in accordance with the law.

Consequently, it can be concluded that the Law on Operational Activities establishes

the responsibility of the officials of [the relevant body] in the case of any infringement

of fundamental rights.


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...

Consequently, the investigating authority and the court ensure the review of

the admissibility of information obtained by means of operational measures.However, the Prosecutor General and specialised prosecutors, by monitoring the

conformity of operational activities with the law, as well as the court in carrying

out subsequent scrutiny, ensure effective protection of a persons rights.

...

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Constitution (Satversme)

25. The relevant Articles of the Constitution provide:

Article 85

In Latvia, there shall be a Constitutional Court [Satversmes tiesa], which, withinthe limits of its jurisdiction as provided for by law, shall review cases concerning the

compliance of laws with the Constitution, as well as other matters regarding which

jurisdiction is conferred upon it by law. The Constitutional Court shall have the right

to declare laws or other enactments or parts thereof invalid ...

Article 89

The State shall recognise and protect fundamental human rights in accordance withthis Constitution, laws and international agreements binding upon Latvia.

Article 92

Everyone has the right to defend his or her rights and lawful interests in a faircourt. Everyone shall be presumed innocent until his or her guilt has been established

in accordance with the law. Everyone whose rights are violated without justification

has the right to commensurate compensation. Everyone has the right to the assistance

of counsel.

Article 96

Everyone has the right to inviolability of his or her private life, home andcorrespondence.

Article 116

The rights of persons set out in Articles 96 ... of the Constitution may be subject torestrictions in circumstances provided for by law in order to protect the rights of

others, the democratic structure of the State, public safety, welfare and morals ...

B. The Law on Operational Activities (as in force at the material

time, with amendments effective until 31 December 2009)

26. The term operational activities covers all operations, covert or

otherwise, of specially authorised State institutions that are aimed at


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protecting individuals, the independence and sovereignty of the State, the

constitutional system, the countrys economic and scientific potential, and

classified information, from external or internal threats (section 1).Operational activities are aimed, inter alia, at preventing and detecting

criminal offences, tracing the perpetrators of criminal offences, and finding

sources of evidence (section 2).

27. As to when the Law on Operational Activities is to be applied,

section 4(4) contains an explanation to the effect that operational activities

are to be undertaken only when the goals and tasks set out in sections 1

and 2 could not be achieved or fulfilled in any other way, or if the said

achievement of goals and fulfilment of tasks would otherwise be

significantly hampered.

28. Section 5 provides:

Article 5 - Protection of Rights and Freedoms of Individuals

If an individual believes that a body carrying out operational activities (operatvsdarbbas subjekts) has infringed his lawful rights and freedoms, he or she is entitled tolodge a complaint with the prosecutor, who shall conduct an examination and issue a

conclusion (atzinums) concerning the lawfulness of the contested actions of the

official of the body carrying out operational activities (operatvs darbbas subjekta

amatpersona), or the individual may bring an action before the court.

29. Section 7(5) provides:

When an immediate action is required to prevent acts of terrorism, murder,banditry, rioting or any other serious or especially serious crimes, as well as in the

circumstances of a real threat to the life, health or property of an individual, theoperational measures provided in paragraph 4 of the present section [monitoring of

correspondence, obtaining information from technical devices, covert interception of

non-public conversations (including telephone conversations and communication

using electronic and other means) and entering premises] may be taken without

approval (akcepts) by a judge. The prosecutor shall be informed within 24 hours and

the judges approval shall be obtained within 72 hours. Otherwise, the operationalmeasures shall be discontinued.

30. Section 35 provides:

(1) The Prosecutor General and prosecutors specially authorised by him shall be

responsible for monitoring (uzraudzba) the conformity of operational activities withthe law. For the purposes of monitoring they shall be entitled to consult such

documents, materials and information, at any stage of the operational activities, as are

available to the investigating body (operatvs darbbas iestde). Secret informationand its sources shall be revealed only to the Prosecutor General, or to the prosecutors

specially authorised by him with the permission of the head of the investigating body.

(2) In order to take a decision with respect to operational measures which require

approval by a judge, the judge shall be entitled to consult those documents, materials

and information available to the investigating body on which the necessity for the

operational measure, according to the special method, is based. Secret information and

its sources shall be revealed to the judge only with the permission of the head of the

investigating body.


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C. The Law on the Constitutional Court

31. Section 16 of the Law on the Constitutional Court provides that thatcourt is competent to examine only the following matters:

(i) compliance of laws with the Constitution;

(ii) compliance with the Constitution of international agreements signed or entered

into by Latvia (even before [parliament] has confirmed the agreement);

(iii) compliance of other legal instruments or parts thereof with the legal norms

(instruments) of superior legal force;

(iv) compliance of other instruments (with the exception of administrative acts) by

[parliament], the Cabinet of Ministers, the President, the Speaker of [parliament] and

Prime Minister with the law;

(v) compliance of Regulations, by which a Minister, authorised by the Cabinet ofMinisters, has suspended binding regulations issued by a Local Government Council,

with the law;

(vi) compliance of the national legal norms of Latvia with the international

agreements entered into by Latvia, which are not incompatible with the Constitution.

32. Section 17 of the Law on the Constitutional Court provides that any

person who considers that his or her fundamental rights have been breached

has the right to submit an application to the Constitutional Court.

33. Section 192 of the Law on the Constitutional Court provides:

(1) Any person who considers that a legal provision, which is not in compliancewith a provision having superior legal force, has infringed his or her fundamental

rights under the Constitution may lodge a constitutional complaint (an application)with the Constitutional Court.

(2) A constitutional complaint (an application) may be lodged only after exhaustion

of all the possibilities for securing protection of such rights through ordinary legal

remedies (appeal to a higher authority, appeal or application to a court of general

jurisdiction, etc.) or where no such remedies exist.

(3) Where examination of a constitutional complaint (an application) is in the public

interest or where legal protection of the rights in question viaordinary remedies does

not enable the appellant to avoid substantial damage, the Constitutional Court may

decide to examine the application even before all other domestic remedies have been

exhausted.

(4) A constitutional complaint (an application) may be lodged within six months ofthe date on which the decision of the highest instance becomes final.

(5) The submission of a constitutional complaint (an application) shall not suspend

the execution of a judicial decision, except in cases where the Constitutional Court

decides otherwise.

(6) In addition to its substance, as required by section 18(1) of the present Law, a

constitutional complaint (an application) must contain submissions concerning:

(i) the violation of the appellants fundamental human rights as provided in theConstitution, and;

(ii) the exhaustion of all ordinary remedies or the fact that no such remedies exist.


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(7) The following information must be appended to a constitutional complaint (an

application):

(i) the explanations and documentation required to establish the facts of the case;

(ii) documents certifying that, where they exist, all ordinary remedies have been

exhausted.

34. Section 22(1) provides that the President of the Constitutional Court

assigns a case to one of the judges for preparation. It is for the judge to

decide which institutions or officials are to be requested to submit additional

information or documents and to determine any third parties (pieaicints

persons) who will be requested to submit their opinions (section 22(2)-(3)).

Any person may be recognised by a judge as a third party, if that personsopinion would facilitate comprehensive and objective adjudication

(section 22(3)). A judge completes his or her preparation of the case byissuing a preliminary opinion (atzinums par lietas sagatavoanu

izskatanai), and if he or she considers that the proceedings could be

conducted in accordance with a written procedure, he or she includes a

proposal to that effect in the preliminary opinion (section 22(8)). The

preparation of the case is completed when the President of the

Constitutional Court issues a decision concerning adjudication (lmums par

lietas nodoanu izskatanai), determining the composition of the bench and

scheduling the time and place for a preparatory meeting (rcbas sde)

(section 22(9)). One of the matters to be decided in the preparatory meeting

is whether or not to conduct proceedings in accordance with a written

procedure (section 22(10)(1)). Lastly, if the written procedure is to befollowed, the parties are to be informed about this decision (section 22(13)).


After a decision concerning adjudication (lmums par lietas nodoanu izskatanai)has been taken, the parties to the case the applicant and the institution or authority

which has issued the impugned provision may acquaint themselves with the casematerials.

36. Section 281 (with amendments effective until 30 June 2011) of the

Law on the Constitutional Court provides:

Section 281- Written Procedure

(1) In circumstances where the case materials are sufficient for adjudication of thecase by a written procedure, a hearing with the participation of the parties need not be

held. Adjudication of a case by a written procedure shall be determined in accordance

with section 22(10) of the present Law.

(2) Within fifteen days of receipt of a notification regarding a matter being

adjudicated by a written procedure, the parties shall have the right to acquaint

themselves with the case materials and express their opinion regarding them in

writing.

(3) The case shall be adjudicated by the written procedure and the judgment shall be

made in the deliberation room.


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(1) The judgment of the Constitutional Court shall be final. It shall take legal

effect at the time of delivery.

(2) The judgment of the Constitutional Court shall be binding on all State and

municipal institutions and authorities, including the courts, and also on natural

persons and legal entities.

(3) Any legal provision or act which the Constitutional Court has found

incompatible with the legal provision having superior legal force shall be considered

invalid from the date of publication of the Constitutional Court s judgment, unless theConstitutional Court rules otherwise.

(4) If the Constitutional Court has declared any international agreement signed or

entered into by Latvia as incompatible with the Constitution, the Cabinet of Ministers

shall ensure that amendments to the agreement are made without delay, or otherwise

decide upon the denunciation of the agreement, the suspension of its operation or therevocation of accession.

38. Section 32(2) of the Law on the Constitutional Court was amended

to provide that the interpretation of a legal provision provided by the

Constitutional Court would also be binding. The amendment was effective

from 1 January 2010.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

39. The applicant complained that the proceedings before the

Constitutional Court had not been public and that he had been denied a right

to be heard as provided for in Article 6 1 of the Convention, which in its

relevant part reads as follows:

In the determination of his civil rights and obligations ... everyone is entitled to afair and public hearing ... by [a] ... tribunal ...

A. Applicability of Article 6 1

40. The Government contested the applicability of Article 6 1 to the

proceedings in question, arguing that there was no criminal charge, civilright or dispute in the present case.

41. The applicant did not provide any comment in this connection.

42. The Court reiterates that proceedings come within the scope of

Article 6 1, even if they are conducted before a Constitutional Court,

where their outcome is decisive for civil rights and obligations (see

Smann v. Germany, 16 September 1996, 41, Reports of Judgments and

Decisions1996-IV).


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43. More generally, for Article 6 1 in its civil limb to be applicable,there must be a dispute (contestation in the French text) over a right

which can be said, at least on arguable grounds, to be recognised underdomestic law, irrespective of whether it is protected under the Convention.

The dispute must be genuine and serious; it may relate not only to the actual

existence of a right but also to its scope and the manner of its exercise; and,

finally, the result of the proceedings must be directly decisive for the right

in question, mere tenuous connections or remote consequences not being

sufficient to bring Article 6 1 into play (see Boulois v. Luxembourg [GC],

no. 37575/04, 90, ECHR 2012)

44. The Court nevertheless considers that it is unnecessary to reach a

conclusion as to whether Article 6 1 applied to the constitutional

proceedings in the present case for the reasons outlined below.

B. Compliance with Article 6 1

1. Partiessubmissions

45. In his application to the Court the applicant submitted that he had not

been given the possibility of personally explaining his case, whichinvolved questions of both fact and law, before the Constitutional Court. He

considered that there had been no legal grounds for refusing to hold a public

hearing in his case. Article 6, as a whole, provided for the right to be heard.

In his case, the written procedure before the Constitutional Court had

significantly interfered with his fair trial rights. He had not been able to seethe case materials before the decision concerning adjudication was taken,

but he admitted that afterwards he had been entitled to see them and express

his opinion prior to the preparatory hearing, which took place on 25 January

2011. At the preliminary stage of the proceedings, he had not been able to

find out which institutions or officials had been requested to submit

information, documents or opinions. The applicant believed that such legal

regulation allowed unfettered discretion for the relevant judge to gather

evidence according to his or her own subjective views. He could not fully

participate in the gathering of evidence, that is, by choosing third parties to

the case and asking them questions. He admitted that the written procedure

before the Constitutional Court as such did not infringe his right to be heard,but submitted that this had to be examined in each particular case and that

the court was not allowed to reject a request in connection with the

gathering of evidence without examining its necessity, significance or

procedural legal grounds.

46. The Government pointed out that, according to the Courts case-law,the obligation to hold a (public) hearing was not absolute. They argued that

the absence of a hearing before the Constitutional Court in proceedings

following an individual constitutional complaint was justified by that


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courts special role and the specific nature of the proceedings before it,which involved exclusively legal issues and not the establishment of facts

(they referred toJurii v. Croatia, no. 58222/09, 90, 26 July 2011). TheGovernment submitted that in proceedings involving only questions of law,

as opposed to questions of fact, a hearing was not required, provided that

one had been held before a lower court (they referred to Hermi v. Italy

[GC], no. 18114/02, 60-61, ECHR 2006-XII). As regards the

constitutional courts in particular, a hearing was not normally required as

their competence was limited to an examination of constitutional issues and

entailed an assessment of points of law and not facts (they referred to Zippel

v. Germany(dec.), no. 30470/96, 23 October 1997; Weh and Weh v. Austria

(dec.), no. no. 38544/97, 4 July 2002; and Prischl v. Austria, no. 2881/04,

20-22, 26 April 2007).

47. There was only one exception where a hearing would be requiredbefore a constitutional court where the latter was the only body whichcould determine the dispute between an applicant and the national

authorities (Kugler v. Austria, no. 65631/01, 50, 14 October 2010). The

Government argued that this exception was not applicable in the present

case. The lawfulness of the interception had already been examined by the

prosecutors office, which in their submission was an institution exercisinga judicial function, and the admissibility of evidence obtained as a result

would be examined in the criminal proceedings, where hearings were held

at first and second instance. The Constitutional Court could address only the

specific question of the compliance of the impugned legal provisions with

the Constitution. Lastly, there was no information as to why his complaint

could not be decided on the basis of the case file alone (they referred to

section 281of the Law on the Constitutional Court).

2. The Courts assessment

48. The Court recognises not only the special role and status of

constitutional courts, but also the special nature of constitutional appeals,

which, in those States that have made provision for a right of individual

petition, afford additional legal protection to citizens at national level in

respect of their fundamental rights guaranteed in the Constitution (see

Smann, cited above, 37, andHesse-Anger and Anger v. Germany(dec.),no. 45835/99, ECHR 2001-VI (extracts)). Proceedings before a

Constitutional Court have their own characteristics, which take account of

the specific nature of the legal rules to be applied and the implications of the

constitutional decision for the legal system in force. They are also intended

to enable a single body to adjudicate on a large number of cases relating to

very different subjects (see Ruiz-Mateos v. Spain, 23 June 1993, 63,

Series A no. 262). The constitutional proceedings may be limited to the

examination of questions of constitutionality, which do not necessarily


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involve a direct and full determination of civil rights (see Malhous

v. the Czech Republic[GC], no. 33071/96, 62, 12 July 2001).

49. The Court observes that the Constitutional Court in Latvia examines,inter alia, individual complaints challenging the constitutionality of a legal

provision or its compliance with a provision that has superior legal force

(see, for a recent authority, Larionovs and Tess v. Latvia (dec.),

nos. 45520/04 and 19363/05, 141-142, 25 November 2014). While the

public character of court hearings constitutes a fundamental principle,

Article 6 1 of the Convention does not guarantee an absolute right to a

public hearing, irrespective of the nature of the issues to be determined (see

Hesse-Anger and Anger, cited above). A hearing may not be necessary, for

example, when it raises no questions of fact or law which cannot be

adequately resolved on the basis of the case file and the parties written

observations (see, among many other authorities, Keskinen and VeljeksetKeskinen Oy v. Finland, no. 34721/09, 33, 5 June 2012).

50. The Court notes that the applicant himself admitted that the written

procedure before the Constitutional Court as such did not infringe his right

to be heard. It appears from his submissions before the Court that he merely

wished to be able to express his opinion at an earlier stage of the

proceedings than was provided for by law. The Court notes that the judge

replied to the applicants request explaining the relevant procedure and

stages in the proceedings before the Constitutional Court, with reference to

the relevant domestic law provisions. In particular, the judge clarified that

the applicant could see the case material at a later stage, that is, after the

decision concerning adjudication had been taken (see paragraph 18 above).

Subsequently, the applicant was able to submit his comments in connection

with the case material, including the written submissions filed by Parliament

and by all third parties (contrast withRuiz-Mateos, cited above, 65-68).

51. As to the applicants allegation that the relevant judge could gatherevidence, the Court notes that in the constitutional proceedings under

Latvian law the judge to whom the case has been assigned gathers the

necessary evidence and information in order to prepare the case for

adjudication (see paragraph 34 above). In the present case, the applicant

admitted that he could, and indeed did, see the case material and had the

opportunity to express his views, including on the possibility of holding anoral hearing in the case before the preparatory meeting (see paragraphs 21-

22 and 45 above). Moreover, the applicant was also afforded the possibility

of providing comment on the case material after the preparatory meeting

had taken place (see paragraph 23 above and contrast with Jurii, cited

above, 75-78).

52. The Court will now examine the applicants argument concerning

the lack of a public hearing before the Constitutional Court. In the present

case the Constitutional Court was the only judicial body competent to deal

with the applicants complaint (see, mutatis mutandis, Hesse-Anger and


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Anger, cited above). It is true that, where proceedings are conducted at only

one level of jurisdiction, the right to a public hearing within the meaning

of Article 6 1 of the Convention may entail an entitlement to an oralhearing (see Fredin v. Sweden (no. 2), 23 February 1994, 21, Series Ano. 283-A). The Court notes, however, that the review undertaken in the

present case related to constitutionality of legal provisions and not to factual

issues, as argued by the applicant.

53. In the present case the Constitutional Court decided that the case

material was sufficient for the case to be examined using a written

procedure (see paragraph 23 above) in accordance with the domestic law.

The applicant did not complain that this decision was arbitrary, he merely

wished to personally explain his case before the Constitutional Courtwithout providing more substance to this argument. The only argument the

applicant advanced in this connection was that there had been no legalgrounds for such decision to be taken. The Government relied on section

281of the Law on the Constitutional Court and the applicant did not dispute

this.

54. The foregoing considerations are sufficient to enable the Court to

conclude that it was not necessary to hold a public hearing before the

Constitutional Court in the present case. Even assuming that Article 6 1

applies to the constitutional proceedings, it follows that this complaint is

manifestly ill-founded and must be rejected in accordance with Article 35

3 (a) and 4 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

55. The applicant complained that on account of the interception of his

telephone conversations his right to respect for his private life and for his

correspondence had been violated. The relevant part of Article 8 of the

Convention provides as follows:

1. Everyone has the right to respect for his private ...life ... 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

in the interests of national security, public safety or the economic well-being of the

country, for the prevention of disorder or crime, for the protection of health or morals,or for the protection of the rights and freedoms of others.

56. The Government contested that argument.

A. Admissibility

57. The Court notes that this complaint is not manifestly ill-founded

within the meaning of Article 35 3 (a) of the Convention. No other ground


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for declaring it inadmissible has been established. It must therefore be

declared admissible.

B. Merits


58. The applicant maintained that there had been an interference with his

right to respect for his private life and his correspondence. He did not deny

that there had been a statutory basis for the interference under section 7(5)

of the Law on Operational Activities. He complained about the quality of

the law and argued that it had left too much discretion for domestic

authorities to choose how to apply it and that arbitrariness in its application

could not be excluded. Under section 7(5) the prosecutor could merelyapprove the interference without examining the facts of each case. In effect,

that provision allowed operational measures to be taken without prior

judicial authorisation, only requiring that the prosecutors office beinformed within 24 hours. In the applicants case, the authorisation was notsought from the judge within 72 hours, in breach of domestic law. As to the

question of a legitimate aim, the applicant pointed out that the criminal

proceedings had been instituted only on 30 December 2005; thus, the

telephone interception could not have been carried out in connection with

those proceedings. In his submission, the telephone interception under the

Law on Operational Activities had been carried out in order to circumvent

the regular procedure (under the Criminal Procedure Law) of obtaining priorauthorisation by a judge.

59. The Government did not deny that there had been an interference

with the applicants right to respect for his private life and correspondence.They believed, however, that the interference at issue was prescribed by

law, pursued a legitimate aim and was necessary in a democratic society.

The interference had resulted from the interception of A.B.s telephone

conversations, which had been authorised under section 7(5) of the Law on

Operational Activities. In the Governments view this was sufficient toconclude that the criterion of lawfulness was met in the present case.

Moreover, the lawfulness of the interception had subsequently been

confirmed on several occasions by the prosecutors office in response to theapplicants complaints (paragraphs 11-15 above). They claimed that it had

also been verified by the relevant judge of the Criminal Cases Chamber of

the Supreme Court (in the context of the criminal proceedings). Lastly, they

referred to the findings of the Constitutional Court confirming that the said

provision had been sufficiently clear and precise as to exclude arbitrariness.

Namely, the said provision contained an exhaustive list of offences and the

necessary precondition for its application was a situation requiring

immediate action. Furthermore, the Government submitted that the


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interference at issue had pursued the legitimate aim of preventing crime,

given that it had been carried out in the framework of criminal proceedings

in connection with aggravated bribery. In response to the applicantsargument, they further reiterated that owing to the rapid development of

events from 27 to 30 December 2005 no measures other than the operational

interception of telecommunications would have been efficient for gathering

credible information about the details of and accomplices involved in the

bribery scheme.


60. At the outset the Court notes that it is common ground between the

parties that the interception of the applicants telephone conversationsconstituted an interference with his right to respect for his private life and

correspondence and that this interference was attributable to the State. The

Court sees no reason to hold otherwise (see, for example, Weber and

Saravia v. Germany (dec.), no. 54934/00, 77, ECHR 2006-XI and the

cases cited therein).

61. It is therefore necessary to examine whether this interference was

justified under the terms of paragraph 2 of that Article: whether it was in

accordance with the law and necessary in a democratic society for one ofthe purposes enumerated in that paragraph.

62. The Court observes that the expression in accordance with the law

not only requires compliance with domestic law but also relates to the

quality of that law, requiring it to be compatible with the rule of law. In thecontext of covert surveillance by public authorities, domestic law must

provide protection against arbitrary interference with an individuals right

under Article 8. Moreover, the law must be sufficiently clear in its terms to

give individuals an adequate indication of the circumstances and conditions

in which public authorities are entitled to resort to such covert measures (see

Khan v. the United Kingdom, no. 35394/97, 26, ECHR 2000-V).

63. The Court observes that the applicants arguments relating to thetext, scope and clarity of section 7(5) of the Law on Operational Activities

were examined in detail by the Latvian Constitutional Court; it is not the

Courts task to re-examine those arguments. The Court observes that under

that provision the prosecutor [must] be informed within 24 hours and thejudges approval [must] be obtained within 72 hours; otherwise, theoperational measures [must] be discontinued. The Constitutional Court

examined this provision in connection with other relevant domestic-law

provisions (see the Constitutional Courts analysis in paragraphs 13 and 17of its judgment, paragraph 24 above) and concluded that a prosecutor must

always be informed and that approval by the President of the Supreme

Court or a specially authorised judge must always be sought, also in the

circumstances where the operational measures had been terminated in less

than 72 hours (see paragraph 17.3 of its judgment, paragraph 24 above).


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64. In the present case, the applicant submitted and the Government did

not deny that the relevant authority the KNABnever sought an ex post

facto approval by the President of the Supreme Court or a speciallyauthorised judge. Indeed, as can be seen from the submissions by the

KNAB before the Constitutional Court, it had been the authoritys opinion

that expost facto approval was not required in all casesnamely, that it wasnot required if the operational measures were terminated in less than

72 hours. This argument was expressly dismissed by the Constitutional

Court (see paragraph 17.2 in fineof its judgment, paragraph 24 above). The

Court finds that, in accordance with the relevant Latvian law, as interpreted

by the Constitutional Court, the expost facto approval by the President of

the Supreme Court, or a specially authorised judge, of the operational

measures was required in the circumstances of the present case,

notwithstanding that the interception of the telephone conversations wasterminated in less than 72 hours. This conclusion is not altered by the fact

that the lawfulness of these measures was confirmed by various prosecutors.

Their conclusions were limited to section 35(1) of the Law on Operational

Activities (see paragraphs 12 and 15 above) and, in any event, their review

was carried out before the Constitutional Court adopted its judgment in the

present case providing for an authoritative interpretation of section 7(5) of

that Law. The Court would add that the domestic authorities are bound by

the interpretation given by the Constitutional Court in accordance with

section 32 of the Law on the Constitutional Court (see paragraphs 37 and 38

above).

65. Having found that the expost factoapproval by the President of the

Supreme Court or a specially authorised judge, as required by section 7(5)

of the Law on Operational Activities following the interpretation of the

Constitutional Court, was never sought in the applicants case, the Court

does not consider it necessary to examine whether other conditions set out

in the domestic law for the application of the operational measures were met

in the present case.

66. The foregoing considerations are sufficient for the Court to conclude

that the interception of the applicants telephone conversations was not inaccordance with the law within the meaning of Article 8 2 of the

Convention. Consequently, there has been a violation of Article 8. Havingregard to this conclusion, the Court does not consider it necessary to review

compliance with the other requirements of Article 8 2 in this case (see

Petrova v. Latvia, no. 4605/05, 98, 24 June 2014).

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

67. The applicant further complained that there were no effective

remedies in the Latvian legal system in respect of breaches of Article 8

rights. He complained about the fact that the review of operational activities


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in Latvia was entrusted to prosecutors and not subject to independent

judicial scrutiny.

68. Article 13 of the Convention provides as follows: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.

69. The Government contested that argument.

A. Admissibility

70. Having regard to its findings under Article 8 of the Convention, the

Court considers that the applicants complaint raised an arguable claim

under the Convention and that, accordingly, he was entitled to an effectiveremedy in order to enforce his rights under that Article (seeAssociation for

European Integration and Human Rights and Ekimdzhiev v. Bulgaria,

no. 62540/00, 98, 28 June 2007).

71. The Court notes that this complaint is not manifestly ill-founded

within the meaning of Article 35 3 (a) of the Convention. No other ground

for declaring it inadmissible has been established. It must therefore be

declared admissible.

B. Merits


72. The applicant maintained that an application to the prosecutors

office could not be considered an effective means by which to ensure

protection of his rights. He submitted that the role of the prosecutors officewas, on the one hand, to review and approve operational activities under the

Law on Operational Activities and, on the other, to prosecute individuals

and bring them to trial on behalf of the State. He thus disagreed with the

Government that the prosecutors office could be considered a judicialinstitution in Latvia.

73. The Government noted that the applicant had asked the prosecutors

office to provide information about the operational measures, theirlawfulness and the subsequent actions by the KNAB. In their submission,

the prosecutors office was an institution exercising judicial functions (theyreferred to section 1(1) of the Law on the Prosecutors Office and theConstitutional Courts ruling in case no. 2004-06-01, referred to by the

Constitutional Court in paragraph 19 of its judgment in the present case, see

paragraph 24 above). The prosecutors office had examined every facet ofthe applicants complaint. As regards the proceedings before the

Constitutional Court, the Government emphasised that pursuant to

section 655(2)(4) of the Criminal Procedure Law its judgment would serve


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as a sufficient basis for the re-opening of terminated proceedings. However,

given that the criminal proceedings in the applicants case were still

pending, they referred to section 2(2) of the Criminal Procedure Law, whichprovided that the interpretation of a legal provision by the Constitutional

Court was binding on domestic criminal courts in terms of its assessment of

the lawfulness of the operative measures against the applicant and the co-

accused, as well as the admissibility of evidence obtained in that

connection. The Government concluded that the proceedings before the

Constitutional Court were an effective remedy under Article 13 of the

Convention.

74. Lastly, the Government relied on section 5 of the Law on

Operational Activities to argue that a compensatory mechanism was also

available. They referred to domestic case-law where the first-instance court

examined a civil claim brought by I.J. against the State concerning unlawfulinterception of her telephone conversations under that Law and awarded

compensation (case no. C04381306, judgment of 9 February 2007). In the

present case, however, given that no breaches of that Law were found by the

prosecutors office, the applicant was not entitled to compensation.


75. As the Court has held on many occasions, Article 13 of the

Convention guarantees the availability at national level of a remedy to

enforce the substance of the Convention rights and freedoms in whatever

form they may happen to be secured in the domestic legal order. The effectof Article 13 is thus to require the provision of a domestic remedy to deal

with the substance of an arguable complaint under the Convention and to

grant appropriate relief, although Contracting States are afforded some

discretion as to the manner in which they conform to their Convention

obligations under this provision (see, for example, Bazjaks v. Latvia,

no. 71572/01, 127, 19 October 2010, with further references).

76. The Court notes that effective domestic remedies required under

Article 13 in the context of Article 8 complaints, as regards operational

measures, are not limited to the issue raised in the present application. In

Association for European Integration and Human Rights and Ekimdzhiev

the Court reiterated that in the context of secret surveillance an effectiveremedy under Article 13 meant a remedy that was as effective as it could be

having regard to the restricted scope for recourse inherent in such a system.

In that case the Court verified whether there existed under Bulgarian law

remedies which were effective in this limited sense. The Court noted that

review of surveillance might intervene at three stages: when it was first

ordered, while it was being carried out, or after it had been terminated (see

Association for European Integration and Human Rights and Ekimdzhiev,

cited above, 99).


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77. In the present case, however, the applicants complaint underArticle 13 before the Court is limited only to an allegation that the Latvian

legal system did not provide for independent judicial supervision overoperational measures. The present case does not concern the availability of

compensatory remedies in Latvia (see, for example, Klass and Others

v. Germany, 6 September 1978, 71, Series A no. 28).

78. The Court observes that the applicants allegation in the present case(see paragraph 67 above) has already been examined and dismissed by the

Latvian Constitutional Court. In particular, it held that the regulatory

framework in Latvia required not only monitoring of operational measures

by a prosecutor, but also provided for independent judicial scrutiny of the

lawfulness of the measures taken (see paragraphs 20.1 in fineand 20.3 of

the Constitutional Courts judgment, paragraph 24 above).

79. In so far as the applicants complaint relates to the lack of a judgesapproval of the interception of his telephone conversations, this issue has

been examined under Article 8 of the Convention above. The Court

considers that in the circumstances of this case it is not necessary to

examine the same issue under Article 13 of the Convention (see, for

example, Copland v. the United Kingdom, no. 62617/00, 51, ECHR

2007-I).

80. The Court concludes that there has been no violation of Article 13 of

the Convention.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

81. The applicant further complained under Article 10 of the Convention

about certain actions taken by the President of the Constitutional Court

against his lawyer.

82. The Court considers this complaint to be incompatible ratione

personae with the provisions of the Convention within the meaning of

Article 35 3 (a) of the Convention. It must therefore be rejected in

accordance with Article 35 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

83. Article 41 of the Convention provides:

If the Court finds that there has been a violation of the Convention or the Protocolsthereto, 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.


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A. Damage

84. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage sustained by him.

85. The Government disagreed and considered this sum unjustified,

excessive and exorbitant.

86. Deciding on an equitable basis, the Court awards the applicant

EUR 2,500 in respect of non-pecuniary damage.

B. Default interest

87. 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 complaints under Articles 8 and 13 of the Convention

admissible and the remainder of the application inadmissible;

2. Holdsthat there has been a violation of Article 8 of the Convention;

3. Holdsthat there has been no violation of Article 13 of the Convention;

4. Holds

(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 2,500 (two thousand five

hundred 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. Dismissesthe remainder of the applicants claim for just satisfaction.


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Done in English, and notified in writing on 21 July 2015, pursuant to

Rule 77 2 and 3 of the Rules of Court.

Fato Arac Guido Raimondi

Deputy Registrar President

case of meimanis v. latvia

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